Bill Text: FL H7125 | 2010 | Regular Session | Introduced

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Bill Title: Criminal Penalties for Violations of Tax Statutes

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2010-04-30 - Died in Messages [H7125 Detail]

Download: Florida-2010-H7125-Introduced.html

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HB 7125

1	A bill to be entitled
2	An act relating to criminal penalties for violations of
3	tax statutes; amending s. 212.07, F.S.; conforming a
4	cross-reference to changes made by the act; imposing an
5	additional monetary penalty on a dealer for willfully
6	failing to collect certain taxes or fees after notice of a
7	duty to collect the taxes or fees by the Department of
8	Revenue; specifying a schedule of criminal penalties
9	relating to amounts not collected; defining the term
10	"willful"; requiring the department to send written notice
11	of the duty to register by certain specified means;
12	amending s. 212.12, F.S.; revising provisions imposing an
13	additional monetary penalty on persons making false or
14	fraudulent returns with a willful intent to evade payment
15	of taxes or fees; specifying a schedule of criminal
16	penalties relating to amounts not paid; deleting
17	provisions relating to criminal penalties for failing to
18	register as a dealer or to collect tax after notice from
19	the Department of Revenue; amending s. 212.18, F.S.;
20	revising requirements for registration of dealers;
21	revising penalties for failing or refusing to register as
22	a dealer; providing a criminal penalty for willfully
23	failing to register as a dealer after notice by the
24	Department of Revenue; defining the term "willful";
25	requiring the department to send written notice of the
26	duty to register by certain specified means; providing an
27	effective date.
28
29	Be It Enacted by the Legislature of the State of Florida:
30
31	Section 1. Subsections (1) and (3) of section 212.07,
32	Florida Statutes, are amended to read:
33	212.07 Sales, storage, use tax; tax added to purchase
34	price; dealer not to absorb; liability of purchasers who cannot
35	prove payment of the tax; penalties; general exemptions.-
36	(1)(a) The privilege tax herein levied measured by retail
37	sales shall be collected by the dealers from the purchaser or
38	consumer.
39	(b) A resale must be in strict compliance with s. 212.18
40	and the rules and regulations, and any dealer who makes a sale
41	for resale which is not in strict compliance with s. 212.18 and
42	the rules and regulations shall himself or herself be liable for
43	and pay the tax. Any dealer who makes a sale for resale shall
44	document the exempt nature of the transaction, as established by
45	rules promulgated by the department, by retaining a copy of the
46	purchaser's resale certificate. In lieu of maintaining a copy of
47	the certificate, a dealer may document, prior to the time of
48	sale, an authorization number provided telephonically or
49	electronically by the department, or by such other means
50	established by rule of the department. The dealer may rely on a
51	resale certificate issued pursuant to s. 212.18(3)(d)(c), valid
52	at the time of receipt from the purchaser, without seeking
53	annual verification of the resale certificate if the dealer
54	makes recurring sales to a purchaser in the normal course of
55	business on a continual basis. For purposes of this paragraph,
56	"recurring sales to a purchaser in the normal course of
57	business" refers to a sale in which the dealer extends credit to
58	the purchaser and records the debt as an account receivable, or
59	in which the dealer sells to a purchaser who has an established
60	cash or C.O.D. account, similar to an open credit account. For
61	purposes of this paragraph, purchases are made from a selling
62	dealer on a continual basis if the selling dealer makes, in the
63	normal course of business, sales to the purchaser no less
64	frequently than once in every 12-month period. A dealer may,
65	through the informal protest provided for in s. 213.21 and the
66	rules of the Department of Revenue, provide the department with
67	evidence of the exempt status of a sale. Consumer certificates
68	of exemption executed by those exempt entities that were
69	registered with the department at the time of sale, resale
70	certificates provided by purchasers who were active dealers at
71	the time of sale, and verification by the department of a
72	purchaser's active dealer status at the time of sale in lieu of
73	a resale certificate shall be accepted by the department when
74	submitted during the protest period, but may not be accepted in
75	any proceeding under chapter 120 or any circuit court action
76	instituted under chapter 72.
77	(c) Unless the purchaser of tangible personal property
78	that is incorporated into tangible personal property
79	manufactured, produced, compounded, processed, or fabricated for
80	one's own use and subject to the tax imposed under s.
81	212.06(1)(b) or is purchased for export under s. 212.06(5)(a)1.
82	extends a certificate in compliance with the rules of the
83	department, the dealer shall himself or herself be liable for
84	and pay the tax.
85	(3)(a) A Any dealer who fails, neglects, or refuses to
86	collect the tax or fees imposed under this chapter herein
87	provided, either by himself or herself or through the dealer's
88	agents or employees, is, in addition to the penalty of being
89	liable for and paying the tax himself or herself, commits guilty
90	of a misdemeanor of the first degree, punishable as provided in
91	s. 775.082 or s. 775.083.
92	(b) A dealer who willfully fails to collect a tax or fee
93	after the department provides notice of the duty to collect the
94	tax or fee is liable for a specific penalty of 100 percent of
95	the uncollected tax or fee. This penalty is in addition to any
96	other penalty that may be imposed by law. A dealer who willfully
97	fails to collect taxes or fees totaling:
98	1. Less than $300:
99	a. For a first offense, commits a misdemeanor of the
100	second degree, punishable as provided in s. 775.082 or s.
101	775.083.
102	b. For a second offense, commits a misdemeanor of the
103	first degree, punishable as provided in s. 775.082 or s.
104	775.083.
105	c. For a third or subsequent offense, commits a felony of
106	the third degree, punishable as provided in s. 775.082, s.
107	775.083, or s. 775.084.
108	2. An amount equal to $300 or more, but less than $20,000,
109	commits a felony of the third degree, punishable as provided in
110	s. 775.082, s. 775.083, or s. 775.084.
111	3. An amount equal to $20,000 or more, but less than
112	$100,000, commits a felony of the second degree, punishable as
113	provided in s. 775.082, s. 775.083, or s. 775.084.
114	4. An amount equal to $100,000 or more, commits a felony
115	of the first degree, punishable as provided in s. 775.082, s.
116	775.083, or s. 775.084.
117	(c) As used in this subsection, the term "willful" means a
118	voluntary and intentional violation of a known legal duty.
119	(d) The department shall give written notice of the duty
120	to collect taxes or fees to the dealer by personal service, by
121	sending notice to the dealer's last known address by registered
122	mail, or by both personal service and mail.
123	Section 2. Paragraph (d) of subsection (2) of section
124	212.12, Florida Statutes, is amended to read:
125	212.12 Dealer's credit for collecting tax; penalties for
126	noncompliance; powers of Department of Revenue in dealing with
127	delinquents; brackets applicable to taxable transactions;
128	records required.-
129	(2)
130	(d) A Any person who makes a false or fraudulent return
131	with a willful intent to evade payment of any tax or fee imposed
132	under this chapter is; any person who, after the department's
133	delivery of a written notice to the person's last known address
134	specifically alerting the person of the requirement to register
135	the person's business as a dealer, intentionally fails to
136	register the business; and any person who, after the
137	department's delivery of a written notice to the person's last
138	known address specifically alerting the person of the
139	requirement to collect tax on specific transactions,
140	intentionally fails to collect such tax, shall, in addition to
141	the other penalties provided by law, be liable for a specific
142	penalty of 100 percent of any unreported or any uncollected tax
143	or fee. This penalty is in addition to any other penalty
144	provided by law. A person who makes a false or fraudulent return
145	with a willful intent to evade payment of taxes or fees
146	totaling:
147	1. Less than $300:
148	a. For a first offense, commits a misdemeanor of the
149	second degree, punishable as provided in s. 775.082 or s.
150	775.083.
151	b. For a second offense, commits a misdemeanor of the
152	first degree, punishable as provided in s. 775.082 or s.
153	775.083.
154	c. For a third or subsequent offense, commits a felony of
155	the third degree, punishable as provided in s. 775.082, s.
156	775.083, or s. 775.084.
157	2. An amount equal to $300 or more, but less than $20,000,
158	commits a felony of the third degree, punishable as provided in
159	s. 775.082, s. 775.083, or s. 775.084.
160	3. An amount equal to $20,000 or more, but less than
161	$100,000, commits a felony of the second degree, punishable as
162	provided in s. 775.082, s. 775.083, or s. 775.084.
163	4. An amount equal to $100,000 or more, commits a felony
164	of the first degree, punishable and, upon conviction, for fine
165	and punishment as provided in s. 775.082, s. 775.083, or s.
166	775.084. Delivery of written notice may be made by certified
167	mail, or by the use of such other method as is documented as
168	being necessary and reasonable under the circumstances. The
169	civil and criminal penalties imposed herein for failure to
170	comply with a written notice alerting the person of the
171	requirement to register the person's business as a dealer or to
172	collect tax on specific transactions shall not apply if the
173	person timely files a written challenge to such notice in
174	accordance with procedures established by the department by rule
175	or the notice fails to clearly advise that failure to comply
176	with or timely challenge the notice will result in the
177	imposition of the civil and criminal penalties imposed herein.
178	1. If the total amount of unreported or uncollected taxes
179	or fees is less than $300, the first offense resulting in
180	conviction is a misdemeanor of the second degree, the second
181	offense resulting in conviction is a misdemeanor of the first
182	degree, and the third and all subsequent offenses resulting in
183	conviction is a misdemeanor of the first degree, and the third
184	and all subsequent offenses resulting in conviction are felonies
185	of the third degree.
186	2. If the total amount of unreported or uncollected taxes
187	or fees is $300 or more but less than $20,000, the offense is a
188	felony of the third degree.
189	3. If the total amount of unreported or uncollected taxes
190	or fees is $20,000 or more but less than $100,000, the offense
191	is a felony of the second degree.
192	4. If the total amount of unreported or uncollected taxes
193	or fees is $100,000 or more, the offense is a felony of the
194	first degree.
195	Section 3. Subsection (3) of section 212.18, Florida
196	Statutes, is amended to read:
197	212.18 Administration of law; registration of dealers;
198	rules.-
199	(3)(a) Every person desiring to engage in or conduct
200	business in this state as a dealer, as defined in this chapter,
201	or to lease, rent, or let or grant licenses in living quarters
202	or sleeping or housekeeping accommodations in hotels, apartment
203	houses, roominghouses, or tourist or trailer camps that are
204	subject to tax under s. 212.03, or to lease, rent, or let or
205	grant licenses in real property, as defined in this chapter, and
206	every person who sells or receives anything of value by way of
207	admissions, must file with the department an application for a
208	certificate of registration for each place of business. The
209	application must include, showing the names of the persons who
210	have interests in the such business and their residences, the
211	address of the business, and such other data reasonably required
212	by as the department may reasonably require. However, owners and
213	operators of vending machines or newspaper rack machines are
214	required to obtain only one certificate of registration for each
215	county in which such machines are located. The department, by
216	rule, may authorize a dealer that uses independent sellers to
217	sell its merchandise to remit tax on the retail sales price
218	charged to the ultimate consumer in lieu of having the
219	independent seller register as a dealer and remit the tax. The
220	department may appoint the county tax collector as the
221	department's agent to accept applications for registrations. The
222	application must be made to the department before the person,
223	firm, copartnership, or corporation may engage in such business,
224	and it must be accompanied by a registration fee of $5. However,
225	a registration fee is not required to accompany an application
226	to engage in or conduct business to make mail order sales. The
227	department may waive the registration fee for applications
228	submitted through the department's Internet registration
229	process.
230	(b) The department, upon receipt of such application,
231	shall will grant to the applicant a separate certificate of
232	registration for each place of business, which certificate may
233	be canceled by the department or its designated assistants for
234	any failure by the certificateholder to comply with any of the
235	provisions of this chapter. The certificate is not assignable
236	and is valid only for the person, firm, copartnership, or
237	corporation to which issued. The certificate must be placed in a
238	conspicuous place in the business or businesses for which it is
239	issued and must be displayed at all times. Except as provided in
240	this subsection, a no person may not shall engage in business as
241	a dealer or in leasing, renting, or letting of or granting
242	licenses in living quarters or sleeping or housekeeping
243	accommodations in hotels, apartment houses, roominghouses,
244	tourist or trailer camps, or real property or as hereinbefore
245	defined, nor shall any person sell or receive anything of value
246	by way of admissions, without a valid first having obtained such
247	a certificate. A or after such certificate has been canceled; no
248	person may not shall receive a any license from any authority
249	within the state to engage in any such business without a valid
250	first having obtained such a certificate or after such
251	certificate has been canceled. A person may not engage The
252	engaging in the business of selling or leasing tangible personal
253	property or services or as a dealer; engage, as defined in this
254	chapter, or the engaging in leasing, renting, or letting of or
255	granting licenses in living quarters or sleeping or housekeeping
256	accommodations in hotels, apartment houses, roominghouses, or
257	tourist or trailer camps that are taxable under this chapter, or
258	real property;, or engage the engaging in the business of
259	selling or receiving anything of value by way of admissions,
260	without a valid such certificate first being obtained or after
261	such certificate has been canceled by the department, is
262	prohibited.
263	(c)1. A The failure or refusal of any person who engages
264	in acts requiring a certificate of registration under this
265	subsection and who fails or refuses to register, commits, firm,
266	copartnership, or corporation to so qualify when required
267	hereunder is a misdemeanor of the first degree, punishable as
268	provided in s. 775.082 or s. 775.083. Such acts are, or subject
269	to injunctive proceedings as provided by law. A person who
270	engages in acts requiring a certificate of registration and who
271	fails or refuses to register is also subject Such failure or
272	refusal also subjects the offender to a $100 initial
273	registration fee in lieu of the $5 registration fee required by
274	authorized in paragraph (a). However, the department may waive
275	the increase in the registration fee if it finds is determined
276	by the department that the failure to register was due to
277	reasonable cause and not to willful negligence, willful neglect,
278	or fraud.
279	2. A person who willfully fails to register after the
280	department provides notice of the duty to register as a dealer
281	commits a felony of the third degree, punishable as provided in
282	s. 775.082, s. 775.083, or s. 775.084.
283	a. As used in this subsection, the term "willful" means a
284	voluntary and intentional violation of a known legal duty.
285	b. The department shall give written notice of the duty to
286	register to the person by personal service, by sending notice by
287	registered mail to the person's last known address, or by both
288	personal service and mail.
289	(d)(c) In addition to the certificate of registration, the
290	department shall provide to each newly registered dealer an
291	initial resale certificate that will be valid for the remainder
292	of the period of issuance. The department shall provide each
293	active dealer with an annual resale certificate. For purposes of
294	this section, "active dealer" means a person who is currently
295	registered with the department and who is required to file at
296	least once during each applicable reporting period.
297	(e)(d) The department may revoke a any dealer's
298	certificate of registration if when the dealer fails to comply
299	with this chapter. Prior to revocation of a dealer's certificate
300	of registration, the department must schedule an informal
301	conference at which the dealer may present evidence regarding
302	the department's intended revocation or enter into a compliance
303	agreement with the department. The department must notify the
304	dealer of its intended action and the time, place, and date of
305	the scheduled informal conference by written notification sent
306	by United States mail to the dealer's last known address of
307	record furnished by the dealer on a form prescribed by the
308	department. The dealer is required to attend the informal
309	conference and present evidence refuting the department's
310	intended revocation or enter into a compliance agreement with
311	the department which resolves the dealer's failure to comply
312	with this chapter. The department shall issue an administrative
313	complaint under s. 120.60 if the dealer fails to attend the
314	department's informal conference, fails to enter into a
315	compliance agreement with the department resolving the dealer's
316	noncompliance with this chapter, or fails to comply with the
317	executed compliance agreement.
318	(f)(e) As used in this paragraph, the term "exhibitor"
319	means a person who enters into an agreement authorizing the
320	display of tangible personal property or services at a
321	convention or a trade show. The following provisions apply to
322	the registration of exhibitors as dealers under this chapter:
323	1. An exhibitor whose agreement prohibits the sale of
324	tangible personal property or services subject to the tax
325	imposed in this chapter is not required to register as a dealer.
326	2. An exhibitor whose agreement provides for the sale at
327	wholesale only of tangible personal property or services subject
328	to the tax imposed in this chapter must obtain a resale
329	certificate from the purchasing dealer but is not required to
330	register as a dealer.
331	3. An exhibitor whose agreement authorizes the retail sale
332	of tangible personal property or services subject to the tax
333	imposed in this chapter must register as a dealer and collect
334	the tax imposed under this chapter on such sales.
335	4. Any exhibitor who makes a mail order sale pursuant to
336	s. 212.0596 must register as a dealer.
337
338	Any person who conducts a convention or a trade show must make
339	their exhibitor's agreements available to the department for
340	inspection and copying.
341	Section 4. This act shall take effect upon becoming a law.

CODING: Words stricken are deletions; words underlined are additions.