Ch. 197 TAX COLLECTIONS, TAX SALES, TAX LIENS · Effective Ja-te of this chapter. Certain E-xemptions from inheritance and estate taxes. (8) "Gross estate" means the gross estate

Ch. 197 TAX COLLECTIONS, TAX SALES, TAX LIENS Ch. 197

which the lands are situated, for cancellation and said clerk shall cancel the certificates of record upon the payment of a fee of ten cents for each certificate so canceled.

Hlstory.-§7, c h . 18296, 1937 ; COL 1940 Supp. 992 (18); Ul, 2, ch . 69-55; §!, ch . 72·268.

Note.- See form er §§192.37, 197.345.

197.441 Cancellation of certain tax sale certificates.-

( I) The clerks of the circuit court of the several counties of the state are hereby authorized, empowered, and directed to note the cancellation by this section of any and all tax sale certificates issued for state taxes, state and county taxes, or municipal taxes, and held by any pri-

vate holder, natural or corporate, partnership, trustee estate of a deceased person, or other person or persons under disability or otherwise, where the land covered by such tax sale certificate heretofore reverted to the state for nonpayment of delinquent taxes under the provisions of the Murphy act.

(2) The clerks of the circuit court shall accomplish such cancellation by entering opposite the record of each such tax sale certificate so canceled a notation in substantially the following form : "Canceled by Acts 1947 Florida Legislature."

History.- §§! , 2, ch . 23832, 1947; §§! , 2, ch. 69·55; §! , ch . 72-268.

Note.- See former §§194.59, 197.435.

801

Ch. 198 ESTATE TAXES Ch. 198

CHAPTER 198

ESTATE TAXES

198.01 198.02 198.03

198.04 198.05

198.06

198.07

198.08 198.09 198.10

198.11 198.12

198.13 198.14

198.15 198.16

198.17

198.18 198.19 198.20

198.21

Definitions. Tax upon estates of resident decedents. Tax upon estates of nonresident dece-

dents. Tax upon estates of alien decedents. Administration of law by department

of revenue. Examination .of books, papers, records,

etc., by the department. Appointment of agents by department;

bonds of agents; may administer oaths; credentials.

Rules and regulations. Information confidential. Suits by or against department; spe

cial counsel. Appointment of special appraisers. Notice of death to department; tax

return. Tax return to be made in certain cases. Failure to make return; extension of

time for filing. When tax due; extension; interest. Notice of determination of deficiency

in federal estate tax to be filed with department.

Deficiency; hearing by department; procedure on appeal.

Failure to pay tax; civil penalties. Receipts for taxes. Failure to pay tax when due, depart

ment's warrant, etc. Tax due payable from entire estate;

third persons.

198.01 Definitions.-When used in this chapter the term, phrase or word:

(1) "Department" means the department of revenue.

(2) "Executor" means the executor, administrator or curator of the decedent, or, if there is no executor, administrator or curator appointed, qualified and acting, then any person who is in the actual or constructive possession of any property included in the gross estate of the decedent;'

(3) "Person" means persons, corporations, associations, joint stock companies and bus"iness trusts;

( 4) "Transfer" shall be taken to include the passing of property or any interest therein, in possession or enjoyment, present or future, by inheritance, descent, devise, succession, bequest, grant, deed, bargain, sale, gift, or appointment in the manner herein describE:d;

(5) "Decedent" shall include the testator, intestate, grantor, bargainor, vendor, or donor;

(6) "Resident" means a natural person domiciled in the state;

(7) "Nonresident" means a natural person domiciled without the state;

198.22 198.23 198.24

198.25 198.26

198.27 198.28 198.29 198.30

198.31

198.32 198.33

198.331

198.34 198.35 198.36 198.37 198.38 198.39 198.40

198.41 198.42 198.43 198.44

Lien for unpaid taxes. Personal liability of executor, etc. Sale of real estate by executor to pay

tax. Actions to enforce payment of tax. No discharge of executor until tax is

paid. Agreements as to amount of tax due. Time for assessment of tax. Refunds of excess tax paid. Circuit judge to furnish department

with names of decedents, etc. Duties and powers of corporate execu

tors of nonresident decedents. Prima facie. liability for tax. Discharge of estate, notice of lien, lim

itation on lien, etc. Retroactive effect of §§198.22 and

198.33. Disposition of proceeds from taxes. Interpretation and construction. Failure to produce records; penalty. Failure to make return; penalty. False return; penalty. False statement in return; penalty. Failure to pay tax, evasion of tax, etc.;

penalty. Effectiveness of this chapter, etc. Short title. Effective Ja-te of this chapter. Certain E-xemptions from inheritance

and estate taxes.

(8) "Gross estate" means the gross estate as determined under the provisions of the applicable federal revenue act;

(9) "N·et estate" means the net estate as determined under the provisions of the applicable federal revenue act;

(10) "Tangible personal property" means corporeal personal property, including money; and the term "i:ptangible personal property" means incorporeal personal property including deposits in banks, negotiable instruments, mortgages, debts, receivables, shares of stock, bonds, notes, credits, evidences of an interest in property, evidences of debt and choses in action generally.

(11). "United States" when used in a geographical sense includes only the fifty states, and the District of Columbia.

Hlstory.--§2. ch. 16015, 1833; CGL 1936 Supp, 1342(81); 1121, 35, ch . 6!1-1 06; §44, ch. 71-:!77.

198.02 Tax upon estates of resident decedents.-A tax is imposed upon the transfer of the estate of every person who, at the time of death, was a resident of this state, the amount of which shall be a sum equal to the amount by which the credit allowable under the applicable federal revenue act for estate, inheritance, leg-

802


acy and succession taxes actually paid to the several states shall exceed the lesser of:

(1) The aggregate amount of all constitu· tionally valid estate, inheritance, legacy and succession taxes actually paid to the several states of the United States (other than this state) in respect of any property owned by such decedent or subject to such taxes as a part of or in connection with his estate, or

(2) An amount equal to such proportion of such allowable credit as the value of properties taxable by other states bears to the value of the entire gross estate wherever situate. All values shall be as finally determined for federal estate tax purposes.

History.-§3, ch. 16015, 1933; CGL 1936 Supp. 1342(83)· §! ch. 71·202. ' '

198.03 Tax upon estates of nonresident decedents.-A tax is imposed upon the transfer of real property situate in this state, upon tangible personal property having an actual situs in this state, upon intangible personal property having a business situs in this state and upon stocks, bonds, debentures, notes and other securities or obligations of corporations organized under the laws of this state, of every person who at the time of death was not a resident of this state but was a resident of the United States, the amount of which shall be a sum equal to such proportion of the amount of the credit allowable under the applicable federal revenue act for estate, inheritance, legacy and succession taxes actually paid to the several states, as the value of the property taxable in this state bears to the value of the entire gross estate wherever situate.

Blotol'1.-14. ch. 16015, 1833; COL 1936 Supp. 1342(841; fl, ch . 28031, 1853.

section, be deemed to be physicaiJy present in this state.

Rl•tor;r.-§6, cb. 16016, 1938; CGL 1936 Supp. 1342(86).

198.05 Administration of law by department of revenue.-The department of revenue shall, except as otherwise provided, have jurisdiction and be charged with the administration and enforcement of the provisions of this chapter.

Hlllol'1.-16, cb. 16015, 1833; COL 1838 Supp. 1342(86) ; 1121, 35, ch. 68-106.

198.06 Examination of books, papers, records, etc., by the department.-

(!) The department, for the purpose of ascertaining the correctness of any return, or for the purpose of making a return where none has been made, may examine any books, papers, records or memoranda, bearing upon the matter required to be included in the return; may require the attendance of persons rendering return or of any officer or employee of such persons or of any person having knowledge in the pre~ises, at any convenient place in the coun~y in which such person resides, and may take_h1s testimony with reference to the matter requ1red by law to be included in such return, and may administer oaths to such persons.

(2) If any person summoned to appear under this chapter to testify, or to produce books, papers, or other data, shall ~efuse _to do so, the circuit court for the county m wh1eh such person resides shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data. 35~~i:~'le·:tJ:: ch. 16015, 1833; COL 1836 Supp. 1342(86); 1121,

198.07 Appointment of agents by department; bonds of agents; may administer oaths; credentials.-

(!) The department may appoint and re-198.04 Tax upon estatE's of alien decedents. move such examiners, appraisers, attorneys

-A tax is imposed upon the transfer of real and employees as it may deem necessary, such property situate and tangible personal prop- persons to have such duties and powers as the erty having an actual situs in this state and department may from time to time prescribe. upon intangible personal property physically The salaries of all examiners, appraisers, at-present within this state of every person who torneys and employees employed by the depart-at the time of death was not a resident of the ment shall be such as it may prescribe, and United States, the amount of which shall be such examiners, appraisers, attorneys and em-a sum equal to such proportion of the credit ployees shall be reimbursed for traveling ex-allowable under the applicable federal reve- penses as provided in § 112.061. nue act for estate, inheritance, legacy and (2) The department may require such of succession taxes actually paid to the several the examiners, appraisers, attorneys and em-states, as the value of the property taxable in ployees as it may designate to give bond this state bears to the value of the estate tax- payable to the state for the faithful perform-able by the United States wherever situate. ance of their duties in such form and with For the purpose of this section, stock in a co!- such sureties as it may determine, and all poration organized under the laws of th1s premiums on such bonds shall be paid by the state shall be deemed physically present with- state. in this state. The amount receivable as in- (3) All officers empowered by law to admin-surance upon the life of a decedent who at the ister oaths and the examiners, appraisers and time of his death was not a resident of the attorneys appointed by the department may United States and any moneys deposited with administer an oath to all persons giving any any person c~rrying on the banking business testimony before them or to take the by or for such decedent who was not enga~ed acknowledgment of any person in respect to in business in the United States at the time any return or report required under this of his death, shall not for the purpose of this chapter.

803

Ch. 198 EST ATE TAXES Ch. 198

(4) All examiners, appraisers and attorneys appointed by the department shall have for identifica tion purpose proper credentials issued by the department and exhibit the same upon demand.

Hls tory .-§6, ch . 16015, 1933 ; COL 1936 Supp. 1342(86) ; §19, ch . 63-400 ; §1 21 , 35 , ch . 69-106 . c ! .- ~ 112 .061 Traveling expenses.

§113 .07 Bonds o! o!!lcla1s .

198.08 Rules and regulations.-The department may from time to time make such rules and regulations not inconsistent with this chapter as it may deem necessary to enforce its provisions, and may adopt 8-uch rules and regulations as are or may be promulgated with respect to the estate tax provisions of the revenue act of the United States in so far as they shall be applicable hereto. The department may from time to time prescribe such forms as It shall deem proper for the administration of this cl\apter.

Blotor:r.--'-§6, ch. 16&16, 1833 ; COL 1836 Supp, 1342 (86); 1121, 35, ch. 68-106. ·

198.09 Information confidentiaL-Except in accordance with proper judicial order, or as otherwise provided by law, it constitutes a misdemeanor of the second degree, punishable as provided in §775.082 or §775.083, for the department or any examiner, appraiser, attorney or other employee to divulge or make known in any manner the value of any estate or any particulars set forth or disclosed in any report or return required. Nothing herein shall be .construed to prohibit the publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof. However, the department may permit the commissioner of internal revenue, any collector of internal revenue or internal revenue agent of the United States, or the proper officer of any state imposing an estate tax or inheritance tax or the authorized representative of such officer, to inspect the estate tax returns of any individual, or may furnish to such officer or his authorized representatives an abstract of the return of any ~xecutor or furnish information concerning any Item contained in any return or disclosed by the report of any investigation of the return of any executor.

Blstor:r.- 16, ch . 16015, 1933 ; COL 1836 Supp, 1342 (86 ); 1§21, 35, ch. 69-106; §96, ch . 71-136.

198.10 Suits by or against department; special counsel.-

( 1) The department may sue and be sued but shall not be required to give supersedeas or other bond in any cause or court of this state.

(2) Said department may employ special counsel to advise it and to conduct any litigation or proceeding that may be brought by or against it, and such special counsel shall be paid such compensation as said department shall deem proper.

Hlstory.- ! 6, ch. 16015, 1833 ; COL 1936 Supp, 1342 (86) ; 1§21, 35, ch. 68-106.

198.11 Appointment of special appraisers. -The department may employ special appraisers tor the purpose of determining the value of any property which is, or is believed by the department to be, subject to the tax imposed by this chapter, and such special appraisers shall be paid such compensation aa said department shall deem proper.

Hlstory.- 16, ch . 16015, 1933; COL 1836 Supp. 1342 (86); 1121, 35, ch. 68-106.

198.12 Notice of death to department; tax return.-The executor, within two months after the decedent's death, or within a like period after qualifying as such, shall give written notice thereof to the department on the form prepared and published by the department known as the preliminary notice and report.

Hlotor:r.-§7, ch. 16015, 1833 ; COL 1836 Supp. 1342(87) ; 11, ch. 29718, 1955; §§21, 35, ch. 69-106; §5, ch. 71-202.

i98.13 Tax return to be made in certain cases.- The executor of every estate required by the laws of the United States to file a federal estate tax return shall file with the de· partment within nine months from the date of death a return consisting of an executed copy of the federal estate tax return, and shall file with such return all supplemental data, if any, as may be necessary to determine and establish the correct tax under this chapter. Such return shall be made in the case of every decedent who at the time of his death was not a resident of the United States and whose gross estate shall include any real property situate and tangible personal property having an actual situs in the state and intangible personal property physically present within the state.

Hlotor:r.-§7, ch . 16015, 1833 ; COL 1836 Supp, 1342 (87) ; 12, ch. 28031, 1953; §2, ch. 29718, 1955; §§21 35 ch . 69-106· §2 ch. 71-202. , , ' ,

198.14 Failure to make return; extension of time for filing.-If the federal taxing authorities grant an extension of time for filing a return the department shall allow a like extension of time for filing upon the filing by the executor of a copy of such federal extension with the department. An extension of time for filing a return shall not operate to extend the time for payment of the tax. If any person fail s to file a return at the time prescribed by law or files , willfully or otherwise, a false or fraudulent return, the department shall make the return from its own knowledge and from such information as it can obtain through testimony or otherwise. Any such return so made by the department shall be prima fac1e good and sufficient for all legal purposes.

Hlstory .- §7, ch. 16015, 1933; COL 1836 Supp. 1342(87); 13, ch. 29718 , 1955; §§21 , 35, ch. 69-106.

198.15 When tax due; extension; interest.-The tax imposed by this chapter shall be due and payable nine months after the dece-

804


dent's death, and shall be paid by the executor to the department. Where the department finds that the payment on the due date of the tax or any part thereof would impose undue hardship upon the estate, the department may extend the time for payment of any such part, but no extension shall be for more than one year and the aggregate of extensions with respect to any estate shall not exceed five years from the due date. In such case the amount in respect of which the extension is granted shall be paid on or before the date of the expiration of the period of the extension unless a further extension be granted. If the time for the payment is thus extended there shall be collected, as part of such amount, interest thereon at the rate of six per cent per annum from the due date of the tax to the date the same shall be paid.

History .-§8, ch. 16015, 1933; COL 1936 Supp, 13•2(88); 13, ch. 28031, 1953; §§21, 35, ch. 69)06; §3, ch. 71-202.

198.16 Notice of determination of deficiency in federal estate tax to be filed with department.-It shall be the duty of the executor to file with the department within sixty days after a final determination of any deficiency in federal estate tax has been made, written notice thereof. If, based upon such deficiency and the ground therefor, it shall appear that the amount of tax previously paid is less than the amount of tax owing, the difference together with interest, at the rate of one half of one percent per month from the due date of the tax, shall be paid upon notice and demand by the department. In the event the executor shall fail to give the notice required by this section, any additional tax whic~ sh~ll be owing may be assessed, or a proceedmg m court for the collection of such tax may be begun without assessment at any time prior to the filing of such notice or within thirty days after the delinquent filing of such notice, notwithstanding the provisions of §198.28.

Uiotory.-§9, ch. 16015, 1933 ; COL 1936 Supp. 13•2(89); 1•. ch. 28031, 1953 ; 14. ch. 29718, 1955; 1121, 35, ch. 69-106.

198.17 Deficiency; hearing by department; procedure on appeal.-

(1) If upon examination of any return a tax or a deficiency in tax is disclosed, the executor shall be notified of such tax or deficiency by the department by registered mail, and given a period of not less than ~hir~y nor. more than sixty days from such notice m which to show cause why such tax or deficiency should not be

if any, applicable thereto, within sixty days after such notice and demand by the department.

(3) Such determination of tax or deficiency in tax by the department shall be final unless the executor or other party interested, shall within fifty days from the date of the receipt of a copy of such determination, bring a suit in equity against the department and such other parties as are in teres ted. It shall not be necessary to join as parties to such suit any heir-at-law, next of kin, distributee, legatee or devisee of said decedent. The complaint shall contain a concise statement of the facts and shall have annexed thereto a copy of the return and of the findings and determination of the department and shall pray for an abatement of the tax, in such amount and to such extent, in part or in whole, and for such ot~er relief as the executor shall desire. Such su1ts shall proceed aS· other suits in equity. Either the department, the executor or any other party may appeal to the appropriate district court of appeal in the manner and within the time prescribed by the Florida appellate rules, or, if authorized by Art. V of the state constitution, to the supreme court.

Ulstory.-110, ch. 16015, 1933; COL 1936 Supp. 1342 (90); 15, ch. 29718, 1955 ; 119, ch . 63-559 ; U 21 , 35, ch . 69-106 . cf.-11.01 Deftnes registered mail to Include certlfted mall

with return receipt requested .

198.18 Failure to pay tax; civil penalties.-If any part of a deficiency in tax due under the provisions of this chapter is due to negligence or intentional disregard of the provisions of this chapter, of the rules and regulations issued pursuant hereto, with knowledge thereof but without intent to defraud, there shall be added as a penalty five per cent of the total amount of the deficiency in tax, and if any part of such deficiency is wilfully made with intent to defraud, there shall be added as a penalty fifty per cent of the total amount of such deficiency; which penalty shall become due and payable upon notice and demand by the department and such executor shall be liable to the state personally and on his official bond, if any, for any loss to the state accruing under the provisions of this section through his negligence or wilful neglect. No interest shall be collected upon the amount of any penalty. The department may compromise or remit any penalty imposed pursuant to this section.

Uistory.-§11, ch. 16015, 1933 ; COL 1936 Supp. 1342 (91 ); f6, ch. 29718, 1955; 1121, 35, ch. 69-106 .

paid. t (2) The department shall proceed to hear 198.19 Receipts for taxes.-The departmen

and determine all questions involving such tax shall issue to the executor upon payment of or deficiency upon not less than ten days' notice the tax imposed by this chapter, receipts in to the executor of the date of such hearing, and triplicate, any of which shall be sufficient evi-

h h 11 b d dence of such payment, and shall entitle the a final determination t ereon s a e rna e as executor to be credited and allowed the amount quickly as practicable, and a copy of such de-termination, together with notice and demand, thereof by any · court having jurisdiction to shall be sent by registered mail to the executor. audit or settle his accounts. If the executor Such tax or deficiency in tax shall be assessed fil~s ~ complete return and makes written. ap-and paid together with the penalty and interest, plicatiOn to the department for determma-

805


tion of the amount of the tax and discharge from personal liability therefor, the department as soon as possible, and in any event within one year after receipt of such application, shall notify the executor of the amount of the tax, and upon payment thereof the executor shall be discharged from personal liability for any additional tax thereafter found to be due, and shall be entitled to receive from the department a receipt in writing showing such discharge; provided, however, that such discharge shall not operate to release the gross estate of the lien of any additional tax that may thereafter be found to be due, while the title to such gross estate remains in the executor or in the heirs, devisees, or distributees thereof; but after such discharge is given, no part of such gross estate shall be subject to such lien or to any claim or demand for any such tax after the title thereto has passed to a bona fide purchaser for value.

Histor y.-§12, ch . 16015, 1933; CGL 1936 Supp. 1342(92); §§21, 35, ch . 69-106.

198.20 Failure to pay tax when due, departmettt's warrant, etc.-If any tax imposed by this chapter or any portion of such tax be unpaid within ninety days after the- same becomes due, and the time for pajment be not extended, the department shall issue a warrant directed to the sheriff of an~ county of the state in which the estate or any part thereof may be situated, commandh1g .him to levy upon and sell the real and personal property of such estate found within his ·county, for the payment of the amount thereof, ·with such interest and penalties, if any, as may have accrued thereon or been assessed against the same, together with the cost of executing the warrant, and to return such .warrant, to the department and pay to it the- money collected by virtue thereof, by a time to be therein specified, not less than sixty days from the date of the warrant. The sheriff thereupon shall proceed upon the same in all respects, with like effect, and in the same manner prescribed by law in respect to executions issued against property upon judgments of a court of record, and shall be entitled to the same fees for services in executing the warrant as are now allowed by law for like services to be collected in the same manner as now provided by law. Alias and pluries warrants may issue from time to time as sa id department may deem proper until the entire amount of the tax, deficiency, interest, penalties and costs have been recovered.

History.-§ 13, ch . 16015, 1933 ; CGL 1936 Supp. 1342 193); 1§21, 35, ch. 69-106 .

198.21 Tax due payable from entire estate; third persons.-If the tax or any part thereof is paid or collected out of that part of the estate passing to or in possession of any person other than the executor in his capacity as such, such person shall be entitled to a re-

imbursement out of any Pjlrt of the estate still undistributed or by a just and equitable contribution by the person whose interest in the estate of the decedent would have been reduced if the tax had been paid before the distribution of the estate or whose interest in the -estate is subject to an equal or prior liability for the payment of tax, debts, or other charges against the estate, it being the purpose and intent of this section that so far as is practiC?al and unless otherwise directed by the will of the decedent, the tax shall be paid out of the estate before its distribution: but the department shall not be charged with enforcing contribution from any person.

35~~~~'/v·.::tJ:'• ch. 16015, 1933; COL 1836 Supp. 1342(94); 1121,

198.22 Lien for unpaid taxes.-Unless the tax is sooner paid in full, it shall be a lien for ten years upon the gross estate of the deceden.t, except that such part of the gross estate as 1s used for the payment of charges against the estate and expenses of its administration allowed by any court having jurisdiction ther~ of, shall be divested of such lien, and except that such part of the gross estate of a resident decedent as is transferred to a bona fide purchaser, mortgagee, or pledgee, for an adequate and full consideration in money or money's worth shall be divested of such lien a_nd such l_ien shall then attach to the consideration received for such property from such purchaser, mortgagee, or pledgee. If the de:partment is satisfied that no tax liability exIsts or that _the tax liability of an estate has ~een fully ~Ischarged or provided for, it may 1ssue a waiver releasing any or all property of such estate from the lien herein imposed. There shall be paid to the department a fee of one dollar for each waiver so issued.

BlotorJ.-115, ch. 16015, 1933 ; COL 1936 Supp. 1342 (95) • 11, ch . 57-108 ; 113, ch. 59-1 ; 1§21, 35, ch. 69·106. '

198.23 Personal liability of executor, etc.If any executor shall make distribution either in whole or in part of any of the property of an estate to the heirs, next of kin distributees legatees or devisees without ha;,ing paid o; secured the tax due the state under this chapter, or obtained the release of such property from the lien of such tax he shall become personally liable for the tax so due the state or s~ much thereof as may remain due and unpaid, to the full extent of the full value of any p~operty belonging to such person ()I' estate which may come into his hands, custody or control.

Hl•tor;r.-116, ch. 180115, 1933; CGL 1938 Supp. 1342(98).

198.24 Sale of real estate by executor to P!lY tax.-'-Every _ executor shall have the same right and power to take possession of or sell convey and dispose of real estate as assets of the estate for the payment of the tax imposed by this chapter as he may have for the payment of the debts of the decedent.

Hletor;r.-117, ch. 16015, 1933; CGL 1936 Supp. 1342(97).

806


198.25 Actions to enforce payment of tax.Actions may be brought within the time ·or times herein specified by the department to recover the amount of any taxes, penalties and interest due under this chapter. Every such action shall be brought in the county where the estate is being or has been administered, or if no administration be had in this state, then in any county where any of the property of the estate shall be situate.

Rlstor:r.-§18, ch. 16015, 1933 ; CGL 1936 Supp. 1342(98); 1121, 35 , ch . 69-106 .

198.26 No discharge of executor until tax is paid.-No final account of an executor of the estate of a nonresident, nor of the estate of a resident where the value of the gross estate wherever situate exceeds sixty thousand dollars shall be allowed by any court unless and until such account shows, and the judge of said court finds, that the tax imposed by the provisions of this chapter upon said executor, which has become payable, has been paid. The certificate of the department of nonliability for tax or its receipt for the amount of tax therein certified shall be conclusive in such proceedings as to the liability or the payment of the tax to the extent of said certificate.

Histor:r.-§19, ch . 16015, i933; CGL 1936 Supp. 1342(99); §7, ch . 29718, 1955; §121, 35, ch . 69-106 .

198.27 Agreements as to amount of tax due. -For the purpose of facilitating the settlement and distribution of estates held by executors, the department may, on behalf of the state, agree upon the amount of taxes at any time due or to become due from such executor under the provisions of this statute, and payment in accordance with such agreement shall be full satisfaction of the taxes to which the agreement relates.

History .-§20, ch. 16015, 1933 ; CGL 1936 Supp. 1342 (100); 1§21, 35, ch. 69-106.

198.28 Time for assessment of tax.-The amount of estate tax due under this chapter shall be determined and assessed within four years from the date the return was filed, or within a period expiring ninety days after the last day on which the assessment of a deficiency in federal estate tax may lawfully be made under applicable provisions of the internal revenue laws of the United States, whichever date last occurs, and no suit or other proceedings for the collection of any tax due under this chapter shall be begun after such date; provided, however, that in the case of a false or fraudulent return or of a failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may

this chapter, then the amount of such overpayment, together with any overpayment of interest thereon shall be refunded to the executor and paid upon the warrant of the comptr0ller drawn upon the state treasurer who shall honor and pay the same; and such refund shall be made by the department as a matter of course regardless of whether or not the executor has filed a written claim therefor, except that upon request of the department, the executor shall file with the department a conformed copy of any written claim for refund of federal estate tax which has theretofore been filed with the United States.

(2) Notwithstanding the foregoing provisions, no refund of estate tax sha ll be made nor shall any executor be entitled to bring any action for refund of estate tax after the expiration of four years from the date of payment of the tax to be refunded unless there shall have been filed with the department written notice of any administrative or judicial determination of the federal estate tax liability of the estate, whichever shall last occur, and such notice shall have been so filed not later than sixty days after such determination shall have become final.

(3) For the purpose of this section, an administrative determination shall be deemed to have become final on the date of receipt by the executor or other interested party of the final payment to be made refunding federal estate tax or upon the last date on which the executor or any other interested party shall receive notice from the United States that an overpayment of federal estate tax has been credited by the United States against any liability other than federal estate tax of said estate. A final judicial determination shall be deemed to have occurred on the date on which any judgment entered by a court of competent jurisdiction and determining that there has been an overpayment of federal estate tax becomes final.

(4) Nothing herein contained shall be construed to prevent an executor from bringing or maintaining an action in any court of competent jurisdiction within any period otherwise prescribed by law to determine any question bearing upon the taxable . situs of property, the domicile of a decedent, or otherwise affecting the jurisdiction of the state to impose an inheritance or estate tax with respect to a particular item or items of property.

History.-§22, ch. 16015, 1933; CGL 1936 Supp. 1342(102); §8-A. ch. 29718, 1955; §§21, 35, ch. 69-106.

be begun without assessment, at any time. 198.30 Circuit judge to furnish department Rlstory.-§21. ch . 16015, 1933; CGL 1936 Supp. 1342(101) : with names of decedents, etc.~ The circuit

f5, ch. 280

31

. 1953

; ~ 8 • ch. 29718

• 1955

· judges of this state shall, on or before the 198.29 Refunds of excess tax paid.- tenth day of every month, notify the depart-(!) Wherever it appears upon the examina- ment of the names of all decedents, the names

tion of any return made under this chapter or and addresses of the respective executors, ad-upon proof submitted to the department by ministrators or curators appointed, the amount the executor, that an amount of estate tax has of the bonds, if any, required by the court, and been paid in excess of the tax legally due under the probable value of the estates, in all estates

807

Ch. 198 EST ATE TAXES Ch. 198

of decedents whose wills have been probated or propounded for probate before him or upon which letters testamentary or upon whose estates letters of administration or curatorship have been sought or granted, during the preceding month, and such report shall contain any other information which the circuit judge may have concerning the estate of such decedents; and said circujt judge shall also furnish forthwith such further information, from the records and files of the circuit court in regard to such estates, as the department may from time to time require.

Blstory.- §23, ch. 16015, 1933 ; COL 1936 Supp. 1342(103); §9, ch. 29718, 1955; §§21, 35, ch . 69-106; §20, ch. 73-334.

198.31 Duties and powers of corporate executors of nonresident decedents.-lf the executor of the estate of a nonresident be a corporation duly authorized, qualified and acting as such exeoutor in the jurisdiction of the domicile of such decedent, it shall be under the duties and obligations as to the giving of notices and filing, of returns required by this chapter, and may 'bring and defend actions and suits as may be . authorized or permitted by this chapter, to the same extent as an individual executor, notwithstanding that such corporation may be prohibited from exercising, in this state, any powers as executor, but nothing herein contained shall be taken or construed as authorizing corporations not authorized to do business in this state to qualify or act as executor, administrator or in any other fiduciary capacity, if otherwise prohibited by the laws of this state, except to the extent herein expressly provided.

Hlator;r.-§24, ch. 16016, 1933; COL 1936 Supp. 1342(104) .

198.32 Prima facie liability for tax.-The estate of each decedent whose property shall be subject to the laws of the state shall be deemed prima facie liable for estate taxes under this chapter, and shall be subject to a lien therefor in such amount as may be later determined to be due and payable on such estate as provided in this chapter. Such presumption of liability shall begin on the date of the death of the decedent and shall continue until the full settlement of all taxes which may be found to be due under this chapter, such settlement to be shown by receipts for all taxes due to be issued by the department as provided for in this chapter. Whenever it shall be made to appear to the department that an estate is not subject to any tax under this chapter such department shall issue to the executor, administrator, curator or other personal representative, or to the heirs , devisees, or legatees of the decedent, a certificate in writing to that effect, showing such nonliability to tax, which certificate of nonliability shall have the same force and effect as a receipt showing payment. Such certificate of nonliability shall be subject to record and admissible in evidence in like manner as receipts showing payment of taxes.

There shall be paid to the department a fee of five dollars for each certificate so issued.

Hlstor:r.-§25, ch . 16015, 1933 ; COL 1936 Supp. 1342(105) ; §§21, 35, ch . 69- 106; §4, ch . 71-202.

198.33 Discharge of estate, notice of lien, limitation on lien, etc.-

(1) Where no receipt for the payment of taxes, or no receipt of nonliability for taxes has been issued or recorded as provided for in this chapter, the property constituting the estate of the decedent in this state shall be deemed fully acquitted and discharged of all liability for estate and inheritance taxes under this chapter after a lapse of ten years from the date of the filing with the department of notice of the decedent's death, or after a lapse of ten years from the date of the filing with the department of an . estate tax return, whichever dat e shall be earlier, unless the department shall make out and file and have recorded in the public records of the county wherein any part of the estate of the decedent may be situated in thi:.> state, a notice of lien aga inst the property of the estate, specifying the amount or approximate amount of taxes claimed to be due to the state under this chapter, which notice of lien shall continue said lien in force for an additional period of five years or until payment is made. Such notice of lien shall be filed and recorded in the book of deeds in the office of the clerk of the circuit court; provided, where no receipt for the payment of taxes, or no certificate of nonliability for taxes, has been issued or recorded as provided for in this chapter, the property constituting the estate of the decedent in this state, if said decedent was a resident of this state at the time of his death, shall be deemed fully acquitted and discharged of all liability for tax under this chapter after a lapse of ten years from the date of the death of the decedent, unless the department shall make out and file and have recorded notice of lien aa herein provided, which notice shall continue said lien in force against such property of the est ate as is situate in the county wherein said notice of lien was recorded for an additional period of five years or until payment is made.

(2) Notwithstanding anything to the contrary in this section or this chapter, no lien for estate and inheritance taxes under this chapter shall continue for more than twenty years from the date of death of the decedent, whether the decedent be a resident or nonresident of this state.

Histor:r .- 126, ch. 16015, 1933 ; COL 1936 Supp. 1342(108); ~:: cct!' . 6~~~~~ : 1953 ; 110, ch. 29718, 1955; 12. ch. 57-108 ; 1121,

cr.-§28 .24 Fees or clerk or circuit court.

198.331 Retroactive effect of §§198.22 and 198.33.-The provisions of §§198.22 and 198.33 as amended by ch. 57-108 shall apply to estatea of decedents dying after 12 :01 a.m., eastern standard time, October 1, 1933. Histo ry.-§3, ch. 57-108; §§21, 35, ch. 69·106; §57, ch. 73-333.

808


198.34 Disposition of proceeds from taxes.All taxes an9 fees levied and collected under this chapter 'shall be paid into the treasury of the state to the credit of the general revenue fund.

RlslorJ.-§28, ch. 16015, 1933; CGL 1936 Supp. 1342(108); 110, ch. 26869, 1951. cf.-1550.30(1) Race track funda guaranteed from general

revenue fund.

198.35 Interpretation and construction.When not otherwise providE:d for in this chapter the rules of interpretation and constructio~ applicable to the estate and inheritance tax laws of the United States shall apply to and be followed in the interpretation of this chapter.

Hlator,-.-132, ch. 16016, 1933; CGL 1938 Supp. 1342(111).

198.36 Failure to produce records; penalty. -Whoever fails to comply with any duty imposed upon him by this law, or having in his possession or control any record, file, or paper, containing or supposed to contain any information concerning the estate of the decedent, or, having in his possession or control any property comprised in the gross estate of the decedent, fails to exhibit the same upon request to the department or any examiner, appraiser, or attorney appointed pursuant to this chapter, who desires to examine the same in the performance of his duties under this chapter, shall be liable to a penalty of not exceeding five hundred dollars to be recovered, with costs of suit, in a civil action in the name of the state.

Hlstory.-§27, ch. 16015, 1933 ; CGL 1936 Supp. 1342(107); fl21, 35, ch. 69-106.

198.37 Failure to make return; penalty. -Any person required under this chapter to pay any tax, or required by law or regulations made under authority thereof to make a return, keep any records, or supply any information for the purposes of the computation, assessment, or collection of any tax imposed by this chapter, who willfully fails to pay such tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor of the first degree, punishable as provided in §775.-082 or §775.083.

History.-§27, ch. 16015, 1933; CGL 1936 Supp. 7473(3a); §97, ch. 71-136.

198.38 False return; penalty.-Any person who willfully aids or assists in, or procures, counsels, or advises , the preparation or presentation under, or in connection with any matter arising under, this -.:hapter of a false or fraudulent return, affidavit, claim, or document shall (whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim or document) be guilty of a felony of the third degree, punishable as provided in §775.082, §775.083, or §775.084.


198.39 False statement in return; penalty.-Whoever knowingly makes any false statement in any notice or return required to be filed under this chapter shall be guilty of a misdemeanor of the first degree, punishable as provided in §775.082 or §775.083.


198.40 Failure to pay tax, evasion of tax, etc.; penalty.-Any person required under this chapter to collect, account for, and pay over any tax imposed by this chapter who willf1.1lly fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony of the third degree, punishable as provided in §775.082, §775.083, or §775.084.

History.-§27, ch. 16015, 1933; CG L 1936 Supp. 7473(3a); §100, ch . 71-1 36.

198.41 Effectiveness of this chapter, etc.This chapter shall remain in force and effect so long as the government of the United States retains in full force and effect as a part of the revenue laws of the United States a federal estate tax, and this chapter shall cease to be operative as and when the government of the United States ceases to impose any estate tax of the United States.

Hlatory.-§29, ch. 16016, 1933; CGL 1938 Supp. 1342(109).

198.42 Short title.-This chapter may be cited as the estate tax law of Florida.

Hlator,-.-§1, ch. 16016, 1933; CGL 1936 Supp. 1342(80).

198.43 Effective date of this chapter.-The provisions of this chapter shall apply to estates of decedents dying after 12 :01 o'clock A. M., eastern standard time, October 1st, A. D. 1933, and estates of decedents dying prior thereto shall be taxed in accordance with the statutes and laws of Florida in force prior to said date, which statutes and laws shall remain in force after the adoption of these statutes for such purpose.

Hlator,-.-§33, ch. 16016, 1933; CGL 1936 Supp. 1342(82). ct.- Tax upon estates of persons d1lng between: November

4 1930 and May 16, 1931, cbapter 14738, acta 1931. l\luy '16, 1931 and October 1, 1933, chapter 147311,

Prlo:"c:g ~~;~-mber 4, 1930, chapter 15746, acts 1931.

198.44 Certain exemptions from inheritance and estate taxes.-The tax imposed under the inheritance and estate tax laws of this state in respect to personal property (except tangible property having an actual situs in this state) shall not be payable:

(1) If the transferer at the time of his death was a resident of a state or territory of the United States, or the District of Columbia, which at the time of his death did not impose a death tax of any character in respect to prop-

809


erty of residents of this state (except tangible personal property having an actual situs in such state, territory or district); or

(2) If the laws of the state, territory or district of the residence of the transferer at the t ime of his death contained a reciprocal exemption provision under which nonresidents were exempted from said death taxes of every char-

acter in respect to personal property (except tangible personal property having an actual situs therein), and provided that the state, territory or district of the residence of such nonresident decedent allowed a similar exemption to residents of the state, territory or district of residence of such decedent.

HletorT.-11, ch. 15747, 1931; CGL 1936 Supp. 1842(70).

810

Ch. 199 INTANGIBLE PERSONAL PROPERTY TAX ACT Ch. 199

CHAPTER 199

INTANGIBLE PERSONAL PROPERTY TAX ACT

PART I GENERAL PROVISIONS (§§199.012-199.072)

PART II ASSESSMENT PROCEDURES (§§199.103-199.122)

PART III ADMINISTRATIVE, COLLECTION AND ENFORCEMENT PROCEDURES (§§199.202-199.302)

PART I

GENERAL PROVISIONS

199.012 Short title. 199.023 Definitions. 199.025 Application of chapter. 199.032 Levy. 199.042 Date of delinquency; discounts for early

payment. 199.012 Short title.-This chapter shall

be known and may be cited as the "intangible personal property tax act."

History.-§1, ch . 71-134.

199.023 Definitions.-The following terms and phrases when used in this chapter shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) "Intangible personal property" means all personal property which is not in itself intrinsically valuable, but which derives its chief value from that which it represents, including, but not limited to, the following:

(a) Money, including, without limitation, United States legal tender, certificates of deposit, cashier's and certified checks, bills of exchange, drafts, and similar instruments:

1. Held by a taxpayer; or 2. Deposited in or with banks or other cor

porations, institutions, or persons doing a similar type of business; or

3. Placed with, deposited with, or entrusted as a shareholder to building and loan associations, savings associations, credit unions and similar institutions; or

4. Deposited with or held by any person; (b) All stocks or shares of incorporated or

unincorporated companies, business trusts, and mutual funds;

(c) All beneficial interests of residents in trusts; and

(d) All notes, bonds, and other obligations for the payment of money.

(2) "Person" means any individual, firm, partnership, joint adventure, syndicate, or other group or combination acting as a unit, association, corporation, estate, trust, business trust, trustee, executor, administrator, receiver, or other fiduciary and shall include the plural as well as the singular.

(3) "Taxpayer" means any person liable for taxes imposed under this chapter, any agent required to file and pay any taxes imposed here-

199.052 Returns. 199.062 Information reports; companies, cor

porations and brokers. 199.072 Exemptions.

under, and the heirs, successors, assignees, and transferees of any such person or agent.


(5) "In the state" means within the exterior limits of Florida.

(6) "Beneficial interest" means the ownership of_ one or more property rights in the principal or mcome of a trust, whether vested, contingent, or subject to conditions, but it shall not mean an interest in trust income only.

(7) "Mflliated group" means one or more chains of includable corporations connected through stock ownership with a common parent corporation, incorporated in or having its principal place of business in the state, which is an includable corporation, providing that:

(a) Stock possessing at least 80 percent of the voting power of all classes of stock and at least 80 percent of each class of the nonvoting stock of each of the includable corporations excepting therefrom the common parent cor: poration, is owned directly by one or more of the other includable corporations; and

(b) The common parent corporation owns directly stock possessing at least 80 percent of the voting power of all classes of stock and at least 80 percent of each class of the nonvoting stock of at least one of the other includable corporations. As used in this subsection the term "nonvoting stock" does not include nonvoting stock which is limited and preferred as to dividends.

History.- §! , ch. 7 1-134.

199.025 Application of chapter.-This chapter shall apply to property assessed and taxes levied after December 31, 1971.

History.-§2, ch. 7 1-134.

199.032 Levy.- There is hereby levied, to be assessed and collected as provided by this chapter:

(1) An annual tax of one mill on the dollar

811


of the just valuation of all intangible personal property except money as defined in §199.023 (1Xa), and except notes, bonds, and other obligations for payment of money which are secured by mortgage, deed of trust, or other lien upon real property situated in the state;

(2) A nonrecurring tax of two mills on the dollar of the just valuation of all notes, bonds, and other obligations for payment of money, which are secured by mortgage, deed of trust, or other lien upon real property situated in the state.

History.-§! , ch. 71-134; §1, ch. 71-987.

liable for the payment of all taxes due under this chapter.

(4) The beneficial interest of a resident of Florida in a foreign trust shall be returned by the resident unless the trustee returns the resident's beneficial interest for taxation. Any foreign trustee may return the full value of the principal of the trust for taxation, in which event the owners of all beneficial interests in the trust shall not be required to return such interests.

(5) An affiliated group of corporations shall have the privilege of making a consolidated return. The making of a consolidated return shall be upon the condition that all includable corporations which are members of the affiliated

199.042 Date of delinquency; discounts early payment.-

(1)(a) All annual taxes on intangible personal property shall be due and payable so as to be received by the department by June 30 of each year, and shall be delinquent on and after July 1 of each year. However, no return to the department shall be considered delinquent when said return is postmarked, other than by a postage meter, not later than the thirtieth day of such month . .

for group consent to be included in said return. The making of a consolidated return shall be considered as such consent. The fact that members of an affiliated group own stock in corporations which do not qualify under the stock ownership requirements as members of an affiliated group will not preclude the filing of a consolidated return on behalf of the qualified members. In the case of consolidated returns, intercompany accounts, including the capital stock of an includable corporation other than the parent, owned by another includable corporation, shall not be subject to taxation under this chapter. However, capital stock and other intercompany accounts of a nonqualified member of the affiliated group shall be returned and taxed. Each corporation filing a consolidated return shall submit therewith a separate balance sheet, which shall properly identify and separately state all intercompany accounts, for each company included therein.

(b) The full amount of the taxes shown on any return required under this chapter shall accompany the return at the time of its filing. On all payments, discounts for early payment thereof shall be allowed as follows:

1. For payment in April or prior thereto, 4 percent;

2. For payment in May, 2 percent; 3. Tax payments made in June shall be

without discount. (6) The tax imposed on intangible personal

property reported and paid by a trustee under subsections (1) or (4), as agent, shall not be returned by the person owning, or having a beneficial interest in, such property.

(7)(a) Every person who shall take, receive, or record any note, bond, or other obligation for the payment of money which. is secured by mort-

199.052 Returns.- gage, deed of trust, or other written specific lien (1) It is hereby made the duty of every in the nature of a mortgage upon real property

person in the state, and every person who has situated in the state shall pay the tax prescribed become a legal resident of the state on or before by this chapter in respect to the debt or obligaJanuary 1, who owns or has control, manage- tion secured thereby to the clerk of the circuit ment, or custody of intangible personal property court at the time the instrument is presented for which is subject to annual taxation under this recordation or, if not so presented, at the time cha pter to file a sworn return with the depart- of execution. In evidence thereof the clerk of the ment on or before June 30 of each year, listing circuit court, upon receiving payment thereof, separately the character, description, location, shall place on such instrument a notation showand just valuation of all such property. ing the amount of tax levied by this chapter and

(2) All intangible taxes on notes, bonds and other obligations for payment of money which are secured by mortgage, deed of trust, or other lien upon real property situated in the state shall be due and payable when the instrument is recorded or sought to be enforced.

History.-§!, ch. 71-134; §3, ch. 72-277.

(2) Every person subject to the annual tax received by him. imposed by this chapter, except agents and fidu- (b) Any mortgage, deed of trust, or other ciaries, shall not be required to file a return or lien given to replace a defective mortgage, deed pay a tax thereunder if the aggregate annual of trust, or other lien, covering the identical real tax upon his intangible personal property for property as the original and securing identical any year is less than five dollars. original note or obligation, may be recorded

(3) Husband and wife may file a joint re- without payment of additional tax upon proof of turn listing all intangible personal property held payment of the tax upon the original recording. jointly or singly by them, and they shall be jointly The clerk shall place a notation on the new mort-

812


gage, deed of trust, or other lien showing that ment has been filed and paid. the tax has been paid on the original recording. (c) Property omitted from any return shall

(c) No mortgage, deed of trust, or written require, iJl addition to the delinquency penalty, evidence of a specific lien in the nature of a a specific penalty of 15 percent of the tax attribmortgage on real property shall be recorded in · uted to the omitted property. any public recrird of the state or be enforceable (d) Property undervalued shall require a in any court of the state unless and until the tax specific penalty of 15 percent of the tax attriblevied by this chapter shall have been paid and uted to the undervaluation. This specific penalty until the notation of the clerk of the circuit court may be waived or compromised by the departshall have been · placed thereon showing the ment upon a showing by the taxpayer that the payment of the tax. However, the failure to place undervaluation was due to reasonable cause and the notation thereon or to pay the correct amount not willful neglect. of tax shall not affect the constructive notice History.-§! , ch. 71 -134; ~2. ch. 72-277. given by the recordation of the mortgage, deed of cf.-§199.282 Punishment for violation of this chapter .

trust, or instrument evidencing a lien. (d) If the mortgage, deed of trust, or other

lien subject to the tax levied by this chapter secures future advances, as provided in §697.04, the tax shall be paid at the time of execution on the initial debt or obligation secured, excluding future advances; at the time and so often as any future advance is made, the tax shall be paid on all sums then advanced. The trustee under any such deed of trust or the owner of any such mortgage . or other instrument evidencing such lien making any such advance shall pay the tax prescribed in this chapter in respect to the amount of the advance, and the clerk shall place a notation on the record of the mortgage, deed of trust, or other instrument evidencing such lien, or upon any supplemental instrument evidencing such advance and offered for recording, showing the amount of tax received by him. Failure to pay the tax shall not affect the lien for any such future advance given by §697.04, but any person who shall fail or refuse to pay such tax due by him shall be guilty of a misdemeanor, and upon conviction shall be fined accordingly. The mortgage, deed of trust, or other instrument shall not be enforceable in any court of this state as to any such advancP- unless and until the tax due thereon upon each advance that may have been made thereunder has been paid.

(e) The clerk of the circuit court shall, on 'or before the twentieth day of each month, transmit to the department all intangible taxes collected by him during the preceding month, together with a list of all instruments upon which 'the tax was paid.

(8)(a) Filing returns or paying all or any portion of tax as shown on the return after the due date shall require a delinquency penalty of 5 percent for each month, or portion thereof, on the amount of tax delinquent but not to exceed 25 percent of the total tax levied against the property covered by that return.

(b) If a return has not been filed or payment in full of the tax shown on a return has not been made within twelve months after the due date, there shall also be paid, in addition to the delinquency penalty, a specific penalty of 15 percent of the tax levied against the property and an additional 15 percent shall be paid for each twelve-month period until such return and pay-

199.062 Information reports; companies, corporations and broke'rs.-

(1) Every company or corporation, including financial institutions, qualified to do business in this state, domestic or foreign, shall, on or before April 1 of each year, forward to the department a record of all registered holders of its securities of record as of December 31 of the preceding year, taxable under this chapter, whose mailing address on the records of the company or corporation or its agencies is within the state. Such record shall contain the name, address, and social security or federal identification number, if available, of each registered holder, together with the number and class of shares of stock and the published market value, or just value as of January 1, if not listed or regularly traded, the face amount and class of bonds registered in the holder's name, and such other information as the department may require from time to time. Payment of the tax on any class of such securities, as agent, by any such company or corporation, including any such financial institution, shall exempt such company or corporation, including financial institutions, from the provisions of this subsection and of subsection (4) with respect to such securities and the holders thereof.

(2) The department may establish regulations requiring every bank, savings and loan association, building and loan association, credit union, and any other person engaged in a similar business in the state to furnish to the department on or before April 1 of each year the name, address, and social security or federal identification number of depositors who had a deposit on January 1 and whose mailing address is in the state. Payment of the tax on money, as agent, by any such institution or person shall exempt such institution or person from the provisions of this subsection.

(3) All security brokers registered under the laws of Florida shall furnish to the department, on or before April 1 of each year, the name, address, and social security or federal identification number of each customer whose mailing address is in the state, together with the number and class of shares of stock, the face amount and class of bonds held by each customer as of December 31 of the preceding year, and such other information as the department may require from time to time.

813


(4)(a) In order to provide for uniform re· seek a mandatory injunction or other appropriate porting, every company or corporation qualified remedy to enforce its right, as granted by this to do business in the state, both domestic and section, to require examination of such records. foreign, shall on or before April 1 of each year: If the injunction or other appropriate remedy is

1. Notify all of its Florida stockholders of granted, the court may order the company, record as of December 31 of the preceding year corporation, or broker to pay the costs of such of the just value of each share of stock. However, legal action and the cost of the subsequent exam· no notification is required if the stocks and values ination by the department. of a company or corporation are listed on any of (7) The companies, corporations and the public stock exchanges or are regularly brokers subject to the provisions of this section traded over the counter, a nd are not restricted; shall keep and preserve all books, records, and and documents for a period of three years in order to

2. Notify the owners or holders of stock aid the proper administration of this chapter. listed on the public stock exchanges or regularly History.-§!, ch. 71-134.

traded over the counter which are for any reason 199.072 Exemptions.-restricted in value as of January 1 if a value less (1) The following intangible property shall than the published value is returnable. be exempt from the tax imposed by this chapter:

(b) Values determined by a company or (a) Property owned by the state or any corporation shall not be binding on the depart· political subdivision or municipality thereof; ment, and, in the event it is later found that the (b) Franchises; stock was undervalued, the department shall (c) Any interest in a partnership, either assess and collect from each person required to general or limited. It is declared to be the legis· make a tax return the amount of the tax and lative intent that this paragraph is an interpreta· penalties due and payable. tion of the prior law, and that the provisions of

(c) Any company or corporation required this chapter are not intended to tax any interest under the provisions of this section to notify its of a partner in a partnership; stockholders of its stock values shall certify to (d) Bonds of the several municipalities, the department on or before April 1 of each year counties, and other taxing districts of the state, that all of its stockholders have been notified as and bonds of the United States government and required herein and shall include as a part of the its agencies; certification the following: (e) Intangible personal property held in

1. Method used to determine sha;:e value; trust pursuant to any employee welfare or benefit 2. Type or kind of stock to be valued; plan which is qualified under §401, United States 3. Value for each share of each type or kind; internal revenue code, 1954; and

and (f) Notes, bonds, and other obligations 4. Balance sheet as of the last day of the secured by mortgage, deed of trust, or other lien

corporation's accounting period which ended upon real property situated outside the state within the immediately preceding calendar year. Upon which a documentary or recording tax has

(5)(a) If any company, corporation, or been paid in the jurisdiction where said real b k hall f ·1 d 'd h · r property is located.

ro er s ru to pro uce or provl e sue . lJlJ.Or· (2)(a) There shall also be exempt from the mation as described in this section in the manner required or within the time required, that com· tax imposed by this chapter intangible personal pany, corporation, or broker shall pay a penalty property owned by nonprofit religious, non· of $100 and, in addition, shall also pay a penalty profit educational, or nonprofit charitable insti·

tutions. of $50 for each month or portion thereof until satisfactory filing with the department, with the (b) The provisions of this subsection author· stockholders, or with both, has been made. izing exemptions from tax for religious, educa·

tional and charitable institutions shall be (b) All such penalties shall be payable to, · 1 d fi d 1· 'ted d I d

and collectible by, the department in the same stnct Y e me ' lml • an app ie in each category as follows:

manner as other penalties assessed under this 1. "Religious institutions" shall mean chapter. churches and ecclesiastical or denominational

(6)(a) In order to administer properly the organizations, or established physical places for provisions of this section, the department is here- worship in this state at which nonprofit religious by specifically authorized and empowered to services and activities are regularly conducted examine at all reasonable hours all books, rec- and carried on, and shall also mean church ords, and other documents relating to the report cemeteries. of companies, corporations, and brokers charged 2. "Educational institutions" shall mean with the duty to file a report or make a report as state tax-supported or parochial, church, and required in this section. nonprofit private schools, colleges, or universi·

(b) In the event a company, corporation, or ties conducting regular classes and courses of broker shall refuse to permit examination of such study required for accreditation by, or memberrecords by the department, the department shall ship in, the Southern Association of Colleges and have the right to proceed in any circuit court Secondary Schools, department of education, or against such company, corporation, or broker to the Florida Council of Independent Schools.

814


Nonprofit libraries, art galleries, and museums open to the public are defined as educational institutions and are eligible for exemption.

3. "Charitable institutions" shall mean only nonprofit corporations operating physical facilities in Florida at which are provided charitable services, a reasonable percentage of which shall be without cost to those unable to pay, and those institutions qualified as charitable

under §501(c)(3), United States internal revenue code, 1954.

(c) Property owned by such exempt institutions shall not include intangible personal property held in trusts of any kind over which the institution has no interest in the trust pnncipal except the right to compel the performance of the trust agreement.

History.-§!, ch. 71-134.

PART II ASSESSMENT PROCEDURES

199.103 Basis of assessment. 199.112 Business situs.

199.103 Basis of assessment.-The department shall assess all intangible personal property subject to the annual tax imposed by this chapter at its just valuation as of January 1 of each year.

History.- §!, ch . 71-134.

199.112 Business situs.-All bills, notes or accounts receivable, obligations, or credits, wheresoever situated, arising out of or issued in connection with the sale, leasing, or servicing of real or personal property in the state are subject to taxation under this chapter, it being the legislative intent to provide that such intangibles shall be assessable regardless of where they are kept, approved as to their creation, or paid. This provision shall apply to any person representing business interests in the state that may claim a domicile elsewhere, the intent being further that no nonresident, either by himself or through an agent, shall transact business in the state without paying the same tax which the state would impose on residents transacting the same business. The provisions of this section shall in no way be construed to alter the tax status of intangibles not connected with the sale, leasing, or servicing of real or personal property in the state.

History.-§! , ch. 71-134.

199.122 Valuation.-Intangible personal property shall be valued in the following manner:

(1) Shares of stock of corporations regularly listed on any stock exchange or regularly traded over the counter shall be valued at their closing prices on the last business day of the previous calendar year.

199.122 Valuation.

(2) Bonds regularly listed on any stock exchange or regularly traded over the counter shall be valued at their closing bid prices on the last business day of the previous calendar year.

(3) Shares of stocks, bonds, or similar instruments of corporations not listed on any stock exchange or not regularly traded over the counter shall be valued in accordance with generally accepted accounting principles which take into account those factors customarily considered in determining intrinsic value.

( 4) The blockage rule or discount theory shall have no effect on valuation of shares of stocks as defined herein.

(5) Accounts receivable shall be valued at their face value less a reasonable allowance for uncollectible accounts.

(6) All notes and other obligations shall have a value equal to their unpaid balance as of January 1 of each year, unless the taxp~yer can establish a lesser value upon proof satisfactory to the department.

(7) All notes, bonds, and other obligations for payment of money which are secured by mortgage, deed of trust, or other lien upon real property situated in the state shall be va_lued at the principal amount of indebtedness evidenced by such obligation.

(8) All other forms of intangible personal property shall be valued in accordance with generally accepted accounting principles which take into account those factors customarily considered in determining intrinsic value.

History.-§! , ch . 71-134.

PART III

ADMINISTRATIVE, COLLECTION AND ENFORCEMENT PROCEDURES

199.202 Administration of law; rules and regulations.

199.212 All state agencies to cooperate in admin-istration of law.

199.222 Information confidential. 199.232 Department's powers. 199.242 Conferences; judicial review. 199.252 Refunds. 199.262 Tax liens and garnishment.

815

199.272 Suits for violation of this chapter; jurisdiction and service.

199.282 Punishment for violation of this chapter. 199.292 Disposition of intangible personal prop

erty taxes; appropriations for expenses of assessment and collection; county sharing.

199.302 Implementation of this chapter.


199.202 Administration of law; rules and regulations.-

( I) The cost of preparing and distributing the reports, forms, and paraphernalia for the collection of the tax imposed by this chapter and expenses of the inspection and enforcement duties required herein shall be borne by the revenue produced by this chapter.

(2) The department shall administer and enforce the assessment and collection of the taxes, interest, and penalties imposed by this chapter. It is authorized to make and publish such rules and regulations not inconsistent with this chapter as it may deem necessary to administer and enforce the provisions of this chapter.

(3) Penalties as provided in this chapter, unless waived or compromised by the department, shall be assessed and collected in the same manner as the tax levied by this chapter.

History.-§! , ch. 71-134.

199.212 All state agencies to cooperate in administration of law.-The department is empowered to call on any state, county, or municipal agency, department, bureau, or board for any and all· information which may, in its judgment, be of assistance in administering, or preparing for the administration of, this chapter, and such state, county, or municipal agency, department, bureau, or board is hereby authorized, directed, and required to furnish such information.

History.-§!, ch. 71-134.

199.222 lnfonnation confidential.-(!) It is unlawful for the department or any

examiner or employee to divulge or make known in any manner the values or any particulars set forth or disclosed in any report or return required. Nothing herein shall be construed to prohibit the publication of statistics, so classified as to prevent the identification of particular reports or ret\rrns. However, the department may permit the Commissioner of Internal Revenue or other duly authorized official of the Internal Revenue Service of the United States or the proper officer of any state or his authorized agent to inspect the tax returns of any individual, and the department may furnish to such person an abstract of any return or any item of information contained in any return.

(2) It shall be the duty of the department to destroy all intangible personal property tax returns filed with the department four years after the tax with respect to the return has been paid.

History.-~! , ch. 71·134.

199.232 Department's powers.-(1) The department shall ascertain by

diligent search and inquiry whether all persons as defined in this chapter have made proper returns and whether all intangible personal property subject to taxation has been assessed. If the department discovers that any intangible personal property has for any reason escaped taxation or has been undervalued, it shall assess

the same separately for each year that the property may have escaped taxation or has been undervalued, and the tax and penalties shall be levied and collected by the department.

(2) Upon discovery of any person that the department has reason to believe should have filed a return but who failed or refused to do so, the department may require that person to file completed returns for all years under investigation, including the current year. The total tax and penalties accrued to the date of payment must accompany such returns. On receipt of such returns, the department, using available information, shall ascertain if any intangible personal property has either been omitted or undervalued. Upon discovery that intangible personal property was either omitted or undervalued, the department shall assess such property at the rate and in the manner as provided in this chapter.

(3) If, upon examination of returns that have been filed, the department has reason to believe that any intangible personal property has been omitted or has been undervalued, it may require the person filing the return to produce the books, records, and documents deemed necessary by the department to discover omitted property or to determine the just values of all listed or omitted property.

(4) The department is authorized to audit or inspect the books, records, or documents of persons and correct by credit or refund any overpayment of tax, and, in the event of a deficiency, an assessment of such deficiency shall be made and collected. No assessment shall be made, except pursuant to an investigation, after the expiration of three years from the due date for filing a return or the date of filing, whichever is later.

(5)(a) herein:

In the event any person charged

1. Fails or refuses to make his books, records, or documents available for inspection, so that no audit or examination can be made of the books and records of such person; or

2. Fails to make a return and pay the tax as provided by this chapter; or

3. Makes a grossly incorrect return; or 4. Makes a return that is false and fraudu-

lent, it shall be the duty of the department to make an assessment from an estimate based on the best information then available to it for the taxable period, together with penalties if such have accrued.

(b) The department shall proceed to collect such taxes and penalties, if such have accrued, on the basis of such assessment, which shall be considered prima facie correct. The burden to show the contrary shall rest upon the person so assessed.

(6) It shall be the duty of every person required to make a return and pay tax under this chapter to keep and preserve suitable . records of intangible personal property and such

816

Ch. 199 INTANGIBLE PERSONAL PROPERTY TAX ACI' Ch. 199

other books and documents as may be necessary to determine the amount of the tax due hereunder and other information as may be required by the department. It shall be the further duty of every such person so charged to keep and preserve, for the same three-year period in which a refund would be allowed or the same three-year period as prescribed herein for the time an assessment may be made by the department, all such records as may be required by the department for the reasonable administration of this chapter; and all such records shall be open to examination at all reasonable hours by the department or any of its duly authorized agents.

(7) An investigation may be made against a person for any year in which that person's right to a refund is available. The date a taxpayer is contacted personally by an agent of the department, or the date of a certified letter from the department to the last known address of the taxpayer, shall be the date that will govern the period subject to assessment.

(8) Mter an investigation has been completed and a deficiency is found to be due, the taxpayer shall be notified in writing, either by delivery or by certified mail at his or its last known address, of the amount of tax and penalty due. Full payment for the total amount shall be made by the taxpayer to the place designated and within the time specified in such notice.

(9) The department shall have the power to issue subpoenas to compel the attendance of witnesses and the production of documents, papers, books, records, and other evidence before it in any matter over which it has jurisdiction under this chapter. Any duly authorized representative of the department shall have the power to administer oaths and affirmations to any person.

(10) If any person shall refuse to obey any such subpoena, to give testimony, or to produce evidence as required thereby, any judge of a circuit court having jurisdiction over that person may, upon application of the department showing such failure and refusal to comply, make and issue such orders as may be necessary to secure the compliance of such person.

History.-§! , ch. 71-1:34. cf.-~1.01 Defines registered mail to include certified mail with return

receipt requested.

199.242 Conferences; judicial review.(1) If any taxpayer shall feel aggrieved by

any action of the department, he shall have the right to a conference with the department and shall request such a conference in writing, within thirty days after issuance of written notice of such action with such data as may be relevant in support thereof. All exceptions and objections to the actions of the department must be filed with the department in duplicate at least ten days prior to the date set for such conference. If the department's decision, following the conference, is determined adversely to the taxpayer, the taxpayer shall receive formal written notice of the department's determination and shall thereafter

have the right within the time and in the manner provided by the Florida appellate rules to have the department's determination reviewed in appropriate proceedings in either the circuit court of Leon County or the judicial circuit of Florida wherein his residence or place of business is located.

(2) The taxpayer may, by written request to the department filed with the request for conference, require the conference to be set at a reasonable time and place within the judicial circuit of Florida wherein the person's residence or place of business is located, or within the judicial circuit of Florida wherein such person's books and records are kept. Where no such written request has been received by the department, the time and place shall be determined by the d~partment.

(3) In any action involving the legality of any tax or penalty assessed under this chapter, the court shall inquire into and determine the legality and validity of the assessment and shall issue decrees setting aside such assessment or any part of the same which is contrary to law. The complainant shall in every case, except where the taxes assessed, including penalties, have been paid to the department prior to the institution of suit, tender into court and file with the complaint the full amount of the assessment complained of, including penalties, or file with the complaint a cash bond or a surety bond endorsed by a surety company authorized to do business in this state or by such sureties as may be approved by the court, conditioned to satisfy any judgment or decree in full, including the taxes complained of, costs, and penalties.

History.-§! , ch. 71-134.

199.252 Refunds.-(1) Any person or his heirs, personal repre

sentatives, or assigns shall be entitled to a refund of any tax or penalty levied under this chapter, whether payment was made voluntarily or involuntarily, which should not have been paid. No refund shall be allowed unless proper application has been made and delivered to the department for approval within three years from the date the right to such refund shall have accrued.

(2) When a bona fide controversy exists between the department and a taxpayer as to the liability of the taxpayer for the payment of the tax claimed to be due, the taxpayer may pay the amount claimed by the department to be due, or such lesser amount as may be fixed by a court of competent jurisdiction, and, if it is finally adjudged by a court of competent jurisdiction that the taxpayer was not liable for the payment of taxes and penalties, or any part thereof, the comptroller shall make such refund as the court may direct.

History.-§! , ch. 7 1-134.

199.262 Tax liens and garnishment.(1) When any tax imposed by this chapter

becomes delinquent, or is otherwise in jeopardy;

817


it shall be the duty of the department to issue a warrant for the full amount of tax due or estimated to be due, together with penalties and cost of collection. Such warrant shall be directed to all and singular the sheriffs of the state and shall be recorded with the clerk of the circuit court in the county where the delinquent taxpayer's property is located. Upon recording, the amount of such warrant shall become a lien upon the taxpayer's real or personal property in such county in the same manner as a judgment duly docketed and recorded, and the clerk of the circuit court shall issue execution thereon the same as on a judgment. The sheriff shall thereupon proceed in all respects and with like effect and in the same manner as prescribed by law in respect to executions · issued against property upon judgment of the circuit court, and he shall be entitled to the same fees for his services in executing the warrant. Upon payment of such execution, warrant, or judgment, the department is authorized and directed to satisfy the lien of record within thirty days; and any interested person may thereafter compel the department to satisfy the lien of records.

(2) Whenever it becomes necessary in the judgment of the department, it may issue an alias tax execution or tax executions which, however, shall be so designated on the face of the tax execution. Any such alias tax execution shall have the same force and effect as the original.

(3) Tax executions shall have the same force and effect as a writ of garnishment when levied upon any person, firm, or corporation that shall have any goods, moneys, chattels, or effects of the delinquent taxpayer in its hands, posses· sion, or control or that shall be indebted to such delinquent taxpayer. When any tax execution is so levied upon any debtor or person holding property of the taxpayer, such debtor or person shall pay the debt or deliver the property of the delinquent taxpayer to the department or an authorized agent of the department levying such writ, and the receipt of the department or an authorized agent of the department shall be complete discharge to that extent of the debtor or person holding such property ..

(4) Any employee of the department designated in writing by the executive director of the department is authorized to make and sign assessments, tax warrants, assignments of tax warrants, and satisfactions of tax warrants.

History.-§! , ch . 71-1 34.

(2) Every person having his principal place of business outside of this state but subject to the provisions of this chapter shall designate with the department an agent for service within the state for the purpose of enforcing this chapter. If such person has not designated [an agent], the department of state shall be deemed the agent for service, or any agent or employee of the person within the state shall be deemed agent for service.

History.-§! , ch. 7 1-134.

199.282 Punishment for violation of this chapter.-Any person willfully failing or refusing to comply with this chapter or violating any of the provisions hereof shall be guil_ty of a misdemeanor of the second degree, pumshable as provided in §775.082 or §775.083.

History.-§!A, ch . 71-134.

199.292 Disposition of intangible personal property taxes; appropriations for expenses of assessment and collection; county sharing.-

(1) All intangible personal property taxes levied, assessed, and collected under and pur· suant to this chapter shall be promptly remitted by the clerk of the circuit court or, during the implementation period, by the tax collector, to the department of revenue, to be placed in a special fund designated as the "intangible tax trust fund." The amount collected by the department of revenue shall also be deposited in the intangible tax trust fund.

(2) There is hereby appropriated annually out of the intangible tax trust fund the amount necessary for the effective and efficient performance of the duties, services, functions, and enforcement by the department of the provisions of chapters 192, 193, 194, 195, 196, 197, 198 and this chapter and for the fees of the county asses· sors and tax collectors allowed them by the law for the assessment and collection of intangible personal property taxes. It shall be the duty of the department to pay from the intangible tax trust fund these costs and fees .

(3) The department shall pay from the intangible tax trust fund the entire cost of all forms, books, and records of any type required by law to be furnished each county or county officer by the department of revenue, and a sum sufficient to pay therefor is hereby annually appropriated out of the intangible tax trust fund.

(4) An amount equal to 55 percent of the 199.272 Suits for violation

jurisdiction and service.-of this chapter; total net intangible taxes collected shall be trans

ferred to the revenue sharing trust fund for counties in the month following collection. However, net collections from the amounts assessed as of January 1, 1972 and collected prior to July 1, 1973 only, as provided in §199.-032, shall be deposited in the general revenue fund. The remaining balance of net collections from this tax shall be transferred to the general revenue fund. For the purposes of this law, "net

(1) All suits brought hereinafter by the department against any person defined in this chapter for any violation of this chapter and for the purpose of effecting collection of any tax due from any person, including garnishment proceedings, regardless of the amount, shall be brought thereon in the circuit courts of this state having jurisdiction of the subject matter.

818

Ch. 199 INTANGIBLE PERSONAL PROPERTY TAX ACf Ch. 199

collections" means the total amount collected less a pro rata share of all costs, as provided in subsections (2) and (3).

(5) The distribution of these amounts shall be made quarterly in the months of September, December, March, and June, and shall include the net collections through the end of the month preceding the distributions thereof.

History.-§! , ch . 71-134; §1. ch . 72-277; ~ 1 8. ch . 72-:l60.

199.302 Implementation of this chapter.(1) For the calendar year 1971, the tax as

sessors of the several counties shall continue to place intangible personal property on their taJ< rolls.

(2) For the assessments and levy made for the calendar year 1971, the tax collectors of the several counties shall continue to collect the taxes on intangible personal property under the procedures, including any discount allowed for early returns, used for collecting ad valorem taxes on other types of property. The collectors shall be granted all powers relating to collection and enforcement of collections which are granted to the department, for this period of implementation time.

(3) The department is directed to provide any assistance to the tax assessors and tax collectors, during this period of implementation time, necessary to carry out the provisions of this chapter.

(4) No tax assessor or tax collector shal~ be relieved of accountability for assessment or collection of any taxes imposed under this chapter until he shall have completely performed every duty devolving upon him as required by this chapter.

(5)(a) For the calendar year 1971, the county assessor shall be entitled to receive the following commissions, upon the amount of intangible personal property taxes assessed, excluding errors, and the county tax collector shall be entitled to the following commission upon. the aggregate amount of intangible personal property taxes collected by him and paid to the department of revenue, to wit:

1. On the first five thousand dollars, 10 percent;

2. On the next five thousand dollars, 5 percent; and

3. On the balance, 2 percent.

(b) The commissions for assessing and collecting such taxes shall be audited and allowed by the comptroller and paid by the treasurer upon warrants therefor. The commissions allowed the county assessor and county tax collector under this chapter are independent and exclusive of any commissions that may be due them for assessing and collecting other taxes.

History.-§!, ch. 71-134.

819

Ch. 200 DETERMINATION OF MILLAGE Ch. 200

CHAPTER 200

DETERMINATION OF MILLAGE 200.011 Duty of county

school board in tion.

commissioners and 200.132 Municipal financial assistance trust setting rate of taxa- fund; administration of grant pro

200.065 Method of fixing millage. 200.071 Limitation of millage; . counties. 200.081 Millage limitation; municipalities. 200.091 Referendum to increase millage. 200.101 Referendum for millage in excess of

limits. 200.111 Definition of "district." 200.131 Existing millage in excess of limits;

municipalities.

200.011 Duty of county commissioners and school board in setting rate of taxation.-

(!) The county commissioners shall determine the amount to be raised for all county purposes except for county school purposes, and shall enter upon their minutes the rates to be levied for each fund respectively, together with the rates certified to be levied by the board of county commissioners for use of the county, special taxing district, board, agency or other taxing unit within the county for which the board of county commissioners is required by law to levy taxes.

(2) The county commissioners shall ascertain the aggregate rate necessary to cover all such taxes and certify the same to the county assessor of taxes within thirty days after the adjournment of the board of tax adjustment. The assessor shall carry out the full amount of taxes for all county purposes, except for school purposes, under one heading in the assessment roll to be provided for that purpose, and the county commissioners shall notify the clerk and auditor and tax collector of the county of the amounts to be apportioned to the different accounts out of the total taxes levied for all purposes.

(3) The county depository, in issuing receipts to the tax collector, shall state in each of his receipts, which shall be in duplicate, the amount deposited to each fund out of the deposits made with it by the tax collector. When any such receipts shall be given to the tax collector by the county depository, he shall immediately file one of the same with the clerk and auditor of the county, who shall credit the same to the tax collector with the amount thereof and make out and deliver to the tax collector a certificate setting forth the payment in detail, as shown by the county depository's receipt.

(4) The county commissioners and school board shall file written statements with the county assessor of taxes setting forth the boundary of each special school district and the district or territory in which other special taxes are to be assessed, and the county assessor of taxes shall, upon receipt of such statements and orders from the board of county commissioners and school board setting forth

gram. 200.141 Millage following consolidation of city

200.151 200.161 200.171

and county functions. Millage to replace lost revenue. Legislative intent. Mandamus to levy tax; limitations;

etc. 200.181 Bond payments; tax levies; restric

tions. 200.191 Millages; definitions.

the rate of taxation to be levied on the real and personal property therein, proceed to assess such property and enter the taxes thereon in the assessment rolls to be provided for that purpose.

(5) The assessor shall designate and separately identify by certificate to the tax collector the rate of taxation to be levied for the use of the county and school board and the total rate of taxation for all other taxing authorities in the county.

(6) The school board shall certify to the county assessor of taxes millage rates set by said board within thirty days after the board of tax adjustment adjourns. All other governing boards or governing authorities of all other taxing districts within the counties, including municipalities whose taxes are assessed on the tax roll prepared by the county assessor of taxes, shall certify to the board of county commissioners millage rates set by said boards within fifteen days after the board of tax adjustment adjourns.

Hl•tor;r.-12, cb. 4886, 1901; GS 1532; 130, cb. 6696, 1907; RGS 731; COL 937; §6, ch. 20722, 1941; §1, ch. 67-227; 11, ch. 67-512, ~~1. 2, ch. 69-55; §1, ch. 69·300; §36, ch. 71-355.

Note.-See former 1193.31.

200.065 Method of fixing millage.-(!) At the time the assessment roll is pre

pared and published, the assessor shall certify to each taxing authority the taxable value within the jurisdiction of the taxing authority. The assessor shall also send to each taxing authority a written statement of his best estimate of the total assessed value of all new construction and improvements not included on the previous assessment roll and the value of deletions from the previous assessment roll. Exclusive of such new construction, improvements, and deletions, the assessor shall certify to each taxing authority a millage rate which will provide the same ad valorem revenue for each taxing authority as was levied during the prior year. For the purpose of calculating the certified millage, the assessor shall use 95 percent of the taxable value appearing on the roll, exclusive of properties appearing for the first time on the assessment roll.

(2) No taxing authority shall budget an in-

820


creased amount of ad valorem tax revenue exclusive of revenue from ad valorem taxation on properties appearing for the first time on the assessment roll, unless it advertises its intention to do so at the same time that it advertises its intention to fix its budget for the forthcoming fiscal year, employing the following format:

NOTICE OF AD VALOREM TAX LEVY Notice is hereby given that on the ___________ day of _____________ , 19 ------, at ---------------------- in the city of ---------------------------- in the county of --------------- , the ------------------ intends to levy upon the assessment roll of the year 19 -------------- taxes for the fiscal year beginning on the first day of ---------, 19 ---------- at the rate of $-------------------- per $1,000 valuation. Certification has been made by the Assessor of the county of ------------------- that a tax rate of$ ______________ per $1,000 valuation will yield the same amount of tax revenue as that levied during the current year. The following financial summary is provided for information of all persons concerned:

Current Proposed Fiscal Year Next Year

Total Budgeted Requirements $ --------------· $ ---------------Budgeted Ad Valorem Tax @$ ____ per $1 ,000 ---------------- ---------------Budgeted Ad Valorem Tax @$. __ __ per $1,000 ·-------------- ---------------Budgeted Other Revenues

(Governing Authority) BY -------------------------------------

(Name and Title) (3) No millage in excess of the assessor's

certified millage shall be levied until a resolution or ordinance has been approved by the governing board of the taxing authority, which resolution or ordinance must be approved by said taxing authority according to the following procedure:

(a) The taxing authority shall advertise its intent to exceed the assessor's certified millage in a newspaper of general circulation in the county, as provided in subsection (2) of this section. The advertisement shall state that the taxing authority will meet on a day, at a time and place fixed in the advertisement, which shall be approximately seven days after the day that the advertisement is published, for the purpose of hearing comments regarding the proposed increase and to explain the reasons for the proposed increase. The meeting may coincide with the meeting on the tentative budget as required by law.

(b) The taxing authority, after the public hearing has been held in accordance with the above procedures, may adopt a resolution or ordinance levying a millage rate in excess of the certified millage. If the resolution or ordinance adopting said millage rate is not approved on the day of the public hearing, the day, time, and place at which the resolution or ordinance will be scheduled for consideration and approval by the taxing authority must be announced at the public hearing. If the resolution or ordinance is to be considered at a day and time that is more

than two weeks from the public hearing, the taxing authority must again advertise in the same manner as provided in subsections (2) and (3) (a).

(4) The resolution or ordinance approved in the manner provided for in this section shall be forwarded to the assessor, tax collector, and department of revenue. No millage in excess of the assessor's certified millage can be levied until the resolution or ordinance to levy required in subsection (3) is approved by the governing board of the taxing authority and submitted to the assessor and the department of revenue.

(5) The assessor shall notify each taxing authority of any change in the assessment roll which results from actions by the board of tax adjustment. An increase in the taxing authority's millage above that certified by the assessor or adopted by resolution or ordinance of the governing body of the taxing authority which is required solely by a reduction of the assessment roll by the board of tax adjustment may be approved by the department of revenue without further proceedings under this section, upon a showing that such reduction has occurred.

(6) If, after the initial millage vote provided for in subsection (2), the taxing authority determines that it requires a greater millage or fails to act in the specified period, it shall readvertise and revote as required in subsections (2) and (3).

(7) Nothing contained in this section shall serve to extend or authorize any millage in excess of the maximum millage permitted by law nor prevent the reduction of millage.

(8) Upon written request from the presiding officer of a taxing authority within the county, the assessor shall deliver to the presiding officer for budget planning purposes an estimate of the total assessed value of nonexempt property for the current year. The assessor shall deliver the estimate within ten days after receipt of the request, but in no event shall he be required to deliver an estimate earlier than May 1.

History.-§13, ch. 73-172.

200.071 Limitation of millage; counties.( I) Except as ot:herwise provided herein,

no aggregate ad valorem tax millage shall be levied against real and tangible personal property by counties and districts as herein defined in excess of ten mills on the dollar of assessed value, except for special benefits and debt service on obligations issued in connection therewith, and except for that millage authorized in ~9, Art. VII of the state constitution. However, nothing in ~~200.071, 200.091, 200.111, 200.121, 200.141, and 200.161 shall prevent any board of county commissioners or district school board to each levy at least five mills.

(2) The board of county commissioners in counties not having a budget commission or board shall have authority, in event the aggregate of the proposed millage for said county and districts therein aggregate more than the maximum allowed hereunder, to apportion the

821


millage to be levied for county officers, departments, divisions, districts, commissions, authorities and independent taxing agencies so as not to exceed the maximum millage provided herein under this section or ~200.091. The budget commission or budget board in counties presently having such a commission or bo&rd shall make the apportionment as above provided, in event the apportionment is necessary.

(3) In any county which, through a special taxing district covering a specific area of the county not within the boundaries of any municipality, provides services or facilities of the kind or type commonly provided by municipalities there may be levied, in addition to the millages otherwise provided in this section, against real and tangible personal property within each such special taxing district an additional ad valorem tax millage not in excess of ten mills on the dollar of assessed value to pay for such services or facilities provided through such special tax district.

History.-!!. c.h. 67-395; !§1 , 2, ch . 69-55; *28, ch. 69-216 ; H. ch. 69-300: §2. ch . 70-368 .

Note.-See former §193 .321.

200.081 Millage limitation; municipalities. -No municipality shall levy ad valorem taxes for real and tangible personal property in excess of one per cent of the assessed value thereof (ten mills), except for special benefits and debt service on obligations issued with the approval of those taxpayers subject to ad valorem taxes on real and tangible personal property.

History.-§!, ch. 67-396; HI, 2, ch. 69-55. Note.-See former §167.441.

200.091 Referendum to increase millage.The millage authorized to be levied in §200.071 for county purposes, includ~ng districts therein, may be increased for penods not exceeding two years, provided such levy has been approved by a majority of those voting in an election participated in only by the qualified electors of the county or district who pay taxes on real or personal property. Such elections may be called by the governing body of any such county or district on its own motion, or shall be called upon submission of a petition specifying the amount of millage sought to be levied and the purpose for which the proceeds will be expended and containing the signatures of at least ten per cent of the persons qualified to vote in such election, ·signed within sixty days prior to the date said petition is filed.

Hlstory.-§2, ch. 67-395; Ul, 2, ch. 69-55. Note.-See former §193.322.

body of the municipality containing ten per cent of the signatures of those persons eligible to vote in such referendum which signatures are affixed to the petition within sixty days prior to its submission.

Hlatory.-12, ch. 67-386; Ul, 2, ch. 68-55. Not~.-See former 1167.442.

200.111 Definition of "district."-The term "district" is defined to mean special districts having the power to levy taxes or require the levy of taxes, including but not limited to boards, commissions, authorities and agencies having authority to levy taxes or require the levy of taxes but shall not include special school districts or multicounty districts.

Hlotory.-§3, ch. 67-395; Ill, 2, ch. 69-55. Note.-See former 1193.323.

200.131 Existing millage in excess of limits; municipalities.- Applications for continued noncompliance with §§200.081 and 200.101 shall be submitted to the department of revenue, together with sales ratio studies in such method, form, and content as the department may require. If the department finds, on the basis of such studies, that the average assessment level of such municipality is not at least just value such municipality shall be required to hold ~ referendum as set forth in §200.101 before assessing any millage in excess of 1 percent (ten mills), unless such municipality had caused a good faith program of reassessment to be commenced prior to January 1, 1971, or has commenced court. proceedings prior to January 1, 1971, to requue the responsible party to commence such good faith program of reassessment.

Hlstory.-H. ch. 67-396: Ill. 2, ch. 69-55; §121, 35, ch. 69-106; ~I . ch. 69-278; §1, ch. 70-368; §59, ch. 73-333.

Note .-See former 1167.444.

200.132 Municipal financial assistance trust fund; administration of grant program.-

(1) The department of revenue shall administer a program of grants to municipalities within the amount appropriated each fiscal year for this purpose to the municipal financial assistance trust fund. Each municipality which has a total ad valorem millage rate of three mills or more, excluding millage for payment of principal ana interest on general obligation bonds, shall receive a pro rata *[distribution from the municipal financial assistance trust fund created under §210.20(2)(a)], to be distributed to the municipality in such proportion as the population of the municipality is to the total population of the

200.101 Referendum for millage in excess other municipalities in the county qualified to of limits.-Those taxpayers subject to ad va- receive distributions under this section. Counties lorem taxes on real and tangible personal prop- which, under the constitution, exercise powers erty may approve an increase of millage above conferred by general law upon municipalities those limits imposed by §200.081 in a refer- shall receive a share of that county's revenue in endum called for such purpose by the govern- a ratio of 'the population of the unincorporated ing body of the municipality, provided that area of that county to the entire population of such increase does not exceed a period of two the county. Amounts distributed hereunder shall years. Such referendum also may be initiated be considered general revenues of the municiby submission of a petition to the governing pality and shall be subject to expenditure for any

822


public purpose. Payment shall be made monthly during each fiscal year. During the fiscal year 1971-1972, the first payment shall be made in October. Municipalities levying more than ten mills on October 1, 1972, except for debt service or other special millages authorized by the voters, are hereby required to reduce their operating millages for the fiscal year 1972-1973 by the number of mills and fraction thereof that would have been necessary to raise 80 percent of the revenues hereby replaced for the period October 1, 1972 to October 1, 1973. This shall not require a reduction or rollback below ten mills. For purposes of this rollback requirement, the term "municipalities" shall not include a consolidated city-county form of government levying a millage not identifiable by millage for · county government and for city government.

(2) Amounts deposited in the municipal financial assistance trust fund are hereby appro-

_priated exclusively for grants to municipalities as provided in subsection (1). No deduction from these amounts shall be made for the service charge provided in §§215.20 and 215.22.

H istor;y.-§§3, 4, ch. 71-364; §60, ch . 73-333. •Note.-Bracketed la nguage inser ted by the editors in place of t he

following:" a mount of the total revenue from th e additiona l tax imposed under ~~10.026(1) collected in th e county. " Th is reflects a cha nge enacted by ~~7 and 8 of ch . 72-360. cf.-§~ 10.03 Prohibition again st levy ing of cigaret te taxes by municipalities.

200.141 Millage following consolidation of city and county functions.-'l'hose cities or counties which now or hereafter provide both municipal and county services as authorized under ~§9-11 and 24 of Art. VIII of the state constitution of 1885 shall have the right to levy for county, district and municipal purposes a millage up to twenty mills on the dollar of assessed valuation under this section. For each increase in the county millage above ten mills which is attributable to an assumption of municipal services by a county having "home rule," or for each increase in the municipal millage above ten mills which is attributable to an assumption of county services by a city having "home rule," there shall be a decrease in the millage levied by each and every municipality which has a service or services assumed by the county, or by the county which has a service or services assumed by the city. Such decrease shall be equal to the cost of that service or services assumed, so that an amount equal to that cost shall be eliminated from the budget of the county or city giving up the performance of such service or services.

Hlstory.-§5, ch . 67-395 ; HI, 2, ch . 69-55 ; §11, ch . 69-216. Note.-8ee former §193.325.

200.151 Millage to replace lost revenue.In the event any municipality should lose revenue through the loss of a proprietary activity or other source of revenue, the governing body of the municipality is authorized to increase the millage in an amount sufficient to restore such loss of revenue. In the event any

municipality should relinquish any governmental function to a county or other governmental body, the governing body of such municipality shall reduce the millage in an amount which will equal the cost of such governmental function.

Hlatory.- §3, ch . 67-396 ; l§ l , 2, ch . 69-55. Note .-See former §167.443.

200.161 Legislative intent.-The legislature hereby finds and determines that taxation on real and tangible personal property above the rate of two per cent or twenty mills is oppressive and that there are many areas in the state of Florida in which the combined millage levied against real and tangible personal property by the various taxing authorities including boards of county commissioners, ' municipalities, and various other districts and boards, far exceeds a rate of two per cent or twenty mills. Thus, the legislature hereby declares its intent to provide replacement revenues for the operation of local governmental bodies by the fiscal year 1970-1971, or as soon thereafter as possible, so that ad valorem or property taxation may be further reduced to such an extent that it is no longer oppressive and will not exceed an aggregate or totaf rate of two per cent or twenty mills.

Hlstory.- §7, ch . 67-395 ; U l, 2, ch . 69- 55 . Note.-See f orm e r §193.327.

200.171 Mandamus to levy tax; limitations· etc.-In any suit brought in any court of thi~ state seeking to compel the levy of any tax for the payment of any bonds, coupons or other evidences of indebtedness, or to establish a sinking fund for their ultimate redemption at maturity, the peremptory writ, if issued by the court, shall in no case require a levy in excess of the ability of the taxing unit involved to pay the taxes commanded to be levied· and if such taxing unit be one having other functions of civil government to perform, the court shall also take into consideration in commanding such levy, the necessity of f'!uch unit to make a reasonably ample levy of taxes for the purpose of raising revenue with which to pay for the operation of the ordinary functions of civil government which such unit performs: provided, this section shall not apply to bonds, coupons or other evidences of indebtedness issued subsequent to the passage of this law. The ability of the taxing unit involved to pay the taxes commanded to be levied shall be determined by the court within its sound discretion by the application of equitable considerations in view of all the conditions of the taxing unit bearing upon such ability to pay; and such ability to pay shall be first found and determined before the issuance of any such peremptory writ.

History-§!, ch . 18301, 1937 ; CGL 1940 Supp. 2321 (3); 111. 2, ch . 69-55 .

Note .-8ee former §192.34.

200.181 Bond payments; tax levies; restrictions.-

(1) None of the provisions of this chapter

823

Ch.200 DETERMINATION OF MILLAGE Ch. 200

or of any other law, whether general, special or local or of the charter of any municipality or county, shall limit or restrict the rate or the amount of the ad valorem taxes levied for the payment of the principal of and the interest on any debt service whether secured by revenue certificates or by bonds for which the full faith and credit of any county, municipality or taxing district may be pledged, and such taxes shall be in addition to all other taxes authorized or limited by law.

(2) Nothing in this section shall prevent any municipality, county or school board from levying at least five mills of ad valorem tax during any fiscal year.

History.-§§!, 3, ch. 67-536; §§1, 2, ch. 69-55; §1, ch. 69-300. Note.-See former §193.77.

200.191 Millages; definitions.-(!) County millages shall be composed of

three categories of countywide millage rates, as follows:

(a) General county millage, which shall be that nonvoted millage rate set by the governing body of the county.

(b) County debt service millage, which shall be that millage rate necessary to raise taxes for debt service as authorized by a vote of the electors pursuant to §12, Art. VII of the state constitution.

(c) County voted millage, which shall be that millage rate set by the governing body of the county as authorized by a vote of the electors pursuant to §9(b), Art. VII of the state constitution.

(2) Municipal millages shall be composed of three categories of municipalwide millage rates, as follows:

(a) General municipal millage, which shall be that nonvoted millage rate set by the governing body of the municipality.

(b) Municipal debt service millage, which shall be that millage rate necessary to raise taxes for debt service as authorized by a vote of the electors pursuant to §12, Art. VII of the state constitution.

(c) Municipal voted millage, which shall be that millage rate set by the governing body of the municipality as authorized by a vote of the electors pursuant to §9(b), Art. VII of the state constitution.

(3) School millages shall be composed of four categories of countywide millage rates, as follows:

(a) Nonvoted district school operating millage, which shall be that. non voted millage rate

824

set by the county school board for current operating purposes.

(b) Voted district school operating millage, which shall be that millage rate set by the district school board for current school operating purposes as authorized by the electors pursuant to §9(b), Art. VII of the state. constitution.

(c) Voted district school capital improvement millage, which shall be that millage rate set by the district school board for capital improvements as authorized by the electors.

(d) Voted district school debt service millage, which shall be that millage rate set by the district school board as authorized by a vote of the electors pursuant to §12, Art. VII of the state constitution.

(4) Special district millages shall be composed of two categories, as follows:

(a) Countywide millages, which shall be separated into two areas:

1. A millage rate set by the board of county commissioners, ex officio or otherwise, which shall be identified as to whether authorized by a special act approved by the electors, authorized pursuant to §15, Art. XII of the state constitution, or otherwise; or

2. A millage rate set by a governing body of a special district independently of the board of county commissioners, which shall be identified as to whether authorized by a special act approved by the electors, authorized pursuant to §15, Art. XII of the state constitution, or otherwise.

(b) Less than countywide millages, which shall be separated into two areas:

1. A millage rate set by the board of county commissioners or the governing body of a municipality, ex officio or otherwise, which shall be identified as to the area covered and as to whether authorized by a special act approved by the electors, authorized pursuant to §15, Art. XII of the state constitution, or otherwise; or

2. A millage rate set by a governing body of a special district independently of the board of county commissioners or the governing body of a municipality, which shall be identified as to whether authorized by a special act approved by the electors, authorized pursuant to §15, Art. XII of the state constitution, or otherwise. ·

(c) Millage rates set by multicounty special districts shall be reported by the respective county areas as provided above.

(5) At any time millage rates are published for the purpose of giving notice, the rates shall be stated in terms of dollars and cents per every thousand dollars of assessed property value.

History.-§9, ch. 73-349.

Ch. 201 EXCISE TAX ON DOCUMENTS Ch. 201

CHAPTER 201

EXCISE TAX ON DOCUMENTS

201.01 201.02

201.021

201.04

201.05 201.07

201.08

201.09

201.10

201.11

Documents taxable, generally. Tax on deeds and other instruments

relating to lands, etc. Surtax on documents relating to land;

land acquisition trust fund. Tax on bills of sale, agreements, trans

fers, etc., of stock or shares in corporations and interests therein.

Tax on stock certificates. Tax on bonds, debentures and certifi

cates of indebtedness. Tax on promissory notes, written obli

gations to pay money, assignments of wages, etc.

Renewal of existing promissory note; exemption.

Certificates of deposit issued by banks exempt.

Administration of law by department of revenue.

201.01 Documents tax a b I e, generally.There shall be levied, collected and paid the taxes specified in this chapter, for and in respect to the several documents, bonds, debentures or certificates of stock and indebtedness, and other documents, instruments, matters, writings, and things described in the following sections, or for or in respect of the vellum, parchment, or paper upon which such document, instrument, matter, writing, or thing, or any of them, are written or printed by any person, who makes, signs, executes, issues, sells, removes, consigns, assigns, or ships the same, or for whose benefit or use the same are made, signed, executed, issued, sold, removed, consigned, assigned, or shipped in the state. Provided further that the documentary stamp taxes required under this chapter shall be affixed to and placed on all recordable instruments, requiring documentary stamps according to law, prior to recordation. On mortgageE where the stamps are on the notes, a notation shall be made on the mortgage that the proper stamps and the amount of same have been placed on the notes.

History.-§ 1, ch. 15787, 1931; CGL 1936 Supp. 1279(111); §1, ch. 61-278.

201.02 Tax on deeds and other instruments relating to lands, etc.-

(1) On deeds, instruments, or writings whereby any la nds, tenements, or other realty, or any interest therein, shall be granted, assigned, transferred , or otherwise conveyed to, or vested in , the purchaser, or any other person by his direction, on each one hundred dollars of the consideration therefor the tax shall be thirty cents. When the full amount of the consideration for the execution, assignment. transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax sha ll be at the rate of thirty cents fo1· each one hundred dollars or frac-

201.12 201.13

201.131 201.14 201.15 201.16 201.17

201.18 201.19

201.20

201.21

201.22

Duties of clerks of the circuit court. Department of revenue to furnish

stamps for tax. Metering machines. Cancellation of stamps when used, etc. Distribution of taxes collected. Other laws made applicable to chapter. Penalties for failure to pay tax re-

quired. Penalties for illegal use of stamps, etc. Forfeiture for illegally avoiding tax on

notes. Penalties for illegally avoiding tax on

notes. Notes and other written obligations ex

empt under certain conditions. Financing statements under chapter

679 of the uniform commercial code.

tiona] part thereof of the consideration therefor.

(2) The tax imposed by subsection (1) of this section shall also be payable upon documents by which the right is granted to a tenant-stockholder to occ upy an apartment in a building owned by a cooperative apartment co rporati on.

(3) The tax imposed by subsection (2) shall be paid by the purchaser, and the document recorded in the office of the clerk of the circuit court as evidence of ownership.

History.- 0. ch. 15787. 1931; CGL 1936 Supp. 1279!111 ); §1, ch. 57-397; ~1. ch. 63-533; §1, ch . 70-304; §1. ch. 71-362.

201.021 Surtax on documents relating to land; land acquisition trust fund.-

(1) A documentary surtax, in addition to the tax levied in §201.02, is levied on those documents taxed by §201.02 at the rate of fifty-five cents per five hundred dollars of the consideration paid; provided, that when real estate is sold, the consideration, for purposes of this tax, shall not include amounts of existing mortgages on the real estate sold. If the full amount of the consideration is not shown on the face of the document, then the tax shall be at the rate of fifty-five cents on each five hundred dollars or fractional part thereof of the consideration.

(2) The department of revenue shall pay all taxes collected under this section to the treasurer for deposit in the land acquisition trust fund. Sums deposited there may be used for any purpose for which funds deposited in the land acquisition trust fund may lawfully be used and may be used to pay the cost of the collection and enforcement of the tax levied by this section.

History.-!2, ch. 67-320; U21, 35 , ch . 69-106 .

201.04 Tax on bills of sale, agreements, transfers, etc., of stock or shares in corporations and interests therein.-

825

Ch. 201 EXCISE TAX ON DOCUMENT~ Ch. 201

(1) On all sales, agreements to sell or memoranda of sales or deliveries of, transfers of legal title to shares, or certificates of stock or profits or interest in property or accumulations in any corporation, or to rights to subscribe for or to receive such shares or certificates, whether made upon or shown by the books of the corporation, or by any assignment in blank, or by any delivery, or by any paper or agreement or memorandum or other evidence of transfer or sale, whether entitling the holder in any manner to the benefit of such stock interest rights or not, on each one hundred dollars of face value or fraction thereof the tax shall be fifteen cents; and where such shares are without par or face value the tax shall be fifteen cents on each one hundred dollars of actual value or fraction thereof but not to exceed fifteen cents on each share; provided, that in case of sale, where evidence of transfer is shown only by the books of the corporation, the stamps shall be placed upon such books of the corporation; and where the change of ownership is by transfer of the certificate, the stamps shall be placed upon the certificates; and in case of an agreement to sell or where the transfer is made by delivery of the certificate assigned in blank, there shall be made and delivered by the seller t o the buyer a bill or memorandum of such sale, to which the stamp shall be affixed; and every bill or memorandum of sale or agreement to sell before mentioned, shall show the date thereof, the name of the seller, the amount of the sale, and the matter or things to which it refers. Any person or corporation liable to pay the tax as herein provided, or anyone who acts in the matter as agent or br_oker for such person or corporation, or who makes any such sale, or who in pursuance of any such sale, delivers any certificate or evidence of the sale of any stock, interest or right, or bill or memorandum thereof, as herein required, without having the proper stamps affixed thereto, with intent to evade the foregoing provisions, shall be ~uilty of a misdemeanor of the second degree, pumshable as provided in §775.082 or §775.083.

( 2 ) F or the purposes of this section, the term stock includes corporate stock, shares however designated in a joint stock company, trust in the nature of a common law trust or Massachusetts trust, association or other trust in which the trustees are associated together in substantially the same manner as directors in a corporation for the purpose of carrying on a bus iness enterprise. Such shares are declared to be personal property, and not interests in land, notwithstanding the nature of the property of which the trust shall consist, unless provided otherwise in the trust instrument.

Hletory.-§1. cb. 15787. 1931 ; CGL 1936 Supp. 1279(111), 747:1( 4); § I. ch . fil- 270; §2, ch . 6:!-~:Cl; § I, ch . 6:l-4HH: § IO:l. ch . 7 1-1:!6.

201.05 Tax on stock certificates.-On each original issue, whether organization or reorganization, of certificates of stock or shares however designated issued in the state, or certificates of profits, or of interest in property or

accumulations, by any corporation or by any joint stock company or other association as set forth in ~201.04, on each one hundred dollars of face value, or frr.ction thereof, the tax shall be fifteen cents; provided, that where a certificate is issued without face value, the tax shall be fifteen cents on each one hundred dollars of actual value or fraction thereof. The stamps representing the tax imposed by this section shall be attached to the stock books, and not to the certificates issued.

Hlstory.-U, ch. 15787, 1931; CGL 1936 Supp. 1279(111); U, ch . 61-270; l2. ch. 63 -488; !3, ch. 63-533.

201.07 Tax on bonds, debentures and certificates of indebtedness.-On all bonds debentures, or certificates of indebtedness i~sued in the state by any person, and all instruments and doc~ment~, h~wever termed, issued by any corporatwn with mterest coupons or in registered form, on each hundred dollars of the face value or fraction thereof, the tax shall be fifteen cents; provided, however, that only that part of the value of the bonds debentures, or certificates of indebtedness i~sued by any such person, the property of which is located within the state shall bear to the whole value of the property described in said instrument or obligation shall be taxed hereunder. ch~~:~~~~j-:-§1 , ch . 15787, 1931; CGL 1936 Supp. 1279(111); 14,

. 20~.0R Tax on promissory notes, written obhgahons to pay money, assignments of wages, etc.-

(1) 0? prom!sso~y notes, non-negotiable notes, wntten obhgatwns to pay money, assign~ent of salaries, wages, or other compensation, made, executed, delivered, sold transferred, or assigned in the state, and for each renewal of the same on each one hundred dollars of the indebtedness or obligation evidenced thereby, the tax shall be fifteen cents on each one hundred dollars or fraction thereof. Mortgages which incorporate the certificate of in?ebtedness, not otherwise shown in separate mstruments, are subject to the same tax at the same rate.

(2 ) On promissory notes, non-negotiable notes, written <?bligations to pay money, or other compensatwn, made, executed, delivered, sold, transferred, or assigned in the state in connection w!th sa!es ,made under retail ch~rge account services, mcident to sales which are not conditional in character and which are not secured by mortgage or other pledge of pure haser, the tax shall be fifteen cents on each one hundred dollars or fraction thereof of the gross amount of the indebtedness evidenced by said instruments, payable quarterly on such forms and under such rules and regulations as may be promulgated by the department of revenue. No documentary stamps shall be required to be attached to instruments under the provisions of this subsection.

History.-!! , ch . 15787, 1931 ; CGL 1936 Supp. 1279(111) · 11 ~~ : 6~~~1~·. 1953; W , 2, ch 61-277; ~5. ch . 63-533; 1121: 35:

201.09 Renewal of existing promissory note;

826


exemption. - When any promissory note is given in renewal of any existing promissory note, which said renewal note only extends or continues the identical contractual obligations of the original promissory note and evidences part or all of the original indebtedness evidenced thereby, not including any accumulated interest thereon and without enlargement in any way of said original contract and obligation, such renewal note shall not be subject to taxation under this chapter if such renewal note has attached to it the original promissory note with canceled stamps affixed thereon showing full payment of the tax due thereon.

Hletory.-§1, ch. 19068, 1939; CGL 1940 Supp. 1279(118).

201.10 Certificates of deposit issued by banks exempt.-Ail certificates of deposit issued by any bank, banking association, or trust company are exempt from the requirement for an excise tax imposed by this chapter.

Hlstory.-§2, ch. 19068, 1939; CGL 1940 Supp. 1279(119).

201.11 Administration of law by department of revenue.-

(1) The administrativn of this chapter shall be vested in the department of revenue, which shall prescribe suitable rules and regulations for the enforcement of the provisions thereof, and shall administer and enforce the taxes levied and imposed by this chapter. The department of revenue may enter upon the premises of any tax· payer, and examine or cause to be examined by any agent or representative designated by it for that purpose, any books, papers, records, or memoranda bearing upon the amount of taxes payable, and secure other information directly or indirectly concerned in the enforcement of this chapter. Any person, subject to this tax, who shall by any practice or evasion make it difficult to enforce the provisions of this chapter by inspection, or any person, agent or officer, who shall, after demand by the department or any agent or representative designated by it for that purpose, refuse to allow full inspection of the premises or any part thereof, or any books, records, documents, or other instruments in any way relating to the liability of the taxpayer for the tax herein imposed, or shall hinder or in any wise delay or prevent sych inspection, shall be guilty of a misdemeanor of the second degree, punishable as provided in §775.082 or §775.083.

(2) The department of revenue may appoint agents for the collection of the tax imposed by this chapter. The department may adopt rules and regulations requiring the agents to meet certain standards, including, without limitation, a demonstrated volume of business or a geographical distribution. All agents shall be subject to audit and shall post a bond as may be required by the department of revenue. The department of revenue may purchase a blanket bond; however, all costs associated with such a bond shall be allocated by department regulation to those agents so bonded. An agent shall be compensated .5 percent of the value of the stamps sold as

collection costs. However, the allowance shall not be granted when there is a manifest failure to maintain proper records or make proper reports.

Hl•tory.-§2, cb. 16787, 1931; CGL 1936 Supp 1279(112) 7473(5); §§21, 35, ch. 69-106; §104, ch . 71-136; §I, ch. 71-344. '

201.12 Duties of clerks of the circuit court. -Clerks of the circuit court shall report to the department of revenue the names and addresses of any and all individuals, firms or corporations, who shall fail to have affixed the required amount of stamps of any conveyance or taxable instrument or document which may be recorded in their respective offices; and any such clerk who knowingly fails to report any such violation within thirty days after recording of any taxable instrument or document, without such stamps, shall be deemed guilty of a . misdemeanor and upon conviction punished accordingly.

HIBtor;r.-§2, cb. 16787, 1931; CGL 1938 Supp. 1279(118) 7•73 !6); 1121, 35, ch. 68-106 . '

201.13 Department of revenue to furnish stamps for tax.- The department of revenue shall cause to be prepared and distributed for the payment of the taxes prescribed in this chapter, suitable stamps denoting the tax on the documents to which same are required to be affixed, and shall prescribe such method for affixing of said stamps as shall be necessary to carry out and comply with the intent and purpose of this chapter.

History.-l3, ch. 15787, 1931; COL 1836 Supp. 1278(1U); 1121, 35, ch. 68-106 .

201.131 Metering machines.-(!) The taxes imposed by this chapter may

also be paid through the use of excise tax on documents stamp insignia to be applied by the use of metering machines. The department of revenue shall prescribe and promulgate appropriate rules and regulations governing the use of metering machines, the procedure for the payment of such excise taxes on documents through the use thereof, requiring adequate surety bonds of the non-governmental users thereof to assure the proper use of such machines and the payment of all excise taxes on documents, and all other rules and regulations necessary and proper to govern the use of same.

(2) Users of such metering machines will have to supply such machines at their own expense.

(3) All provisions of this chapter governing the use of excise tax in documents stamps and pertaining to the payment of such excise taxes through the use of stamps shall likewise be applicable, where appropriate, to the payment of such taxes through the use of metering machines.

History.-§3, ch. 57-107; 1121, 35, ch . 68-106.

201.14 Cancellation of stamps when used. etc.-Whenever an adhesive stamp is used for denoting any tax imposed by this chapter on documents, the person using or affixing the same shall write or stamp or cause to be written or stamped thereon, the initials of his

827


or its name, and the date upon which same is attached or used, so that the same may not again be used. Stamps shall be affixed in such manner that their removal will require continued application of steam or water; provided, that the department of revenue may prescribe such other method for the cancellation of such stamps as it may deem expedient.

Hislory.-§5, ch. 15787, 1831; COL 1836 Supp. 1278(116); U21, 35, ch. 68-106.

201.15 Distribution of taxes collected.-All taxes collected under the provisions of this chapter shall be paid into the state treasury to the credit of the general revenue fund of the state, to be used and expended for the purposes for which said general revenue fund was created and exists by law. ··ul•tor:r.-16, cb. 15787, 1931; CGL 1938 Supp. 1279(117).

201.16 Other laws made applicable to chapter.-All revenue laws relating to the assessment and collection of taxes are hereby extended to and made a part of this chapter, so far as applicable, for the purpose of collecting stamp taxes omitted through mistake or fraud from any instrument, document, paper, or writing named herein.

Hl•tor:r.-13, cb. 15787, 1931; CGL 1936 Supp. 1279(116).

201.17 Penalties for failure to pay tax required.-

(1) Whoever makes, signs, issues, or accepts, or causes to be made. signed, issued, or accepted, any instrument, document or paper of any kind or description whatsoever, without the full amount of the tax herein imposed thereon being fully paid, or whoever makes use of any adhesive stamp to denote any tax imposed by this chapter without canceling or obliterating such stamps as herein provided, shall be guilty of a misdemeanor of the second degree, punishable as provided in §775.082 or §775.083.

(2) Any document, instrument, or paper upon which the tax under this chapter is imposed and which, upon audit or at time of recordation, does not bear the proper value of stamps shall subject the person or persons liable for the tax upon the document, instrument or paper to:

(a) Purchase of the stamps not a ffixed ; and (b) Payment of penalty to the department

of revenue equal to the purchase price of the stamps not affixed. This penalty is to be in addition to and not in lieu of any other penalty imposed by law.

Hi s tory.- §4. ch. 15787, 19:l l ; CGL 1936 S upp. 7473(7); §105, ch . 71· 136; §2, ch . 71-:l44.

201.18 Penalties for illegal use of stamps, etc.-

(1 ) Whoever fra udulently cuts, tears, or removes from any vellum, parchment, paper, instrument, writing, or doc ument, upon which any tax is imposed by this chapter, any adhesive stamp used in pursuance of thi s chapter, or fra udulently uses, joins, fixes, or places to, with, or upon any vellum, parchment, paper,

instrument, writing, or document, upon which any tax is imposed by this chapter:

(a) Any adhesive stamp which has been cut, torn, or removed from any other vellum, parchment, paper, instrument, writing, or document, upon which any tax is imposed by this chapter; or

(b) Any adhesive stamp of insufficient value, or

(c) Any forged or counterfeited stamp. (2) Whoever willfully removes or alters

the cancellation or defacing marks of, or otherwise prepares any adhesive stamp with intent to use or cause the same to be used after it has already been used, or knowingly or willfully buys, sells, offers for sale, or gives away any such washed or restored stamp to any person for use, or knowingly uses the same, or whoever knowingly and without lawful excuse has in possession any washed, restored, or altered stamp which has been removed from any vellum, parchment, paper, instrument, writing, or document; or whoever knowingly or willfully prepares, buys, sells, offers for sale, or has in his or its possession any counterfeit stamps, shall be guilty of a misdemeanor of the first degree, punishable as provided in §775.082 or §775.083.

History.- §4, ch. 15787, 1931; CGL 1936 Supp. 7473(7); §106, ch . 71·136; §3, ch. 71·344.

201.19 Forfeiture for illegally avoiding tax on notes.-Any person, either maker or payee, who shall attach to any original note any other note which is not in fact a renewal of the original note without paying the tax and affixing the stamps required by law on each and all of such notes, shall forfeit to the state a sum of money equal to twice the face value of all such notes as may be so attached, and the department of revenue shall direct the state attorney of the judicial circuit within which such parties or any of them reside, or where the act was committed, to bring suit in the name of the state to collect the amount due, and such state attorney shall institute and prosecute to judgment and collection the amount due, and the maker and the payee shall be jointly and severally liable for the payment thereof.

History.-!3, ch. 19068, 1939 ; COL 1940 Supp. 1279 (120) ; 1121, 35 , ch . 69-106 .

201.20 Penalties for illegally avoiding tax on notes. - Any person using the provisions of §201.09 to avoid the payment of any tax justly due shall be guilty of a misdemeanor of the second degree, punishable as provided in §775.082 or §775.083.

History.-§4, ch. 19068, 1939; CGL 1940 Supp. 7473(7a); §107, ch . 7l-136: §4, ch . 71-344.

201.21 Notes and other written obligations exempt under certain conditions.-There shall be exempt from all excise taxes imposed by chapter 201, all promissory notes, non-negotiable notes and other written obligations to pay money bearing date subsequent to July 1, 1955, hereinafter referred to as "principal obligations," when the maker thereof shall

828


pledge or deposit with the payt!e or holder thereof pursuant to any agreement commonly known as a wholesale warehouse mortgage agreement, as collateral security for the payment thereof, any collateral obligation or obligations, as hereinafter defined, provided all excise taxes imposed by this chapter upon or in respect to such collateral obligation or obligations shall have beep paid. If. th.e indebtedness evidenced by any such prmc1pal obligation shall be in excess of the indebtedness evidenced by such collateral obligation or obligations, the exemption provided by this section shall not apply to the amount of such excess indebtedness, and in such event, the excise taxes imposed by this chapter shall apply a~d be paid only in respect to such excess of Indebtedness of such principal obligation. The term "collateral obligation" as used in this section shall mean any note, bond or other written obligation to pay money secured by mortgage, deed of trust or other liens upon

real or personal property. Blstorr.-11. ch. 28Ul, 1855.

201.22 Financing statements under chapter 679 of the uniform commercial code.-The excise tax on documents provided by this chapter shall be applicable to transactions covered by the uniform commercial code to the same extent that it would be if the code had not been enacted. The clerk or filing officer shall not accept for filing or filing and recording any financing statement under chapter 679, unless there appears thereon the notation that the stamps required by this chapter have been placed on the promissory instruments secured by said financing statement and will be placed on any additional promissory instruments, advances or similar instrument that may be secured by said financing statement. The failure to pay the tax required !Jy this chapter as so stated, shall be subject to the penalties provided by this chapter.

Bll&orr .-11. ch. 85-254.

829

Ch. 203 GROSS RECEIPTS TAXES, GENERALLY Ch. 203

CHAPTER 203

GROSS RECEIPTS TAXES, GENERALLY

203.01 Public service corporations, tax upon gross receipts.

203.011 Certain credits authorized. 203.02 Powers of department of revenue. 203.03 Penalties.

203.01 Public service corporations, tax upon gross receipts.-Every person, including municipal corporations, receiving payment for electricity for light, heat or power, for natural or manufaetured gas for light, heat or power, for use of telephones, and for the sending of telegrams and telegraph messages, shall llnnually, on or before the fifteenth day of March, report to the department of revenue, under oath of the secretary or some other officer of such person, the total amount of gross receipts derived from business done within this state, or between points within this state, for the preceding calendar year and, at the same time, shall pay into the state treasury the sum of one dollar and fifty cents upon each one hundred dollars of such gross receipts. Th~ term "gross receipts" as used herein shall not include gross receipts of any person derived from the sale of natural gas to a public or private utility, including municipal corporationa and rural electric cooperative associations, either for resale or for use as fuel in the generation of electricity. If any person fails to make such report to the department and pay the tax as herein provided, the department shall, after having given at least five days' notice to such person or some official or representative thereof within this state, estimate the amount of such gross receipts from such information as it may be able to obtain and shall add ten per cent of the amount of such taxes as a penalty, for the failure of such person to make report, and shall proceed to collect such tax, together with all costs and the penalty, the same as other delinquent taxes are collected; provided, no penalty shall be added as aforesaid if a return is made and the amount due is paid to the state treasurer before the expiration of the time stated in the department's notice aforesaid.

Hl•tor;r.-§§1, 2, ch. 16658, 1931; CGL 1936 Supp, 1279(108), 1279(109!; §7, ch. 22858, 1945; U. ch. 57-819; §7, ch. 63-253; §5, ch . 65-371; §2, ch. 65-420; 1!21. 35 , ch. 69-106. cf.-§1.01 (3) Definition of person.

203.011 Certain credits authorized.-Whenever a purchase is made of any utility service and a tax is paid thereon by a public utility that is regl.\lated by the Florida public service commission, municipality or a rural electric cooperative association as provided in ~203.01, and such public utility, municipality or rural electric cooperative association resells the same directly to consumers, such public utility, municipality or rural electric cooperative association shall be entitled and shall receive credit upon such taxes as may be due it under §203.01 to the extent of the tax paid or pay-

203.04 Repeal of laws granting exemptions or exceptions.

203.05 Gross receipts taxes against express companies; reports; penalties; distribution.

able upon such utility service by the person, firm or corporation from whom such purchase was made.

History.-!!, ch. 28091, 1953; 11. ch. 57-820; U. ch. 63-279; U, ch. 65-52.

203.02 Powers of department of revenue. -The department of revenue may audit the reports provided for in *203.01 and each and every such person shall submit all records, books, papers and accounts as to business done to the department or its duly authorized agents for examination or investigation upon demand.

History.-~3. ch. 15658, 1931; COL 1936 Supp. 1279(110); §7, ch. 63-253; !5. ch. 65-371; 12. ch . 65-420; H21, 35, ch. 69-106.

203.03 Penalties.-.Any officer, agent, or representative of any such person who receives any payment for the furnishing of the things or the services above mentioned without first complying with the provisions of this chapter as required, shall be guilty of a misdemeanor of the second degree, punishable as provided in §775.082 or §775.083.

History.-§4, ch. 15658, 1931; CGL 1936 Supp. 7455(3); §108, ch. 71·136.

203.04 Repeal of laws granting exemptions or exceptions.-

(!) All provisions of presently existing general , special or local statutes or laws, or parts thereof, including municipal charters and laws relating to quasi-municipal corporations, of this state granting or providing exemptions or exceptions, either directly or indirectly, from the gross receipts taxes imposed by chapter 203 are hereby repealed. This section shall not repeal, modify or amend any of the provisions of §§203.01 or 203.011.

(2) No statute or law, general, special or local hereafter enacted which either directly or indirectly relates to exemptions or exceptions from taxation in this state shall be construed as including or extending to the gross receipts taxes imposed by chapter 203 unless its application to said chapter. either directly or indirectly, is clearly and specifically expressed and no repeals by implication shall be recognized in this connection. This' is a rule of statutory construction to be applied to statutes and laws hereafter enacted.

(3) Subsection (1) shall be construed as applying to chapter 29334, 1953, as amended by chapter 31051, 1955; chapters 30415, 30576, 30845 and 31166, 1955; and chapters 57-1174 and 57-1348, all laws of Florida. This enumeration of chapters shall not be construed as being all inclusive.

History.-§§1·3, ch. 63·535.

830

Ch. 203 GROSS RECEIPTS TAXES, GENERALLY Ch. 203

203.05 Gross receipts taxes against express companies; reports; penalties; distribution.-

(! ) Every express company doing business in this state shall annually, on October 1, make a report under oath to the department of revenue of the tota l amount of gross receipts derived from business done between points in this state during the year ending June 30, next preceding October 1 and shall at the same time pay to the department a sum equal to two per cent upon the total amount of such gross receipts, and if any such company shall fail to make such report and payment to the department as herein provided, on or before November 1 of any year, the department shall, after having given at least five days' notice to an official or representative of the company located in this state, estimate the amount of such gross receiots from such information as it may be able to obtain, and shall add ten per cent to the amount of such taxes as a penalty

for the failure of such company to make report, and shall proceed to collect such tax, together with all costs and penalties thereon, the same as delinquent railroad taxes are collected; provided, that no penalty shall be added if a return is made and the amount due paid to the department before the expiration of the time stated in the notice required to be given by this section.

(2) Of the sum paid to the department of revenue, as provided by this section, one half shall be distributed by the department among the various counties of this state in proportion to the assessed valuation thereof as shown by the assessment of the previous year, and the remaining one half shall immediately be turned over to the treasury of the state as license money.

Hl•tory.-§22. ch. 8421. 1918; RGS 889; 11, ch. 8558, 1921; CGL 1145 ; 11 1. 2, ch . 69-55 ; 1121, 35, ch. 6D-106 ; f24, ch. 70-243.

Note.-See former U95 .13 ; §193.731.

831

Ch. 205 LOCAL OCCUPATIONAL LICENSRTAXES Ch. 205

CHAPTER205

LOCAL OCCUPATIONAL LICENSE TAXES

205.013 Short title. 205.022 Definitions. 205.032 Levy; counties. 205.033 Conditions for levy; counties. 205.042 Levy; municipalities. 205.043 Conditions for levy; municipalities. 205.053 Occupational licenses; dates due and

delinquent; penalties. 205.063 Exemptions; motor vehicles.

205.013 Short title.-This chapter shall be known and may be cited as the "Local Occupational License Tax Act."

History.- §! , ch . 72-306; §1 , ch. 73-144.

205.022 Definitions.- When used in this chapter the following terms and phrases shall have the meaning ascribed to them in this section , except when the context clearly indicates a different meaning:

(1) "Local occupational license" means the method by which a local governing autho~ity grants the privilege of engaging in or _mana_gn~g any business, profession, or occupatwn withi~ its jurisdiction. It shall not mean any fees or hcenses paid to any board, commission, or officer for permits, registration, examination, or inspection. Unless otherwise provided by law, these are deemed to be regulatory and in addition to, and not in lieu of, any local occupational license imposed under the provisions of this chapter.

(2) "Local governing authority" means the governing body of any county or incorporated municipality of this state.

(3) "Person" means any individual, firm, partnership joint adventure, syndica te, or other group or co~bination acting a s a unit, association , corporation , estate, trust, busine~s trust, trustee, executor, administrator, receiver, or other fiduciary , and shall include the plural as well as the singular.

(4) "Taxpayer" means any p~r~on liable f~r taxes imposed under the proviswns of this chapter; any agent required to file an_d pay any taxes imposed hereunder; and the heirs, succe~sors , assignees and transferees of any such person or agent.

(5) "Classification" means the method by which a business or group of businesses is identified by size or type, or both.

(6) "Department" means the department of revenue. . , "

(7) "Business," "professwn, and o~c.upation" do not include the customary rehgwus, charitable, or educational activities of nonprofit religious, nonprofit chari~ble, ~nd nonprofit educational institutions . m this s~ate, which institutions are more particularly defmed and limited as follows :

(a) "Religious institutions" shall mean churches and ecclesiastical or denominational organizations or established physical places for

205.072 Continued validity of existing licenses. 205.162 Exemption allowed cripples, invalids,

aged, etc. 205.171 Exemptions allowed disabled veterans

of any war, or their unremarried widows.

205.191 Religious tenets; exemption. 205.192 Charitable, etc., organizations; occa

sional sales, fund raising; exemption.

worship in this state at which nonprofit religious services and activities are regularly conducted and carried on, and shall also mean church cemeteries.

(b) "Educa tional institutions" shall mean state tax-supported or parochial, church and nonprofit private schools, colleges, or universities conducting regular classes and courses of study required for accreditation by or membership in the Southern Association of Colleges and Secondary Schools, the department of education or the Florida Council of Independent Schools. Nonprofit libraries, art galleries, and museums open to the public are defined as educational institutions and eligible for exemption.

(c) "Charitable institutions" shall mean only nonprofit corporations operating physical facilities in this state at which are provided charitable services, a reasonable percentage of which shall be without cost to those unable to pay.

History.-§! , ch . 72-306; §l , ch . 73-144.

205.032 Levy; counties.- The governing body of a county may levy, by appropriate resolution or ordinance, an occupational license tax for the privilege of engaging in or managing any business, profession, or occupation within its jurisdiction. However, such governing body shall first give at least fifteen days' public notice between the first and last reading of such resolution or ordinance by publishing such notice in a newspaper of general circulation within its jurisdiction as defined by law. The said public notice shall contain the proposed classifications and rates applicable to the occupational license tax which is the sub.iect thereof.

History.-§!, ch . 72-306; §1, ch . ·73-144.

205.033 Conditions for levy; counties.-(!) The following conditions are hereby im

posed on the authority of a county governing body to levy an occupational license tax:

(a) The tax shall be based upon reasonable classifications and shall be uniform throughout any class.

(b) No occupational license tax levied hereunder shall be at a rate greater than the rat.e provided by chapter 205 in effect for the year beginning October 1, 1971.

(c) No license shall be issued for more than

832

Ch. 205 LOCAL OCCUPATIONAL LICENSE TAXES Ch. 205

one year, and all licenses shall expire on October 1 of each year, except as otherwise provided by law.

(2) All business licenses may be transferred to a new owner when there is a bona fide sale of the business upon payment of a transfer fee of $3 and presentation of the original license and evidence of the sale.

(3) Upon written request and presentation of the original license, any license may be transferred from one location to another location in the same county upon payment of a transfer fee of $3. . (4) _The revenues derived from the occupa

tional hcense tax, exclusive of the costs of collection and any credit given for ·municipal lice~se taxes, shall be apportioned between the unmcorporated area of the county and the incorporated municipalities located therein by a ratio derived by dividing their respective populations by the population of the county.

(5) The revenues so apportioned shall be sent to the governing authority of each municipality, according to its ratio, and to the governing authority of the county, according to the ratio of the unincorporated area, within fifteen days following the month of receipt.

(6) The resolution or ordinance providing such a tax shall be filed with the department before any such tax may become effective.

(7) The collector of the tax shall report to the department monthly on forms prescribed and provided by the department the amount of tax received by class and the apportionment of such tax between the local governing authorities within said county.

History.-§1 , ch: 72-306; §1, ch. 73-144.

205.042 Levy; municipalities.- The governing body of an incorporated municipality may levy, by appropriate resolution or ordinance an occupational license tax for the privilege of eng~ging in or m3:naging any business, professwn, or occupatwn within its jurisdiction. However, such governing body shall first give at least fifteen days' public notice between the first and last reading of such resolution or ordinance by publishing such notice in a newspaper of general circulation within its jurisdiction as defined by law. The said public notice shall contain the proposed classifications and rates applicable to the occupational license tax which is the subject thereof. Such occupational license tax may be levied on:

(1) Any person who maintains a permanent business location or branch office within said municipality, for th~ privilege of engaging in or managmg any busmess within its jurisdiction.

(2) Any person who maintains a permanent business location or branch office within ~aid municip~lity, for the privilege of engaging m or managmg any profession or occupation within its jurisdiction.

(3) Any person who does not qualify under the provisions of subsection (1) or subsection (2)

and who transacts any business or engages in any occupation or profession in interstate commerce, if such license tax is not prohibited by §8 of Art. I of the United States Constitution.

History.-§1 , ch. 72-306; §1 , ch. 73-144.

205.043 Conditions for levy; municipalities.-

(1) The following conditions are hereby imposed on the authority of a municipal governing body to levy an occupational license tax:

(a) The tax shall be based upon reasonable classifications and shall be uniform throughout any class;

(b) No occupational license tax levied hereunder shall be at a rate greater than that in effect in such municipality for the year beginning October 1, 1971;

(c) No license shall be issued for more than one year and all licenses shall expire on October 1 of each year, except as otherwise provided by law.

(2) All business licenses may be transferred to a new owner when there is a bona fide sale of the business upon payment of a transfer fee of $3 and presentation of the original license and evidence of the sale.

(3) Upon written request and presentation of the original license, any license may be transferred from one location to another location in the same municipality upon payment of a transfer fee of $3.

(4) If the governing body of the county in which the municipality is located has levied an occupational license tax or subsequently levies such a tax, the collector of the county tax may issue the license and collect the tax thereon.

(5) The resolution or ordinance authorizing such a tax shall be filed with the department before any such tax may become effective.

(6) The collector of such tax shall report to the department monthly on such forms prescribed and provided by the department the amount of tax received by class.

History.-§1 , ch. 72-306; §1 , ch. 73-144.

205.053 Occupational licenses; dates due and delinquent; penalties.-

(1) All licenses shall be sold by the appropriate tax collector beginning September 1 of each year and shall be due and payable on October 1 of each year and expire on September 30 of the succeeding year. Provisions for partial licenses may be made in the resolution or ordinance authorizing such licenses. Those licenses not renewed by October 1 shall be considered delinquent and subject to a delinquency penalty of 10 percent for the month of October, plus an additional 5 percent penalty for each month of delinquency thereafter until paid. However, the total delinquency penalty shall not exceed 25 percent of the occupational license fee for the delinquent establishment.

(2) Any person engaging in or managing any business, occupation, or profession without

833


first obtaining a local occupational license, if required hereunder, shall be subject to a penalty of 25 percent of the license determined to be due; in addition to any other penalty provided by law or ordinance.

History.-§!, ch. 72-306; §1 , ch . 73-144.

205.063 Exemptions; motor vehicles.-Vehicles used by any person licensed under this chapter for the sale and delivery of tangible personal property at either wholesale or retail from his place of business on which a license is paid shall not be construed to be separate places of business, and no license may be levied on such vehicles or the operators thereof as salesmen or otherwise by a county or incorporated municipality, any other law to the contrary notwithstanding.

History.-§3, ch. 72-306; §1, ch. 73-144.

205.072 Continued validity of existing licenses.-All state and county licenses issued pursuant to the law existing on April 24, 1972 shall remain in effect until October 1, 1972.

History.-§5, ch. 72-306; §1, ch. 73-144.

205.162 Exemption allowed cripples, invalids, aged, etc.-

(1) All confirmed cripples or invalids physically incapable of manual labor, widows with minor dependents, and persons sixty-five years of age or older, with not more than one employee or helper, and w.ho use their own capital only, not in excess of one t~ousand do!lars, shall be allowed to engage m any business or occupation in counties in which they live without being required to pay for a license; except that this exemption shall. not apply to any of the occupations specified m §§205.311 and 205.341. The exemption provided by this section shall be allowed only upon the certificate of the county physician, or other reputable physician, that the applicant claiming the exemption is a confirmed cripple or invalid, the nature and extent of the disability being specified therein, and in case. the exemption is claimed by a widow with mmor dependents, or a person over sixty-five years of age, proof of the right to the exemption shall be made. Any person entitled to the exemption provided by this section shall, upon application and furnishing of the necessary proof as aforesaid, be issued a license which shall have plainly stamped or written across the face thereof the fact that it is issued under this section, and the reason for the exemption shall be written thereon.

(2) In no event under this or any other law shall any person, veteran or otherwise, be allowed any exemption whatsoever from the payment of any amount required by law for the issuance of a license to sell intoxicating liquors, malt and vinous beverages; or for the operation of any slot machine, punch board or any other gaming or gambling de-vice.

History .-§1, ch . 67-433 . Note.-See former §205.15.

205.171 Exemptions allowed disabled veterans of any war, or their unremarried widows.-

(1) Any bona fide, permanent resident elector of the state who served as an officer or enlisted man in the United States army or army reserve, national guard, United States navy or naval reserve, United States coast guard or coast guard reserve, United States marine corps or marine corps reserve, or any temporary members thereof, who have actually been or may hereafter be reassigned by the army, navy, coast guard or marines to active duty, during any war, declared or undeclared, armed conflicts, crises, etc., since the Spanish-American war, beginning April 21, 1896, who was honorably discharged from the service of the United States, and who at the time of his application for license as hereinafter mentioned shall be disabled from performing manual labor, shall, upon sufficient identification, proof of being a permanent resident elector in the state and production of an honorable discharge from the service of the United States during the aforesaid period of time, respectively, be granted a license to engage in any business or occupation in the state which may be carried on mainly through the personal efforts of the licensee as a means of livelihood and for which the state, county or municipal license does not exceed the sum of $50.00 for each without payment of any license tax otherwise provided for by law; or shall be entitled to an exemption to the extent of $50.00 on any license to engage in any business or occupation in the state whi.:h may be carried on mainly through the personal efforts of the licensee as a means of livelihood where either the state, county or municipal license for such business or occupation shall be more than $50.00. The exemption heretofore referred to shall extend to and include the right of licensee to operate an automobile for hire of not exceeding fi ve passenger capacity, including the driver, when it shall be made to appear that such automobile is bona fide owned, or contracted to be purchased by the licensee and is being operated by him as a means of livelihood and that the proper li~ cense tax for the operation of such motor vehicle for private use has been applied for and attached to said motor vehicle and the proper fees therefor paid by the licensee.

(2) When any such person shall apply for a license to conduct any business or occupation for which either the county or municipal license tax as fixed by law shall exceed the sum of $50.00, the remainder of such license tax in excess of $50.00 shall be paid by him in cash.

(3) Each and every tax collecting authority of this state, of each county thereof, and of each municipality therein shall issue to such persons as may be entitled hereunder a license pursuant to the foregoing provision and subject to the conditions thereof. Such license when issued shall be marked across the face

834


thereof "Veterans Exempt License"-"Not Transferable." Before issuing the same, proof shall be duly made in each case that the applicant is entitled under the conditions of this law to receive the exemption herein provided for. The proof may be made by establishing to the satisfaction of such tax collecting authority by means of certificate of honorable discharge or certified copy thereof that he is a veteran within the purview of this section and by exhibiting:

(a) A certificate of government-rated disability to an extent of ten per cent or more;

(b) The affidavit or testimony of a reputable physician who personally knows the applicant and who makes oath that the applicant is disabled from performing manual labor as a means of livelihood;

(c) The certificate of the veteran's service officer of the county in which applicant lives, duly executed under the l)and and seal of the chief officer and secretary thereof, attesting the fact that the applicant is disabled and entitled to receive a license within the meaning and intent of this section;

(d) By the production of a pension certificate issued to him by the United States by reason of such disability; or

(e) Such other reasonable proof as may be required by the tax collecting authority to establish the fact that such applicant is so disabled. All licenses issued under this section shall be in the same general form, and shall expire at the same time, as oth·er state, county and municipal licenses are fixed by law to expire.

(4) All licenses obtained under the provisions of this section by the commission of fraud upon any issuing authority shall be deemed null and void. Any person who has fraudulently obtained any such license, or who has fraudulently received any transfer of a license issued to another, and has thereafter engaged in any business or occupation requiring a license under color thereof shall be subject to prosecution as for en~ral!'in~r in a business or occupation without having the re-

quired license under the laws of the state. Such license shall not be issued in any county other than the county wherein said veteran is a bona fide resident citizen elector, unless such veteran applying therefor shall produce to the tax collecting authority in such county a certificate of the tax collector of his home county to the effect that no exemption from license has been granted to such veteran in his home county under the authority of this section.

(5) In no event under this or any other law shall any person, veteran or otherwise, be allowed any exemption whatsoever from the payment of any amount required by law for the issuance of a license to sell intoxicating liquors, malt and vinous beverages; for the operation of any slot machine, punch board or any other gaming or gambling device; or for any of the occupations specified in §§205.311 and 205.341.

(6) The unremarried widow of the deceased disabled veteran of any war in which the United States armed forces participated will be entitled to the same exemptions as the disabled veteran.

History.-§1, ch. 67·433· §38, ch. 71·355. Nole.-Bee former ul!o5 .16 and 205.161.

205.191 Religious tenets; exemption.-Nothing in this chapter shall be construed to require a license for practicing the religious tenets of any church.

Rio lory .-11. cb. 67-433. Nole.-Bee former 1205. 18.

205.192 Charitable, etc., organizations; occasional sales, fund raising; exemption.-No occupational license shall be required of any charitable, religious, fraternal, youth, civic, service, or other such organization when the organization makes occasional sales or engages in fund-raising projects when the projects are performed exclusively by the members thereof and when the proceeds derived from the activities are used exclusively in the charitable, religious, fraternal, youth, civic, and service activities of the organization.

History.-!!, ch. 70-400.

835

Ch.206 TAXATION OF MOTOR AND OTHER FUELS Ch. 206

CHAPTER 206

TAXATION OF MOTOR AND OTHER FUELS

PART I MOTOR FUELS (§§206.01·206.77)

PART II SPECIAL FUELS (§§206.85-206.97)

206.01 Definitions. 206.02 Application for license.

PART I

MOTOR FUELS

206.27

206.025 Application by person whose license has been canceled; procedure.

206.03 Licensing of distributors. 206.04 License number and cards; penalties. 206.05 Bond required of licensed distributors. 206.055 Department may cancel licenses; sur-

render of bond. 206.06 Estimate of amount of gas taxes due and

unpaid. 206.07 Suits for collection of unpaid taxes. 206.075 Department's warrant for collection of

unpaid taxes. 206.08 Report from persons not distributors. 206.09 Reports from carriers transporting

motor fuel or similar products. 206.10 Reports to be filed whether taxes due

or not. 206.11 Penalties. 206.12 Retention of records by distributors

and other persons. 206.13 Refund of taxes erroneously or illegally

collected. 206.14 Inspection of records; hearings; forms;

206.15 206.16 206.17

rules and regulations. Gas taxes a lien on property. Officer, etc., selling property. Department to furnish certificates of

liens. 206.175 Foreclosure of liens. 206.18 Discontinuance or transfer of business;

penalty. 206.19 Not to settle for less than amounts

actually due. 206.20 Transportation of motor fuel over public

highways. 206.204 Transportation of motor fuel by boats

over the navigable waters of this state.

206.205 Forfeiture of vehicles and boats illegally transporting or delivering motor fuel.

206.21 Trial of issues interposed by defense;

206.215 206.22 206.23 206.24

sale, etc . Costs and expenses of proceedings. Restraining and enjoining violations. Tax; must be stated separately. Department and agents may make

arrests, seize property and execute warrants.

206.25 Method for collection of tax cumulative. 206.26 Review of department's decisions.

206.28

206.29

206.30 206.31

206.32 206.33

206.34 206.35

206.36 206.37

~06.38 206.39 206.40

206.404 206.405 206.406 206.41 206.42 206.43

206.44 206.45 206.46

206.47

206.48 206.49

206.50 206.51 206.52 206.53

206.54 206.55 206.56

206.57

836

Records and files as public records. Exchange of information among the

states. Refunds to city transit companies;

definitions. Legislative findings. Refunds on fuel used for city transit

systems. Powers and duties of department. Permit for refunds required; procedure

for issuance; bond. Sales; invoices required. When refund claims allowed; procedure;

right of refund nonassignable, exception; fee.

Appropriation for payment of claims. False information in permit or refund

application. Revocation, suspension of refund permit. Hearing required. Violations by persons other than refund

permit holders. License tax upon dealers. Receipt for payment of license tax. Disposition of license tax funds. Gasoline taxes imposed. Aviation motor fuel exempt from tax. Distributor to report to department

monthly; deduction. Penalty for failure to report on time. Payment of tax into state treasury. State transportation trust fund; con-

struction, etc., of roads. Distribution of second gas tax pursuant

to §9, Art. XII, state constitution. Reports required of distributors. Invoice to show whether or not tax

paid. Retail gasoline dealers, refund allowed. Requirements for refund. Application for refund. Approval of application; payment of

r efund. Refund overpayment; adjustment. False statement; penalty. Failure to account for tax col

lected; embezzlement. Gasoline tax imposed upon motor fuels

in vehicle reservoirs.


206.58 Duties of police officers; penalties, etc.

206.59 206.60 206.605

Deputment to make rules; powers. Additional tax upon motor fuel. Additional eighth cent tax on motor

fuel. 206.61 Municipal taxes, limited. 206.62 Certain sales to United States tax

206.625 206.63 206.64

exempt; rules and regulations. Return of tax to municipalities. Definitions. Refunds on fuel used for agricultural

or commercial fishing purposes; limitation; claims.

206.65 Powers and duties of department. 206.66 Permit for refunds required; procedure

for issuance; bond. 206.67 Permit numbers; tax refund blanks.

206.01 Definitions.-As used in part I of this chapter:

(1) "Motor fuel" means and includes what is c0mmonly known and sold as gasoline and fuels containing a mixture of gasoline and other products.

(2) "Public highways" means and includes every way or place, of whatever nature generally open to the use of the public as a matter of right, for the purpose of vehicular travel, notwithstanding that the same shall have been temporarily closed for the purpose of construction, reconstruction, maintenance or repair.

(3) "Person" means and includes natural persons, corporations, copartnerships, firms, companies, agencies, or associations; state agencies; and counties, municipalities, or other political subdivisions of this state, singular or plural.

(4) "Distributor" includes any person: (a) Who imports or causes to be imported

and sells at wholesale, retail, or otherwise, within this state, any motor fuel; or

(b) Who imports or causes to be imported and withdraws for use within this state by himself or others any motor fuel from the tank car, truck, or other original container or package in which imported into this state; or

(c) Who manufactures, refines, produces, or compounds any motor fuel within this state and sells the same at wholesale or retail or otherwise within this state for use or consumption within this state.

(d) Who imports into this state from any other state or foreign country or receives by any means into this state, and keeps in storage in this state for a period of twenty-four hours or more after the same loses interstate character as a shipment in interstate commerce any motor fuel which is intended to be used for consumption in this state.

(e ) Who is primarily liable under the gas tax laws of this state for the payment of motor fuel taxes.

(f) Who was holding, on December 30, 1970, a n unrevoked license issued by the de-

206.68 Sales; quantities limited; invoices required, requirements.

206.69 Refund claim application forms. 206.70 When refund claims allowed; procedure;

right of refund nonassignable, exception; fee.

206.71 Appropriation for payment of claims. 206.72 Erroneous refunds. 206.73 Records of sales and purchases of motor

fuel under refund permit. 206.74 Department's records of refunds open

to public. 206.75 False information in permit or refund

application. 206.76 Revocation, suspension of refund per

mit. 206.77 Hearing required.

partment to engage in business as a distributor of motor fuel.

(g) Who purchases or receives in this state for resale to dealers motor fuel upon which the tax has not been paid.


(6) "Duly licensed distributor" means and includes any distributor holding an unrevoked license ..issued by the department.

(7) "Gas tax" means and includes any tax imposed by the laws of the state upon or measured by the sale, use, distribution, or consumption of motor fuel.

(8) "Gas tax collection trust fund" means any fund or funds heretofore or hereafter created by the legislature for the purpose of enforcing the gas tax laws of the state.

(9) "Dealer" means a person other than a distributor who sells motor fuel in this state.

Hlstory .-§1. ch. 16082. 1933; CGL 1936 Supp. 1167 (62) ; §1 . ch . 28100, 1953; §1. ch. 57-162 ; §2. ch . 61-119 ; 17. ch. 63-253 ; · §5, ch. 65-371 ; §2, ch . 65-420; 1§21, 35, ch. 69-106; §1, ch. 70-995 .

Note.-See former §207.01.

206.02 Application for license.-(1) It is unlawful for any person to engage

in business as a distributor of motor fuel within this state unless such person is the holder of an unrevoked distributor's license issued by the department to engage in such business. To procure such license, every person shall file with the department an application upon oath and in such form as the department may prescribe, setting forth:

(a) The name under which the person will transact business within the state;

(b ) The location, with street number address, of its principal office or place of business within this state and the location where records will be made available for inspection;

(c) The name and complete residence address of the owner or the names and addresses of the partners, if such person is a partnership, or of the principal officers, if such person is a corporation or association; and if such person

837

Ch. 206 TAXATION OF MOTOR AND OTHER FUELS Ch. 206

is a corporation organized under the laws of another state, territory, or country, he shall also file with the application a certified copy of the certificate or license issued by the department of state showing that such corporation is authorized to transact business in the state.

(2)(a) Upon filing of an application for a license, and concurrently therewith, a bond of the character stipulated and in the amount provided for shall be filed with the department. No license shall issue upon any application unless accompanied by such a bond.

(b) Upon the filing of the application for a license, a filing fee of $5 shall be paid to the department.

History.-§2, ch. 16082, 1933; CGL 1936 Supp. 1167(63); §7, ch. 63-253; §5, ch. 65-371; §2, ch. 65-420; §§10, 21, 35, ch. 69-106; §1, ch. 70-995.


206.025 Application by person whose license has been canceled; procedure.-In the event that any application for a license to transact business as a distributor in the state shall be filed by any person whose license at any time theretofore shall have been canceled for cause by the department, or in case the department is of the opinion that such application is · not filed in good faith or that such application is filed by some person as a subterfuge for the real person in interest whose license or registration theretofore shall have been canceled for cause by said department, the department, after a hearing of which the applicant shall have been given five days' notice in writing and in which the applicant shall have the right to appear in person or by counsel and present testimony, may refuse to issue to such person a license to transact business as a distributor in the state.

Hlstory.-!2, ch. 16082, 1933; COL 1936 Supp. 1167(63) ; §7, ch . 63-253; §5, ch. 65-371; §2, ch . 65-t20; 1§21, 35, ch . 69-106 ; 11. ch. 70-995.


206.03 Licensing of distributors.-( 1) The application in proper form having

been accepted for filing, the filing fee paid, and the bond accepted and approved, the department shall issue to such person a license to transact business as a distributor in the state, subject to cancellation of such license as provided by law.

(2) The license so issued by the department shall not be assignable, shall be valid only for the distributor in whose name issued, and shall be displayed conspicuously in the principal place of business of the distributor in the state.

(3) The department shall keep and file all applications and bonds with an alphabetical index thereof, together with a record of all duly licensed distributors.

History.-§2, ch. 16082, 1933; COL 1836 Supp. 1167(63); §7, ch. 22858. 1945; 17, ch. 63-253; !5, ch. 65-371; §2, ch. 65-420; 1!21, 35, ch. 69-106; 11. ch. 70-995.

Note. --See former ~207.04.

206.0-1 License number and cards; penal-

ties.-Each distributor shall be assigned a license number upon qualifying for a license hereunder, and the department shall issue to each such licensee separate license cards for each tank truck operated by the distributor. Such license card shall indicate the number so assigned the distributor, the motor number of the truck authorized to be operated under such license card, and such other information as the department may prescribe. The license card shall be conspicuously displayed in the vehicle to which it is assigned, and any person operating a tank truck in this state conveying or transporting motor fuel without such license card or, if a common carrier, a bill of lading shall be guilty of a misdemeanor of the second degree, punishable as provided in §775:-082 or §775.083.

Hlstory.-§2, ch. 16082, 1833; COL 1936 Supp. 1167(63), 7794(5 ); n . . ch. 63- 253; .1 5. ch. 65-37!~ 12, ch. 65-t20; §§21, 35, ch. 69-106, §1, ch. 70-995, §116, ch. 71-lilO.


206.05 Bond required of licensed distributors.-

(1) Each distributor · shall file with the department a bond in a penal sum of not less than three thousand ·dollars or more than thirty-five thousand dollars, said sum to be approximately three times the average monthly gas tax paid by, or due from, such distributor during the preceding twelve calendar months under the laws of this state. The bond shall be in such form as may be approved by the department, executed by some surety company duly licensed to do business under the laws of the state as surety thereon, and conditioned upon the prompt filing of true reports and the payment by such distributor to the department of any and all gas taxes which are now or which hereafter may be levied or imposed by the state, together with any and all penalties and interest thereon, and generally upon faithful compliance with the provisions of the gas tax laws of the state. The distributor shall be the principal obligor, and the state shall be the obligee.

(2) In the event that liability upon the bond thus filed by the distributor with the department shall be discharged or reduced, whether by judgment rendered, payment made, or otherwise, or if in the opinion of the department any surety on the bond theretofore given shall have become unsatisfactory or unacceptable, then the department may require the distributor to file a new bond with satisfactory sureties in the same amount, failing which the department shall forthwith cancel the license of said distributor. If such new bond is furnished by the distributor as above provided, the department shall cancel and surrender the bond of the distributor for which such new bond shall be substituted.

(3) In the event that upon hearing, of which the distributor shall be given ten days' notice in writing, the department shall decide

838

Ch. 206 TAXATION OF MOTOR AND OTHER FUELS Ch. 206

that the amount of the existing bond is insufficient to insure payment to the state of the amount of the tax and any penalties and interest for which the distributor is or may at any time become liable, then the distributor shall forthwith, upon the written demand of the department, file additional bond in the sanie manner and form with like security thereon as hereinbefore provided, and the department shall forthwith cancel the license of any distributor failing to file an additional bond as herein provided.

(4) Any surety on any bond furnished by a distributor as above provided shall be .released and discharged from any and all liability to the state accruing on such bond after the expiration of sixty days from the date upon which such surety shall have filed with the department written request to be released and discharged. However, such request shall not operate to relieve, release or discharge such surety from any liability already accrued, or which shall accrue, before the expiration of said sixty day period. The department shall, promptly on receipt of notice of such request, notify the distributor who furnished the bond, and, unless the distributor shall on or before the expiration of the sixty day period file with the department a new bond with a surety company satisfactory to the department in the amount and form hereinbefore in this section provided, the department shall forthwith cancel the license of the distributor. If the new bond is furnished by the distributor as above provided, the department shall cancel and surrender the bond of the distributor for which the new bond shall be substituted.

History.-§3, ch. 16082, 1933; CGL 1936 Supp. 1167(64); !1. ch. 57-78; §1, ch. 63-299; ~7. ch. 63-253; ~5. ch. 65-371; §2, ch. 65-420; H21, 35, ch. 69-106; §1, ch. 70-995.

Note.-·See former §207.06.

206.055 Department may cancel licenses; surrender of bond.-

(1) If a distributor at any time: (a) Knowingly files a false monthly report

of the data or information required by the gas tax laws;

(b) Fails, refuses, or neglects to file the monthly report required by such laws; or,

(c) Fails to pay the gas tax as required by this chapter and the laws of the state;

the department may forthwith cancel the license of the distributor and notify such distributor in writing of the cancellation by registered mail to the last known address of such distributor appearing in the files of the department.

(2) The department may cancel any license hitherto or hereafter issued to any distributor, such cancellation to become effective sixty days from the date of receipt of the written request of such distributor for cancellation thereof, or the department may cancel the lic-ense of any distributor upon investigation and sixty days' notice mailed to the last known

address of such distributor, if it ascertains and finds that the person to whom such license has been issued is no longer engaged in business as a distributor, and has not been so engaged for the period of six months immediately preceding such cancellation; but no license shall be canceled upon the request of any distributor until and unless the distributor has, prior to the date of such cancellation, paid to the state all gas taxes payable under the laws of the state, together with any and all penalties and fines accruing by reason of any failure on the part of said distributor to make accurate reports as required by the gas tax laws of Florida or to pay said taxes and penalties. In the event that the license of any distributor is canceled by the department as provided in this section, and in the further event that the distributor shall have paid to the state all gas taxes due and payable by it under the laws of this state, together with any and all penalties accruing by reason of any failure on the part of the distributor to make accurate reports or to pay said tax and penalties, the department shall cancel and surrender the bond theretofore filed by the distributor.

History.-~4. ch. 16082, 1933; CGL 1936 Supp. 1167(65); §7, ch. 63-253; §5, ch. 65-371; §2, ch. 65-420; §§21, 35, ch. 69-106; § 1, ch . 70-995.

Note.-Bee former §207.07. cf.-§1.01 defines registered mall to Include certified mall with

return receipt requested.

206.06 Estimate of amount of gas taxes due and unpaid.-

(1) Whenever any distributor neglects or refuses to make and file any report for any calendar month, as required by the gas tax laws of this state, or files an incorrect or fraudulent report, or is in default in the payment of any gas taxes and penalties thereon payable under the laws of this state, the department, after giving at least · ten days' notice to the distributor, shall, from any information it may be able to obtain from its office or elsewhere, estimate the number of gallons of motor fuel with respect to whict the distributor has become liable for taxes under the gas tax laws of this state and the amount of taxes due and payable thereon, to which sum shall be added a sum equal to 10 percent thereof as a penalty for the failure of such distributor or his default aforesaid.

(2) In any action or proceeding for the collection of the gas tax and any penalties or interest imposed in connection therewith, an assessment by the department of the amount of the tax due and interest or penalties due to the state shall constitute prima facie evidence of the claim of the state, and the burden of proof shall be upon the distributor to show that the assessment was incorrect or contrary to law.

llistory.-1!5, 24, ch. 16082, 1933; CGL 1936 Supp. 1167(661, (841: §7, ch. 63-253; ~5. ch. 65-371; !2, ch. 65-420: H21, 35. ch. 69-106; 11. ch. 70-995.


839

Ch. 206 TAXATION OF MOTOR AND OTHER FUELS Ch.206

206.07 Suits for collection of unpaid taxes. -Upon demand of the department, the department of legal affairs, or any state attorney of any judicial circuit, shall bring .appropriate actions in the name of the state or m the name of the department of revenue in the capacity of its office, for the recovery of the above-.mentioned taxes, penalties, and interest, and Judgment shall be rendered for the amount so found to be due together with costs. However, if it shall be found as a fact that such failure to pay was willful on the part of any distributor, judgment shall be rendered for double the amount of the tax found to be due with costs. The department may employ an attorney-at-law to institute and prosecute proper proceedings to enforce payment of the gas taxes provided for by the laws of this state and penalties and interest provided for by this chapter and fix the compensation for the services of said attorneyat-law.

Hlstory.-§5, ch. 16082. 1933 ; CGL 1936 Supp. 1167(66); §7, ch. 63-253 ; §5, ch . 65-371 ; §2, ch . 65-420; §ill, 21, 35, ch . 69-106; §1 , ch . 70-995.


206.075 Department's warrant for collection of unpaid taxes.-

(1) Upon the determination of the amount of unpaid taxes and penalties due, the department may issue a warrant, under its official seal, directed to the sheriff of any county of the state, commanding said sheriff to levy upon and sell the goods and chattels of such distributor found within his jurisdiction for the payment of the amount of such delinquency, with the added penalties and interest and the cost of executing the warrant and conducting the sale, and to return such warrant to the department and pay the department the money collected by virtue thereof. However, any surplus resulting from said sale after all payments of costs, penalties, and delinquent taxes have been made shall be returned to the defaulting distributor.

(2) The sheriff to whom any such warrant shall be directed shall proceed upon the same in all respects to and with like effect and in the same manner (with the exceptions herein noted) as prescribed by law in respect to executions issued against goods and chattels upon judgments by the several circuit courts.

(3) In the event there shall be a contest or claim of any kind with reference to the property levied upon or the amount of taxes, costs, or penalties due, such contest or claim shall be tried in the circuit court in and for the county in which the warrant was executed as nearly as may be in the same manner and means as such contest or claim would have been tried in such court had the wan·ant originally issued upon a judgment rendered by said court. The warrant issued as aforesaid shall constitute prima facie evidence of the amount of taxes, interest, and penalties due to the state by the distributor, and the burden of proof shall be upon the dis-

tributor to show that the amounts or penalties were incorrect.

(4) Nothing in this section shall be construed as forfeiting or waiving any rights to collect such taxes or penalties by an action upon any bond that may be filed with the department under the provisions of this chapter or by suit or otherwise, and in case such suit, action, or other proceeding is instituted for the collection of the tax, such suit, action, or other proceeding shall not be construed as waiving any other right herein provided. Any civil proceeding under this chapter shall not be construed as a waiver or estoppel in any criminal proceeding against such distributor under this chapter.

Hlstory .-§24, ch . 16082, 1933; CGL 1936 Supp. 1167(84); §7, ch. 22858, 1945 ; §7, ch . 63-253 ; 15, ch . 65-371; 12. ch . 65·420; §121 . 35, ch. 69-106 ; §1. ch. 70-995.


206.08 Report from persons not distributors.-

(1) Every person purchasing or otherwise acquiring motor fuel in tank car, truck, or cargo lots and selling, using, consuming, or otherwise disposing of the same for delivery in Florida who is not required by the provisions of this chapter to be licensed as a distributor of motor fuel or by the laws of Florida to make reports, shall file a statement setting forth: .

(a ) The name under which such person ts transacting business within the state;

(b ) The location with street number address of such person's principal office or place of business within the state; and

(c) The name and address of the owner Ol'

the names and addresses of the partners, if such person is a partnership, or the principal officers, if such person is a corporation or association.

(2) On or before the fifteenth day of each calendar month, such person shall, on forms prescribed by the department, report to the depa rtment all purch ases or other acquisition and sales or other dispositi on of motor fuel during the preceding calendar month, giving a record of each tank car, truck, or cargo lot delivered to a point within Florida. Such report shall set forth:

(a) From whom each tank car, truck, or cargo lot was purchased or otherwise acquired;

(b) The point of shipment; {c) To whom sold or shipped; (d) The point of delivery; (e) The date of shipment; (f) The name of the carrier, the initials and

number of the car, and the number of gallons contained in the tank car, if shipped by rail;

(g) The name and owner of the boat, barge, or vessel and the number of gallons contained therein, if shipped by water;

(h) The name of the owner of the truck and the number of gallons contained in such truck, if shipped by truck; and any other additional information the department may requin! rela-

840

Ch. 206 TAXATION 'OF MOTOR AND OTHER FUELS Ch. 206

tive to such motor fuel. History.-§6, ch. 16082, 1933; COL 1936 Supp. 1167(67); §7,

ch. 63-253; §5, ch . 65-371; §2, ch. 65-420; §§21, 35, ch. 69-106; f1, ch . 70-995.


206.09 Reports from carriers transporting motor fuel or similar products.-

(1) Every railroad company, street car, suburban or interurban railroad company, pipeline company, water transportation company, and common carrier transporting motor fuel, casinghead gasoline, natural gasoline, naphtha, or distillate, either in interstate or intrastate commerce, to points within Florida and every person transporting motor fuel, casinghead gasoline, natural gasoline, naphtha, or distillate, by whatever manner, to a point in Florida from any point outside of said state, shall report under oath to the department on forms prescribed by the department all deliveries of motor fuel, casinghead gasoline, natural gasoline, naphtha, or distillate so made to points within the state.

(2) Such reports shall cover monthly periods and be submitted within fifteen days after the close of the month covered by the report and shall show:

(a) The name and address of the person to whom the deliveries of motor fuel, casinghead gasoline, natural gasoline, naphtha, or distillate have actually and in fact been made;

(b) The name and address of the originally named consignee, if motor fuel, casinghead gasoline, natural gasoline, naphtha, or distillate has been delivered to any other than the originally named consignee;

(c) The point of origin, the point of delivery, the date of delivery, and the number and initials of each tank car and the number of gallons contained therein, if shipped by rail;

(d) The name of the boat, barge, or vessel and the number of gallons contained therein, if shipped by water;

(e) The license number of each tank truck and the number of gallons contained therein, if transported by motor truck;

(f) If delivered by other means, the manner in which such delivery is made; and

(g) Such other additional information relative to shipments of motor fuel as the department may require.

History.-§7, ch . 16082, 1933; COL 1936 Supp. 1167(68); §7, ch . 63-253; §5, ch. 65-371; §2, ch. 65-420; §§21, 35, ch. 69-106; §1, ch. 70-995.


206.10 Reports to be filed whether taxes due or not.-All statements or reports required by this chapter and the gas tax laws of this state to be made to the department monthly shall be filed each month regardless of whether or not a gas tax is due under the provisions of the laws of Florida.

History .- §17, ch . 16082, 1933; COL 1936 Supp. 1167(78) ; §7, ch. 63-253; §5, ch. 65-371; §2, ch. 65-420: !§21, 35, ch . 69-106; §1, ch. 70-995 .


206.11 Penalties.-(!) Any false or fraudulent statement or

report submitted under the gas tax laws of this state and sworn to by a person knowing same to be false or fraudulent shall constitute perjury, and, upon conviction thereof, the person so convicted shall be punished as provided by law for conviction of perjury under §837.01.

(2) Any person; (a) Who willfully refuses or neglects to

make any statement, report, or return required by the provisions of this law;

(b) Who knowingly makes, or assists any other person in making, a false statement in a return or report or in connection with an application for refund of any tax;

(c) Who knowingly collects, or attempts to collect or causes to be paid to him or to any other person, either directly or indirectly, any refund of such tax without being entitled to the same; or

(d) Who violates any of the provisions of this chapter, a penalty for which is not otherwise provided,

shall be guilty of a misdemeanor of the second degree, punishable as provided in §775.082 or §775.083. For a second or further offense, such person shall be guilty of a misdemeanor of the first degree, punishable as provided in §775.082 or §775.083, and in addition thereto the department may revoke or suspend the license of any violator. Each day or part thereof during which any person engages in business as a distributor without being the holder of an uncanceled license as provided by this part shall constitute a separate offense within the meaning of this section. In addition to the penalty imposed by this chapter, the defendant shall be required to pay all gas taxes and penalties due to the state. The penalties provided in this section shall be in addition to those provided for in §206.44.

History.-§! , ch. 7().995; §115, ch. 71-136.

206.12 Retention of records by distributors and other persons.-

(!) Each distributor shall maintain and keep, for a period of three years, such record of motor fuel received, used, transferred, sold, and delivered within this state by such distributor, together with invoices, bills of lading, and other pertinent records and papers, as may be required by the department for the reasonable administration of the motor fuel tax laws of this state.

(2) Every person not a distributor purchasing motor fuel taxable under the laws of this state for the purpose of resale shall maintain and keep for a period of one year a record of motor fuel received, the amount of tax paid as part of the purchase price, together with delivery tickets, invoices, and bills of lading, and such other records as the department requires.

History .-§8, ch. 16082, 1933 ; CGL 1936 Supp. 1167169) , 7794 (7) : §7. ch. 63-253: 15, ch. 65-371; j 2, ch. 65-420; 1§21,

841


35, en. 69-106; II, ell. 70-995 . Note.-See former §207.16.

206.13 Refund of taxes erroneously or illegally collected.-When any taxes or penalties imposed _by this chapter have been erroneously or illegally collected, the department may permit the distributor within one year to take credit against a subsequent tax report for the amount of the erroneous or illegal amount overpaid, or the distributor may apply for refund as provided by §215.26.

History.-§!, eh. 70.995; §39, eh. 71-355.

206,14 Inspection of records; hearings; forms; rules and regulations.-

(!) The department shall have the authority to prescribe all forms upon which reports shall be made to it and any other forms required for the proper administration of this law and shall prescribe and publish all rules and regulations for the enforcement of this part, which rules and regulations shall have the force and effect of law.

(2) The department or any authorized deputy, employee, or agent is authorized to examine the records, books, papers, and equipment of distributors, dealers, or common carriers to verify the truth and accuracy of any statement or report and ascertain whether or not the tax imposed by this law has been paid.

(3) The department or any of its duly authorized agen ts shall have the power in the enforcement of the provisions of this part to hold hearings, administer oaths to witnesses, and take sworn testimony of any person and cause it to be transcribed into writmg; and for such purposes the department shall be authorized to iss ue subpoenas and subpoenas duces tecum, comp'=!l the attendance of witnesses and records, and conduct such investigations as it may deem necessary.

(4) If any person unreasonably refuses access to such records , books, papers or other documents, or equipment, or if any person fails or refuses to obey such subpoenas duces tecum or to testify, except for lawful reasons, before the department or any of its authorized agents, the department shall certify the names and facts to the clerk of the circuit court of any county, and the circuit court shall enter such order against such person in the premises as the enforcement of this law and justice shall require.

(5) In any action or proceeding, which must be commenced within three years of the date the taxes were due, for the collection of the tax and penalties or interest imposed in connection therewith, an assessment by the department of the amount of the tax, penalties, or interest due shall be prima facie evidence of the claim of the state, and the burden of proof shall be upon the person charged to show the assessment was in correct and contrary to law.

lli • lory.-§9. ch . 16082. 1833; CGL 1936 Supp. 1167(70) ; §7,

ell . 63-253; !5, ell . 65-371; §2, ell. 65-420; 1121, 35, ch. 69-106; 51. eh . 70-995.

Note.-See former §207.17 .

206.15 Gas taxes a lien on property.-lf any person liable for the gas taxes imposed by the laws of this state neglects or refuses to pay the same, the amount of such tax (including any interest, penalty, or addition to such tax, together with any costs that may accrue in addition thereto) shall be a lien in favor of the state upon all franchises, property, and rights to property, whether real or personal, then belonging to or thereafter acquired by such person (whether such property is employed by such person in the prosecution of business or is in the hands of an assignee, trustee, or receiver for the benefit of creditors) from the date said taxes are due and payable. Such lien shall have priority over any lien or encumbrance whatsoever except the lien of other state taxes having priority by law, and except that such lien shall not be valid as against any bona fide mortgagee, pledgee, judgment creditor, or purchaser whose rights have attached prior to the time when the department has filed notice of such lien in the office of the clerk of the circuit court of the county in which the principal place of business of such person is located or, if such person has no principal place of business in the state, in the office of the department of state (for which no filing fee shall be required). Such lien shall continue until the amount of the tax, together with any penalties and interest subsequently accruing thereon, is paid. The department may issue a certificate of release of lien when the amount of such tax, together with any penalties and interest subsequently accruing thereon, has been satisfied by such person , and such person may record the same with the clerk of the circuit court in and for the county in which the notice of lien was filed .

Hislory.-!10, eh. 16082, 1933; CGL 1936 Supp. 1167(71); l7, ell . 63-253 ; ! 5, ell . 65-371 ; §2, ell . 65-420 ; §§21, 35, eh. 69-106; 11. ell. 70-995 .

Noto.-See former §207.18.

206.16 Officer, etc., selling property.-(!) No sheriff, receiver, assignee, master,

or other officer shall sell the property or franchise of any person for failure to pay gas taxes, penalties, or interest without first filing with the department a statement containing the following information:

(a) The name of the plaintiff or party at whose instance or upon whose account the sale is made;

(b) The name of the person whose property or franchise is to be sold;

(c) The time and place of sale; and (d) The nature of the property and the loca

tion of the same. (2) The department, after receiving notice

as aforesaid, shall furnish to the sheriff, receiver, trustee, assignee, master, or other officer having charge of the sale a certified copy or copies of all gas taxes, penalties, and inter-

842

Ch.206 TAXATION OF MOTOR AND OTHER FUELS Ch.206

est on file in the office of the department as liens against such person, and, in the event there are no such liens, a certificate showing that fact, which certified copies or copy of certificate shall be publicly read by such officer at and immediately before the sale of the property or franchise of such person.

History.-§10, ch . 16082, 1933; COL 1936 Supp. 1167(71) ; §7, ch. 63-253; *5, ch . 65-371 ; §2, ch. 65-420 ; §§21, 35, ch. 69-106; §1, ch. 70-995 .


206.17 Department to furnish certificates of liens.-The department shall furnish to any person applying therefor a certificate showing the amount of all liens for gas tax, penalties, and interest that may be of record in the files of the department against any person under the provisions of this part.

Hlstory.-§10, ch . 16082, 1933; CGL 1936 Supp. 1167 (71); §7, ch. 63-253; §5, ch. 65-371; §2, ch . 65-420; §§21, 35, ch. 69-106; §1, ch . 70-995 .

Note.-see former §207.20.

206.175 Foreclosure of liens.-The depart·ment may cause to be filed in the name of the state a bill in chancery to foreclose the liens provided for herein, and the practice, pleading, and procedure of foreclosure shall be · as nearly as may be in accordance with the practice, pleading, and procedure for foreclosure of mortgages on real estate. A certificate of the department setting forth the amount of gas taxes due shall be prima facie evidence of the matter therein contained. The suit may be instituted at any time after the lien becomes effective. The purchaser at any sale in suits for the foreclosure of said liens shall be entitled to a deed and the same process and remedies to obtain possession of the premises as in suits for the foreclosure of mortgages. The title to the land conveyed by such deed shall be indefeasible as to all parties defendant in the action.

Hlstory.- §10, ch . 16082, 1933; CGL 1936 Supp. 1167(71) ; ~ 7 . ch . 63-253 ; §5, ch . 65-371; §2, ch. 65-420; §§21 , 35, ch. 69-106; §1, ch . 70-995 .

Note.-see former §207.21.

206.18 Discontinuance or transfer of business;. penalty.-

(1) Whenever a person ceases to engage in business as a distributor within the state by reason of the discontinuance, sale, or transfer of the business of such distributor, such person shall notify the department in writing at least ten days prior to the time the discontinuance, sale, or transfer takes effect. Such notice shall give the date of discontinuance and, in the event of a sale or transfer of the business, the date thereof and the name and address of the purchaser or transferee. All gas taxes, penalties, and interest not due and payable under the provisions of the laws of this state shall, notwithstanding such provisions, become due and payable concurrently

-with such discontinuance, sale, or transfer; and any such person shall, concurrently with such discontinuance, sale, or transfer, make a report, pay all such taxes, interest, and

penalties, and surrender to the department the license certificate theretofore issued to said person by the department.

(2) Unless the above notice shall have been given to the department as above provided, such purchaser or transferee shall be liable to the state for the amount of all taxes, penalties, and interest under the laws of Florida accrued against any such distributor selling or transferring his business on the date of such sale or transfer, but only to the extent of the value of the property and business thereby acquired from such distributor.

(3) Nothing in this section shall be construed as releasing the distributor so transferring or discontinuing his business from liability for any gas taxes or for any interest or penalty due under the gas tax laws.

Hlstory .- §11 , ch. 16082, 1933; CGL 1936 Supp. 1167 172). 7794 (8) ; §7, ch . 63-253; ! 5, ch. 65-371 ; §2, ch . 65-420; §§ 21, 35, ch . 69-106 ; !1 , ch . 70-995.

Note.-See former !207.22 .

206.19 Not to settle for less than amounts actually due.-The department shall have no right, power, or authority to settle or compromise with any distributor any claim of the state accruing under the gas tax laws of this state for a sum less than the full amount due, in conformity with this chapter.

History.-02, ch. 16082 . 1933 ; CGL 1936 Supp. 1167 (73); §7, c h. 63-253; §5, ch. 65 -371; §2, ch . 65-420 ; §§2 1, 35 , ch. 69-106; §I, ch. 70-995 .

Note.-see former §207 .23.

206.20 Transportation of motor fuel over public highways.-

(1) Every person hauling, transporting, or conveying motor fuel over any of the public highways of this state must, during the entire time he is so engaged, have in his possession an invoice or delivery ticket, bill of sale, or other record evidence showing the true name and address of the person from whom he has received the motor fuel, the number of gallons so originally received by him from said person, the true name and address of every person to whom he has made deliveries of said motor fuel, and the number of gallons so delivered to each of said persons, and the destination of the undelivered gallons. The person hauling, transporting or conveying such motor fuel shall, at the request of any person required by law to inquire into or investigate said matters, produce and offer for inspection said invoice or delivery ticket, bill of sale, or record evidence. If the person fails to produce the invoice or delivery ticket, bill of sale, or record evidence, or if, when produ ced, it fails clearly to disclose said information, the same shall be prima facie evidence of a violation of this section.

(2) The provisions of this section shall not apply to vehicles transporting motor fuel not in excess of two hundred gallons contained in the fuel tank of such vehicle provided for the carrying of motor fuel for propelling same,

843


which motor fuel is to be used solely for the motive power of such vehicle, to vehicles transporting motor fuel in quantities of not more than five gallons for emergency purposes, or to motor fuel being transported by common carrier in railroad cars.

History.-§13, ch. 16082, 1933; COL 1936 Supp , 1167(74), 7794(9); §1, ch. 70-995 .


206.204 Transportation of motor fuel by boats over the navigable waters of this state.-

(1) Every person hauling, transporting, or conveying motor fuel over any of the navigable waters of this state must, during the entire time he is so engaged, have in his possession an invoice or bill of sale or other

. record evidence showing the true name and address of the person from whom he has received said motor fuel and the true name and address of every person or persons to whom he has made or is making deliveries of same, and the number of gallons (that is, a person hauling, transporting or conveying said motor fuel must have in his possession record evidence of the name and address of the person from whom he has received the same, and also of the name and address of the person to whom he has delivered or is going to deliver the same, and the number of gallons). The person hauling, transporting or conveying said motor fuel shall at the request of any person authorized by law to inquire into or investigate said matters, produce and offer for inspection the invoice or bill of sale or other record evidence. If the person fails to produce the invoice or bill of sale or other record evidence, or if, when produced, it fails to clearly disclose said information, the same shall be prima facie evidence of a violation of this section.

(2) No person shall haul, transport, or convey motor fuel in boats over any of the navigable waters of the state, except in boats plainly and visibly marked on both sides. and above the waterline thereof with the word "gasoline" or other name of the motor fuel being transported, in letters . a:t least four inches high and of corresponding appropriate width, together with the name and address of the owner of the boat in which such motor fuel is contained.

(3) The provisions of this section shall not apply to boats transporting motor fuel to be used solely for their own motive power.

History .-§14, ch. 16082, 1933; COL 1936 Supp. 1167(75), 7794 ( 10); §1, ch. 70-995.

Notc.-See former §207.25 .

206.205 Forfeiture of vehicles and boats illegally transporting or delivering motor fuel.-

(1) The right of property in and to all conveyances, boats, and other vehicles of transportation, and all tanks and other equipment used in connection therewith, employed in the illegal transportation or delivery of

motor fuel in this state for the purpose· of illegally evading or avoiding any gas tax provided or imposed by the laws of this state, and all other personal property that may have been used by any person for the purpose of illegally evading or avoiding any such tax or which may have been used to facilitate 'the illegal evasion or avoidance of any such tax, is declared not to exist in any person, and the same shall be forfeited. The department and its authorized agents and the several sheriffs. deputy sheriffs, and police officers of municipalities shall seize any and all such things, and the same shall be safely kept by the sheriff of the county until disposed of as in this section provided.

(2) The sheriff of the county, within ten days after the receipt of any such things, shaH make and subscribe to an affidavit in writing before some officer authorized by law to- administer an oath, reciting such seizure, with the date, place, and things seized, giving a reasonably full description thereof, the name of the alleged owner and person from whose possession same were taken, if either or both be known to such sheriff, and a short statement of the circumstances under which said property was being used for the purpose o! illegally evading or avoiding, or had been used for the purpose of illegally evading or avoiding, any gas tax provided or imposed by the laws of Florida.

(3) Within ten days after the receipt of such things by the sheriff, the sheriff shall present such affidavit to the judge of the circuit court of the county where such things were seized, and the circuit judge of said court shall direct that such sheriff shali serve written notice upon such owner and person from whose possession such things were taken, if known, and if he, it, or they be within the county, of time and place of the hearing upon such affidavit, which may be in term time or in vacation, and at any place within the judicial circuit as the circuit judge may fix, which notice shall be signed by the circuit judge citing such person to appear and show cause, if any, why such things should not be adjudged forfeited and disposed of as in this section provided.

( 4) If such sheriff shall recite in his affidavit that such things were not taken from the possession of any person, or that the owner is unknown, or that either of such persons is without the county, conceals himself or themselves, or that personal service of such notice cannot be made by such sheriff for any good reason, the circuit judge shall by written ordef direct that, in lieu of personal notice of such hearing to any such person, written notice of such hearing shall be posted at the county courthouse door, directed to all persons interested in such things and giving notice of such seizure, and of the date and place thereof and a reasonable description of the things seized,

844


and of the time and place of the hearing upon such affidavit, which notice shall be signed by the circuit judge.

(5) If at the time and place provided for the hearing upon such affidavit no person shall appear and claim such things, the affidavit oi the sheriff shall stand as confessed and taken as true, and the recitals therein contained shall not thereafter be open to question in any other court or proceeding, and the circuit judge shall thereupon make an order in writing directing the sale thereof.

(6) Such sale shall be in the presence of the clerk of the circuit court of the county and at such times and places and in such manner as the judge shall in his order direct.

Hlatory.-§16, ch. 16082, 1933; COL 1936 Supp. 1167(77); §7, ch. 63-253; §5, ch. ,65-371; §2, ch. 65-420; §§21, 35, ch. 69-106; ~I . ch . 7{)-995; §20, ch. 73-334.


206.21 Trial of issues interposed by defense; sale, etc.-

(1) Should any person appear at the hearing provided for in §206.205 and claim the things seized and interpose any defense to the affidavit mentioned in said section, the circuit judge shall determine whether the evidence adduced proves beyond a reasonable doubt that such things are forfeited and make his written order accordingly. If he shall determine in the affirmative, such things shall be sold by the sheriff in the same manner and upon the same terms and conditions as provided in §206.205, but if he shall determine in the negative respecting all or any of such things, the part not forfeited shall be returned to the person legally entitled thereto.

(2) The hearing before the circuit judge shall be informal, and he may make all rules and orders to carry this section into effect. The sheriff may call upon the state attorney to assist him in preparing the affidavit herein mentioned and represent him at the hearing before the circuit judge, and in taking and perfecting any appeal from the final decision of the circuit judge.

(3) If the state, the sheriff, or the claimant shall be dissatisfied with the decision, he may appeal from the final decision of the court to the appropriate district court of appeal in the same manner and within the time as appeals in chancery are taken under the Florida appellate rules, and upon such appeal being entered such circuit judge shall cause to be reduced to writing and authenticate with his signature all oral evidence considered by him upon such hearing, and the same shall be filed with the papers in the case and thereby become a part of the record proper.

( 4) If authorized by the state constitution, appeal may be taken to the supreme court. No appeal taken by any party shall operate as a supersedeas, but such things shall remain in the custody of the sheritf pending such appeal and to abide the final decision of the appellate court.

Hlstory.-H6. ch. 16082. 1933; COL 1936 Supp, 1167(77); §20, •ch . 63-559; §1 , ch. 70-995; §20, ch. 73-334.

Note.-See former §207.28 .

206.215 Costs and expenses of proceedings.-

(1) For the performance of the duties required of the sheriff by the provisions of §§206.205 and 206.21 he shall receive the same fees provided by law for the arrest and return of persons charged with crime, including the same mileage and the actual cost of transporting such things, and all such fees and compensations shall be paid out of the proceeds of the sale.

(2) The clerks of the courts performing duties under the provisions aforesaid shall receive the same fees as prescribed by the general law for the performance of similar duties, and witnesses attending any investigation pursuant to subpoena shall receive the same mileage and per diem as if attending as a witness before the circuit court in term time.

(3) All fees and costs provided for shall be paid from the proceeds of the sale, or if there be no sale or if the proceeds of such sale be insufficient to meet such fees and costs then such fees and costs shall be paid out of the gas tax collection trust fund or other funds available for the enforcement of the gas tax laws by the department.

(4) In the event the proceeds of the sale are more than sufficient to pay all costs and fees attending the sale, then the surplus thereof shall be sent to the department to be disposed of as provided for the disposition of the taxes collected under the gas tax laws of the state; provided, however, that any property seized under §206.205 against which there is existing a mortgage lien or retain title contract held by a person who has no knowledge that such property is being used for the purpose of illegally evading or avoiding the payment of the gas taxes provided for under the laws of the state, then such seizure shall not invalidate such lien or retain title contract, but the same shall be paid out of any funds derived from a sale of said property, provided the retain title holder or mortgagee shall within thirty days after seizure come into court and set up his claim to such retained title lien or mortgage.

llistory .-!16. ch . 16082, 1933; CGL 1936 Supp. 1167(77) ; !2, ch. 61-119; !7, ch . 63-253; !5. ch. 65-371; ~2. ch. 65-420; §§21 , 35, ch. 69-106; 11, ch . 70-995.

Note .-See former §207 .29.

206.22 Restraining and enJommg violations.-Any person who violates any of the provisions of this part or who fails to pay gas taxes and all interest and penalties due by him to the state under the provisions of the laws of this state may be restrained and enjoined in a

845


suit or other proceeding in any court of competent jurisdiction instituted in the name of the state b)· the department of legal affairs or by any state attorney at the direction of the department from selling, consuming, using, distributing, or transporting any motor fuel which is taxable under the laws of this state until such person shall have paid all of said taxes, interest, and penalties due the state and complied with the provisions of this part. Any proceeding instituted under this section shall not operate as a bar to the prosecution of any person guilty of violating any of the criminal la ws of the state.

llistory.- 09, ch . 16082, 1933; COL 1936 Supp. 1167(80) ; 17, ch . 63-253; j 5, ch . 65-371 ; §2, ch . 65-420 ; §!11, 21 , 35, ch . 69-106 ; 11. ch . 10-995 .

l'iote .-See form e r ! 207 .30 .

206.23 Tax; must be stated separately.Distributors shall add the amount of the gas tax to the price of the motor fuel sold by them and shall state the rate of the tax separately from the price of the motor fuel on all invoices. However, this section shall not apply to retail sales by a retail service station.

lli slory.-~ 22 , ch . 16082, 1933 ; COL 1936 Supp. 1161 (82 ); ! I , c h . 70-995 .

Nole. - See former §201 .31.

206.24 Department and agents may make arrests, seize property and execute warrants.-

(1) The department and its deputies, agents, and employees may make arrests without warrants for any violation of the provisions of this part. Any person arrested for violation of any provision of this part shall be surrendered without delay to the sheriff of the county in which the arrest was made and formal complaint made against him, in a ccordance with law.

(2 ) The department and its deputies, agents, and employees also may seize property a s set out in §§206.205, 206.21, and 206.215, and upon said seizure being made shall surrender without delay such seized property to the sheriff of the county where said property was seized for further procedure as set out in said sections.

(3 ) When the department deems advisable, it may direct the warrant provided for in §206.075 to one of the said department's deputies, agents , and employees who shall then execute said warrant and proceed thereon in the same manner provided for sheriffs in such cases.

Jlislory.-!25 , ch . 16082, 1933 ; COL 1936 Supp. 1161 (85 ) ; l7, ch. 63-253 ; ! 5, ch . 65- 371; p, ch . 65-420; U21 , 35, ch . 69-106; U, ch . 10-995.

Note. - See former ! 207 .32 .

206.25 Method for collection of tax cumulative.- The methods and means of effecting and enforcing the collection of gas taxes as set out in this part shall be in addition to, and not in lieu of, the methods and means of effecting and en forcing collection set out

in the gas tax laws of Florida. History.- §28, ch. 16082, 1933 ; COL 1936 Supp. 1167(87) ;

p , ch . 70-995 . Note.-See former §207 .33 .

206.26 Review of department's decisions.Any person aggrieved by an order or decision of the department may file a petition for the issuance of a writ of certiorari with the circuit court of Leon County for a review of said order or decision, upon giving bond with sureties to be approved by the clerk of said court, payable to the state, conditioned t o pay all costs by reasori of the review. Either party may appeal to the appropriate district court of appeal from the order of the circuit court. The order of the department shall not be suspended during proceedings had pursuant to this section. Review proceedings taken pursuant to this section shall be in the manner a nd within the time provided by the Florida appellate rules.

Hi s lorr.-123, c h . 16082, 1933 ; COL 1936 Supp. 1161183) ; !2, ch . 63-512; \1, ch . 63-253 : ! 5, ch . 65-371 ; §2, ch. 65-420 ; §!21, 35 , ch . 69 - 106 ; n . ch . 70-995 .

Note.- S e e form er §207.34 .

206.27 Records and files as public records.The records and files in the office of the department appertaining to part I of this chapter shall be available to the public at any time during business hours. The department shall prepare a list each month of all distributors and others, together with the amount of gas tax pa id thereby, and mail a copy thereof to each duly licensed distributor.

Jlis tory.-§ 21 , ch . 16082, 1933 ; COL 1936 Supp. 1167 f81 l; §7, ch . 63 -253 : ~ 5 . ch . 65-311; ! 2, ch. 65-420 ; §! 21, 35, ch . 69- 106; !1. c h . 70-995 .

Sote.-S e e form e r ! 201 .36.

206.28 Exchange of information among the states.-The department shall, upon request duly received f rom the officials to whom are entrusted the enforcement of the gas tax laws of any other state, forward to such officials any information which it may have in its possession relative to the manufacture, receipt, sale, use, tran ~portat.ion, or shipment by any person of moto r fuel.

lli s!ory.-~2 1 , ch. 16082, 1933 ; CGL 1936 Supp. 1161181 1; §7, ch . 63-253 ; ~5. ch . 65-311 ; *2. ch . 65-420; H 21 , 35, ch . 69-106 ; II, c h . 70-9 95.

Nole.-Sce former *207 .37.

206.29 Refunds to city transit companies; definitions.-

(1) "City transit system" as used in §§206.-30-206.40 means any system of mass public transportation authorized to operate within any city, town, or municipality in this state, as distinguished from any over-the-road system of public transportation operating between one or more cities, towns, or muni cipa lities. However, a city transit system as defined above may operate within twenty-fh·e miles outl'i<le the corporate limits of any city, town, m· municipality when su ch operation outside the c:orporate limits is f ound necessary adequately and efficiently to pro\'ide mass publi c transportation servi ces f or the c:ity, town , or munic:ipality involved. A city tran s it system as <lefinecl abo\'e

846


shall not include taxicab or limousine operations.

(2) "City or cities" as used in §§206.30-206.40 includes collectively or individually any city, town, or municipality organized in this state by virtue of any general or special law enacted by the legislature.

History.-§!. ch. 63-451; §1. ch. 70-995 . Note.-See former §207.39.

206.30 Legislative findings.-It is hereby expressly recognized and declared by the legislature that mass public transportation is essential to the continued economic growth and development of the cities of this state and therefore essential to the general welfare of the state; that the constant population growth throughout the state has brought an ever-increasing use of private individual means of transportation, resulting in the overburdening of traffic arteries within ou r cities and thereby causing an increase in police requirements, higher cost of traffic regulation and law enforcement, and seyere economic loss to and a blight on the central business districts in the cities; that relief of present city traffic congestion is essential to the contin ued economic growth and development of the cities of this state, and thus essential to the general welfare of this state; that further deterioration of the central areas of the cit!es must be prevented; that by reason of the heavy population growth and the increase in the use of private means of transportation, existing city b·ansit systems have had to reduce route mileage and areas served, limit the hours of operation, and raise rates to compensate for the loss in revenue; that by reason of the reduced operations of the city transit systems as described herein, income and capital investment have declined while operating expenses have increased, resulting in the obsolescence of equipment and a further decline in services; that present excise taxes imposed on city transit systems by this part constitute but a min or source of revenue to the state but constitute a major item of cost to each city transit system; and that the vehicles used by the city transit systems do not operate normally over state maintained roads but operate primarily over streets and roacts maintained by the cit ies involved. In view of the foregoing facts, the legislature finds that the improvement, revitalization, modernization, and expansion of the city transit systems of this state are necessary and proper in the best interest of the state, and in order to obtain these objectives the legislature finds it necessary to grant certain tax advantages to the city transit systems as set forth below. History.-~2. ch. 6:~451; ~1. ch. 70-99ii Note.-See former ~207.40.

206.31 Refunds on fuel used for city transit systems.-Any person who uses any motor fuel for a city tra ns it sy>'tem on whi <: h the taxes, as imposed by this chapter, l1;:!ve been paid shall be

847

entitled to a refund of the first four cents of said state taxes. However, no refund shall be authorized unless sworn applications therefor containing such information as the department may determine shall be filed with it no later than January 31 immediately following the year for which refund is claimed.

Hlstory.-§3, ch. 63:•51; §7, ch. 63-253; ~5. ch. 65-371; §2, ch. 65-420; §§21, 35, ch. 69-106; §1, ch. 70-995; §39. ch. 71-355.


206.32 Powers and duties of department.(!) The department shall make such rules

and regulations as are necessary to establish the procedure for procuring the refund provided for in §206.31 and to enforce the provisions of § §206.29-206.40.

(2) Agents of the department are authorized to go upon the premises of any person who has applied for or who has received a refund under §206.31, or of any licensed dealer or his duly authorized agent to make inspection to ascertain any matter connected with the operation of §~206.29-206.40 or the enforcement thereof. However, no agent shall enter the dwelling of any person without the occupant's consent or the authority from a court of competent jurisdiction.

History.-§4, ch. 63-451; §7. ch. 63-253; §5, ch. 65-371; §2, ch. 65-420; H21, 35, ch. 69-106; U. ch. 70-995.

Note.---See former §207.42.

206.33 Permit for refunds required; procedure for issuance; bond.-

(1) No person shall secure a refund of tax under §206.31 unless such person is the holder of an unrevoked refund permit issued by the department before the purchase of the motor fuel, which permit shall be numbered and issued annually and entitle such person to make application for a refund under ~§206.29-206.40.

(2) To procure a permit a person shall file with the department an application, on forms furnished by the department, stating that he is engaged in the business of city transit systems and that he intends to file an application for refund for the current calendar year, and shall furnish the department such other information as the department shall request.

(3) No person shall, in any event, be allowed a refund unless he has filed the application provided for above with the department. The permit shall be effective on the date issued by the department.

(4) If an applicant for a refund permit has violated any provisions of ~~206.29-206.40 or regulation pursuant thereto or has been convicted of bribery, theft, or false swearing wibin the period of five years preceding the application or if the department has eYidence of the applicant's financial irresponsibility, the department may require the applicant to execute a corporate surety bond of one thousand dollars to be approved by the department and conditioned upon the payment of all t~xes, penalties, and fines for which such applicaut may become


liable under §§206.29-206.40. History.-15, ch. 63-451; 17, ch. 63-253; §5, ch . 65-371; 12,

ch . 65-420; H21, 35. ch. 69·106; §1, ch . 70-995. Note.-See former §207.43.

206.34 Sales; invoices required.-When motor fuel is sold to a person who claims to be entitled to refund under §206.31, the seller of such motor fuel shall make out a motor fuel invoice in accordance with such rules and in such form and containing such information as the department may require. No person shall execute a motor fuel invoice who is not a distributor or a duly authorized agent thereof. No refund invoices shall be executed for purchases from retail service stations.

History.-!6, ch. 63-451; !7. ch. 63-253; §5. ch . 65-371 ; 12, ch . 65-420; H21, 35, ch . 69-106; §1 . ch. 70-995.


206.35 When refund claims allowed; procedure; right of refund nonassignable, exception; fee.-

(1) When the department is satisfied that a refund is proper it shall authorize the first four cents of the state taxes imposed by this chapter to be refunded as other refunds are made; and the amount shall be refunded and deducted by it from current gas tax receipts in its possession.

(2) The right to receive any refund under the provisions of this section shall not be assignable, except to the executor or administrator or the receiver, trustee in bankruptcy, or assignee in insolvency proceedings of such person entitled thereto.

(3) Claims shall be paid annually on a calendar year basis. Claims shall be filed not later than January 31 immediately following the year for which refund is claimed.

( 4) The department shall deduct a fee of $2 for each claim, which $2 shall be deposited in the general revenue fund.

History.-§7, ch. 63-451; 17, ch . 63-253; §5, ch. 65-371; §2, ch. 65-420. H 21. 35. ch. 69-106; §1, ch . 70-995.

Note.-See former !207.45 .

206.36 Appropriation for payment of claims. -The department is authorized to withhold from gas tax revenues and special fuel tax revenues sufficient funds to make the refund provided for in §206.29.

History.-§8, ch. 63-451; §7, ch. 63-253 ; 15. ch. 65-371 ; 12, ch . 65·420; H 21, 35, ch . 69·106; §1, ch. 70-995.

Note .-See former §207.46.

206.37 False information in permit or refund application.-No person shall knowingly make a false or fraudulent statement in an application for a refund permit or in a motor fuel refund invoice, or in an application for a refund of any taxes under this Jaw; or fraudulently obtain a refund of such taxes; or knowingly aid or assist in making any such false or fraudulent statement or claim; or having bought motor fuel or any part thereof to be used for any person other than as provided in §206.29.

llistory.-§9. ch. 63-451; §1, ch. 70-995. Note .-Sce form e r §207.47:

206.38 Revocation, suspension of refund permit.-

(1) The refund permit of any person who violates any provisions of §206.37 shall be revoked by the department and may not be reissued until two years have elapsed from the date of such revocati on, and such person, whether or not his permit has been revoked by the department, shall be guilty of a misdemeanor of the second degree, punishable as provided in §775.082 or §775.083.

(2) The refund permit of any person who violates any provi s ion of §§206.29-206.40, other than those contained in §206.37, may be suspended by the department for any period in its discretion not exceeding 6 months.

History.-§ 10, ch. 63-451; §7, ch. 63-253; §5, ch . 65-371 ; 12. ch. 65-420; §§21, 35, ch . 69-106; §I, ch . 70-995; §117, ch . 71-136.

Note.-See form er §207.48.

206.39 Hearing required.-!£ the department reasonably believes that any refund permit holder has been guilty of a violation of §§206.29-206.40 which would subject the permit holder to a suspension or revocation of his permit under the provisions of §206.37 or §206.38, said permit holder may be cited to show cause at a public hearing before the department why his permit should not be suspended or revoked. The permit holder shall be notified by registered letter or summons. The letter or summons shall inform the permit holder of the charge or charges made against him, and he s hall have a reasonable opportunity t o be heard before his permit may be revoked or suspended. The summons may be served in the same manner and by the same officer or person as provided by law, or it may be served in said manner by an employee of the department. The hearing shall be set at least five days after the summons is se rved or the letter delivered.

llistory .-§11, ch. 63-451; !7. ch. 63-253; §5, ch. 65-371; 12, ch . 65-420; H 21, 35, ch. 6~·106; §1, ch . 70-995.

1\ote.-See form e r §207 .49.

206.40 Violations by persons other than refund permit holders.-Any person other than the holder of a refund permit who shall knowingly violate any provision of §§206.29-206.39 shall be guilty of a misdemeanor of the second degree, punishable as provided in §775.082 or §775.083.

History.-§13, ch. 6~·451; §1, ch. 70-995; §1 18, ch. 71-136. Note.-See form er §207.5 1.

206.404 License tax upon dealers.-Every dealer shall pay a license tax of $5 per annum to the state.

Hlstory.-11, ch. 15659, 1931; CGL 1836 Bupp. 1167(16); t1, ch. 20303, 1941; §1, ch . 70-985.

Note .-See former 1208.01.

206.405 Receipt for payment of license tax. -The department shall issue to the dealer a receipt or certificate evidencing the payment of the license tax. Said receipt or certificate shall be posted on di splay and be so kept at all times open to the public view at the place of business for which same is issued.

848


History.-§4. ch. 15659, 1931 ; COL 1936 Supp. 1167(19); §7, ch . 63-253; !5. ch. 65-371; §2, ch . 65-420; §1 21, 35, ch . 69-106 ; §1 , ch. 70-995.

Note.- See former §208.02.

206.406 Disposition of license tax funds.All moneys derived from the dealer's license tax shall be paid into the state treasury to the credit of the general revenue fund.

History.-§5, ch. 15659, 1931; CGL 1936 Supp. 1167(20); §14, ch . 26869, 1951; §1 , ch . 70·995.

Note.- See former §208.03.

206.41 Gasoline taxes imposed.-(1) An excise or license tax of six cents per

gallon, herein termed "gas tax," is imposed upon every gallon of motor fuel sold in this state, or brought into this state for use, upon which such tax has not been paid or the payment thereof not lawfully assumed by some person handling the same in this state. This levy of tax is upon the consumer but shall be paid upon the first sale or transfer of title, or use, within this state whether by a distributor or dealer, except as expressly provided in subsection (2), who shall act as agent for the state in the collection of said tax whether he be the ultimate seller or not.

(2) Persons who hold valid distributors' licenses may purchase motor fuel without the tax imposed by this section being paid upon the first sale or transfer of title in this state as aforesaid for sale in wholesale quantities to dealers in the state and be liable for and pay the tax on all motor fuel so purchased and sold, and shall act as agents for the state in the collection and paymer,t thereof. As a condition precedent to a distributor purchasing and selling motor fuel under this subsection without the tax being paid upon the first sale or transfer of title in this state, he must have made average monthly sales for the twelve months next preceding of not less than forty thousand gallons. Sales made under provisions of §206.62 shall be included in arriving at such average monthly sales.

(3) Upon the payment or lawful assumption of the tax by the distributor or dealer, the amount of the tax paid or assumed shall be added to the sales price of the product sold, and the amount of the tax shall be stated separately from the pri ce of the product on all sales or delivery slips, invoices, bills, or statements. However, this subsection shall not apply to retail sales by retail service stations. The delivery of the produ ct sold shall be deemed to be made at the point of destination.

(4) The above "gas tax" is made up of two separate taxes:

(a) First gas tax.-A tax of four cents per gallon for the use of the department of transportation, except as provided in §206.625;

(b) S econd gas tax.-A tax of two cents per gallon as levied by §16, Art. IX of the Constitution of 1885, as amended, and continued by §9 (c), Art. XII of the 1968 Constitution.

(5) Motor fuel in the fuel t anks in any

motor vehicle entering this state used to propel said motor vehicle shall be exempt from the taxes imposed by this part. Fuel tanks shall mean the reservoir or receptacle attached to the motor vehicle by the manufacturer as the container for fuel used to propel said vehicle.

H1story.-§l , ch. 15659, 1931; COL 1936 Supp, 1167(16) ; §1, ch. 18298, 1937; COL 1940 Supp. 1167 (29a) ; §1, ch . 20303, 1941; !2. ch . 57-162; U23, 35, ch . 69-106; §18, ch. 69-216; §1, ch. 70-342 ; §1, ch. 70-995 .

Note.-See former §208.04 . cf.- §7 .52 Pinellas county .

206.42 Aviation motor fuel exempt from tax. -Each and every dealer in aviation motor fuel in the state by whatever name designated who sells aviation motor fuel testing 78 octane number (A.S.T.M. method D-357-33T) or higher, of such quality not adapted for use in ordinary motor vehicles, being designed for and sold and exclusively used for aircraft motors, is exempted from the payment of any and all excise taxes levied by the state upon such motor fuel.

History.- §!, ch. 16789, 1935 ; COL 1936 Supp. 1167(102); §1, ch. 70-995.


206.43 Distributor to report to department monthly; deduction.-The taxes levied and assessed as provided in part I of this chapter shall be paid to the department monthly in the following manner:

(1) On or before the twentieth day of each month the distributor shall mail to the department verified reports on forms prescribed by the department of the number of gallons of such products sold by him during the preceding month and shall at the same time pay to the department the amount of tax computed to be due. The distributor shall deduct from the amount of tax shown by the report to be payable an amount equivalent to 2 percent of the tax on motor fuels not exceeding five hundred thousand taxable gallons, and less an amount equivalent to 1 percent ofthe tax on motor fuels in excess of five hundred thousand gallons but not exceeding one million taxable gallons, which is hereby allowed to the distributor on account of services and expenses in complying with the provisions of the law. However, this allowance snall not be deductible unless payment of tax is made on or before the twentieth day of the month as herein required. The United States post office date stamped on the envelope in which the report is submitted shall be considered as the date the report is received by the department.

(2) Such report shall show in detail the number of gallons so sold and delivered by the distributor in the state, and the distributor shall specify in his report the destination as to the countv in the state to which the motor fuel was delivered for resale at retail or use. The total taxable gallons sold shall agree with the total gallons reported to the county destinations for resale at retail or use . All gallons of motor fuel sold shall be invoiced and shall name the county of destination for resale at

849


retail or use. (3) All persons purchasing tax-paid motor

fuel for resale at wholesale shall, at the time of purchase, specify to the distributor the county or counties in which the motor fuel is to be delivered for resale at retail or use. If it results that such deliveries for use were inaccurately reported at the time of purchase, the person shall, within five days after the end of the month in which the motor fuel was purchased, file a corrected report with the distributor from whom the purchase was made. The report shall show the date and number of the. purchase invoice being corrected.

(4) The taxes herein levied and assessed shall be in addition to any and all other taxes authorized, imposed, assessed, or levied on motor fuel under any laws of this state.

Hlstory.-11. ch . 15659, 1931 ; CGL 1936 Supp. 116706) : U. ch . 20303, 1941; §1, ch. 24308, 1947;· 11. ch . 26796. 1951; 11. ch. 65-360; §§21, 35, ch. 69-106; §1, ch. 70-995; §1, ch . 72-65.

Note.-See former §20H.Cl6.

206.44 Penalty for failure to report on time. -If any distributor fails to make the 1:eport and payment to the department as provided in §206.43 on or before the twentieth day of the month succeeding the month for which the tax is due as therein provided, the department shall estimate the amount of such products sold by the distributor during such months from such information as the department may be able to obtain and shall add 10 percent to the amount of the taxes, as estimated, as the penalty for the failure of the distributor to make such report or payment and shall proceed to collect the tax, together wi'th the penalty and costs, and obtain the same as delinquent railroad taxes are collected by law. However, the department may waive the penalty for late filing if the distributor has regularly filed reports and made payments of the tax due for a period of twenty-four months in accordance with the provisions of §206.43, and the distributor files an acceptable excuse for the late filing under oath with the department.

History.-!2, ch. 15659, 1931; CGL 1936 Supp. 1167(17); !2, ch. 24308. 1947 ; §II, ch . 25035, 1949 ; §1, ch . 63-302: i7, ch. 63-253 ; i5. ch. 65-371; §2, ch. 65-420; 1121, 35, ch. 69 - 106; §1, ch. 70-995; §1, ch. 72-65.

Nole .-See former !208 .07.

206.45 Payment of tax into state treasury.All moneys derived from the gas taxes imposed by part I of this chapter shall be paid into the state treasury by the department, for depos it in the "gas tax collection trust fund," \Yhich fund is created and from which the following transfers shall be made:

(1) The first gas tax shall, after withholding and transferring such funds as are required under the provisions of §213.11, and after withholding fifty thousand dollars to be used as a revolving cash bahmce in the "gas tax collection trust fund," and except as provided in §206.625; be transferred into the "state transportation trust fund," which fund is created for use as provided by law.

(2) The second gas tax shall be remitted to the "state board of administration" for distribution as provided in the constitution.

(3) The additional seventh cent gas tax collected pursuant to §206.60, as such may be amended by the 1971 Legislature, shall be distributed as therein provided.

(4) The additional eighth cent gas tax collected pursuant to §206.605 shall be distributed as therein provided.

Hislor)·.-§3. ch . 15659. 1931; CGL 1936 Supp. 1167(18) ; §3, ch . 61-119; §7, ch. 63-253; ~5. ch. 65-371; !2, ch. 65-420; §!21, 35, ch. 69-106; §18, ch. 69-216; §2, t·h. 70-342; §1, ch. 70-995; §2, ch . 71-232; §1, ch. 71-363; §1, ch. 73-57.

Note.-See form er §208 .08.

206.46 State transportation trust fund; construction, etc., of roads.-All moneys in the "state transportation trust fund" shall be used for the construction and maintenance of state roads, as otherwise provided by law, under the direction of the department of transportation, which department may from time to time make requisition on the comptroller for funds to pay for the construction and maintenance of state roads. Money from said fund shall be drawn by the comptroller by warrant upon the state treasury pursuant to vouchers and shall be paid in like manner as other state warrants are paid out of the appropriated fund against which same are drawn. All sums of money necessary to provide for the payment of the warrants by the comptroller drawn upon said fund are appropriated annually out of the fund for the purpo:,;e of making such payments from time to time.

llistory.-§6, ch . 15659, 1931 ; CGL 1936 Supp. 1167(21); §2, ch. 61-119; §§23, 35, ch. 69-106; §1 , ch. 70-995; §§2, 3, ch. 73-57.

Kote .-Sce former §208.09 .

206.4 7 Distribution of second gas tax pursuant to §9, Art. XII, state constitution.-

(!) The second gas tax shall be allocated among the several counties in ac cordance with the formula stated in ~ 16 of Art. IX of the state comtitution of 1885, as amended, to the extent necessa ry to comply with all obligations to or for the benefit of holders of bonds, revenue certificates, and tax anticipation certificates or any refundings thereof secured by any portion of the second gas tax allocated under the provisions of ~ 16, Art. IX of the state constitution of 1885. as amended.

(2) The department of revenue will transmit the second g-as tax as collected monthly to the state board of administration allocated and distributed to the ·credit of the sHeral counties of the state based on the formula of distribution contained in ~ 16, Art. IX of the constitution of lRRii , as amended.

(3) The state hoard of administration will calculate a clist1·ibution of the second gas tax received from the department of rc,·enue under subsection (2) , based un the formula contained in ~!)(c) (4), Art. XII of the revised state constitution of 1%8.

(4) The state board of administration shall allocate the second gas tax beginning with the

850