Section 212.12(2)(d), F.S., as amended by section 25, Chapter 2007-106, L.O.F., provides that any person who, after written notice issued by the Department, intentionally fails to register the business with the Department, is liable for a specific ...

DEPARTMENT OF REVENUE
Sales and Use Tax

RULE NO: RULE TITLE
12A-1.060: Registration
PURPOSE AND EFFECT: Section 212.12(2)(d), F.S., as amended by section 25, Chapter 2007-106, L.O.F., provides that any person who, after written notice issued by the Department, intentionally fails to register the business with the Department, is liable for a specific penalty of 100 percent of any unreported or any uncollected tax or fee. The person who has received such written notice may file a written challenge to the notice in accordance with the procedures established by the Department. The purpose of this rulemaking is to provide for issuance of a notice alerting a person of the requirement to register his or her business and the procedures by which that person may timely file a written challenge to such notice. The effect of this rulemaking is to inform taxpayers of the Department’s procedures for imposing the penalties for failure to register after written notice has been issued by the Department and the procedures for timely filing a written challenge to such written notice.
SUMMARY: The proposed amendments to Rule 12A-1.060, F.A.C. (Registration): (1) provide that when a person conducting business in Florida fails or refuses to register, the Department will issue a written notice to alert that person of the requirement to register; (2) provide that to challenge the notice issued by the Department, a written challenge must be filed within 30 days of the date of the notice; (3) specify the criteria for what must be contained within a written challenge and how to file the challenge with the Department; (4) provide when the Department will authorize an extension period of 15 calendar days within which to file a written challenge to the notice; (5) provide that any person who fails to timely request an extension of time to file a challenge to the Department's notices, or who fails to timely file a challenge, will result in forfeiture of the person's right to challenge the notice issued by the Department; (6) provide that the Department will issue a response to a timely-filed written challenge to the notice; (7) provide that a $100 registration fee will be imposed upon any person who waives the right to a file a written challenge to the notice, who fails to timely file a written challenge to the notice, or who fails or refuses to register after the Department has issued a response to a challenge determining that the person is required to register; and (8) provide that these procedures are for investigative purposes, as provided in Section 120.57(5), F.S.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 212.12(2)(d), 212.17(6), 212.18(2), 213.06(1) FS.
LAW IMPLEMENTED: 212.12(2), (5), (6), 212.18(3) FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: April 6, 2010, 9:00 a.m.
PLACE: Room 118, Carlton Building, 501 S. Calhoun Street, Tallahassee, Florida
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 48 hours before the workshop/meeting by contacting: Larry Green at [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Janet Young, Tax Law Specialist, Technical Assistance and Dispute Resolution, Department of Revenue, P. O. Box 7443, Tallahassee, Florida 32314-7443, telephone [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

12A-1.060 Registration.

(1) through (4) No change.

(5) PENALTIES FOR FAILURE OR REFUSAL TO REGISTER.

(a) No person shall be issued any license from any authority within the State of Florida to engage in any business activity required to be registered with the Department until such person is the holder of a valid certificate of registration.

(b) The Department is authorized to impose a $100 registration fee for each place of business for the failure or refusal of any person to register with the Department prior to engaging in or conducting business in this state as a dealer. Persons who have failed or refused to register are those that the Department seeks to register as a result of information supplied by an informant under Section 213.30, F.S., or as a result of enforcement programs administered by the Department. In making the determination whether the $100 registration fee shall be imposed, the Executive Director or the Executive Director’s designee in the responsible process shall consider and be guided by:

1. The prior history, if any, of the applicant’s compliance or noncompliance with the revenue laws administered by the Department pursuant to Section 213.05, F.S.;

2. The applicant’s ability to demonstrate the exercise of ordinary care and prudence through presenting to the Department facts and circumstances indicating that a diligent attempt to meet the registration requirements of the law was made. An applicant with limited business knowledge, limited education, or limited experience with Florida tax matters may establish a basis for the existence of reasonable cause when there is reasonable doubt whether the applicant is required to register;

3. Reliance upon the erroneous advice of a competent advisor that the applicant did not meet the registration requirements. To establish a reasonable cause for noncompliance with the registration requirements, the applicant must demonstrate that advice was sought in a timely manner from the competent advisor, that all necessary information was provided to the competent advisor, and that the applicant acted in good faith on the information received from the competent advisor;

4. The applicant’s ability to demonstrate reliance upon another person to comply with the registration requirements on behalf of the applicant;

5. Whether the applicant, the applicant’s agent, or the applicant’s employee can demonstrate that the applicant exercised ordinary care and prudence in meeting the registration requirements once the applicant had actual or constructive knowledge of the requirements.

(c)1. When a person conducting business in this state fails or refuses to register his or her business, a written notice will be issued by the Department to that person alerting the person of the requirement to register. Delivery of the written notice is by certified mail or by the use of another method that is documented by the Department as being necessary and reasonable under the circumstances. Within 30 consecutive calendar days from the date of the notice, the person who has failed or refused to register must:

a. Register the person’s business by submitting an Application to Collect and/or Report Tax in Florida (Form DR-1) to the Department; or

b. File a written challenge to the notice.

2. A person who has received a written notice alerting the person of the requirement to register with the Department may file a written challenge to the notice. The written challenge must be mailed, faxed, or hand delivered within 30 consecutive calendar days of the notice. A written challenge must be made directly to the office designated in the notice and must include:

a. The person's name, address, and telephone number;

b. A statement of facts disputing the requirement to register and a description of any additional information not previously available that supports the dispute;

c. A statement explaining the law or other authority on which the taxpayer’s position is based;

d. A statement whether oral presentation and argument are requested; and

e. A copy of the notice alerting the person of the requirement to register with the Department.

3. An extension of time in which to submit a written challenge may be secured by mailing, hand delivering, or faxing a written request to the office address or fax number provided in the notice. The written request for an extension to file a written challenge to the notice must be postmarked, faxed, or received by hand delivery within 30 consecutive calendars from the date of the notice. The Department will grant an extension period of 15 consecutive calendar days within which to file a written challenge to the notice.

4. If the written challenge does not contain the required information, the person will be notified in writing by the office issuing the notice that the required information must be postmarked, hand delivered, or faxed to the Department within 15 consecutive calendar days. Failure to timely submit the required information will result in forfeiture of the person's right to challenge the notice.

5. Written challenges postmarked, faxed, or received by hand delivery after 30 consecutive calendar days from the date of the notice, or after any extension period granted by the Department to file a written challenge, will be deemed late filed, and the person will be considered to have waived their right to file a written challenge to the Department's notice.

6. If the person receiving a notice issued by the Department notifying the person of the requirement to register fails to timely file a written challenge, or fails to timely request an extension of time to file a written challenge, the person will be considered to have waived their right to file a written challenge to the Department’s notice.

7. Upon receipt of a timely-filed written challenge containing the required information, the Department will issue a response.

8. Any person who fails or refuses to register a place of business after failing to file, or waiving their right to file, a written challenge to the Department’s notice, or after receiving the Department's response to a written challenge to the Department's notice that determines that the person should register his or her business, will become subject to the penalties imposed under Section 212.12(2)(d), F.S., and a $100 registration fee will be imposed upon registration with the Department.

9. Procedures outlined in this paragraph shall be for investigative purposes, as specified in Section 120.57(5), F.S.

(6) No change.

Rulemaking Authority 212.12(2)(d), 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.03(1), (2), 212.04(4), 212.0596(1), (2), 212.06(2), 212.12(2), (5), (6), 212.14(4), 212.16(1), (2), 212.18(3) FS. History–Revised 10-7-68, 1-7-70, 6-16-72, Amended 3-21-77, 5-10-77, 10-18-78, Formerly 12A-1.60, Amended 6-10-87, 1-2-89, 11-12-90, 3-17-94, 1-2-95, 3-20-96, 11-30-97, 4-2-00, 6-19-01, 10-2-01(1), 10-2-01(1), 8-1-02, 4-17-03, 6-12-03, 6-4-08, 9-1-09,          _________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Janet Young, Tax Law Specialist, Technical Assistance and Dispute Resolution, Department of Revenue, P. O. Box 7443, Tallahassee, Florida 32314-7443, telephone [phone]
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governor and Cabinet.
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 24, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: A Notice of Rule Development was published in the Florida Administrative Weekly on September 25, 2009 (Vol. 35, No. 45, p. 5777). No comments have been received by the Department