: The Department is creating a new rule to address the Florida Tax Credit Scholarship Program for Commercial Rental Property. The new rule will provide guidance on how to apply for an allocation; how to claim a credit following approval of the ...

 

DEPARTMENT OF REVENUE

Sales and Use Tax

RULE NOS.:RULE TITLES:

12A-1.097Public Use Forms

12A-1.109Florida Sales Tax Credit Scholarship Program for Commercial Rental Property

PURPOSE AND EFFECT: : The Department is creating a new rule to address the Florida Tax Credit Scholarship Program for Commercial Rental Property. The new rule will provide guidance on how to apply for an allocation; how to claim a credit following approval of the allocation application and donation to the organization; how to transfer an unused allocation or credit; how to report a change in the property or the lessor; how to rescind an unused allocation; how organizations who receive donations are to report those donations to the Department, as required by statute; and will incorporate the new forms to be used in the program. Forms to be used in the program will be incorporated in Rule 12A-1.097, F.A.C.

SUMMARY: The amendment of Rule 12A-1.097, F.A.C., is necessary to adopt four new forms to be used in the implementation of the Florida Tax Credit Scholarship Program for Commercial Rental Property.

The creation of Rule 12A-1.109, F.A.C., is necessary to implement Section 1, Chapter 2018.6, Laws of Florida, which creates a new tax credit program under the Florida Tax Credit Scholarship Program.

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: 201.11, 202.17(3)(a), 202.22(6), 202.26(3), 212.0515(7), 212.07(1)(b), 212.08(5)(b)4., (n)4., (o)4., (7), 212.099(10), 212.11(5)(b), 212.12(1)(a)2., 212.17(6), 212.18(2), (3), 212.183, 213.06(1), 288.1258(4)(c), 376.70(6)(b), 376.75(9)(b), 403.718(3)(b), 403.7185(3)(b), 443.171(2), (7), FS.

LAW IMPLEMENTED: 92.525(1)(b), (3), 95.091, 119.071(5), 125.0104, 125.0108, 201.01, 201.08(1)(a), 201.133, 202.11(2), (3), (6), (16), (24), 202.17, 202.22(3)-(6), 202.28(1), 203.01, 212.02, 212.03, 212.0305, 212.031, 212.04, 212.05, 212.0501, 212.0515, 212.054, 212.055, 212.06, 212.0606, 212.07(1), (8), (9), 212.08, 212.084(3), 212.085, 212.09, 212.096, 212.099, 212.11(1), (4), (5), 212.12(1), (2), (9), (13), 212.13, 212.14(2), (4), (5), 212.17, 212.18(2), (3), 212.183, 213.235, 213.29, 213.37, 213.755, 215.26(6), 219.07, 288.1258, 290.00677, 365.172(9), 376.70, 376.75, 403.717, 403.718, 403.7185, 443.036, 443.121(1), (3), 443.131, 443.1315, 443.1316, 443.171(2), (7), 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: August 16, 2019, 10:00 a.m.

PLACE: 2450 Shumard Oak Boulevard, Building One, Room 1220, 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: 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, PO Box 7443, Tallahassee, Florida 32314-7443, telephone [phone], email [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

 

12A-1.097 Public Use Forms.

(1) No change

Form Number	Title	Effective Date
(2) through (17)	No change
(18)(a) DR-117000	Florida Tax Credit Scholarship Program for Commercial Rental Property – Application for a Credit Allocation (http://www.flrules.org/Gateway/reference.asp?No=Ref-        )	XX/XX
(b) DR-117100	Florida Tax Credit Scholarship Program for Commercial Rental Property – Application to Change a Credit Allocation (http://www.flrules.org/Gateway/reference.asp?No=Ref-        )	XX/XX
(c) DR-117200	Florida Tax Credit Scholarship Program for Commercial Rental Property – Application for Rescindment of a Credit Allocation (http://www.flrules.org/Gateway/reference.asp?No=Ref-        )	XX/XX
(d) DR-117300	Florida Tax Credit Scholarship Program for Commercial Rental Property – Contributions Received by an Eligible Nonprofit Scholarship-Funding Organization (http://www.flrules.org/Gateway/reference.asp?No=Ref-        )	XX/XX
(18) through (22)	Renumbered (19) through (23) No change

Rulemaking Authority 201.11, 202.17(3)(a), 202.22(6), 202.26(3), 212.0515(7), 212.07(1)(b), 212.08(5)(b)4., (n)4., (o)4., (7), 212.099(10), 212.11(5)(b), 212.12(1)(a)2., 212.17(6), 212.18(2), (3), 212.183, 213.06(1), 288.1258(4)(c), 376.70(6)(b), 376.75(9)(b), 403.718(3)(b), 403.7185(3)(b), 443.171(2), (7), FS. Law Implemented 92.525(1)(b), (3), 95.091, 119.071(5), 125.0104, 125.0108, 201.01, 201.08(1)(a), 201.133, 202.11(2), (3), (6), (16), (24), 202.17, 202.22(3)-(6), 202.28(1), 203.01, 212.02, 212.03, 212.0305, 212.031, 212.04, 212.05, 212.0501, 212.0515, 212.054, 212.055, 212.06, 212.0606, 212.07(1), (8), (9), 212.08, 212.084(3), 212.085, 212.09, 212.096, 212.099, 212.11(1), (4), (5), 212.12(1), (2), (9), (13), 212.13, 212.14(2), (4), (5), 212.17, 212.18(2), (3), 212.183, 213.235, 213.29, 213.37, 213.755, 215.26(6), 219.07, 288.1258, 290.00677, 365.172(9), 376.70, 376.75, 403.717, 403.718, 403.7185, 443.036, 443.121(1), (3), 443.131, 443.1315, 443.1316, 443.171(2), (7), FS. History–New 4-12-84, Formerly 12A-1.97, Amended 8-10-92, 11-30-97, 7-1-99, 4-2-00, 6-28-00, 6-19-01, 10-2-01, 10-21-01, 8-1-02, 4-17-03, 5-4-03, 6-12-03, 10-1-03, 9-28-04, 6-28-05, 5-1-06, 4-5-07, 1-1-08, 4-1-08, 6-4-08, 1-27-09, 9-1-09, 11-3-09, 1-11-10, 4-26-10, 6-28-10, 7-12-10, 1-12-11, 1-25-12, 1-17-13, 5-9-13, 1-20-14, 1-19-15, 1-11-16, 4-5-16, 1-10-17, 2-9-17, 1-17-18, 4-16-18, 1-8-19,_____.

 

12A-1.109 Florida Tax Credit Scholarship Program for Commercial Rental Property.

(1) Definitions. For purpose of this rule, the following terms mean:

(a) “Allocation” means the amount of program funds allocated by the Department to a tenant for monetary contributions to be made to an organization during a state fiscal year.

(b) “Contribution” means a monetary contribution, as defined in s. 212.099, F.S., from an eligible business to an eligible nonprofit scholarship-funding organization to be used under the Florida Tax Credit Scholarship Program established under s. 1002.395, F.S.

(c) “Credit” means an allocation for which a contribution to an organization has been made and is eligible to be taken by a tenant against the state tax due under s. 212.031, F.S.

(d) “Dealer” means the person who is registered under Rule 12A-1.060, F.A.C., to collect the tax due on the rent or license fee from a tenant. For purposes of this program, the term “landlord” will be used to refer to the dealer.

(e) “Department” means the Florida Department of Revenue.

(f) “Eligible business” means a person occupying, using, or entitled to the use of any property for which the rent or license fee is subject to taxation under s. 212.031, F.S. For purposes of this program, the term “tenant” will be used to refer to the eligible business.

(g) “Eligible nonprofit scholarship-funding organization” or “organization” has the same meaning as provided in s. 1002.395(2)(f), F.S.

(h) “Program” means the Florida Tax Credit Scholarship Program for Commercial Rental Property under s. 212.099, F.S.

(i) “State fiscal year” means the annual period beginning July 1 through June 30 of the following year.

(j) “Tax credit cap” means the maximum annual tax credit amount the Department is authorized by law to allocate.

(2) Applications for allocations.

(a) To apply for an allocation of the available program credits, a tenant must submit a Florida Tax Credit Scholarship Program for Commercial Rental Property – Application for a Credit Allocation (Form DR-117000, incorporated by reference in Rule 12A-1.097, F.A.C.) to the Department. The fastest and easiest way to apply for an allocation is online at www.floridarevenue.com/taxes/sfo. Tenants may also apply by submitting a paper application available on the Department’s website.

(b) Each leased or licensed location for which an allocation is sought must be separately listed in an application. A separate application to receive an allocation is required for each organization the tenant intends to support.

(c) An application may be submitted to the Department for an allocation of funds for the state fiscal year the application is submitted or for funds for the following state fiscal year. A separate application is required for each state fiscal year for which an allocation is sought.

(d) An application may be submitted on the first business day of January of the calendar year preceding the state fiscal year beginning on July 1 of that calendar year. The application must be submitted on or before June 30 of the state fiscal year for which the tenant is applying for an allocation. For example, for a credit allocation for the 2020-2021 state fiscal year, tenants may apply for a credit allocation beginning on January 1, 2020. The application must be submitted on or before June 30, 2021.

(e) The Department will accept applications until the tax credit cap is reached or until the end of the state fiscal year identified in application for an allocation, whichever occurs first. The Department will approve allocations on a first-come, first-served basis. When funds are available, and the tenant is eligible to receive an allocation, a letter indicating the amount of allocation approved will be provided to the tenant.

(f) When the Department is not able to approve an application, a letter explaining the reason for the denial will be mailed to the tenant. The tenant may protest the denial pursuant to ss. 120.569 and 120.57, F.S. The Department will reserve the denied amount of the allocation for the tenant during the protest period.

(3) Claiming the Credit.

(a) After receiving an allocation but before seeking a credit against tax due, the tenant must make a contribution directly to the organization identified in the Florida Tax Credit Scholarship Program for Commercial Rental Property – Application for a Credit Allocation (Form DR-117000).

1. A tenant may make a single contribution or series of contributions to the organization.

2. The total contributions may not exceed the allocation amount approved by the Department.

3. All contributions must be made before the end of the state fiscal year for which the allocation was approved.

4. Upon making each contribution, the organization receiving a contribution under the program will issue a certificate of contribution to the tenant.

5. The tenant must provide copies of the approval letter issued by the Department and the certificate of contribution issued by the organization to the landlord when claiming a credit against the state tax due on the rent or license fee for the rental property.

(b) To claim the credit, the landlord must file and pay electronically using Sales and Use Tax Return (Form DR-15, incorporated by reference in Rule 12A-1.097, F.A.C.). Landlords may not claim a credit on the shorter Sales and Use Tax Return (Form DR-15EZ, incorporated by reference in Rule 12A-1.097, F.A.C.) or on any paper tax return. A landlord authorized to file Form DR-15EZ, must contact Taxpayer Services at 850-488-6800, Monday through Friday, excluding holidays, to change the return type filed to Form DR-15 to claim a tax credit under this program.

(c) The amount of credit claimed on a tax return is limited to the amount of contribution contained in the certificate of contribution issued by an organization. A credit may only be taken against the state sales tax due under s. 212.031, F.S., and is not allowed against any discretionary sales surtax due under ss. 212.054 and 212.055, F.S.

(d) The total rent or license fee, the tax that would otherwise be due, the surtax due, and the credit being claimed must be separately reported on Form DR-15, Sales and Use Tax Return. The credit may not be taken by netting the credit against the tax otherwise due on the return.

(e) No credit will be allowed when the tenant

1. fails to contribute to the designated organization under the program;

2. claims the credit against tax due prior to the date the contribution is made;

3. claims the credit against discretionary sales surtax due; or

4. makes the contribution outside the state fiscal year for which the allocation was approved.

(f) A credit may not be claimed on an amended return.

(g) Unclaimed credits are not eligible for refund but may be carried forward up to 10 years. No application is necessary to carry forward a credit.

(4) Transfer of Unused Allocations or Credits.

(a)1. A tenant may not convey, assign, or transfer an allocation or a credit to another entity unless all assets of the taxpayer are conveyed, assigned, or transferred in the same transaction and the successor business continues the same lease with the same landlord.

2. Tenants must inform the Department of the transfer of any unused allocation or credit by sending written notice to:

Florida Department of Revenue

Revenue Accounting

PO Box 6409

Tallahassee, FL 32314-6409

(b) When the Department determines the requirements to transfer an allocation or a credit are met, a letter indicating the amount of the approved allocation or credit will be provided to the tenant. When the Department is not able to approve a transfer, a letter explaining the reason for denial will be mailed to the tenant. The tenant may protest the denial pursuant to ss. 120.569 and 120.57, F.S.

(c) The Department must approve the transfer of the unused allocation or credit before the successor is eligible to claim a credit.

(5) Change of Landlord or Property.

(a) A tenant does not lose the ability to use the remaining amount of a previously approved allocation for which a credit has not been taken when

1. the landlord collecting the tax on the property changes or the tenant moves to another property; and

2. the tenant continues to qualify for the program following the change.

(b) The eligible business is required to apply to the Department for a change to its allocation by submitting a Florida Tax Credit Scholarship Program for Commercial Rental Property – Application to Change a Credit Allocation (Form DR-117100, incorporated by reference in Rule 12A-1.097, F.A.C.). The application must be received and approved by the Department before a credit can be taken by the landlord on its sales tax return.

(6) Rescindment of Unused Allocations.

(a) Tenants who have not made a contribution to an organization under the program may rescind all or a portion of an unused allocation. To rescind an unused allocation, the tenant must submit a Florida Tax Credit Scholarship Program for Commercial Rental Property – Application for Rescindment of a Credit Allocation (Form DR-117200, incorporated by reference in Rule 12A-1.097, F.A.C.). Applications must be received by the Department during the same state fiscal year during which the allocation was approved. The fastest and easiest way to to rescind an allocation is to use the online application at www.floridarevenue.com/taxes/sfo. Tenants may also apply by submitting a paper application available on the Department’s website.

(b) An application for rescindment of the unused allocation will not be approved when

1. the tenant has made the contribution to an organization under the program; or

2. the application was not submitted during the same state fiscal year during which the allocation was approved.

(c) When the Department is not able to approve an application, a letter explaining the reason for the denial will be mailed to the tenant. The tenant may protest the denial pursuant to ss. 120.569 and 120.57, F.S.

(d) When a tenant is eligible to rescind an allocation, a letter indicating the amount of allocation rescinded will be provided to the tenant.

(e) When the approval of a rescindment allows the tax credit cap for a state fiscal year to be reopened and available for allocation, the Department will notify each organization that the tax credit cap is available for allocation.

(7) Reporting of contributions by eligible nonprofit scholarship-funding organizations.

(a) Each organization is required to report to the Department the contributions received under the program during each calendar month using the Florida Tax Credit Scholarship Program for Commercial Rental Property – Contributions Received by an Eligible Nonprofit Scholarship-Funding Organization (Form DR-117300, incorporated by reference in Rule 12A-1.097, F.A.C.). The report is due to the Department on or before the 20th day of the month following the month of collection. If the 20th day falls on a Saturday, Sunday, or state or federal holiday, the report must be received on the first business day following the 20th.

(b) Organizations may submit Form DR-117300 electronically or by submitting a paper form available at www.floridarevenue.com/forms in the sales and use tax section. When submitting electronically, the organization must include all information required by Form DR-117300.

Rulemaking Authority 212.099(10), 213.06(1), FS, Law Implemented 212.099, FS. History–New_____.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Tammy Miller

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 25, 2019

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 31, 2018