SUMMARY. February 1, 2011

Transcription

1 SUMMARY QUESTION: When equipment (tangible personal property) is rented from a Florida dealer and removed from the State of Florida, are the rental payments made to the Florida dealer subject to sales tax? ANSWER: When equipment is rented from a Florida dealer and removed from the state, rental payments made subsequent to the removal of the equipment from Florida are not subject to Florida s sales tax. Rental payments to the Florida dealer while the items are in Florida are subject to Florida sales and use tax. XXX February 1, 2011 Re: Technical Assistance Advisement 11A-003 Sales and Use Tax Nonresident Dealer s Re-rental of Tangible Personal Property to an Out-of-State Customer Sections: and , Florida Statutes (F.S.) Rules: 12A (3) and 12A-1.071(4), Florida Administrative Code (F.A.C.) Petitioner: XXX (herein Taxpayer) FEI: XXX Dear XXX: This letter is a response to your petition dated December 12, 2010, for the Department's issuance of a Technical Assistance Advisement ("TAA") concerning the above referenced party and matter. Your petition has been carefully examined and the Department finds it to be in compliance with the requisite criteria set forth in Chapter 12-11, F.A.C. This response to your request constitutes a TAA and is issued to you under the authority of s , F.S. FACTS The Taxpayer, states that, as a XXX retail business with XXX sales tax # XXX, it from time to time, as part of its ongoing and active business, rents equipment from a Florida dealer, XXX (XXX) federal ID # XXX, for purpose of re-rental to end customers in XXX. This activity, on occasion, requires the Taxpayer to receive the tangible personal property equipment within Florida; however, payment for the rental is neither requested (invoiced) nor received (paid) until after the equipment has been removed from the State of Florida. You provided as attachments copies of documents showing the transactions under discussion as follows: A1 Rental Receipt (Delivery Ticket # XXX) serving as the pick-up ticket for Product # XXX described as a suction trash pump, which was picked up by the Taxpayer at Florida dealer s location.

2 Page 2 B1 Rental Contract # XXX for product # XXX described as a suction trash pump, which was mailed to the Taxpayer at its out-of-state location. B2 Rental Contract # XXX for product # XXX described as a submersible trash pump and product # XXX described as a hydraulic drive unit, which were picked up by the Taxpayer at Florida dealer s location and transported to Taxpayer s out-of-state location for re-rental. C1 Rental Invoice # XXX in regards to contract # XXX. This invoice serves as request for payment for use of product # XXX, which was mailed to Taxpayer s out-ofstate location and paid by check # XXX. C2 Rental Invoice # XXX in regards to Contract # XXX. This invoice serves as request for payment for use of product # XXX and XXX, which was mailed to Taxpayer s out-of-state location and paid by check # XXX. REQUESTED ADVISEMENT Based on the facts provided, the Taxpayer has requested confirmation that when items of tangible personal property are rented from a Florida dealer and removed from the State of Florida, rental payments made subsequent to that removal are not subject to Florida s sales tax. APPLICABLE LAW Section , F.S., embodies the basic statement of legislative intent: It is hereby declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of selling tangible personal property at retail in this state.... (1) For the exercise of such privilege, a tax is levied on each taxable transaction.... The legislature has declared its intention in Section (2), Florida Statutes (F.S.), that each and every sale, use, storage, or consumption of tangible personal property in Florida is taxable, subject only to the exemptions and exclusions contained within Chapter 212, F.S. The threshold legislatively created assumption, therefore, is that every sale, use, storage, or consumption of tangible personal property in Florida is subject to tax, unless it is shown by the taxpayer that an exemption or exclusion applies. Section (1)(b), F.S., provides, in part: A resale must be in strict compliance with s and the rules and regulations, and any dealer who makes a sale for resale which is not in strict compliance with s and the rules and regulations shall himself or herself be liable for and pay the tax. Any dealer who makes a sale for resale shall document the exempt nature of the transaction, as established by rules promulgated by the department, by retaining a copy of the purchaser's resale certificate....

3 Page 3 Rule 12A-1.071(4), F.A.C., provides, in part: If the lessee of tangible personal property removes the property from the State of Florida, the consideration contracted to be paid subsequent to such removal is not taxable, provided the lessee furnishes the lessor with a signed certificate identifying the property, and the date the property was or will be removed from this state. If the lessee has obtained self-accrual authority from the Department of Revenue, as provided in Rule 12A , F.A.C., then the lessee s records must substantiate when the property was removed from this state. Rental amounts charged or paid while the property is in Florida are taxable, even though the property is moved from the state immediately after the lessee takes possession of it.... Rule 12A (3), F.A.C, provides in part: (3) Sales to Nonresident Dealers (a) The sale of taxable tangible personal property to a nonresident dealer is exempt when the selling dealer obtains a statement from the nonresident dealer declaring that the tangible personal property will be transported outside Florida by the nonresident dealer for resale and for no other purpose. The statement executed b y the nonresident dealer must include the declaration and all of the following information: 1. The nonresident dealer s name and address; 2. Evidence of authority to do business in the dealer s home state or country, such as the nonresident s business name and address, sales tax registration number, occupational license number, or any other evidence of transacting business in that state or country; 3. For nonresident dealers who are not residents of the United States, the dealer s passport or visa number and arrival-departure card number; 4. The following provision: Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true to the best of my knowledge and belief ; and 5. The signature of the purchaser executing the statement. (b) For purposes of this rule, a nonresident dealer is any person who does not hold a valid Florida sales tax certificate of registration and who is authorized in another state or country to make sales of tangible personal property in that state or country. (c) A selling dealer who makes a sale of taxable tangible personal property to a nonresident dealer is required to obtain the required statement or collect the applicable tax on the sale.

4 Page 4 RESPONSE When tangible personal property is rented from a Florida dealer and removed from the state, rental payments made subsequent to the removal are not subject to Florida s sales tax. The following suggested format example should be given to the Florida dealer to support the exempt nature of the transaction: TANGIBLE PERSONAL PROPERTY FOR RESALE BY A NONRESIDENT DEALER This is to certify that the tangible personal property described below will be transported outside Florida for resale/re-rental and for no other purpose. NAME OF SELLING DEALER: DEALER'S ADDRESS: DEALER'S SALES TAX NO.: NAME OF NONRESIDENT DEALER: ADDRESS OF NONRESIDENT DEALER: HOME STATE'S SALES TAX NO.: The tangible personal property rented or leased in Florida on INVOICE NUMBER(S), or described as follows, is solely for re-rental outside Florida. Description of Property: Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true to the best of my knowledge and belief. Signature of Purchasing Nonresident Dealer Date CONCLUSION In the instant case, Taxpayer, a XXX retail business, rented various items from a Florida dealer. The items were picked up at the Florida dealer s location in Florida. The items were removed from Florida for re-rental to Taxpayer s customer in XXX. The question posed is whether Taxpayer s rental of the items from the Florida dealer is subject to Florida sales and use tax. Pursuant to Rules 12A (3) and 12A-1.071(4), F.A.C., Taxpayer s rental of the items is exempt from Florida sales and use tax providing it extends a signed certificate to the Florida dealer identifying the items and the date the items were removed or will be removed from

5 Page 5 Florida. Taxpayer may use the suggested format of the certificate provided above for this purpose. Taxpayer s rental payments to the Florida dealer while the items are in Florida are subject to Florida sales and use tax. This response constitutes a Technical Assistance Advisement under Section , F.S., which is binding on the Department only under the facts and circumstances described in the request for this advice, as specified in Section , F.S. Our response is predicated on those facts and the specific situation summarized above. You are advised that subsequent statutory or administrative rule changes or judicial interpretations of the statutes or rules upon which this advice is based may subject similar future transactions to a different treatment than expressed in this response. You are further advised that this response, your request and related backup documents are public records under Chapter 119, F.S., and are subject to disclosure to the public under the conditions of Section , F.S. Confidential information must be deleted before public disclosure. In an effort to protect confidentiality, we request you provide the undersigned with an edited copy of your request for Technical Assistance Advisement, the backup material and this response, deleting names, addresses and any other details which might lead to identification of the taxpayer. Your response should be received by the Department within 15 days of the date of this letter. If you have any further questions with regard to this matter and wish to discuss them, you may contact me directly at (850) Sincerely, Horace Royals Tax Law Specialist Technical Assistance & Dispute Resolution HR\lp Record ID: 94193