Chapter 792 - PUBLIC SERVICE TAX—FUEL OIL

Sec. 790.113. - Use of certain portions of water service tax. Chapter 793 - COMMUNICATIONS SERVICES TAX Chapter 792 - PUBLIC SERVICE TAX—FUEL OIL[1]

Footnotes: --- (1) ---

Cross reference— Public works and utilities, Tit. XXI.

State Law reference— Public service tax, F.S. § 166.231 et seq.

Sec. 792.101. - "Fuel oil" defined.

For the purposes of this Chapter, fuel oil means grades No. 1 (kerosene), No. 2 and No. 3 fuel oils.

(Ord. 72-591-277, § 1; Ord. 83-591-400, § 1)

Note— Former § 807.101.

Sec. 792.102. - Tax imposed; rate; exemption.

There is hereby imposed and levied by the City on each purchase of fuel oil in the corporate limits of the City, except those types of purchases excluded from the operation of this Chapter, a tax in the maximum amount specified in F.S. § 166.231. In every case, the tax shall be collected from the purchaser of the utility service and paid by the purchaser of the utility service, for the use of the City, to the seller of the utility service at the time of the purchaser's paying the charge therefor to the seller. The tax shall be collected on all payments received by the seller in payments of bills, statements or invoices rendered by the seller to the purchaser.

(Ord. 72-591-277, § 1; Ord. 72-766-353, § 2; Ord. 72-1047-452, § 1; Ord. 72-1170-505, § 1; Ord. 74-743-278, § 5; Ord. 83-591-400, § 1; Ord. 90-709-572, § 4; Ord. 98-226-E, § 1)

Note— Former § 807.102.

Sec. 792.103. - Registration of fuel oil dealers.

(a)

Every person who trades in fuel oil, whether wholesale or retail, in the City is required to register with the Tax Collector before he may purchase fuel oil from a person for resale to a person and to obtain a dealer number from the Tax Collector.

(b)

A person desiring to obtain a dealer number shall complete and file with the Tax Collector a written application. The application shall be made on a form supplied by the Tax Collector and the form shall contain at least the name of the applicant and, if the applicant is a partnership or corporation, the name and title of the person making the application on behalf of the partnership or corporation; a statement that the application is made under the penalties of perjury; and a statement that the applicant gives to the City and its authorized agents the right at all reasonable times to inspect his records for the purpose of determining the persons from whom he purchases fuel oil and the persons to whom he sells or delivers fuel oil. The application shall be signed, if made by an individual, by him or his authorized agent or, if made by a partnership or corporation, by a partner, corporate officer or authorized agent. The Tax Collector may require a person other than an individual applicant signing an application on his own behalf to produce evidence of his authority to sign the application on behalf of and to bind the individual, partnership or corporation making the application; and the Tax Collector may refuse to accept an application, other than an application signed by an individual applicant on his own behalf, unless and until this evidence, satisfactory to him, has been produced, which evidence shall be attached to and form a part of the application. If the Tax Collector approves the application, he shall assign a dealer number to the applicant, which shall be unique to that applicant. The Tax Collector shall keep a record of each dealer number issued and the name of the person to whom the number is assigned.

(c)

The Tax Collector is authorized to make all necessary rules to implement this Section.

(Ord. 76-772-484, § 4; Ord. 83-591-400, § 1)

Note— Former § 807.103.

Sec. 792.104. - Collection; liability of seller; discontinuance of service.

(a)

It shall be the duty of every seller of fuel oil, in acting as the tax-collecting agency for the City, to collect from the purchaser, for the use of the City, the tax hereby imposed and levied at the time of collecting the purchase price charged for each transaction, unless the purchaser has provided or provides an exemption number entitling him to an exemption for part or all of the tax hereby imposed and levied, and to report and pay over on or before the twentieth day of each calendar month to the Tax Collector all the taxes imposed, levied and collected during the preceding calendar month. In the event the twentieth day falls on a Saturday, Sunday or holiday, the time shall be extended additionally to the next business day following the Saturday, Sunday or holiday. The Tax Collector is authorized to prescribe the forms on which the reports shall be made. It shall be unlawful for a seller of a utility service to collect the price of a sale of fuel oil without, at the same time, collecting the tax hereby imposed and levied in respect to the purchase or purchases, except for exempt purchases provided for in Section 792.107.

(b)

A seller failing to collect the tax hereby imposed and levied at the time of collecting the price of a purchase, except for exempt purchases provided for in Section 792.107, shall be liable to the City for the amount of the tax in like manner as if it had actually been paid to the seller. When a seller fails to make a report or fails to pay the tax within the time required hereunder, interest and penalties are imposed to the maximum extent permitted by F.S. § 166.234(7), as amended, which interest and penalties shall be payable and collectible in the same manner as if it were a part of the tax imposed. The Director of Finance and Administration shall cause to be brought all suits and actions and to take all proceedings in the name of the City as may be necessary for the recovery of the tax, interest or penalties; provided, that the seller shall not be liable for the payment of the tax upon uncollected charges.

(c)

If a purchaser fails, neglects or refuses to pay to the seller, the seller's charges for a purchase or purchases and the tax hereby imposed and levied and as hereby required on account of the purchase for which the charge is made, or either, except for exempt purchases provided for in Section 792.107, the seller shall have the right and is hereby vested with the right, power and authority immediately to discontinue further service to the purchaser until the tax and the seller's bills shall have been paid in full.

(Ord. 72-591-277, § 1; Ord. 74-743-278, § 6; Ord. 76-772-484, §§ 3, 5; Ord. 78-461-192, § 2; Ord. 78-674-328, § 2; Ord. 83-591-400, § 1; Ord. 90-709-572, § 4; Ord. 91-1248-492, § 3; Ord. 98-226-E, § 1; Ord. 2016-140-E, § 16)

Editor's note— Ordinance 2007-839-E, § 18, authorized updated department/division names pursuant to reorganization.

Note— Former § 807.104.

Sec. 792.105. - Records of purchases; inspections.

Each seller of fuel oil shall keep complete records showing all purchases in the City of this service, which records shall show the price charged upon each purchase (showing all other charges upon which the tax levied hereby is collected, unless the purchase is exempt from taxation), the date thereof, where the purchase is exempt from taxation hereunder and, if exempt, the purchaser's exemption number, and the date of payment thereof, and the records shall be kept open for inspection by the duly authorized agents of the City during business hours on all business days. The duly authorized agents of the City shall have the right, power and authority to make transcripts of the records during such times as they may desire. It shall be the duty of the Tax Collector to inspect the records in order to determine that the tax hereby imposed and levied is being properly reported and paid to the City and that an accurate record of exempt purchases and exemption numbers is being maintained by each seller of the service.

(Ord. 72-591-277, § 1; Ord. 72-1205-583, § 1; Ord. 74-743-278, § 7; Ord. 74-957-432, § 1; Ord. 76-772-484, §§ 3, 6; Ord. 83-591-400, § 1; Ord. 90-709-572, § 4; Ord. 98-226-E, § 1)

Note— Former § 807.105.

Sec. 792.106. - Statements and payments where City is seller.

Where the purchase of the utility service upon which a tax is imposed and levied by this Chapter is from the City, as seller, it shall be the duty of the official responsible for billing to state the amount of the tax on all statements of charges rendered to the purchasers of charges rendered to the purchasers of the utility service and, if the purchase is exempt under this Chapter, the official shall record the exemption number given by the purchaser in the record of purchases. The tax shall be collected from the purchasers by the Tax Collector at the time of collecting the purchase price charged for each transaction, and the Tax Collector shall audit the charges and taxes so collected.

(Ord. 72-591-277, § 1; Ord. 72-1205-583, § 2; Ord. 76-772-484, §§ 3, 7; Ord. 83-591-400, § 1)

Note— Former § 807.106.

Sec. 792.107. - Exemptions.

There are exempted from payment of the tax levied and imposed by this Chapter (a) the United States government, this State and all counties, school districts, and municipalities of the State, and public bodies by law or court order, or (b) purchases by any recognized church in this State for use exclusively for church purposes, or (c) purchases for resale by a properly authorized holder of a dealer number under Section 792.103, or (d) purchases by holders of a properly authorized exemption number under Section 792.113.

(Ord. 72-591-277, § 1; Ord. 76-772-484, § 3; Ord. 83-591-400, § 1; Ord. 98-226-E, § 1)

Note— Former § 807.107.

Sec. 792.108. - Computation of tax when paid monthly and quarterly-annually.

In all cases where the seller of fuel oil collects the price thereof at monthly periods, the tax hereby imposed and levied may be computed on the aggregate amount of purchase during the monthly period; provided, that the amount of the tax to be collected shall be the nearest whole cent to the amount computed.

(Ord. 72-591-277, § 1; Ord. 74-743-278, § 8; Ord. 76-772-484, § 3; Ord. 83-591-400, § 1; Ord. 98-226-E, § 1)

Note— Former § 807.108.

Sec. 792.109. - Scope of tax.

The purchase of the utility service upon which a tax is imposed and levied by this Chapter shall embrace and include any part of the transaction of purchase occurring in the City, whether it is the entering into of a contract for the purchase of the utility service, the payment of the charges therefor or the use of lines, poles, pipes, wires or the streets for the transmission or delivery of the utility service.

(Ord. 72-591-277, § 1; Ord. 76-772-484, § 3; Ord. 83-591-400, § 1)

Note— Former § 807.109.

Sec. 792.110. - Criminal penalties.

(a)

It shall be unlawful and an offense for a purchaser to wilfully fail, refuse or neglect to pay the tax hereby imposed and levied, and for a seller, or an officer, agent or employee of a seller, to wilfully make a false report, fail to make a report or fail to pay the tax, or violate any other provision hereof. The person shall, upon conviction, be guilty of a class D offense or a civil fine not to exceed $10,000.

(b)

In addition to the penalty imposed by subsection (a) of this Section, a person who wilfully:

(1)

Obtains an exemption number with the intent to avoid paying the tax hereby imposed and levied when the tax would otherwise be payable; or

(2)

Uses an exemption number to avoid paying the tax hereby imposed and levied when the tax would otherwise be payable; or

(3)

Procures or permits either of the foregoing;

shall upon conviction be liable to the City in an amount not to exceed three times the amount of the tax that would have been payable in respect to the purchase or purchases for which the exemption number was used contrary to the provisions of this Chapter. "Conviction" as used in this paragraph shall mean a finding of guilty by a court of competent jurisdiction whether or not adjudication of guilt is withheld; the term shall also include a plea of nolo contendere by such person.

(Ord. 76-772-484, §§ 3, 8; Ord. 83-591-400, § 1; Ord. 90-709-572, § 4; Ord. 98-226-E, § 1)

Note— Former § 807.110.

Sec. 792.111. - Impairment of prior obligations.

Nothing contained in this Chapter shall impair or affect the validity of pledges of revenues derived from utilities services taxes heretofore made by the former government of the City for the debt service requirements of obligations issued by the former government of the City.

(Ord. 72-591-277, § 1; Ord. 76-772-484, § 3; Ord. 83-591-400, § 1)

Note— Former § 807.111.

Sec. 792.112. - Refund of tax.

Whenever a purchase of fuel oil is excluded from the operation of this Chapter by Section 792.113, the purchaser may, within three years after he pays it, obtain a refund of a fuel oil public service tax paid in connection therewith in accordance with the following procedure:

(a)

The purchaser shall file with the Tax Collector a sworn affidavit stating:

(1)

That he is an applicant for a refund of the public service tax paid in connection with a purchase of fuel oil used as an aircraft engine fuel or propellant or used in internal combustion engines, specifying which use is involved.

(2)

The amount of the tax so paid.

The purchaser shall attach the original or a legible copy of the invoice or invoices, indicating the amount paid for the fuel oil and, separately, the amount of the tax. At the same time as he files the affidavit, the purchaser shall also file with the Tax Collector a written instrument giving the City and its authorized agents the right at all reasonable times to inspect his records and to enter and observe his premises and operations for the purpose of determining his eligibility for the refund being applied for.

(b)

The Tax Collector shall certify whether the tax was actually collected by him and, if so, the amount thereof. The certificate shall be attached to the documents required by subsection (a) of this Section. If the purchaser fails or refuses to file the instrument giving the City and its authorized agents the right to inspect, enter and observe as required in subsection (a) of this Section, the Tax Collector shall so state in his certificate and deny the purchaser's claim for refund.

(c)

If it appears to the Tax Collector that the purchaser is entitled to the refund, he shall certify that the purchaser's application for refund is a valid claim for a refund under this Chapter and forward the documents to the City Accountant for audit and settlement.

(d)

If it appears to the City Accountant that the purchaser's application is not a valid claim for a refund, or if there are not sufficient funds appropriated to pay the refund, the City Accountant shall reject the application and return it to the purchaser, stating his reasons for the rejection. If the City Accountant approves the application and there is sufficient money appropriated to pay the refund in the amount settled by the City Accountant, the purchaser shall receive his refund accordingly.

(e)

An application for a refund, once rejected by the Tax Collector or City Accountant, may not be refiled unless the purchaser has new evidence that will support his claim for the refund and unless he refiles his application with the new evidence within three years after he pays the tax for which the refund is being sought; provided, that if the purchaser's application was rejected for failure or refusal by him to provide the instrument giving the City and its authorized agents the right to inspect, enter and observe as required by subsection (a) of this Section, the purchaser may refile the same application within three years after he pays the tax for which the refund is being sought, if he also provides the instrument giving the City and its authorized agents the right to inspect, enter and observe as required by subsection (a) of this Section.

(Ord. 76-772-484, § 1; Ord. 83-591-400, § 1; Ord. 98-226-E, § 1)

Note— Former § 807.113.

Sec. 792.113. - Exemption from tax.

(a)

Exemption number system established. A purchaser desiring to obtain the exemption provided by F.S. § 166.231(4)(a), (purchases of natural gas or fuel oil by a public or private utility, either for resale or for use as a fuel in the generation of electricity, or the purchase of fuel oil or kerosene for use as an aircraft engine fuel or propellant or for use in internal combustion engines) without first having to pay the fuel oil public service tax imposed by this Chapter and then apply for a refund under Section 792.112, may obtain and utilize an exemption number as provided herein.

(b)

Application for exemption number; examination; issuance of number.

(1)

A purchaser desiring to obtain an exemption number shall complete and file with the Tax Collector a written application. The application shall be made on a form supplied by the Tax Collector and the form shall contain at least the name of the purchaser and, if the purchaser is a partnership or corporation, the name and title of the person making the application on behalf of the partnership or corporation, the usage to be made of the fuel oil or kerosene to be purchased under the exemption number, which usage is an exempt use under F.S. § 166.231(4)(a); a statement that the application is made under the penalties of perjury; and a statement that the purchaser gives to the City and its authorized agents the right at all reasonable times to inspect his records and to enter and observe his premises and operations for the purpose of determining his eligibility for future exemptions to be claimed under the exemption number assigned by the Tax Collector on the basis of the application. The application shall be signed, if made by an individual, by him or his authorized agent of, if made by a partnership or corporation, by a partner, corporate officer or authorized agent. The Tax Collector may require a person other than an individual purchaser signing an application on his own behalf to produce evidence of his authority to sign the application on behalf of and to bind the individual, partnership or corporation making the application; and the Tax Collector may refuse to accept an application, other than an application signed by an individual purchaser on his own behalf, unless and until this evidence satisfactory to him has been produced, which evidence shall be attached to and form a part of the application.

(2)

The Tax Collector shall conduct such examination as he deems necessary to determine that the facts and statements contained in the application are true and that the purchaser is entitled to the exemption for the uses he has stated on the application. If the purchaser is entitled to the exemption for the uses indicated on the application, the Tax Collector shall indicate his approval on the application. If the Tax Collector is not satisfied that the purchaser is entitled to the exemption applied for, he may require the purchaser to provide further information until he is satisfied or he may reject the application, stating his reasons for so doing. Rejection of an application shall not preclude the purchaser from making another application for an exemption number based on the same or other uses.

(3)

If the Tax Collector approves the application, he shall assign an exemption number to the purchaser, which shall be unique to that purchaser and which shall not, if revoked, thereafter be reissued to any other purchaser. The Tax Collector shall keep a record of each exemption number issued, the name of the purchaser to whom the number is assigned and any particulars concerning the use, restriction or revocation of the number.

(c)

Use of exemption number. Whenever the purchaser, having obtained an exemption number as provided in subsection (b) of this Section, makes a purchase of fuel oil for an exempt use, he shall give the seller his exemption number and shall not thereafter be liable to pay the tax that would otherwise be collected under this Chapter on that purchase. The seller shall record this exemption number on the record of the purchase required by Section 792.104 to be kept by him and he shall not thereafter be liable to the City for the amount of the tax that would otherwise be collected by him under this Chapter. At all times, the seller will exercise due care in accepting exemption numbers from purchasers and, in case of doubt on the part of the seller as to whether the exemption number is being properly used, he shall, if possible, discontinue further service to the purchaser until the authorized agents of the City have investigated the use of the exemption number and reported to the seller; and in a case of doubt on the part of the seller as to whether the exemption number is being properly used, he shall report his doubt to the City.

(d)

Renewal of exemption number required. The exemption numbers assigned by the Tax Collector shall be renewable every three years, on a date or dates to be set by the Tax Collector. A renewal application need not contain all of the information required by subsection (b) of this Section to be contained in the original application but the Tax Collector or his designee shall obtain sufficient information to assure himself that the purchaser will continue to be entitled to the exemption for the uses he has stated on the original application or on any previous renewal applications. A renewal application shall be in writing and shall be signed by the purchaser, under the penalties of perjury, as provided in subsection (b) of this Section for original applications, and it shall continue the right of the City and its authorized agents at all reasonable times to inspect the purchaser's records and to enter and observe his premises and operations for the purpose of determining his eligibility for an exemption already claimed under the original or any previous renewal application and his continued eligibility for future exemptions to be claimed under the renewal application being submitted. The renewal application shall be subject to investigation and approval or rejection by the Tax Collector in the same manner as prescribed in subsection (b)(2) of this Section for original applications.

(e)

Revocation of exemption number. The Tax Collector may revoke the exemption number assigned to a purchaser:

(1)

For continued and wilful use of the exemption number by the purchaser or another person to avoid paying the tax due on purchases of fuel oil for nonexempt uses.

(2)

For use of the exemption number by another person than the purchaser to whom it is assigned and his agents, servants and employees.

(3)

Whenever the purchaser has not used the exemption number at least one time in a period of one year.

The Tax Collector shall notify the purchaser of the intended revocation of the exemption number and the effective date of the revocation, and the exemption number shall be automatically revoked on the effective date unless prior to that date the purchaser files with the Tax Collector a request for a hearing, whereupon the proposed revocation shall be suspended until the decision of the Tax Collector following the hearing either revoking the exemption number or continuing it until the next scheduled renewal date.

(f)

Rules. The Tax Collector is authorized to make all necessary rules to implement this Section.

(Ord. 76-772-484, § 2; Ord. 83-591-400, § 1; Ord. 98-226-E, § 1)

Note— Former § 807.114.

Sec. 792.114. - Occupational license.

The Tax Collector may refuse to issue an occupational license to an applicant or to renew the same if the public service tax of the applicable business has become delinquent or remains unpaid.

(Ord. 90-709-572, § 4; Ord. 98-226-E, § 1)

Sec. 792.115. - Penalty bills less than $15.

The Tax Collector is instructed not to mail a special penalty bill for the tax hereby imposed when the penalty for late payment is less than $15.

(Ord. 91-1248-492, § 1; Ord. 98-226-E, § 1)

Sec. 792.116. - Administrative provisions, rights and remedies.

With respect to any assessment or denial of refund of the tax as well as to any informal dispute resolution procedure initiated hereunder the dealer shall be entitled to be notified of the assessment, denial of refund, regarding date, time and place of any informal dispute conference, and of decision regarding final disposition of any informal dispute. Except for the notice regarding a schedule conference all notices shall clearly define the action being taken by the City, a summary of the factual and/or legal reasons for the action and shall further advise the dealer of his right to challenge the noticed action either under the informal procedures provided for by this Section and/or by reference to judicial and administrative remedies under F.S. §§ 72.011—72.031 and F.S. § 166.234.

(Ord. 98-226-E, § 1)

Sec. 790.113. - Use of certain portions of water service tax. Chapter 793 - COMMUNICATIONS SERVICES TAX