The purpose of this rulemaking is to update the Department’s rules relating to sales and use tax to address 2021 legislative changes contained in Chapter 2021-2, Laws of Florida, and Chapter 2021-31, Laws of Florida. Revisions ....

 

DEPARTMENT OF REVENUE

Sales and Use Tax

RULE NOS.:RULE TITLES:

12A-1.004Sales Tax Brackets

12A-1.005Admissions

12A-1.020Licensed Practitioners; Drugs, Medical Products and Supplies

12A-1.056Tax Due at Time of Sale; Tax Returns and Regulations

12A-1.057Alcoholic and Malt Beverages

12A-1.060Registration

12A-1.070Leases and Licenses of Real Property; Storage of Boats and Aircraft

12A-1.091Use Tax

12A-1.097Public Use Forms

12A-1.103Mail Order Sales

12A-1.104Sales of Property to be Transported to a Cooperating State

12A-1.108Exemption for Data Center Property

12A-1.112Sales Tax Paid by Dealers on Behalf of Purchasers

PURPOSE AND EFFECT: The purpose of this rulemaking is to update the Department’s rules relating to sales and use tax to address 2021 legislative changes contained in Chapter 2021-2, Laws of Florida, and Chapter 2021-31, Laws of Florida. Revisions to Rule 12A-1.005 replace the application of the sales tax bracket system with the application of the rounding algorithm to the sale of admissions (Chapter 2021-2, § 11, L.O.F.). Revisions to Rule 12A-1.020 incorporate the exemption from tax of specific items of tangible personal property that assist in independent living (Chapter 2021-31, § 21, L.O.F.); these revisions are included in Form DR-46NT, Nontaxable Medical Items and General Grocery List, which is incorporated by reference in Rule 12A-1.097. Revisions to Rules 12A-1.056, 12A-1.060, 12A-1.091, and 12A-1.103 implement changes regarding the taxation of marketplace sales and remote sales (Chapter 2021-2, L.O.F.). Effective July 1, 2021, marketplace providers and persons who made a substantial number of remote sales in the previous calendar year are required to electronically register with the Department, collect sales tax, and electronically remit collected taxes. Effective April 1, 2022, marketplace sellers may collect and remit sales tax on sales made through a marketplace when the marketplace seller meets the conditions set forth in s. 212.05965(11), F.S. The newly created reference document Form DR-1MP, Florida Business Tax Application for Marketplace Providers and Remote Sales, is incorporated in Rule 12A-1.060 and provides screenshots of registration screens required to be completed by an out-of-state business that is a marketplace provider or that makes remote sales and is registering as a new business in Florida (Chapter 2021-2, L.O.F.). Proposed amendments to Rule 12A-1.097 incorporate revisions to two forms which implement provisions related to marketplace providers and remote sales: Form DR-1, Florida Business Tax Application; and Form DR-1A, Application for Registered Businesses to Add a New Florida Location (Chapter 2021-2, L.O.F.); additionally, the forms include a revision to the question for the registration for collection of the rental car surcharge; revisions to three forms to replace the sales tax bracket system with information about the new rounding algorithm (Chapter 2021-2, § 11, L.O.F.): Form DR-7N, Instructions for Consolidated Sales and Use Tax Return; Form DR-15EZN, Instructions for DR-15EZ Sales and Use Tax Returns; and Form DR-15N, Instructions for DR-15 Sales and Use Tax Returns. Revisions to Rule 12A-1.057 and the creation of Rule 12A-1.112 address when a dealer may advertise or hold out to the public that they will pay all or part of the sales tax imposed by Chapter 212, F.S (Chapter 2021-31, § 19, L.O.F.). Revisions to Rule 12A-1.070 and the proposed repeal of Rule 12A-1.004 remove reference to the sales tax bracket system which has been replaced with a rounding algorithm (Chapter 2021-2, § 11, L.O.F.). Rule 12A-1.104 is proposed for repeal as it is duplicative of statute. Revisions to Rule 12A-1.108 extend the date for applications for a Data Center Property Temporary Tax Exemption Certificate (Chapter 2021-31, § 20, L.O.F.). The rulemaking addresses amendments to Sections 212.04, 212.05, 212.054, 212.0596, 212.06, 212.07, 212.11, 212.12, and 212.18, F.S., as well as the creation of Section 212.05965, F.S., contained in Chapter 2021-2, L.O.F. The rulemaking also addresses amendments to Sections 212.06, 212.07, and 212.08, F.S., contained in Chapter 2021-31, L.O.F.

SUMMARY: Rule 12A-1.004 is proposed for repeal as the 2021 legislature replaced the sales tax bracket system with a rounding algorithm. Proposed revisions to Rule 12A-1.005 address the collection of sales tax on the cost of admission based on the rounding algorithm which has replaced the sales tax bracket system and is consistent with emergency rule 12AER21-7. The proposed amendments for Rule 12A-1.020 incorporate a 2021 legislative change which exempts specific items that assist in independent living; this list has been added to Form DR-46NT, Nontaxable Medical Items and General Grocery List, which is incorporated by reference in Rule 12A-1.097. The proposed rule language for Rule 12A-1.056 strikes language related to the collection allowance for dealers who made mail order sales and is consistent with emergency rule 12AER21-8. Revisions to Rule 12A-1.057 address 2021 legislative changes to the provisions restricting dealers from absorbing part of or all sales tax in addition to the removal of obsolete language. The proposed rule language for Rule 12A-1.060 is consistent with emergency rule 12AER21-9, which included a previous version of Form DR-1MP; provides information regarding how marketplace providers, marketplace sellers, and remote sellers must register as dealers with the Department; adopts, by reference, Form DR-1MP, Florida Business Tax Application for Marketplace Providers and Remote Sales, which is provided as a reference for businesses registering as a marketplace provider or remote seller. The proposed rule language for Rule 12A-1.070 is consistent with emergency rule 12AER21-10, which strikes language related to the sales tax bracket system. The proposed revision to Rule 12A-1.091 replaces the term mail order sales with the term remote sales and is consistent with emergency rule 12AER21-11. Proposed revisions to Rule 12A-1.097 incorporate revisions to two forms implementing provisions related to marketplace providers, remote sales, and rental car surcharge; revisions to three forms that replace the sales tax bracket system with information about the new rounding algorithm; and revisions to one form to include a list of items that assist in independent living which are exempt from sales tax. Rule 12A-1.103 has been substantially reworded so the rule includes definitions related to marketplaces and remote sales; stipulates who is required to collect sales tax on sales made through a marketplace; includes provisions for certain marketplace sellers to collect sales tax on sales made through a marketplace; provides that marketplace providers and remote sellers are required to collect both sales tax and discretionary sales surtax; and is based on emergency rule 12AER21-13. Rule 12A-1.104 is proposed for repeal as it is duplicative of statute. Revisions to Rule 12A-1.108 extend the date for applications for a Data Center Property Temporary Tax Exemption Certificate. The proposed rule language creating Rule 12A-1.112 addresses when a dealer may advertise or hold out to the public that they will pay all or part of the sales tax imposed by Chapter 212, F.S.

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), 212.04(4), 212.0515(7), 212.0596(3), 212.06(5)(b)13., 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(8), 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), 1002.40(16) FS.

LAW IMPLEMENTED: 119.071(5), 125.0104, 125.0108, 201.01, 201.08(1)(a), 201.133, 202.11(2), (3), (6), (16), (24), 202.22(3)-(6), 202.28(1), 203.01, 212.02(1), 212.03, 212.0305, 212.031, 212.04, 212.05, 212.0501, 212.0506(4), (11), 212.0515, 212.054, 212.055, 212.0596, 212.05965, 212.06, 212.0606, 212.07, 212.08, 212.084(3), 212.085, 212.09, 212.096, 212.099, 212.11, 212.12, 212.13, 212.14(2), (4), (5), 212.15(1), 212.16(1), (2), 212.18(2), (3), 212.183, 212.1832, 212.19, 212.21(3), 213.235, 213.29, 213.37, 213.755, 215.26(6), 219.07, 288.1258, 290.00677, 365.172(9), 373.41492, 376.70, 376.75, 403.718, 403.7185, 443.131, 443.1315, 443.1316, 443.171(2), 465.187, 616.260, 681.117, 1002.40(13) 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:

 

12A-1.004 Sales Tax Brackets.

Rulemaking Authority 212.18(2), 213.06(1) FS. Law Implemented 212.03(1), (3), (6), 212.031(1)(c), (d), 212.04(1), 212.05(1), 212.08(3), 212.12(9), (10), (11) FS. History–New 10-7-68, Amended 6-16-72, 9-24-81, 7-20-82, Formerly 12A-1.04, Amended 12-13-88, 8-10-92, 3-17-93, 12-13-94, 6-19-01, 11-1-05, 9-1-09, 1-17-18, Repealed XX-XX-XX.

 

12A-1.005 Admissions.

(1)(a) Every person is exercising a taxable privilege when such person sells or receives anything of value by way of admissions, as defined in Section 212.02(1), F.S., except those admissions that are specifically exempt. Such seller is required to collect tax on the sales price or actual value of such admissions pursuant to Section 212.04(1)(b), F.S. Tax due must be calculated using the rounding algorithm as provided in Section 212.12(10), F.S. each admission charge for 10 cents or more the amount of tax provided for by the applicable bracket provided in Section 212.12(9), F.S. Each admission is a single sale. The seller may apply the rounding algorithm to the aggregate tax amount computed on all taxable admissions on an invoice or to the taxable amount of each individual admission on the invoice.

(b) No change

(c)1. The tax shall be computed and collected by the seller on the sales price or actual value of the admission, as provided in Section 212.04(1)(b), F.S., and is due at the moment of the transaction, except when the tax is collected for admission to an event at a convention hall, exhibition hall, auditorium, stadium, theater, arena, civic center, performing arts center, or publicly owned recreational facility. Tax collected on such events is due to the Department on the first day of the month following the actual date of the event for which the admission is sold and becomes delinquent on the 21st day of that month. Therefore, tax collected on season and series tickets for events held in such facilities should be apportioned to each event in the season or series and remitted to the Department accordingly.

2. through 4. No change

(d) No change

(2) through (3) No change

(4) Dues and initiation fees, equity and nonequity memberships, capital contributions and assessments, refundable deposits, and user fees.

(a)1. Dues and user fees paid to any organization, including athletic clubs, health spas, civic, fraternal, and religious clubs, and organizations that provide physical fitness facilities or recreational facilities, such as golf courses, tennis courts, swimming pools, yachting, boating, athletic, exercise, and fitness facilities, are subject to tax. Dues and user fees do not include:

a. through d. No change

2. No change

(b) through (f) No change

(5) through (6) No change

Rulemaking Authority 212.04(4), 212.17(8) 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.02(1), 212.04, 212.08(6), (7)(gg), 616.260 FS. History–New 10-7-68, Amended 1-7-70, 6-16-72, 7-19-72, 12-11-74, 9-28-78, 7-3-79, 12-3-81, 7-20-82, Formerly 12A-1.05, Amended 1-2-89, 12-16-91, 10-17-94, 3-20-96, 3-4-01, 10-2-01, 4-17-03, 6-28-05, 4-26-10, 1-12-11, 1-17-13, 1-19-15, 1-17-18, XX-XX-XX.

 

12A-1.020 Licensed Practitioners; Drugs, Medical Products and Supplies.

(1) through (10) No change

(11) Items that assist in independent living. The following items, when purchased for noncommercial home or personal use, are exempt from tax:

(a) A bed transfer handle selling for $60 or less.

(b) A bed rail selling for $110 or less.

(c) A grab bar selling for $100 or less.

(d) A shower seat selling for $100 or less.

(11) renumbered (12) No change

Rulemaking Authority 212.08(2)(a), 212.18(2), 213.06(1) FS. Law Implemented 95.091(3), 212.08(2), (5)(u), 212.085, 212.12(6)(a), 213.37, 465.186, 465.187 FS. History–New 10-7-68, Amended 1-17-71, 6-16-72, 5-27-75, 5-10-77, 6-26-78, 2-26-79, 6-3-80, 12-31-81, 8-28-84, Formerly 12A-1.20, Amended 12-8-87, 7-12-10, XX-XX-XX.

 

12A-1.056 Tax Due at Time of Sale; Tax Returns and Regulations.

(1) No change

(2) Collection allowance.

(a) No change

(b)1. The collection allowance (except for dealers who make mail order sales, see subsection (5) of Rule 12A-1.103, F.A.C.) is computed at the rate of 2.5 percent on the first $1,200 of tax due. No collection allowance is authorized for tax collected in excess of $1,200. The maximum amount of collection allowance authorized for any filing period for any electronic sales and use tax return is $30.

2. through 4. No change

(c) through (e) No change

(3) through (4) No change

Rulemaking Authority 212.18(2), 213.06(1) FS. Law Implemented 125.0104(3)(g), 125.0108(2)(a), 212.03(2), 212.0305(3)(c), 212.031(3), 212.04(3), (4), 212.0506(4), (11), 212.055, 212.06(1)(a), 212.0606, 212.11, 212.12(1), (2), (3), (4), (5), 212.14(2), 212.15(1), 213.235, 213.755, 373.41492, 376.70, 376.75, 403.718, 403.7185,443.036, 443.121(1), (3), 443.131, 443.1315, 443.1316, 443.171(2), (7), 681.117 FS. History–New 10-7-68, Amended 6-16-72, 10-21-75, 6-9-76, 11-8-76, 2-21-77, 4-2-78, 10-18-78, 12-23-80, 8-26-81, 9-24-81, 11-23-83, 5-28-85, Formerly 12A-1.56, Amended 3-12-86, 1-2-89, 12-19-89, 12-7-92, 10-20-93, 10-17-94, 3-20-96, 4-2-00, 6-19-01, 8-1-02, 4-17-03, 9-28-04, 11-6-07, 9-15-08, 1-17-13, 5-9-13, XX-XX-XX.

 

12A-1.057 Alcoholic and Malt Beverages.

(1)(a) Alcoholic beverages, including beer, ale, and wine are taxable.

(b) Except as provided in Rule 12A-1.112, F.A.C., a dealer will The dealer shall add the tax to the sale price (including any other state and federal taxes) of each sale and may he shall not advertise or hold out to the public in any manner that the dealer he will pay all or absorb any part of the tax or that he will relieve the purchaser from the payment thereof.

(c) However, nothing herein contained shall be construed as prohibiting a dealer from setting his prices on the sale of alcoholic beverages in such a manner as to avoid the handling of pennies, provided ; Provided, however, that each and every one of the dealer’s price lists shows shall show the price of the beverage and the amount of tax due thereon as separate items. For example, a dealer’s price may list a bottle of beer for 47¢, sales tax 3¢, total 50¢; a glass of wine for 80¢ plus sales tax of 5¢, total 85¢; or a cocktail for $1.69 plus sales tax of 11¢, total $1.80.

(2) No change

(3) In some instances, it may be impractical for a dealer to separately record the sales price of the beverage and the tax thereon. In such cases, for the privilege of deviating from the requirement of subsection (1) above, a dealer shall remit tax in accordance with one of the methods outlined below, and the dealer’s his records must substantiate the method so elected.

(a) through (c) No change

(4)(a) Wine Retroactively to July 1, 1981, wine or fortified wine and liquor or distilled spirits provided by distributors or vendors for the purpose of “wine tasting” and “spirituous beverage tasting” as contemplated under the provisions of Chapters 564 and 565, F.S., is exempt from the tax imposed by Chapter 212, F.S.; however, any charge imposed upon the general public for “wine tasting” and “spirituous beverage tasting” is subject to tax.

(b) No change

Rulemaking Authority 212.18(2), 213.06(1) FS. Law Implemented 212.02(12), (14)(a), 212.05(1)(a)1.a., (b), (2), (3), (4), 212.06, 212.07(2), (4), 212.08(4)(b), (7)(s), 212.18(3), 212.19, 561.01 FS. History–New 10-7-68, Amended 6-16-72, 1-10-78, 7-16-79, 7-20-82, Formerly 12A-1.57, Amended 12-13-88, 6-4-08, XX-XX-XX.

 

12A-1.060 Registration.

(1) Persons required to register as dealers.

(a) No change

(b)1. For purposes of this rule, a “dealer” means a dealer, as defined in Section 212.06(2), F.S., and a dealer who makes mail order sales, as provided in Section 212.0596, F.S.

2. No change

(c) The term “dealer” includes a retailer who transacts a substantial number of remote sales or a marketplace provider that has a physical presence in Florida or that makes or facilitates through its marketplace a substantial number of remote sales.

(c) through (d) renumbered (d) through (e) No change

(2) No change

(3) Registration of marketplace providers and remote sellers.

(a) Marketplace providers and remote sellers, as defined in Rule 12A-1.103, F.A.C., must register electronically with the Department to collect and remit sales tax and discretionary sales surtax and obtain a separate certificate of registration for each marketplace and each place of business in Florida. A marketplace is deemed a separate place of business. A separate application is required for each place of business located within Florida. Out-of-state businesses can submit one application for all out-of-state locations.

(b) Electronic registration can be completed by going to floridarevenue.com/taxes/registration. This applies to persons required to register pursuant to subparagraphs 1. and 2. below.

1. The following persons who have a physical presence in Florida must register using the Department’s electronic Florida Business Tax Application (Form DR-1, incorporated by reference in Rule 12A-1.097, F.A.C.).

a. Marketplace providers.

b. Marketplace sellers who make sales outside of the marketplace.

2. The following persons who do not have a physical presence in Florida must register electronically using the Department’s electronic registration application for marketplace providers and marketplace sellers. The information required in this electronic application is provided in the Florida Business Tax Application for Marketplace Providers and Remote Sales (Form DR-1MP, effective 01/22, hereby incorporated by reference, http://www.flrules.org/Gateway/reference.asp?No=Ref-______) and available on the Department’s website at floridarevenue.com/taxes/sut. This form is provided for informational purposes only.

a. Marketplace providers who make or facilitate a substantial number of remote sales.

b. Marketplace sellers who make a substantial number of remote sales outside of the marketplace.

c. Remote sellers, as defined in Rule 12A-1.103, F.A.C.

(3) renumbered (4) No change

(5) (4) Registration of exhibitors.

(a) No change

(b) Any exhibitor who displays tangible personal property or services at a convention or trade show is required to register as a dealer and collect and remit tax on sales of taxable property or services subject to Florida sales tax when:

1. No change

2. The written agreement authorizes an exhibitor to make remote mail order sales, pursuant to Section 212.0596, F.S.; or

(c) No change

(5) renumbered (6) No change

Rulemaking Authority 212.12(2)(d), 212.18(2), 213.06(1) FS. Law Implemented 119.071(5), 212.03(1), (2), 212.04(4), 212.0596(1), (2), 212.05965, 212.06(2), 212.12(5), (6), 212.14(4), 212.16(1), (2), 212.18(3) FS. History–New 10-7-68, Amended 1-7-70, 6-16-72, 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, 6-14-10, 6-28-10 (6), 6-28-10 (3), 7-28-15, 1-17-18, 3-25-20, XX-XX-XX.

 

12A-1.070 Leases and Licenses of Real Property; Storage of Boats and Aircraft.

(1) through (3) No change

(4)(a) No change

(b) The tax shall be paid on all considerations due and payable by the tenant or other person actually occupying, using, or entitled to use any real property to his landlord or other person for the privilege of use, occupancy, or the right to use or occupy any real property for any purpose. The amount of tax due must be calculated with the use of the applicable effective sales tax brackets.

(c) through (g) No change

(5) through (23) No change

Rulemaking Authority 212.18(2), 213.06(1) FS. Law Implemented 212.02(10)(h), (i), (13), 212.03(6), 212.031 FS. History‒New 10-7-68, Amended 2-8-69, 10-7-69, 6-16-72, 9-26-77, 10-18-78, 12-31-81, 7-20-82, Formerly 12A-1.70, Amended 1-2-89, 3-27-95, 7-17-95, 1-17-18, 1-8-19, 12-12-19, XX-XX-XX.

 

12A-1.091 Use Tax.

(1) through (13) No change

(14)(a) through (c) No change

(d) Any person required to file and remit use tax on Form DR-15MO is not required to remit local option surtaxes on property purchased through a remote in a mail order sale.

(15) No change

Rulemaking Authority 212.0596(3), 212.18(2), 213.06(1) FS. Law Implemented 212.02(7), (20), (21), 212.05(1), 212.0596(7), 212.06(1), (2), (4), (7), (8), (11), 212.07(8), 212.183 FS. History–New 10-7-68, Amended 1-7-70, 6-16-72, 11-6-85, Formerly 12A-1.91, Amended 7-7-92, 6-2-93, 11-16-93, 1-4-94, 5-18-94, 6-19-01, XX-XX-XX.

 

12A-1.097 Public Use Forms.

(1) No change

Form Number	Title	Effective Date
(2)(a) DR-1	Florida Business Tax Application (http://www.flrules.org/Gateway/reference.asp?No=Ref-______ 11781)	01/22 03/20
(b) through (c)	No change
(d) DR-1A	Application for Registered Businesses to Add a New Florida Location (http://www.flrules.org/Gateway/reference.asp?No=Ref-______ 11782)	01/22 03/20
(e) through (f)	No change
(3)	No change
(4)(a)	No change
(b) DR-7N	Instructions for Consolidated Sales and Use Tax Return (http://www.flrules.org/Gateway/reference.asp?No=Ref-______ -12310)	07/21 01/21
(c)	No change
(5)(a)	No change
(b) DR-15N	Instructions for DR-15 Sales and Use Tax Returns (http://www.flrules.org/Gateway/reference.asp?No=Ref-______ 12311)	07/21 01/21
(c) through (d)	No change
(e) DR-15EZN	Instructions for DR-15EZ Sales and Use Tax Returns (http://www.flrules.org/Gateway/reference.asp?No=Ref-______ 12312)	07/21 01/21
(f) through (k)	No change
(6) through (10)	No change
(11) DR-46NT	Nontaxable Medical Items and General Grocery List (http://www.flrules.org/Gateway/reference.asp?No=Ref-______ 11384)	01/22 01/20
(12) through (24)	No change

Rulemaking Authority 201.11, 202.17(3)(a), 202.22(6), 202.26(3), 212.0515(7), 212.0596(3), 212.06(5)(b)13., 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., 212.18(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), 1002.40(16) FS. Law Implemented 92.525(1)(b), 125.0104, 125.0108, 201.01, 201.08(1)(a), 201.133, 202.11(2), (3), (6), (16), (24), 202.22(3)-(6), 202.28(1), 203.01, 212.03, 212.0305, 212.031, 212.04, 212.05, 212.0501, 212.0515, 212.054, 212.055, 212.0596, 212.05965, 212.06, 212.0606, 212.07(1), (8), 212.08, 212.084(3), 212.085, 212.09, 212.096, 212.099, 212.11(1), (4), (5), 212.12(1), (2), (9), (13), 212.14(2), (4), (5), 212.18(2), (3), 212.183, 212.1832, 213.235(1), (2), 213.29, 213.37, 213.755, 215.26(6), 219.07, 288.1258, 290.00677, 365.172(9), 376.70(2), 376.75(2), 403.718, 403.7185(3), 443.131, 443.1315, 443.1316, 443.171(2), 1002.40(13) 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, 10-28-19, 12-12-19, 3-25-20, 12-31-20, XX-XX-XX.

 

Substantial rewording of Rule 12A-1.103, F.A.C., follows. See Florida Administrative Code for present text.

12A-1.103 Remote Mail Order Sales; Marketplaces.

(1) Definitions.

(a) A “marketplace” means any physical place or electronic medium through which tangible personal property is offered for sale.

(b) A “marketplace provider” means a person who facilitates a retail sale by a marketplace seller by listing or advertising for sale by the marketplace seller tangible personal property in a marketplace and who directly, or indirectly through agreements or arrangements with third parties, collects payment from the customer and transmits all or part of the payment to the marketplace seller, regardless of whether the marketplace provider receives compensation or other consideration in exchange for its services.

(c) A “marketplace seller” means a person who has an agreement with a marketplace provider that is a Florida dealer and who makes retail sales of tangible personal property through a marketplace owned, operated, or controlled by the marketplace provider.

(d) A “remote sale” means a retail sale of tangible personal property ordered by mail, telephone, the Internet, or other means of communication from a person who receives the order outside of this state and transports the property or causes the property to be transported from any jurisdiction, including this state, to a location in this state. For purposes of this paragraph, tangible personal property delivered to a location within this state is presumed to be used, consumed, distributed, or stored to be used or consumed in this state.

(e) A “remote seller” means a person who makes a substantial number of remote sales outside of a marketplace. Marketplace providers and marketplace sellers who make a substantial number of remote sales outside of a marketplace are considered remote sellers.

(f) A “substantial number of remote sales” means any number of taxable remote sales in the previous calendar year in which the sum of the sales prices, as defined in s. 212.02(16), F.S., exceeded $100,000.

(2) Marketplace providers and remote sellers required to collect and remit sales tax and discretionary sales surtax due on retail sales to persons in Florida must register with the Department electronically as provided in Rule 12A-1.060, F.A.C.

(3)(a) A marketplace provider must certify to its marketplace sellers that it will collect and remit any Florida sales tax, plus applicable discretionary sales surtax, due on retail sales made through the marketplace to persons in Florida. This certification may be included in the agreement between a marketplace seller and a marketplace provider.

(b) A marketplace seller who makes sales outside a marketplace must collect and remit Florida sales tax, plus applicable discretionary sales surtax, on retail sales made outside the marketplace to persons in Florida if they made a substantial number of remote sales in the previous calendar year. When determining whether a marketplace seller made a substantial number of remote sales, only those sales made outside of the marketplace are included in the total amount of taxable remote sales.

(4)(a) The following dealers must timely file Florida sales and use tax returns and remit sales tax and discretionary sales surtax to the Department by electronic means.

1. A marketplace provider that is a dealer under Chapter 212, F.S.

2. A person who is required to collect and remit sales tax on remote sales.

(b) Returns and payments must be submitted to the Department by electronic means as provided in Rule 12A-1.056, F.A.C., and Rule Chapter 12-24, F.A.C.

Cross Reference: Rule 12A-15.003, F.A.C.

(5) Marketplace Seller notification to collect sales tax.

(a) Effective April 1, 2022, a marketplace seller may collect and remit all applicable taxes and fees on its sales made through a marketplace provider when all of the following conditions are met:

1. The marketplace seller and the marketplace provider have contractually agreed that the marketplace seller will collect and remit all applicable taxes and fees on its sales made through the marketplace.

2. The marketplace seller has registered with the Department as a dealer under s. 212.18, F.S., and has provided evidence of registration to the marketplace provider.

3. The marketplace seller has annual United States gross sales of more than $1 billion, including the gross sales of any related entities or the combined sales of all franchisees of a single franchisor.

4. The marketplace seller has sent written notification to the Department as provided in paragraph (b).

(b) The notice must be on the marketplace seller’s business letterhead, state that the marketplace seller meets all conditions stated in s. 212.05965(11), F.S., and has chosen to collect and remit all applicable taxes and fees for its sales made through a marketplace provider. The notice must be signed by an individual authorized to sign on behalf of the marketplace seller. The notice may be delivered in one of three ways:

1. A letter can be mailed to the following mailing address:

Account Management MS 1-5730

Florida Department of Revenue

5050 W Tennessee St.

Tallahassee, FL 32399-0160

2. A scanned letter can be emailed to [e-mail].

3. A letter can be faxed to 850-922-0859.

(c) Sample Notice.

1. The notice may take any form as long as it clearly states that the marketplace seller is electing to collect all applicable taxes and fees for its sales made through a marketplace provider.

2. The notice must be signed by an authorized individual of the marketplace seller.

3. An example of notice language is as follows: “In accordance with Section 212.05965(11), F.S., (Name of Marketplace Seller, sales and use tax certificate number) has met the statutory requirements that allow it to collect and remit all applicable taxes and fees for its sales made through (name of Marketplace Provider) and that it is liable for failure to collect or remit those taxes and fees. For questions, please contact (name of Marketplace Seller contact person) at (contact telephone number or email address).”

Rulemaking Authority 212.17(6), 212.0596(3), 212.18(2), 213.06(1) FS. Law Implemented 212.02(14), (21), 212.05, 212.0596, 212.05965, 212.06(2), (5), 212.12(1), 212.18(3),213.37 212.20(4), 215.26(2) FS. History–New 12-8-87, Amended 8-10-92, 4-17-03, XX-XX-XX.

 

12A-1.104 Sales of Property to be Transported to a Cooperating State.

Rulemaking Authority 212.06(3)(b)2., 212.18(2), 213.06(1) FS. Law Implemented 212.06(3) FS. History–New 12-8-87, Amended 12-31-20. Repealed–XX-XX-XX.

 

12A-1.108 Exemption for Data Center Property.

(1) through (6) No change

(7) Except as provided in paragraph (5)(b), the exemption provided for data center property is a permanent exemption for qualifying data centers that apply for and receive a Data Center Property Temporary Tax Exemption Certificate during the period from July 1, 2017, through June 30, 2027 2022, and then meet all requirements for the Data Center Property Certificate of Exemption within five years. The Department will not process applications for Data Center Property Temporary Tax Exemption Certificate after June 30, 2027 2022.

Rulemaking Authority 212.18(2), 213.06(1) FS. Law Implemented 212.08(5)(s) FS. History–New 4-16-18, XX-XX-XX.

 

12A-1.112 Sales Tax Paid by Dealers on Behalf of Purchasers

(1) Dealers engaged in any business subject to tax pursuant to Chapter 212, F.S., may not, except as provided in subsection (2), advertise or hold out to the public, directly or indirectly, any of the following:

(a) The dealer will pay all or any part of the tax.

(b) The dealer will relieve the purchaser of all or any part of the tax.

(c) The tax will not be added to the selling price of the property or services sold or released.

(d) The tax or any part of the tax, when added, will be refunded.

(2) A dealer may advertise or hold out to the public that the dealer will pay all or any part of the tax on behalf of the purchaser, only when the purchaser is given a charge ticket, sales slip, invoice, or other tangible evidence of the sale that satisfies the following conditions:

(a) It is expressly stated that the dealer will pay to the state any part of the tax imposed pursuant to Chapter 212, F.S., which was not collected from the purchaser.

(b) The sales price and the amount of tax due are separately stated.

(c) Dealers may not indicate or imply that a transaction is exempt or excluded from tax.

Rulemaking Authority 212.18(2), 213.06(1), FS. Law Implemented: 212.07(4). History-New 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, 2022

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 9, 2021