Florida Senate - 2022 SB 930
By Senator Hooper
16-01093-22 2022930__
1 A bill to be entitled
2 An act relating to sales tax exemptions for public
3 works; amending s. 212.08, F.S.; providing instances
4 when sales of certain tangible personal property to
5 contractors are not exempt from sales and use tax;
6 prohibiting certain nonprofit entities that used a
7 sales tax exemption illegally from transferring
8 liability for the tax, penalty, or interest to another
9 party; requiring the Department of Revenue to adopt
10 rules for determining the propriety of exempt sales to
11 eligible nonprofit entities; requiring the department
12 to adopt rules prohibiting certain entities that
13 receive a sales tax exemption from assigning
14 responsibility related to tangible personal property
15 to other entities; requiring the department to
16 establish by rule a process to suspend a public
17 entity’s ability to use a tax exemption if certain
18 conditions are met; amending s. 212.15, F.S.;
19 providing an exception for when certain taxes are
20 considered state funds; providing an effective date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Present paragraph (d) of subsection (6) of
25 section 212.08, Florida Statutes, is redesignated as paragraph
26 (e), a new paragraph (d) is added to that subsection, and
27 paragraphs (b) and (c) of that subsection are amended, to read:
28 212.08 Sales, rental, use, consumption, distribution, and
29 storage tax; specified exemptions.—The sale at retail, the
30 rental, the use, the consumption, the distribution, and the
31 storage to be used or consumed in this state of the following
32 are hereby specifically exempt from the tax imposed by this
33 chapter.
34 (6) EXEMPTIONS; POLITICAL SUBDIVISIONS; ELIGIBLE NONPROFIT
35 ENTITIES.—
36 (b) The exemption provided under this subsection does not
37 include sales of tangible personal property made to contractors
38 employed directly to or as agents of any such government or
39 political subdivision if the contractor is responsible for
40 purchasing, maintaining, or paying for the tangible personal
41 property and the when such tangible personal property goes into
42 or becomes a part of public works owned by such government or
43 political subdivision. A determination of whether a particular
44 transaction is properly characterized as an exempt sale to a
45 government entity or a taxable sale to a contractor shall be
46 based upon the substance of the transaction rather than the form
47 in which the transaction is cast. However, for sales of tangible
48 personal property that go into or become a part of public works
49 owned by a governmental entity, other than the Federal
50 Government, a governmental entity claiming the exemption
51 provided under this subsection shall certify to the dealer and
52 the contractor the entity’s claim to the exemption by providing
53 the dealer and the contractor a certificate of entitlement to
54 the exemption for such sales. If the department later determines
55 that such sales, in which the governmental entity provided the
56 dealer and the contractor with a certificate of entitlement to
57 the exemption, were not exempt sales to the governmental entity,
58 the governmental entity shall be liable for any tax, penalty,
59 and interest determined to be owed on such transactions.
60 Possession by a dealer or contractor of a certificate of
61 entitlement to the exemption from the governmental entity
62 relieves the dealer from the responsibility of collecting tax on
63 the sale and the contractor for any liability for tax, penalty,
64 or interest related to the sale, and the department shall look
65 solely to the governmental entity for recovery of tax, penalty,
66 and interest if the department determines that the transaction
67 was not an exempt sale to the governmental entity. The
68 governmental entity or other eligible nonprofit entity using a
69 sales tax exemption for any construction-related activities
70 covered in this chapter may not transfer liability for such tax,
71 penalty, and interest to another party by contract or agreement.
72 (c) The department shall adopt rules for determining
73 whether a particular transaction is properly characterized as an
74 exempt sale to a governmental entity or other eligible nonprofit
75 entity or a taxable sale to a contractor which give special
76 consideration to factors that govern the status of the tangible
77 personal property before being affixed to real property. In
78 developing such rules, assumption of the risk of damage or loss
79 is of paramount consideration in the determination. The
80 department shall clarify that a government, political
81 subdivision, religious institution, veterans’ organization,
82 school, college, university, or other eligible nonprofit entity
83 claiming the exemption may not assign any responsibility through
84 an agreement, oral or written, for the ordering, purchasing,
85 payment, or maintenance of the tangible personal property,
86 material, or supplies on behalf of that nonprofit entity. The
87 department shall also adopt, by rule, a certificate of
88 entitlement to exemption for use as provided in paragraph (b).
89 The certificate shall require the governmental entity to affirm
90 that it will comply with the requirements of this subsection and
91 the rules adopted under paragraph (b) in order to qualify for
92 the exemption and that it acknowledges its liability for any
93 tax, penalty, or interest later determined by the department to
94 be owed on such transactions.
95 (d) The department shall establish by rule a process by
96 which the department may suspend a public entity’s ability to
97 use the tax exemption if the entity violates this section or
98 rules adopted thereunder.
99 Section 2. Subsection (1) of section 212.15, Florida
100 Statutes, is amended to read:
101 212.15 Taxes declared state funds; penalties for failure to
102 remit taxes; due and delinquent dates; judicial review.—
103 (1) The taxes imposed by this chapter shall be considered
104 state funds at the moment of collection, except as provided in
105 s. 212.06(5)(a)2.e., or unless an exemption is claimed under s.
106 212.08(6), become state funds at the moment of collection and
107 shall for each month be due to the department on the first day
108 of the succeeding month and be delinquent on the 21st day of
109 such month. All returns postmarked after the 20th day of such
110 month are delinquent.
111 Section 3. This act shall take effect July 1, 2022.