HomeMy WebLinkAbout2001 07 09 Public Hearings C Second Reading - Ordinance 2001-42 Communication Services Tax Simplification Tax
COMMISSION AGENDA
ITEM C
Consent
Informational
Public Hearin
Re ular
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T111y q, ')001
Meeting
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Mgr./ Atty. / Dept.
Authorization
REQUEST: The Finance Department requests the City Commission consider
second reading and adoption of Ordinance No. 2001-42 as it relates to the
Communication Services Tax Simplification Tax.
PURPOSE:
The Florida State Legislature has enacted a Communications Services Tax
Simplification Law which establishes the maximum tax rate a municipality
may charge for the retail sale of communications services within its
jurisdiction. The law requires that municipalities elect whether it will charge
and collect permit fees by providers of communications services for work
within the municipalities rights-of-way, and provides an option to increase the
communications services tax by 0.12%, for those municipalities that elect to
not charge and collect permit fees. The law further provides that such rate may
be adopted by the municipality by way of resolution or ordinance.
Notice of the election, relating to the rights-of-way permit fees and increase of
the communications services tax by a maximum of 0.12%, must be provided to
the Department of Revenue by certified mail on or before July 16,2001.
This Ordinance adopts the maximum rate allowable under the statute, to ensure
the City's revenue streams from this source remain intact; and elects not to
require and collect permit fees.
APPLICABLE LAW AND PUBLIC POLICY:
Chapter 202, Florida Statutes, Communications Services Tax Simplification
law, providing for a maximum tax rate and unified collection and auditing
procedures; Chapter 2001-140, Laws of Florida, amending Chapters 202 and
337, Florida Statutes, relating to the Communications Services Tax
Simplification Law and regulations of the use of rights-of-way by
communications services; and Chapter 18 City Code providing for a tax levy
on the sale of utility services within the City.
CONSIDERATIONS:
A. The Communications Services Tax Simplification Law is mandatory and
supercedes any local regulations, in regard to communications services.
A. The enactment of Communications Services Tax Simplifications Law
creates conflicts within the City Code which need to be remedied by
ordinance.
A. The amendments to Chapter 337, Florida Statutes require that a
municipality elect to require and collect permit fees for work by
communications services in the municipalities rights-of-way. Such election
must be made and sent to the Department of Revenue via certified mail no
later than July 16, 2001. Failure of a municipality to make such an election
will create the presumption that it chose to not require or collect permit fees.
A. The amendments to Chapter 337, Florida Statutes provide that where a
municipality elects to not collect permit fees, it may increase its
communications services tax rate by a maximum of 0.12%. This increase
must be by way of resolution or ordinance, with notice provided to the
Department of Revenue via certified mail no later than July 16,2001. Ifa
municipality does not make its election to increase its rate, under Chapter
337, by or before July 16,2001, it will not be able to do so until January
2003.
A. The amendments to Chapter 202, Florida Statutes provide the City of
Winter Springs with "conversion tax rates" in excess of the maximum rate.
Should the rates provided not realize the City the same amount of revenue
as expected to realize prior to the enactment of the simplification law, it
may enact an emergency rate increase by resolution or ordinance. If the
revenue received is in excess of 10% greater than that was expected the
municipality must roll-back its rates so revenues are below the 10%
threshold. Section 202.20(2)(a)4 provides a municipality may adopt its rate
by resolution or ordinance and avoid the roll-back requirement.
STAFF RECOMMENDATION: The Finance Department recommends a second
reading and approval of Ordinance No. 2001-42.
ATTACHMENTS: Ordinance # 2001-42.
COMMISSION ACTION:
ORDINANCE NO. 2001-42
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF WINTER SPRINGS, FLORIDA, RELATING TO
THE IMPLEMENTATION OF A DISCRETIONARY
COMMUNICATIONS SERVICES TAX IN ACCORDANCE
WITH THE ENACTMENT OF THE COMMUNICATIONS
SERVICES TAX SIMPLIFICATION LAW OF FLORIDA;
PROVIDING FOR THE AMENDMENT OF CHAPTER 18
OF THE CITY CODE; PROVIDING FOR THE ADOPTION
OF A NEW SECTION 18-31; PROVIDING FOR ELECTION
NOT TO REQUIRE AND COLLECT PERMIT FEES;
PROVIDING FOR ELECTION TO INCREASE LOCAL
COMMUNICATIONS SERVICES TAX; PROVIDING FOR
NOTICE TO THE DEPARTMENT OF REVENUE;
PROVIDING FOR THE REPEAL OF INCONSISTENT
ORDINANCES AND RESOLUTIONS; PROVIDING FOR
SEVERABILITY; PROVIDING FOR CODIFICATION;
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Florida State Legislature through General Law 2000-260 (codified as
Chapter 202 of the Florida Statutes) enacted the Communications Services Tax Simplification
Law, which establishes the maximum rate of tax with which a municipality may charge for the
retail sale of communication services and provides for a state wide, uniform, procedure for the
imposition, collection, and remittance of this tax; and
WHEREAS, section 337.401(3)(c)1., Florida Statutes (2000), requires each municipality
to make an election regarding the payment of permit fees by providers of communications
services and further requires each municipality to inform the Department of Revenue of the
election by certified mail by July 16,2001; and
WHEREAS, a municipality may require and collect permit fees from any providers of
communications services that use or occupy municipal roads or rights-of-way for the provision
of communications services. However, to ensure competitive neutrality among providers of
communications services, a municipality that elects to exercise its authority to require and collect
permit fees will have an automatic reduction in the rate of the local communications services tax
for the municipality, as computed under section 202.20(1) and (2), Florida Statutes (2000), as
amended, by a rate of 0.12%; and
WHEREAS, alternatively a municipality may elect not to require and collect permit fees
from any provider of communications services that uses or occupies municipal roads or rights-
of-way for the provision of communications services. If the municipality elects not to require
and collect permit fees, the total rate for the local communications services tax as computed
under section 202.20(1) and (2), Florida Statutes (2000), as amended, for that municipality may
be increased by ordinance by an amount not to exceed a rate of 0.12%; and
WHEREAS, section 34, 2001-140 General Laws of Florida further amends section
337.401 (3)(c) 1., Florida Statutes (2000), to state that the Department of Revenue must be
informed of a municipality's election by certified mail postmarked on or before July 16, 2001;
and
WHEREAS, section 34, 2001-140 General Laws of Florida further provides that if a
municipality elects not to require and collect permit fees from any provider of communications
services that uses or occupies municipal roads or rights-of-way for the provision of
communications services, the total rate for the local communications services tax as computed
under section 202.20(1) and (2), Florida Statutes (2000), as amended, for that municipality may
be increased by ordinance or resolution by an amount not to exceed a rate of 0.12%. The bill
further provides if a municipality elects to increase its rate effective October 1, 2001, the
municipality shall inform the Department of Revenue of such increas~d rate by certified mail
postmarked on or before July 16,2001; and
WHEREAS, section 337.401(3)(c)1., Florida Statutes (2000), further provides that if a
municipality does not make an election and notify the Department of Revenue, it is presumed
that the municipality elects not to require and collect pernlit fees from any provider of
communications services that uses or occupies municipal roads or rights-of-way for the provision
of communications services, and such municipality will be authorized to increase its tax rate by
an amount not to exceed a rate of 0.12%; and
WHEREAS, the City Commission, in accordance with section 12, 2001-140, General
2
Laws of Florida, elects to adopt by this ordinance the rate of tax upon communications services;
and
WHEREAS, the enactment of Chapter 202 and amendment to Chapter 337, Florida
Statutes has rendered portions of the city code to be in conflict with the state statutes; and
WHEREAS, the City Commission desires to amend the city code to extinguish any
conflicts; and
WHEREAS, the City Commission of the City of Winter Springs deems it in the
best interest of the public health, safety, and welfare of the citizens of the City of Winter
Springs. NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER
SPRINGS HEREBY ORDAINS, AS FOLLOWS:
Section 1. Recitals. The Recitals set forth above are true and correct and form a part of
this Ordinance.
Section 2. Code Amendment. The City of Winter Springs Code Chapter 18< Article
II. Municipal Public Service Tax is hereby amended as follows: (underlined type indicates
additions and strikeout type indicates deletions, while asterisks (* * *) indicate a deletion from
the Ordinance of text existing in Chapter 18, Article II. It is intended that the text in Chapter 18,
Article II denoted by the asterisks and set forth in this Ordinance shall remain unchanged from
the language existing prior to adoption of this Ordinance)
CHAPTER 18
ARTICLE II. MUNICIPAL PUBLIC SERVICE TAX
Sec. 18-26. Levy.
* * *
(b) There is hereby imposed and levied by the city a tax upon each and every purchase of
telecommunications communications services. as defined in & 202.11. Florida Statutes (2000). as
may be amended. and which is provided for by Chapter 202. Florida Statutes (2000). as may be
amended. which originates and terminates in this state at a rate of seven (7) percent of the total
amount charged for any telecommunications service provided ',vi thin the city or, if the location of
the telecommunications service provided carmot be detem1ined, the total amount billed for such
telecommunications service to a telephone or telephone nbu11ber, a teleeommunications number
3
or device, or a customer's billing address located within the city, excluding public telephone
oharges collected on site, oharges for any fDreign emchange service or any private line service
exoept 'Nhen such services are used or sold as a substitute fDr any telephone company s'Nitched
service or dedicated facility by which a telephone company provides a communication path,
access charges, and any customer access line charges to a local telephone company. However,
telephone communication service shall be taxed only on the monthly recurring customer service
charges excluding variable usage charges. for p1:lrposes of calculating the tax, the amount
charged for the taxable service shall be deemed to include any gross receipts taxes and franchise
fees separately statel;! on the customer'G bill.
W Pursuant to section 12. Chapter 2001-140. Laws of Florida. amending section 202.20. the
City Commission of the City of Winter Springs. Florida. hereby elects to adopt a 6.20% rate as
the City's local communications services tax for the period beginning October 1. 2001 and
ending September 30. 2002. This rate does not include the add-on rate as provided for in Section
18-31.
@ Pursuant to section 12. Chapter 2001-140. Laws of Florida. amending section 202.20. the
City Commission of the City of Winter Springs. Florida, hereby elects to adopt a 5.80% rate as
the City's local communications services tax for the period beginning October 1. 2002. This rate
does not include the add-on rate as provided for in Section 18-31.
{ll(e} As used in this chapter, terms shall have the meaning and definition given to them
under section 203.012, Florida Statutes, unless otherwise provided. including, but not limited to
the terms "aoceSG charge" or "right of access", "looal telephono service", "private comm1:lnication
seryice", "telecommunicationG Gervice", "teletype'....riter or computer exchange Gervioe" and "toll
telephone service".
Sec. 18-27. Exemptions.
Purchases by all federal, state, county and municipal governments and their commissions and
agencies, all public schools and all recognized churches that possess a consumer certificate of
exemption issued under Chapter 212, Florida Statutes, telecommunicationG communications
service~ for use in the conduct of a telecomm1:lRicatiofls communications .service~ for hire or
otherwise for resale and certain other public bodies exempted by law or court order, shall be
exempt from the taxes hereby imposed and levied under this article. However, governmental
bodies which sell or resell taxable service~ to nonexempt end users must collect and remit the tax
levied under section 18-26.
Sec. 18-28. Collection by seller.
* * *
City of Winter Springs
Ordinance No. 2001-42
{ill It shall be the duty of every seller of electricity, metered or bottled gas (natural, liquefied
or manufactured), and water service and teleoommunications service within the city to collect
from the purchaser, for the use of the city, the tax levied under section 18-26{ill, at the time of
collecting the charge therefor, and to file a return and remit, on or before the twentieth day of
each calendar month, or if the twentieth day is either a legal holiday or is not a city business day,
then on or before the first city business day that is not also a legal holiday, following the
twentieth day of the month, unto the city, all such taxes levied and collected during the preceding
calendar month. The date of receipt of such taxes by the city will be the date of postmark, or if
by electronic transfer, the date received by the city's primary bank as indicated on the city's bank
statement. Notwithstanding any other provision of this section, in the event the total amount of
tax anticipated to be collected within a calendar quarter does not exceed one hundred twenty
dollars ($120.00), the seller of such service may, with the authorization ofthe city, remit the
taxes collected during such calendar quarter to the city quarterly. In such case, the tax shall be
due on or before the twentieth day of the month following the end ofthe calendar quarter in
which the taxes were collected. The term "return" as used in this section, means the supporting
documentation submitted periodically in accordance with the provisions of this chapter, and to be
accompanied by the tax remittance, if any for that period, unto the city, which at a minimum
shall indicate:
* * *
Eb} For the purpose of compensating the seller oftolecommunications service, the seller shall
be allo'Ned one (1) percent of the amount of tax collected and due to the city in the f{)TITI of a
deduction from the amOlmt eollected f{)r remittance. This deduction shall be allO'.ved as
compensation for the keeping of records and for the collection of, and the remitting of, the tax.
This deduction shall not be allo'.ved in the event of an untimely return, unless the seller has in
',\Titing requested and been granted an (mtension of time f{)[ filing such return in accordance 'Nith
section 166.231(9)(f), Florida Statutes.
ili} It shall be the duty of each seller of communications services, within the city to collect
from the purchaser, for the use of the city, the tax levied under section 18-26(b), and to remit
such tax in accordance with Chapter 202. Florida Statutes (2000), as may be amended.
Sec. 18-29. Seller's records.
{ill Each and every seller of electricity, metered or bottled gas (natural, liquefied or
manufactured), and water service and telecommunications service, shall keep at its principal
place of business a complete record showing all sales in the city of such commodities or service,
which records shall show the price charged upon each sale, the date thereof, the date of
City of Winter Springs
Ordinance No. 2001-42
payment, the amount of utility taxes charged upon each sale, the date such utility tax was
remitted to the city, the period of time covered by such remittance and other related information
that may be required to veri fy proper collection and remittance of said taxes. To assure proper
administration of the provisions of this chapter, the city may, where possible and practical,
conduct a periodic audit of each sales records of all businesses in connection with which the tax
is imposed under this chapter. Failure to conduct such an audit will not eliminate the liability of
the seller for collection and remittance of the tax. Pursuant to section 166.234, Florida Statutes,
the city may, during the seller's nonnal business hours at the official location of the seller's
books and records, audit the records of any seller of a service that is taxable by the city under
section 166.231 or 166.232, Florida Statutes, for the purposes of ascertaining whether taxable
services have been provided or the correctness of any return that has been filed or payment that
has been made, if the city's power to assess tax or grant a refund is not barred by the applicable
limitations period. Each such seller must provide to the city, upon sixty (60) days written notice
of intent to audit from the city, access to applicable records for such service, except an extension
of this sixty-day period must be granted if reasonably requested by the seller. The seller may at
its option waive the sixty-day notice requirement. If either the city or the seller requires an
additional extension, it must give notice to the other no less than thirty (30) days before the
existing extension expires, except in cases of bona fide emergency or waiver of the notice
requirement by the other party. In an audit, the seller is liable only for its taxable accounts
collected which correspond to the information provided to it by the city under section
166.233(3), Florida Statutes. As used in this section "applicable records" means records kept in
the ordinary course of business which establish the collection and remittance of taxes due. Such
applicable records may be provided to the city on an electronic medium if agreed to by the seller
and the city. In accordance with section 166.231(9)(c), Florida Statutes, any information received
by the city or its agent in connection with such audit is confidential and exempt from the
provisions of section 119.07(1), Florida Statutes.
(Q) Each and every seller of communications services within the city shall maintain such
records as is required by Chapter 202, Florida Statutes (2000), as may be amended, and shall be
subiect to all auditing procedures provided for within Chapter 202, Florida Statutes (2000).
Sec. 18-30. Interest and penalties.
(a) Any seller of electricity, metered or bottled gas (natural, liquefied or manufactured), or
water service or telecommunications service failing to remit to the city on or before the twentieth
day of each calendar month or quarter, as applicable, or if the twentieth day is either a legal
holiday or is not a city business day, then on or before the first city business day, that is not also
a legal holiday, following the twentieth day of the month or quarter, as applicable, all such taxes
levied and collected during the proceeding tax period shall be liable for interest on the unpaid
amount of tax at the rate of one percent per month from the date the tax was due until paid. In
addition, penalties will be assessed at a rate of five (5) percent per month of the delinquent tax,
not to exceed a total penalty of twenty-five (25) percent, except that in no event will the penalty
City of Winter Springs
Ordinance No. 2001-42
for failure to file a return be less that fifteen dollars ($15.00). In the case ofa fraudulent return or
a willful intent to evade payment of the tax, the seller making such fraudulent return or willfully
attempting to evade payment of the tax, shall be liable for a specific penalty of one hundred
(100) percent of the tax. Interest and penalties shall be computed on the net tax due after
application of any overpayments. The interest and penalties shall accrue from the due date until
the date such taxes are paid; provided, however, that the city may settle or compromise any
interest due pursuant to this section as is reasonable under the circumstances.
* * *
Sec. 18-31. Rights-of-way Permit Fee Election
(ill The City of Winter Springs will not require and collect permit fees from any provider of
communications services that uses or occupies municipal roads or rights-of-way for the provision
of communications services. As provided in section 337.401(3)(c)L Florida Statutes (2000).
this election shall take effect October 1. 2001.
(Q} Pursuant to section 337.40 1(3)(c) I.b.. Florida Statutes (2000). as amended by section 34.
2001-140 General Laws of Florida. the City of Winter Springs elects to increase its total rate for
the local communications services tax. as computed under section 12.2001-140. General Laws
of Florida. amending section 202.20(1) and (2). Florida Statutes(2000). by an amount of 0.12%.
and this election shall take effect October 1. 2001.
Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All
prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior
ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
Section 4. Incorporation Into Code. This ordinance shall be incorporated
into the Winter Springs City Code and any section or paragraph number or letter and any heading
may be changed or modified as necessary to effectuate the foregoing.
Section 5. Severability. If any section, subsection, sentence, clause, phrase,
word or provision ofthis ordinance is for any reason held invalid or unco.nstitutional by any
court of competent jurisdiction, whether for substantive, procedural, or any other reason, such
portion shall be deemed a separate, distinct and independent provision, and such holding shall
not affect the validity of the remaining portions of this ordinance.
Section 6. Effective Date. This Ordinance shall become effective
immediately upon adoption by the City Commission of the City of Winter Springs, Florida.
ADOPTED by the City Commission of the City of Winter Springs, Florida, in a
regular meeting assembled on the ~ day of Julv ,2001.
City of Winter Springs
Ordinance No. 2001-42
ATTEST:
An
UNDREA L
CityCl
O-LUACES
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Approved as to legal form and sufficiency for
the CitY.::', inter Springs only
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/ Anthony A. Garganese,City Attorney
First Reading:
Second Reading:
Effective Date:
June 25, 2001
July 9, 2001
July 9, 2001
F:\LawyerVefTh\Communications Services Tax - Cities\Winter Springs\Chapter 18,wpd
City of Winter Springs
Ordinance No, 2001-42