The purpose of this rulemaking is to update the Department’s rules to address 2021 legislative changes contained in Chapter 2021-175, Laws of Florida. Section 2 of the chapter law amends Section 212.0606, Florida Statutes, ....

 

DEPARTMENT OF REVENUE

Sales and Use Tax

RULE NOS.:RULE TITLES:

12A-16.002Imposition and Payment of the Surcharge

12A-16.004Registration

12A-16.005Exemption Permits, Certificates, and Affidavits

12A-16.006Surcharge Returns and Filing Requirements

12A-16.008Public Use Forms

PURPOSE AND EFFECT: The purpose of this rulemaking is to update the Department’s rules to address 2021 legislative changes contained in Chapter 2021-175, Laws of Florida. Section 2 of the chapter law amends Section 212.0606, Florida Statutes, to provide that a $1 per day rental car surcharge applies to the first 30 days of the rental of shared vehicles through peer-to-peer car-sharing programs. The proposed amendments to Rules 12A-16.002, 12A-16.004, 12A-16.005, 12A-16.006, and 12A-16.008, as well as Form DR-15SWN (Instructions for Solid Waste and Surcharge Returns) and Form DR-15SWS (Schedule of Rental Car Surcharge by County), reflect these provisions.

SUMMARY: Rule 12A-16.002 has been substantially reworded; the definitions have been updated to incorporate 2021 legislative changes; the surcharge imposed on peer-to-peer car-sharing program agreements has been added; and the proposed language also clarifies when the rental car surcharge is due. Rule 12A-16.004 has been substantially revised to incorporate peer-to-peer car-sharing programs and provide direction as to how motor vehicle rental companies, car-sharing services, and peer-to-peer car-sharing programs should register as a dealer for the purpose of remitting the rental car surcharge. The proposed language for Rule 12A-16.005 adds the term shared vehicle to incorporate the addition of peer-to-peer car-sharing programs. Rule 12A-16.006 has been amended to include how peer-to-peer car-sharing programs attribute the rental car surcharge to the appropriate county when filing the rental car surcharge return. The proposed amendments to Rule 12A-16.008 incorporate revisions to Form DR-15SWN and Form DR-15SWS, which have been revised to include the rental car surcharge imposed on peer-to-peer car-sharing program agreements.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: 1) no requirement for the Statement of Economic Regulatory Costs (SERC) was triggered under Section 120.541(1), F.S.; and 2) based on past experiences regarding rules of this nature, the adverse impact or regulatory cost, if any, do not exceed nor would exceed any one of the economic analysis criteria in a SERC, as set forth in Section 120.541(2)(a), F.S.

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.

RULEMAKING AUTHORITY: 212.18(2), 213.06(1) FS.

LAW IMPLEMENTED: 212.05(1)(c), 212.06(1)(a), 212.0606, 212.07(2), (4), (8), 212.11, 212.12, 212.18(3), 212.183, 213.235, 213.755, 376.70, 403.717, 403.718, 403.7185, 627.7483 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 21, 2022, at 10:00 a.m.

PLACE: 2450 Shumard Oak Boulevard, Building One, Room 1220, Tallahassee, Florida 32399. If a meeting is requested in writing, members of the public can also attend electronically via webinar; participants will need to register for the webinar using the following link: https://attendee.gotowebinar.com/register/1664552174698348304.

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: Tonya Fulford 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: : Danielle Boudreaux, Technical Assistance and Dispute Resolution, Department of Revenue, P.O. Box 7443, Tallahassee, Florida 32314-7443, telephone [phone], email [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

Substantial rewording of Rule 12A-16.002, F.A.C., follows. See Florida Administrative Code for present text.

12A-16.002 Imposition and Payment of the Surcharge.

(1) Definitions. For the purposes of this rule chapter, the following definitions will apply.

(a) The term “car-sharing service” has the same meaning as provided in Section 212.0606, F.S.

(b) The term “day” means 24 consecutive hours.

(c)1. The term “for-hire passenger motor vehicle” means a motor vehicle designed to carry fewer than nine passengers and is leased or rented for financial consideration without transfer of title, regardless of whether the motor vehicle is registered in Florida.

2. The term does not include any motorcycle, moped, truck, truck trailer, travel trailer, camping trailer, recreational vehicle with living facilities, or van conversion.

3. “For-hire passenger motor vehicles” are rented or leased through a motor vehicle rental company or available for use by members of a car-sharing service.

(d) The term “motor vehicle rental company” has the same meaning as provided in Section 212.0606, F.S.

(e) The term “peer-to-peer car-sharing program” has the same meaning as provided in Section 627.7483(1), F.S.

(f)1. The term “shared vehicle” means a motor vehicle that is designed to carry fewer than nine passengers for consideration without transferring the title and is registered in Florida.

2. The term does not include for-hire motor vehicles, as defined in paragraph (c), or motor vehicles used for ridesharing or carpools.

3. Shared vehicles are offered for use through a peer-to-peer car-sharing program.

(2) Under Section 212.0606(2), F.S., a surcharge of $2.00 per day or any part of a day is imposed upon the lease or rental of a for-hire passenger motor vehicle by a motor vehicle rental company. The surcharge must be collected by the motor vehicle rental company.

(a) The surcharge applies to the first 30 days of the lease or rental of a for-hire passenger motor vehicle.

(b) When the terms of a lease or rental agreement authorize the lessee to extend the lease or rental beyond the initial lease term without executing an additional lease or agreement and without any action on the part of the lessor, the extension period will not be considered a new lease or rental.

(c) When the terms of a lease or rental agreement require the lessee to execute an additional lease or agreement or require any action on the part of the lessor, the additional days during the extension period will be considered a new lease or rental.

(d) The surcharge imposed upon the lease or rental of a for-hire passenger motor vehicle is subject to sales tax and discretionary sales surtax.

(3)(a) Under Section 212.0606(3), F.S., a surcharge of $1.00 per day or any part of a day is imposed upon each peer-to-peer car-sharing program agreement involving a shared vehicle under Section 212.0606(3), F.S. The surcharge must be collected by the peer-to-peer car-sharing program.

(b) If the car-sharing period is less than 24 hours, then the surcharge is $1.00 per use.

(c) The surcharge applies to the first 30 days of a car-sharing period.

(d) The surcharge imposed upon a peer-to-peer car-sharing agreement is subject to sales tax and discretionary sales surtax.

(4)(a) Under Section 212.0606(4), F.S., a surcharge of $1.00 per usage is imposed when the for-hire passenger motor vehicle is used for less than 24 hours by a member of the car-sharing service. The surcharge must be collected by the car-sharing service.

(b) If the member uses the same motor vehicle for 24 hours or more, then the surcharge is $2.00 per day or any part of a day the motor vehicle is used.

(c) The surcharge does not apply to the lease, rental, or use of a motor vehicle from a location owned, operated, or leased by or for the benefit of an airport or an airport authority.

(5)(a) Motor Vehicle Leased or Rented by a Motor Vehicle Rental Company or through a Peer-to-Peer Car-Sharing Program for Less Than 12 Months.

1. When a for-hire passenger motor vehicle is leased or rented in Florida, the lease or rental is subject to the rental car surcharge, even though the vehicle may be driven to another state or the lease or rental payment is made outside Florida.

2. When a for-hire passenger motor vehicle is leased or rented outside Florida, the lease or rental is not subject to the rental car surcharge, even though the vehicle may be driven into Florida or the lease or rental payment may be made in Florida.

(b) Motor Vehicle Leased or Rented for 12 Months or Longer.

1. When a for-hire passenger motor vehicle is leased or rented in Florida for a term of 12 months or longer, the rental car surcharge is due for the first 30 days.

2. When a for-hire passenger motor vehicle is leased or rented outside Florida for a term of 12 months or longer and the vehicle is registered, licensed, or titled in Florida, it is presumed subject to the rental car surcharge. This presumption may be rebutted only by documentary evidence that the vehicle was used outside Florida continuously for the first 30 days before being brought into Florida.

(6)(a) The surcharge is due as follows:

1. When the lease or rental payments are made to a motor vehicle rental company under the terms of the lease or rental agreements.

2. When payment for the usage of a shared vehicle is collected pursuant to a peer-to-peer car-sharing program agreement.

3. Per use of a motor vehicle through a car-sharing service regardless of payment or payment plans for membership or access to motor vehicles.

(b) The amount of the rental car surcharge is required to be separately stated on any charge ticket, invoice, or other tangible evidence of lease or rental and will be a debt from the lessee or renter to the dealer until paid.

(c) The surcharge does not apply to a for-hire passenger motor vehicle or shared vehicle when a replacement vehicle is provided at no charge to a person whose motor vehicle is being repaired, adjusted, or serviced by the entity providing the replacement motor vehicle.

(7) Any lessee who has leased or rented a for-hire passenger motor vehicle under the terms of a lease or rental agreement or car-sharing service membership or entered into a peer-to-peer car-sharing agreement and cannot prove that the rental car surcharge has been paid will be directly liable to the state for the surcharge and any interest or penalty due.

Rulemaking Authority 212.18(2), 213.06(1) FS. Law Implemented 212.05(1)(c), 212.06(1)(a), 212.0606, 212.07(2), (4), (8) FS. History–New 11-14-89, Amended 7-7-91, 5-19-93, 3-20-96, 9-28-04, 7-28-15, XX-XX-XX.

 

Substantial rewording of Rule 12A-16.004, F.A.C., follows. See Florida Administrative Code for present text.

12A-16.004 Registration.

(1) Every person who operates a car-sharing service, a peer-to-peer car-sharing program, or motor vehicle rental company must register with the Department as a dealer for the purposes of remitting the rental car surcharge.

(a) Motor vehicle rental companies are required to register each place of business located in Florida.

(b) Car-sharing services and peer-to-peer car-sharing programs are required to submit a registration application for each county in which business is conducted.

(2)(a) Registration is available by using one of the following methods

1. Completing a Florida Business Tax Application through the Department’s website at floridarevenue.com/taxes/registration.

2. Submitting Form DR-1, Florida Business Tax Application (incorporated by reference in Rule 12A-1.097, F.A.C.), as indicated on the form.

(b) If a business previously submitted Form DR-1 and holds an active certificate of registration or reemployment tax account, the business may use Form DR-1A, Application for Registered Businesses to Add a New Florida Location (incorporated by reference in Rule 12A-1.097, F.A.C.), in the following circumstances.

1. To register an additional business location.

2. To update a registered location that has moved from one Florida County to another.

(c) Specific registration requirements for sales tax purposes are outlined in Rule 12A-1.060, F.A.C.

Rulemaking Authority 212.18(2), 213.06(1) FS. Law Implemented 212.0606, 212.18(3) FS. History–New 11-14-89, Amended 8-10-92, 3-21-95, 6-19-01 4-17-03, 11-6-07, 1-17-18, 3-25-20, XX-XX-XX.

 

12A-16.005 Exemption Permits, Certificates, and Affidavits.

(1) The lease or rental of a for hire passenger motor vehicle or shared vehicle directly to an entity that holds a valid Consumer’s Certificate of Exemption (Form form DR-14) issued by the Department is exempt. Direct pay permits, exemption, certificates, and exemption affidavits required to be issued to lease or rent a vehicle exempt from sales and use tax shall satisfy the requirements of the exemption from the surcharge. However, if a permit, certificate, or affidavit is issued by the lessee or renter at the time of the lease or rental in lieu of surcharge, and the lessee makes a taxable use of the motor vehicle, the lessee or renter is required to remit the surcharge directly to the Department.

(2) No change.

Rulemaking Authority 212.18(2), 213.06(1) FS. Law Implemented 212.05(1), 212.06(1), 212.0606, 212.12, 212.18(3), 212.183 FS. History–New 11-14-89. Amended 6-19-01, XX-XX-XX.

 

12A-16.006 Surcharge Returns and Filing Requirements.

(1)(a) No change

(b) The rental car surcharge is required to be reported to the Department on a Solid Waste and Surcharge Return (Form form DR-15SW). A Schedule of Rental Car Surcharge by County (Form form DR-15SWS) is used to report the surcharge attributed to each county. Forms DR-15SW and DR-15SWS are incorporated by reference in Rule 12A-16.008, F.A.C. The surcharge is attributed to the county:

1. through 2. No change

3. The rental car surcharge for the use of a shared vehicle through a peer-to-peer car-sharing program is attributed to the county corresponding to the location of the motor vehicle at the car-sharing start time.

(c) Any dealer who operates places of business in two or more counties for which returns are required and who has obtained a consolidated filing reporting number from the Department for purposes of reporting sales and use tax must report the rental car surcharge for all places of business using the consolidated filing reporting number. The dealer is required to file a consolidated Solid Waste and Surcharge Return (Form DR-15SW) with a Schedule of Rental Car Surcharge by County (Form DR-15SWS) to report the surcharge attributed to each county.

(d) through (e) No change

(f) For information on how to obtain a county control reporting number or a consolidated filing reporting number for purposes of sales and use tax, see subsection (1) of Rule 12A-1.056, F.A.C.

(g) Each dealer is required to file a return each month, even when no rental car surcharge is due for that month. However, a dealer is not required to file a Schedule of Rental Car Surcharge by County (form DR-15SWS) when no rental car surcharge is due for that month.

(h) No change

(2) No change

Rulemaking Authority 212.18(2), 213.06(1) FS. Law Implemented 212.0606, 212.11, 212.12(2), (3), (4), 213.235, 213.755 FS. History–New 11-14-89, Amended 7-7-91, 8-10-92, 5-19-93, 3-20-95, 3-20-96, 4-2-00, 4-17-03, 9-28-04, 7-28-15, XX-XX-XX.

 

12A-16.008 Public Use Forms.

(1) No change

Form Number	Title	Effective Date
(2) No change
(3) DR-15SWN	Instructions for DR-15SW Solid Waste and Surcharge Returns (http://www.flrules.org/Gateway/reference.asp?No=Ref-_____ 12314)	01/22 01/21
(4) DR-15SWS	Schedule of Rental Car Surcharge by County (R. 01/15) (http://www.flrules.org/Gateway/reference.asp?No=Ref-_____ 05596)	01/22 07/15

 

Rulemaking Authority 212.18(2), 213.06(1) FS. Law Implemented 212.0606, 212.12(2), 213.235, 376.70, 403.717, 403.718, 403.7185 FS. History–New 11-14-89, Amended 7-7-91, 8-10-92, 3-21-95, 6-19-01, 4-17-03, 9-28-04, 6-28-05, 7-25-06, 4-5-07, 1-1-08, 1-27-09, 1-11-10, 1-12-11, 1-25-12, 1-20-14, 7-28-15, 4-16-18, 1-1-21, XX-XX-XX.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Danielle Boudreaux

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governor and Cabinet

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 29, 2021

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 8, 2021