12A-19.041. Sales of Communications Services to a Residential Household

(1) This rule is intended to clarify the application of tax on sales of communications services to residential households and the documentation and recordkeeping requirements of dealers who make sales to residential households.

(2) APPLICATION OF TAX.

(a) Sales of communications services to a residential household are exempt from the state portion of the Florida communications services tax, imposed by Section 202.12(1)(a), F.S., and the additional gross receipts tax rate, imposed by Section 203.01(1)(b)3., F.S.

(b) Sales of communications services to a residential household remain subject to the Florida gross receipts tax rate, imposed by Section 203.01(1)(b)2., F.S., and the local communications services tax rates, imposed by Section 202.19, F.S.

(c) The partial exemption for sales to a residential household does not apply to:

1. Sales of any video service, as defined in Section 202.11(24), F.S.;

2. Sales of any direct-to-home satellite service, as defined in Section 202.11(4), F.S.; and

3. Sales of mobile communications services, as defined in Section 202.11(7), F.S.

(3) TRANSIENT PUBLIC LODGING ESTABLISHMENTS. The partial exemption for sales to residential households does not apply to sales to any residence that constitutes all or part of a transient public lodging establishment, as defined by Section 509.013, F.S.

(a) The purchaser is required to notify the communications services dealer when the communications services are used in a transient public lodging establishment. If the purchaser fails to provide such notification, the Department will look to the purchaser, rather than the dealer, for any applicable tax, penalty, or interest due when the services were purchased for use in a transient public lodging establishment.

(b) Persons that are entitled to an exemption from sales tax on the purchase of electric power or energy, gas, or fuel for use in a residential household, as provided in Rules 12A-1.053 and 12A-1.059, F.A.C., are not entitled to the exemption from communications services tax when the service address constitutes all or part of a transient public lodging establishment.

(c) A “transient public lodging establishment,” as defined in Section 509.013, F.S., means any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings that is:

1. Advertised or held out to the public as a place that is regularly rented to guests; or

2. Rented more than three times in a calendar year, with each separate rental period having a duration less than 1 calendar month or less than 30 days.

(d) Transient public lodging establishments are rented to guests whose occupancy is intended to be temporary. Examples of transient public lodging establishments include hotels, motels, bed and breakfast inns, transient apartments, and vacation rentals.

(4) DOCUMENTATION REQUIREMENTS. A communications services dealer, unless notified by the purchaser that the residential exemption does not apply, is not required to collect and remit tax on sales of communications services when:

(a) The service is sold at a rate based on a “residential schedule,” under the tariffs filed by a service provider with the Public Service Commission; or

(b) A dealer has on file a writing or document evidencing a representation that the communications services are being purchased for residential household use. The writing or document may be a customer application or a certificate that identifies the customer as purchasing the communications services for residential purposes. A “customer application” includes a record of information obtained electronically or orally from the customer in the ordinary course of business. A dealer must have acted in good faith in accepting the representation of a customer.

(5) RECORDKEEPING REQUIREMENTS.

(a) When a dealer has complied with the documentation requirements of this rule and the Department determines that tax, penalty, and interest are due, the Department will look to the customer for payment of the tax, penalty, and interest due. The Department will look to a dealer for payment of any applicable tax, penalty, and interest due when a dealer’s books and records demonstrate a failure to comply with the documentation requirements of this rule.

(b) Electronic storage of all required records through use of imaging, microfiche, or other electronic storage media will be sufficient compliance with the provisions of this subsection.

Rulemaking Authority 202.26(3)(c) FS. Law Implemented 202.125(1), 202.13(2), 202.16(4), 202.19(10), 202.34(3), 202.35(4) FS. History–New 1-31-02, Amended 2-7-11, 1-25-12, 1-17-13.