The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Appropriations
BILL: CS/CS/SB 1382
INTRODUCER: Appropriations Committee; Finance and Tax Committee; and Senator Gruters
SUBJECT: Tax Administration
DATE: February 28, 2022 REVISED: 3/3/22
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Hackett Ryon CA Favorable
2. Covin Babin FT Fav/CS
3. Covin Sadberry AP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 1382 makes various changes to statutes relating to the Department of Revenue
(Department). The bill largely amends details related to the Department’s rights and obligations
before, during, and after an audit.
Regarding audits, the bill:
 Clarifies activities the Department may engage in during the 60-day waiting period between
notifying the taxpayer of its intent to audit and beginning the audit;
 Excludes from evidence during litigation documents withheld during an audit;
 Provides that, in certain situations, the failure of a taxpayer to provide documents creates a
presumption that the resulting proposed final agency action by the Department is correct;
 Expands the Department’s authority to serve subpoenas in certain situations;
 Revises several situations when the time limit to complete an audit is tolled;
 Allows the Department to immediately suspend a dealer’s resale certificate during audits
relating to the sale of alcoholic beverages;
 Allows the Division of Alcoholic Beverages and Tobacco within the Department of Business
and Professional Regulation to suspend or revoke a dealer’s license if the dealer’s resale
certificate has been suspended;
 Allows the Department to reopen a final assessment for the purpose of adjusting liability
under certain circumstances;
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 Allows the Department to include all taxes, penalties, interest, costs, and fees authorized by
law in a garnishment or levy; and
 Provides rulemaking and emergency rulemaking authority.
The bill also makes changes including clarifications, corrections, deletions of obsolete language,
and cross-reference corrections.
The Revenue Estimating Conference has not determined the fiscal impact of the bill. Staff
estimates that the bill will increase General Revenue Fund receipts by an indeterminate amount
in Fiscal Years 2022-2023 through 2026-2027.
The bill takes effect July 1, 2022.
II. Present Situation:
The present situation for each issue is described below in Section III, Effect of Proposed
Changes.
III. Effect of Proposed Changes:
Sections 1 & 2 – Exclusion of Records in Litigation
Present Situation: Current law provides that a taxpayer may contest the legality of any
assessment or denial of any refund of tax, fee, surcharge, permit, interest, or penalty under the
Department of Revenue’s (Department) purview by filing an action in circuit court, or
alternatively, the taxpayer may file a petition under the applicable provisions of ch. 120, F.S.1
Taxpayers who do not provide records during an audit as required by law are subject to the
Department issuing an estimated assessment. In litigation, some taxpayers will selectively
provide records to challenge the estimated assessment even though the estimate was created
because of the taxpayer’s own willful non-compliance with records laws.2
Proposed Changes: The bill amends ss. 72.011(1)(c) and 120.80, F.S., to provide that a taxpayer
may not submit records pertaining to an assessment or refund claim as evidence in any
proceeding under s. 72.011, F.S., or any administrative proceeding under s. 120.80, F.S., if those
records were available to, or required to be kept by, the taxpayer and were not timely provided to
the Department when requested during the audit or protest period and before submission of a
petition for hearing pursuant to ch. 120, F.S., or the filing of an action under s. 72.011(1)(a), F.S.,
unless the taxpayer demonstrates good cause for its failure to provide the records to the
Department. The bill specifies that good cause may include, but is not limited to, circumstances
when a taxpayer was unable to originally provide records under extraordinary circumstances.3
1
Section 72.011(1), F.S.
2
Department of Revenue, 2022 Agency Legislative Bill Analysis, SB 1382, available at
http://abar.laspbs.state.fl.us/ABAR/Attachment.aspx?ID=33394 (last accessed Feb. 4, 2022).
3
The term “extraordinary circumstances” means “the occurrence of events beyond the control of the taxpayer, such as, but
not limited to, the death of the taxpayer, acts of war or terrorism, natural disasters, fire, or other casualty, or the nonfeasance
or misfeasance of the taxpayer’s employees or representatives responsible for compliance with s. 125.0104, s. 125.0108, or
chapter 212.” Section 213.21(10)(d)2., F.S.
BILL: CS/CS/SB 1382 Page 3
Sections 3 & 9 – Pre-Audit Preparation
Present Situation: The Department is required to provide notification to a taxpayer of an audit at
least 60 days before the audit begins.4 This 60-day period gives the taxpayer time to gather and
prepare records, meet with their accountant, or secure the assistance of a professional. Some
practitioners have argued that the Department can have no contact with the taxpayer during this
60-day period, even to answer questions asked by the taxpayer. It has also been argued that the
Department must refrain from reviewing its own records or records voluntarily provided by the
taxpayer prior to the end of the 60-day period or preparing internally for the audit.5
Proposed Changes: The bill creates ss. 202.34(4)(f), and 212.13(5)(f), F.S., to clarify activities
the Department may engage in during the 60-day period. The bill provides that the Department
may:
 Confirm receipt of the notification of intent to audit;
 Answer any questions raised by the taxpayer or taxpayer representative;
 Confirm date and location of the audit;
 Confirm the way the taxpayer would like to provide records;
 Discuss the scope of the audit;
 Review records voluntarily provided by the taxpayer;
 Review records already in the Department’s possession; and
 Review publicly available information.
If the taxpayer has not previously waived the 60-day period notice and believes the Department
has commenced the audit before the 61st day, the taxpayer must object in writing to the
Department before the issuance of an assessment or else the objection is waived. If the objection
is not waived and it is determined the audit was commenced before the 61st day after the issuance
of the notice of intent to audit, the 1-year tolling period6 is considered lifted for the number of
days equal to the difference between the date the audit commenced and the 61st day after the
date of the Department’s notice of intent to audit.
The bill provides that the Department may adopt rules to administer ss. 202.34 and 212.13, F.S.
Sections 4, 5, 7, 10, 11, 16, and 19 – Estimates, Delivery of Administrative Subpoenas, and
Extension of Tolling
Present Situation: The Department has the statutory authority to issue an “administrative
subpoena” to compel production of records and documents when taxpayers refuse to provide
books and records, despite the legal requirement to do so.7 However, this tool is rarely used
because a court proceeding on the administrative subpoena will cause the Department to fail
other statutory deadlines and may run out the statute of limitations on the audit assessment.
4
Sections 202.34 and 212.13, F.S.
5
Supra Note 2
6
Section 213.345, F.S.
7
Section 202.36(4), F.S.
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Instead, the Department uses its authority to issue an estimated assessment which results in the
use of additional resources for both the taxpayer and the Department in resolving disputed
issues.8
Proposed Change: The bill amends ss. 202.36(4)(a), 206.14(4), 211.125(3)(b)3., 212.14(7)(a),
and 220.735(4), F.S., to provide that the failure of a taxpayer to provide documents available to,
or required to be kept by, the taxpayer and requested by a subpoena creates a rebuttable
presumption that the resulting proposed final agency action by the Department, as to the
requested documents, is correct and that the requested documents not produced by the taxpayer
would be adverse to the taxpayer’s position as to the proposed final agency action. The
Department may make an assessment from an estimate based upon the best information available
if a taxpayer fails to provide documents requested by a subpoena. The Department is required to
inform the taxpayer of the reason for the estimate and certain related information. The
information is considered prima facie correct, and the taxpayer has the burden of showing any
error in it.
For purposes of ss. 202.36 and 212.14, F.S., the presumption and authority to create estimates are
not triggered merely because a taxpayer or its representative requests a conference to negotiate
the production of a sample of records demanded by a subpoena.
Present Situation: For the purpose of administering and enforcing the provisions of the revenue
laws of this state, the Department’s Executive Director, or any of his or her assistants designated
in writing by the Executive Director, is authorized to serve subpoenas and subpoenas duces
tecum issued by the state attorney relating to investigations concerning the taxes enumerated in
s. 213.05, F.S.9
Proposed Change: Section 11 creates s. 213.051(2), F.S. to provide that in addition to the
procedures for service prescribed by ch. 48, F.S., the department may serve subpoenas it issues
pursuant to ss. 202.36, 206.14, 211.125, 212.14, and 220.735, F.S., upon any business registered
with the Department at the address on file with the Department if it received correspondence
from the business from that address within 30 days before issuance of the subpoena or if the
address is listed with the Department of State Division of Corporations as a principal or business
address. If a business’ address is not in this state, service is made upon proof of delivery by
certified or registered mail or under the notice provisions of s. 213.0537, F.S.
Present Situation: The statute of limitations for assessment and refund purposes is tolled for a
period of 1 year if the Department has issued a notice of intent to conduct an audit or
investigation of a taxpayer’s account within the applicable period of time provided by
s. 95.091(3) or 215.26(2), F.S.10
Proposed Changes: Section 16 amends s. 213.345, F.S., to provide that the 1-year period is
tolled upon receipt of written objections to the subpoena and for the entire pendency of any
action that seeks an order to enforce compliance with or to challenge any subpoena issued by the
8
Supra Note 2
9
Section 213.051, F.S.
10
Section 213.345, F.S.
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Department compelling the attendance and testimony of witnesses and the production of books,
records, written materials, and electronically recorded information.
The bill further provides that if the Department issues a notice explaining its audit findings under
s. 213.34(2)(a), F.S., based on an estimate because the taxpayer has failed or refuses to provide
records, the audit will be deemed to have commenced for purposes of s. 213.345, F.S. In the
event the Department issues an assessment beyond the tolling period, the assessment will be
considered late and the assessment shall be reduced by the amount of those taxes, penalties, and
interest for reporting periods outside of the limitations period, as modified by any other tolling or
extension provisions.
Section 6 – Pollutants Tax Registration Fees
Present Situation: An entity must pay a $30 registration fee when requesting a pollutants tax
license.11 However, these registration fees were previously repealed.12
Proposed Change: Section 6 amends s. 206.9931, F.S., to remove obsolete language related to
pollutants tax registration fees.
Section 8 – Affidavit for Non-Resident Purchasers of Boats and Aircrafts
Current Situation: Nonresident purchasers of boats and aircraft are required to sign an affidavit
attesting that they have read the provisions of s. 212.05, F.S., in its entirety, in order to claim an
exemption from sales tax. Section 212.05, F.S., is lengthy and includes many provisions that are
not applicable to the purchaser of a boat or aircraft.
Proposed Changes: Section 8 amends s. 212.05(1)(a)2.d., F.S., by removing the requirement that
a purchaser attests to having read statutory provisions and replacing that language with the
requirement that the nonresident purchaser complete an affidavit that affirms that the nonresident
purchaser qualifies for exemption from sales tax pursuant to s. 212.05(1)(a)2., F.S., and attesting
that the nonresident purchaser will provide the documentation required to substantiate the
exemption claimed under s. 212.05(1)(a)2., F.S.
Section 9 – Records related to Alcohol and Tobacco Dealers
Present Situation: Dealers must maintain records as required by the Department for the
reasonable administration of ch. 212, F.S.13 During sales tax audits by the Department, some
dealers selling alcoholic beverages and tobacco advise Department auditors that they have no
records as to purchases, sales, or tax collected for these regulated products. Florida tax and
alcohol and beverage laws require dealers to maintain and produce certain records. Without
records, the Department is unable to conduct the audit and must resort to estimating the dealer’s
compliance.14
11
Section 206.9931, F.S.
12
Chapter 2017-36, L.O.F.
13
Section 212.13(2), F.S.
14
Supra Note 2.
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Proposed Changes: Section 9 creates s. 212.13(2)(b), F.S., which will allow the Department,
during the course of an audit, to suspend a dealer’s privilege to hold a resale certificate and
purchase products tax exempt for resale when a dealer15 asserts that they have no records or
refuse to provide records related to their purchase and/or sale of alcoholic beverages and
tobacco. The dealer would still be able to purchase non-alcohol and non-tobacco products and
take a credit for taxes paid against sales tax collected and remitted on the resale of the products.
The Department is required to notify the Division of Alcoholic Beverages and Tobacco within
the Department of Business and Professional Regulation (Division) when a dealer’s resale
certificate is suspended and to publish a list of such dealers. The bill authorizes the Division to
suspend a dealer’s license if the dealer’s resale certificate was suspended in the course of the
dealer’s first audit, or to revoke the dealer’s license if the dealer’s resale certificate was
suspended and the audit was not the dealer’s first audit before the Department. The bill requires
the Division to lift a suspension of the license and the Department to lift a suspension of a resale
certificate if the dealer takes certain actions. The bill requires the Division to include notice of
such suspension in its license verification database or to provide a link to the Department’s
publish list from the Division’s license verification page. A transferor is prohibited from
accepting orders from and delivering alcoholic beverages to a dealer whose resale certificate has
been suspended within 7 days after the date on which the dealer is added to the Department’s
published list, and a transferor who sells alcoholic beverages to such a dealer is not responsible
for any tax, penalty, or interest due if the alcoholic beverages are delivered no more than 7 days
after the date of publication of the suspension. The Department may adopt rules to implement s.
212.13(2)(b), F.S.
Section 12 – Confidentiality and Information Sharing
Present Situation: Taxpaye