12C-1.022. Returns; Filing Requirement

(1) In general, every corporation as defined in Section 220.03(1)(e), F.S., subject to tax under Part II of Chapter 220, F.S., and every bank and savings association subject to tax under Part VII of Chapter 220, F.S., must make a return of income for each taxable year in which such entity either is liable for tax under the Florida Income Tax Code, or is required to make a federal income tax return, whether or not such taxpayer is liable for tax under the Florida Income Tax Code.

(a) The Florida Income Tax Code does not specifically provide for an exception from the filing requirements for any organization, association, or legal entity. Therefore, every corporation, as defined in Section 220.03(1)(e), F.S., and every bank or savings association, as defined in Section 220.62, F.S., will be required to file a return absent a specific provision within the Internal Revenue Code or the Treasury Regulations exempting the entity from filing a federal tax return or a letter of determination from the Internal Revenue Service providing that the entity does not have a federal filing requirement. It is the burden of a corporation that is existing in Florida or incorporated under the Laws of Florida to establish that it is not required to file a federal corporate income tax return and, therefore, does not have a Florida filing requirement. This section shall not be deemed to be an inclusive listing of the entities required to file a Florida corporate income/franchise tax return.

(b)1. “S” corporations are not subject to the tax, except for taxable years when they are liable for the federal tax under the Internal Revenue Code. An “S” corporation must file a Florida Corporate Income/Franchise and Emergency Excise Tax Return (Form F-1120, incorporated by reference in Rule 12C-1.051, F.A.C.) for taxable years when it is liable for federal tax under the Internal Revenue Code.

2. A single member limited liability company or qualified subchapter S corporation that is disregarded for Florida and Federal tax purposes is not required to file a separate Florida corporate income tax return. However, the income of the company is not exempt from tax. If it is owned by a corporation, whether directly or indirectly, the corporation is required to file Form F-1120 reporting its own income, together with the income of the single member limited liability company.

(c)1. Homeowners associations, including corporations or associations organized to operate condominiums pursuant to the Condominium Act, that are required to file federal returns on Form 1120, or that elect to file federal returns on Form 1120, must file a Florida Form F-1120 annually, regardless of whether any tax may be due.

2. Homeowners associations that elect to be taxed under s. 528, I.R.C., and file federal Form 1120-H, are not required to file Form F-1120 with the Department.

(d) Political organizations subject to Internal Revenue Code Section 527 who are required to file Federal Form 1120-POL must file a Florida Form F-1120 when the political organization reports federal taxable income on Federal Form 1120-POL or any other Federal Income Tax form.

(e) Any nonprofit or other tax-exempt organization, including a private foundation, which is exempt from Federal Income Tax under I.R.C. s. 501(a), and is described in I.R.C. s. 501(c), is required to file a Form F-1120 only when such organization has “unrelated trade or business taxable income,” as determined under I.R.C. s. 512, or is filing a Form 990T with the Internal Revenue Service. An organization that is required to apply for a “determination letter” in order to be exempt under I.R.C. s. 501(a), which has not timely filed such application on or before its due date as required by I.R.C. Reg. s. 1.508-1 or which has received an adverse determination, shall not be considered to be a tax-exempt organization. Such organization is subject to the Florida corporate income tax and is required to file a Form F-1120 unless the organization receives a retroactively effective determination letter. If an organization does not file Florida corporate income tax returns in reliance on this rule, and the Internal Revenue Service determines that the organization was not exempt from federal income tax for any such period, then the organization will be required to file Form F-1120 or Form F-1120X pursuant to Section 220.23, F.S.

(f)1. Insurance companies conducting business, deriving income, or existing within this state are required to file a Florida corporate income/franchise tax return.

2. Insurance companies whose only business activity within Florida is providing reinsurance are earning income within the state and, therefore, are required to file a Florida corporate income/franchise tax return.

(g) Credit unions without capital stock organized and operated for mutual purposes and without profit that are exempt under s. 501(c)(14), I.R.C., are not subject to the Florida tax, except for taxable years when they are liable for Federal tax under the Internal Revenue Code.

(h) Benefit plans qualifying under s. 401(a), I.R.C., and health and dental plans qualifying under s. 125, I.R.C., are only required for federal tax purposes to file information returns. A qualified pension, health, or dental plan that is totally exempt from Federal Income Tax will not be required to file Form F-1120 with the Department, as long as the plan remains totally exempt for Federal purposes.

(i)1. A real estate investment trust (REIT) must file a Florida income/franchise tax return for every year that it is conducting business, earning income, or existing within the state.

2. A totally owned subsidiary of a taxpayer which is treated as a qualified REIT subsidiary for federal tax purposes will be treated in the same manner for Florida tax purposes. That is, the qualified REIT subsidiary will not be treated as a separate corporation, and all assets, liabilities, and items of income, deductions, and credit of the qualified REIT subsidiary would be included in the taxpayer’s Florida income tax return. The qualified REIT subsidiary would not be required to file a separate return for the Florida corporate income tax.

(j) Entities that have elected to be treated as a U.S. real estate mortgage investment conduit (REMIC) for Federal purposes are not subject to the tax, except for taxable years when they are liable for the Federal tax on income from foreclosure property pursuant to s. 860G(c), I.R.C. Such entities are required to file Form F-1120 for taxable years when they are liable for Federal tax on income from foreclosure property pursuant to s. 860G(c), I.R.C.

(k) Any professional service corporation organized pursuant to Chapter 621, F.S., or any similar professional service corporation or professional association created as an artificial entity pursuant to the statutes of the United States or any other state, territory, possession, or jurisdiction is required to file a corporate income tax return for every year that it is conducting business, earning income, or existing within the state.

(2) Foreign (out-of-state) corporations.

(a) A corporate income tax return is required by every foreign (out-of-state) corporation that is conducting business, earning income, or existing within Florida. Cross reference: Rule 12C-1.011, F.A.C.

(b) A foreign (out-of-state) corporation is not relieved from filing a Florida corporate income/franchise tax return merely because it is not considered to be doing business within the definition of another state agency. For example, rules promulgated by the Department of Insurance, Secretary of State, or Department of Financial Services will not affect the determination whether a corporation or bank or savings association is subject to the corporate income tax under Part II, Chapter 220, F.S., or the franchise tax under Part VII, Chapter 220, F.S.

(c) A requirement to file a Florida corporate income tax return is not automatically created when an out-of-state corporation registers with the Secretary of State to do business within the state. However, a foreign corporation that has registered to do business in the state must respond in writing to inquiries of the Department clearly explaining why a Florida filing is not required.

(d) The determination whether a foreign (out-of-state) corporation is required to file a Florida corporate income/franchise tax return is dependent only on the activities of the corporation during that tax year. However, there is a continuing expectation that a foreign corporation that was required to file in a previous year has a filing requirement in subsequent years. Therefore, a foreign corporation should file a return with a statement clearly explaining why there is not a continuing filing requirement. A foreign corporation must respond in writing to inquiries of the Department clearly explaining why a Florida filing is not required.

(e) Foreign (out-of-state) corporations not otherwise subject to Chapter 220, F.S., but who are partners or members of Florida partnerships or joint ventures, are subject to the Florida Income Tax Code by virtue of their membership in such partnerships or joint ventures and must file Form F-1120. A copy of the federal Schedule K-1 (Form 1065) should also be attached.

(3) Foreign (non-U.S.) corporations.

(a) Every foreign (non-U.S.) corporation subject to the Florida Income Tax Code must make a return of income for each taxable year such corporation is either liable for tax under the Florida Income Tax Code, or is required to make a federal income tax return, whether or not such taxpayer is liable for tax under the Florida Income Tax Code.

(b) Foreign corporations which are not considered under the Internal Revenue Code to have income effectively connected with a U.S. trade or business, but for which any tax is due under the provisions of s. 1442, I.R.C., will be required to file a Florida corporate income/franchise tax return.

(c) If a foreign corporation has been exempted by treaty from filing an F-1120, there will be no filing requirement for Florida income tax purposes. If a federal return is required to claim exempt status under the provision of a treaty, a corporation will be required to file a Florida return for each year it is required to file a federal return.

(d)1. Treasury Regulation 1.882-4(a)(3)(iv) provides that a foreign corporation may file a return for a taxable year and thereby protect the right to receive the benefit of the deductions and credits attributable to that gross income if it is later determined that the foreign corporation’s activities do create gross income effectively connected with the conduct of a trade or business within the United States. On that timely filed return, the corporation is not required to report any gross income as effectively connected with a United States trade or business or any deductions or credits, but should attach a statement indicating that the return is being filed under the provisions of Treas. Reg. 1.882-4(a)(3). Because this “protective return” is considered under the Treasury Regulations to be a true and accurate return which is required to be filed to protect possible benefits, it will be considered a required return for Florida tax purposes. Therefore, if a foreign corporation files a protective return under the provisions of Treas. Reg. 1.882-4(a)(3), it will be required to file a Florida corporate income tax return.

2. Because the corporation is not considered to have taxable income for federal purposes, it would not be considered to have taxable income for Florida purposes. Therefore, the Florida return would not reflect items of income, gain, deductions, losses, etc. The foreign corporation would be required to attach a copy of the federal return as filed, including the statement attached to the federal return indicating that the return is being filed under the provisions of Treas. Reg. 1.882-4(a)(3).

(4)(a) A taxpayer in existence during any portion of a taxable year and required to make a federal income tax return is required to make a Florida return. If a corporation was not in existence throughout an annual accounting period (either calendar year or fiscal year), the corporation is required to make a return for that fractional part of a year during which it was in existence.

(b) A corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under state law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with winding up its affairs, such as for the purpose of suing and being sued. If the corporation has valuable claims for which it will bring suit during this period, it has retained assets and therefore continues in existence. A corporation does not go out of existence if it is turned over to receivers or trustees who continue to operate it.

(c) A corporation subject to the Florida Income Tax Code which has received a charter but has never perfected its organization and has transacted no business and has no income from any source will be relieved from the necessity of making a Florida income tax return if it has been relieved from filing a federal income tax return pursuant to the Federal Income Tax Regulations. An application for waiver of the filing requirement should be submitted in writing in time to be received by the Department before the due date for filing the taxpayer’s Florida return.

(d) Once a Florida corporation has become active, a filing requirement will continue to exist until the corporation is dissolved. Inactivity of the business will not relieve the corporation from filing a return.

(e) A Florida corporation is required to file a Florida corporate income/franchise tax return even if it has no physical existence or activity in Florida and does business exclusively in other states or countries.

(5) The return required of a corporation subject to tax under Part II of Chapter 220, F.S., and the return required of a bank or savings association subject to tax under Part VII of Chapter 220, F.S., shall be made on Form F-1120. A copy of the related federal return filed with the Internal Revenue Service must be attached to Form F-1120. The instructions for Form F-1120 prescribe the attachments required to be submitted with the copy of the related federal return. The Florida corporate return requires computation of Florida net income using Federal taxable income, modified by adjustments, the Florida additions and subtractions, and apportioned to Florida using the Florida apportionment information. Taxpayers subject to federal alternative minimum tax (AMT) are also required to complete the Florida alternative minimum tax schedule.

(6)(a) Every Florida partnership having any partner subject to the Florida Income Tax Code is required to make an information return. A Florida partnership is a partnership, as defined in Section 220.03(1)(s), F.S., having income apportionable or allocated to Florida. A partner subject to the Florida Income Tax Code includes a taxpayer, as defined in Section 220.03(1)(z), F.S., and any corporation subject to the tax solely by virtue of its membership in a Florida partnership.

(b) The partnership will not be required to file a partnership return if the only partner subject to the Florida Income Tax Code is an S corporation.

(c) The following examples illustrate when a Florida partnership must file a partnership return.

1. Example: AB, a Florida partnership, has three partners, all of whom are individuals. AB is not required to file a Florida Partnership Information Return because it has no corporate partners.

2. Example: BC, a Florida partnership, has three partners, two individuals and one corporation, Corporation X. Corporation X is subject to the Florida Income Tax Code; therefore, BC is required to file a Florida Partnership Information Return.

3. Example: CD, a Florida partnership, has three partners, two individuals and one corporation, Corporation Y. Corporation Y is a New York corporation which does no business in Florida. However, CD is required to file a Florida Partnership Information Return because Corporation Y is subject to the Florida Income Tax Code solely by virtue of its membership in the Florida Partnership, CD.

4. Example: DE, a Florida Partnership, has three partners, two individuals and one corporation, Corporation Z. Corporation Z is an “S” Corporation. DE is not required to file a Florida Partnership Information Return.

(d) The return required of a partnership under this section shall be made on Form F-1065, Florida Partnership Information Return. A copy of the related U.S. Partnership Return of Income, Form 1065, must be attached. The instructions for Form F-1065 prescribe the attachments required to be submitted with the copy of the related federal Form 1065.

(e) Form F-1065 is used to determine the Florida partnership income adjustment; to report the names and addresses of all partners subject to tax under Chapter 220, F.S., who are entitled to share in the net income of the partnership; and to distribute to each partner subject to the tax its share of the Florida partnership income adjustment and its share of the apportionment factors of the partnership or joint venture.

(f)1. The corporate taxpayer-partner filing Form F-1120, Florida Corporation Income Tax Return, may use Form F-1065 to report its distributive share of any partnership income adjustments and its share of the apportionment factors of a partnership or joint venture which is not a Florida partnership.

2. Example: Corporation W is subject to the Florida Income Tax Code and is also a partner in partnership UVW, an Ohio partnership, that does no business in Florida and is not required to file a Florida Partnership Information Return. However, Corporation W may use Form F-1065, Florida Partnership Information Return, to report its share of the partnership income adjustments and the partnership apportionment factors for partnership UVW.

(g) Corporations who are members of a Florida partnership or joint venture must file Form F-1065, Florida Partnership Information Return, as well as, Form F-1120.

Rulemaking Authority 213.06(1), 220.21, 220.22(4), 220.51 FS. Law Implemented 220.22, 605.1103 FS. History–New 10-20-72, Amended 10-20-73, 10-8-74, 3-5-80, Formerly 12C-1.22, Amended 12-21-88, 4-8-92, 12-7-92, 3-18-96, 10-2-01, 6-19-03, 8-4-05.