(1) The following taxes are imposed on motor fuel under the circumstances described in subsection (6):
(a) An excise or license tax of 2 cents per net gallon, which is the tax as levied by s. 16, Art. IX of the State Constitution of 1885, as amended, and continued by s. 9(c), Art. XII of the State Constitution, as amended, which is therein referred to as the “second gas tax,” and which is hereby designated the “constitutional fuel tax.”
(b) An additional tax of 1 cent per net gallon, which is designated as the “county fuel tax” and which shall be used for the purposes described in s. 206.60.
(c) An additional tax of 1 cent per net gallon, which is designated as the “municipal fuel tax” and which shall be used for the purposes described in s. 206.605.
(d) An additional tax of 1 cent per net gallon may be imposed by each county on motor fuel, which shall be designated as the “ninth-cent fuel tax.” This tax shall be levied and used as provided in s. 336.021.
(e) An additional tax of between 1 cent and 11 cents per net gallon may be imposed on motor fuel by each county, which shall be designated as the “local option fuel tax.” This tax shall be levied and used as provided in s. 336.025.
(f)1. An additional tax designated as the State Comprehensive Enhanced Transportation System Tax is imposed on each net gallon of motor fuel in each county. This tax shall be levied and used as provided in s. 206.608.
2. The rate of the tax in each county shall be equal to two-thirds of the lesser of the sum of the taxes imposed on motor fuel pursuant to paragraphs (d) and (e) in such county or 6 cents, rounded to the nearest tenth of a cent.
3. Beginning January 1, 1992, and on January 1 of each year thereafter, the tax rate provided in subparagraph 2. shall be adjusted by the percentage change in the average of the Consumer Price Index issued by the United States Department of Labor for the most recent 12-month period ending September 30, compared to the base year average, which is the average for the 12-month period ending September 30, 1990, and rounded to the nearest tenth of a cent.
4. The department shall notify each terminal supplier, position holder, wholesaler, and importer of the tax rate applicable under this paragraph for the 12-month period beginning January 1.
(g)1. An additional tax is imposed on each net gallon of motor fuel, which tax is on the privilege of selling motor fuel and which is designated the “fuel sales tax,” at a rate determined pursuant to this paragraph. Before January 1 of 1997, and of each year thereafter, the department shall determine the tax rate applicable to the sale of fuel for the forthcoming 12-month period beginning January 1, rounded to the nearest tenth of a cent, by adjusting the initially established tax rate of 6.9 cents per gallon by the percentage change in the average of the Consumer Price Index issued by the United States Department of Labor for the most recent 12-month period ending September 30, compared to the base year average, which is the average for the 12-month period ending September 30, 1989. However, the tax rate shall not be lower than 6.9 cents per gallon.
2. The department is authorized to adopt rules and adopt such forms as may be necessary for the administration of this paragraph.
3. The department shall notify each terminal supplier, position holder, wholesaler, and importer of the tax rate applicable under this paragraph for the 12-month period beginning January 1.
(h) An additional 0.125 cents per net gallon is levied on all motor fuel for sale or use in this state for the purpose of defraying the expenses incident to inspecting, testing, and analyzing motor fuel in this state. All moneys collected pursuant to this paragraph shall be deposited into the State Treasury. Such moneys shall be distributed monthly into the General Inspection Trust Fund.
(2) Revenues from these taxes become state funds at the time of collection by the terminal supplier, importer, or wholesaler, who shall act as agent for the state in the collection of such taxes whether he or she is the ultimate seller or not. For purposes of this chapter, the term “first sale” or “first removal” shall be the net amount of motor fuel pumped from the loading rack. The term “first sale” does not include exchanges or loans, gallon-for-gallon, of motor fuel between licensed terminal suppliers before the fuel has been sold or removed through the loading rack or transfers between terminal facilities owned by the same taxpayer. The tax on motor fuel first imported into this state by a licensed terminal supplier storing such fuel in a terminal facility shall be imposed when the product is first removed through the loading rack. The tax shall be remitted by the licensed terminal supplier who owned the motor fuel immediately prior to removal of such fuel from storage.
(3) Motor fuel contained in the fuel tanks of any motor vehicle entering this state and used to propel such motor vehicle into Florida from another state shall be exempt from the taxes imposed by this part. Motor fuel supplied by a vehicle manufacturer and contained in the fuel tanks of a new and untitled 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 the vehicle.
(4)(a) Nothing in this part shall be construed to change the legal incidence of the tax and the right to a refund by a qualifying ultimate consumer. The legal incidence of the tax shall be on the ultimate consumer; however, the tax shall be precollected for administrative convenience prior to the sale to the ultimate consumer.
(b) Any person who uses motor fuel on which the taxes imposed by paragraph (1)(e), paragraph (1)(f), or paragraph (1)(g) have been paid for any system of mass public transportation authorized to operate within any city, town, municipality, county, or transit authority region in this state, as distinguished from any over-the-road or charter system of public transportation, is entitled to a refund of such taxes. However, such transit system shall be entitled to take a credit on the monthly diesel fuel tax return not to exceed the tax imposed under said paragraphs on those gallons which would otherwise be eligible for refund, when such transit system is licensed as a mass transit system. A public transportation system or transit system as defined in this paragraph may operate outside its limits when such operation is found necessary to adequately and efficiently provide mass public transportation services for the city, town, or municipality involved. A transit system as defined in this paragraph includes demand service that is an integral part of a city, town, municipality, county, or transit or transportation authority system but does not include independent taxicab or limousine operations. The terms “city,” “county,” and “authority” as used in this paragraph include any city, town, municipality, county, or transit or transportation authority organized in this state by virtue of any general or special law enacted by the Legislature.
(c)1. Any person who uses any motor fuel for agricultural, aquacultural, commercial fishing, or commercial aviation purposes on which fuel the tax imposed by paragraph (1)(e), paragraph (1)(f), or paragraph (1)(g) has been paid is entitled to a refund of such tax.
2. For the purposes of this paragraph, “agricultural and aquacultural purposes” means motor fuel used in any tractor, vehicle, or other farm equipment which is used exclusively on a farm or for processing farm products on the farm, and no part of which fuel is used in any vehicle or equipment driven or operated upon the public highways of this state. This restriction does not apply to the movement of a farm vehicle, farm equipment, citrus harvesting equipment, or citrus fruit loaders between farms. The transporting of bees by water and the operating of equipment used in the apiary of a beekeeper shall be also deemed an agricultural purpose.
3. For the purposes of this paragraph, “commercial fishing and aquacultural purposes” means motor fuel used in the operation of boats, vessels, or equipment used exclusively for the taking of fish, crayfish, oysters, shrimp, or sponges from salt or fresh waters under the jurisdiction of the state for resale to the public, and no part of which fuel is used in any vehicle or equipment driven or operated upon the highways of this state; however, the term may in no way be construed to include fuel used for sport or pleasure fishing.
4. For the purposes of this paragraph, “commercial aviation purposes” means motor fuel used in the operation of aviation ground support vehicles or equipment, no part of which fuel is used in any vehicle or equipment driven or operated upon the public highways of this state.
(d) The portion of the tax imposed by paragraph (1)(g) which results from the collection of such taxes paid by a municipality or county on motor fuel or diesel fuel for use in a motor vehicle operated by it shall be returned to the governing body of such municipality or county for the construction, reconstruction, and maintenance of roads and streets within the municipality or county. A municipality or county, when licensed as a local government user, shall be entitled to take a credit on the monthly diesel fuel tax return not to exceed the tax imposed under paragraphs (1)(b) and (g) on those gallons which would otherwise be eligible for refund.
(e)1. The portion of the tax imposed by paragraph (1)(g) which results from the collection of such tax paid by a school district or a private contractor operating school buses for a school district or by a nonpublic school on motor fuel or diesel fuel for use in a motor vehicle operated by such district, private contractor, or nonpublic school shall be returned to the governing body of such school district or to such nonpublic school. A school district, when licensed as a local government user, shall be entitled to take a credit on the monthly diesel fuel tax return not to exceed the tax imposed under paragraphs (1)(b) and (g) on those gallons which would otherwise be eligible for refund.
2. Funds returned to school districts shall be used to fund construction, reconstruction, and maintenance of roads and streets within the school district required as a result of the construction of new schools or the renovation of existing schools. The school board shall select the projects to be funded; however, the first priority shall be given to projects required as the result of the construction of new schools, unless a waiver is granted by the affected county or municipal government. Funds returned to nonpublic schools shall be used for transportation-related purposes.
(5)(a)1. This subsection applies to administration of the refunds provided for by subsection (4). To procure a permit, a person must file with the department an application, on forms furnished by the department, stating that he or she is entitled to a refund according to the provisions of subsection (4) and that he or she intends to file an application for refund for a calendar quarter during the current calendar year, and must furnish the department such other information as the department requests.
2. No person may in any event be allowed a refund unless he or she has filed the application provided for in subparagraph 1. with the department. A permit shall be effective for the year issued by the department and shall be continuous from year to year so long as the permitholder files refund claims from year to year. In the event the permitholder fails to file a claim for any year, he or she must apply for a new permit.
3. If an applicant for a refund permit has violated any provision of this subsection or any regulation pursuant hereto; or has been convicted of bribery, theft, or false swearing within the period of 5 years preceding the application; or if the department has evidence of the financial irresponsibility of the applicant, the department may require the applicant to execute a corporate surety bond of $1,000 to be approved by the department, conditioned upon the payment of all taxes, penalties, and fines for which such applicant may become liable.
(b)1. When motor fuel or diesel fuel is sold to a person who claims to be entitled to a refund under subsection (4), the seller of such motor fuel or diesel fuel shall make out a sales invoice, which shall contain the following information:
a. The name, post office address, and residence address of the purchaser.
b. The number of gallons purchased.
c. The date on which the purchase was made.
d. The price paid for the motor fuel or diesel fuel.
e. The name and place of business of the seller of the motor fuel or diesel fuel.
f. The license number, or other identification number, of the motor vehicle or boat of the purchaser.
g. The Department of Environmental Protection storage tank facility identification number for the seller’s location, if the location is required to be registered in accordance with s. 376.303.
2. The sales invoice shall be retained by the purchaser until the department’s power to issue an assessment with respect to such tax has terminated pursuant to s. 95.091(3). In lieu of original sales invoices, a purchaser may submit a detailed schedule of individual transactions which includes the information required by subparagraph 1. along with the refund application. No refund will be allowed unless the seller has executed such an invoice and unless proof of payment of the taxes for which the refund is claimed can be provided to the department upon request. The department may refuse to grant a refund in whole or in part if the schedule or an invoice is incomplete and fails to contain the full information required in this paragraph.
3. No person may execute a sales invoice, as described in subparagraph 1., except a terminal supplier, importer, exporter, wholesaler, reseller, or retail dealer.
4. When motor fuel or diesel fuel is sold by a retail dealer to a person who claims to be entitled to a refund under subsection (4), a detailed schedule of individual purchase transactions including names, addresses, Department of Environmental Protection storage tank facility identification number of the station, date of purchase, invoice number, and number of gallons purchased may be provided the department by the permitted refund applicant in lieu of the original invoices.
5. Notwithstanding provisions of this paragraph to the contrary, refunds to a school district for fuel consumed by school buses operated for the district by private contractors shall be based on an estimate of taxes paid. The estimate shall be determined quarterly by dividing the total miles traveled by such vehicles for school purposes by their average miles per gallon, as determined by the department, and multiplying the result by the applicable tax rate per gallon. It is the responsibility of the school district to provide information relevant to this determination.
(c)1. No refund may be authorized unless a sworn application therefor containing such information as the department may determine is filed with the department not later than the last day of the month following the quarter for which the refund is claimed. However, when a justified excuse for late filing is presented to the department and the last preceding claim was filed on time, the deadline for filing may be extended an additional month. No refund will be authorized unless the amount due is for $5 or more for any refund period and unless application is made upon forms prescribed by the department.
2. Claims made for refunds provided pursuant to subsection (4) shall be paid quarterly.
(d) The right to receive any refund under the provisions of this subsection is not assignable, except to the executor or administrator, or to the receiver, trustee in bankruptcy, or assignee in an insolvency proceeding, of the person entitled to the refund.
(e)1. Each terminal supplier, importer, blender, exporter, or wholesaler shall, in accordance with the requirements of the department, keep at his or her principal place of business in this state or at the bulk plant where the sale is made a complete record of or duplicate sales tickets for all motor fuel or diesel fuel sold by him or her for which a refund provided in this section may be claimed, which records must give the date of each such sale, the number of gallons sold, the name of the person to whom sold, and the sale price. A terminal supplier, importer, blender, exporter, or wholesaler, or his or her agent or employee, may not acknowledge or assist in the preparation of any false or fraudulent claim for tax refund. Any terminal supplier, importer, blender, exporter, or wholesaler, or his or her agent or employee, that has knowledge or should have had knowledge that a refund is false or fraudulent shall in addition to other penalties be jointly liable with the refund recipient to the state for the tax improperly refunded.
2. Every person to whom a refund permit has been issued under this subsection shall, in accordance with the requirements of the department, keep at his or her residence or principal place of business in this state a record of each purchase of motor fuel or diesel fuel from a terminal supplier, importer, blender, exporter, or wholesaler, or his or her authorized agent; the number of gallons purchased; the name of the seller; the date of the purchase; and the sale price.
3. The records required to be kept under this paragraph are subject, at all reasonable hours, to audit or inspection by the department or by any person duly authorized by the department. Such records shall be preserved and may not be destroyed until the period specified in s. 215.26(2) has elapsed.
4. The department shall keep a permanent record of the amount of refund claimed and paid to each claimant. Such records are open to public inspection.
(f) Agents of the department are authorized to go upon the premises of any permitholder or terminal supplier, importer, blender, exporter, or wholesaler, or duly authorized agent thereof, to make inspection to ascertain any matter connected with the operation of this subsection or the enforcement hereof. However, no agent may enter the dwelling of any person without the consent of the occupant or authority from a court of competent jurisdiction.
(g) If any taxes are refunded erroneously, the department shall advise the payee by registered mail of the erroneous refund. If the payee fails to reimburse the state within 15 days after the receipt of the letter, an action may be instituted by the department against such payee in the circuit court, and the department shall recover from the payee the amount of the erroneous refund plus a penalty of 25 percent.
(h) No person shall:
1. Knowingly make a false or fraudulent statement in an application for a refund permit or in an application for a refund of any taxes under this section;
2. Fraudulently obtain a refund of such taxes;
3. Knowingly aid or assist in making any such false or fraudulent statement or claim; or
4. Buy motor fuel or diesel fuel to be used for any purpose other than as provided in subsection (4).
(i) The refund permit of any person who violates any provision of this subsection shall be revoked by the department and may not be reissued until 2 years have elapsed from the date of such revocation. The refund permit of any person who violates any other provision of this chapter may be suspended by the department for any period, in its discretion, not exceeding 6 months.
(j) The department shall prescribe a permit form which shall be used to secure refunds under this subsection.
(6) Unless otherwise provided for by this chapter, the taxes specified in subsection (1) are imposed on all of the following:
(a) The removal of motor fuel in this state from a terminal if the motor fuel is removed at the rack.
(b) The removal of motor fuel in this state from any refinery if either of the following applies:
1. The removal is by bulk transfer and the owner of the motor fuel immediately before the removal is not a licensed terminal supplier; or
2. The removal is at the refinery rack.
(c) The entry of motor fuel into this state for sale, consumption, use, or warehousing if either of the following applies:
1. The entry is by bulk transfer and the enterer is not licensed as a terminal supplier or importer; or
2. The entry is not by bulk transfer.
(d) The removal of motor fuel in this state to an unregistered person, unless there was a prior taxable removal, entry, or sale of the motor fuel.
(e) The removal or sale of blended motor fuel in this state by the blender thereof. The number of gallons of blended motor fuel subject to tax is the difference between the total number of gallons of blended motor fuel removed or sold and the number of gallons of previously taxed motor fuel used to produce the blended motor fuel.
History.—s. 9, ch. 7905, 1919; s. 3, ch. 10134, 1925; CGL 3965; s. 1, ch. 15659, 1931; CGL 1936 Supp. 1167(16); s. 1, ch. 18298, 1937; CGL 1940 Supp. 1167(29a); s. 1, ch. 20303, 1941; s. 1, ch. 24176, 1947; s. 2, ch. 57-162; ss. 23, 35, ch. 69-106; s. 18, ch. 69-216; s. 1, ch. 70-342; s. 1, ch. 70-995; s. 3, ch. 75-286; s. 97, ch. 81-259; s. 11, ch. 83-3; s. 102, ch. 85-342; s. 38, ch. 86-152; s. 56, ch. 87-99; s. 3, ch. 91-82; s. 3, ch. 92-184; s. 74, ch. 92-291; s. 5, ch. 95-146; s. 1075, ch. 95-147; ss. 40, 135, ch. 95-417; s. 8, ch. 96-323; s. 4, ch. 97-54; s. 1, ch. 2007-31; s. 2, ch. 2012-83; s. 7, ch. 2012-174; s. 1, ch. 2013-251; s. 15, ch. 2017-36.
Note.—Former s. 208.04; paragraph (1)(h) former s. 525.09(1).
...The County has the discretion to use such funds as it sees fit for the construction and maintenance of roads throughout the County. Id The County also receives revenue from the State's "county fuel tax" paid by all County residents. [17] Fla. Stat. ง 206.41(b)....
...It may be used for any transportation related purpose within the County. Fla. Stat. ง 206.60. The County also receives a portion of the State's "municipal fuel tax" as a result of its status as the municipal government of the unincorporated area. Fla. Stat. ง 206.41(c)....
...Finally, the County receives the proceeds of the State's "local option fuel tax," paid by all County residents, that it shares with eligible cities to be used for a variety of transportation *1283 purposes pursuant to Fla. Stat. ง 336.025(7). Fla. Stat. ง 206.41(e)....
...If North Dade is incorporated, the new city will include over 100,000 residents, making it the third largest city in the County, after Miami and Hialeah. Several other incorporations are actively being considered, including East Kendall, West Kendall, the Redlands, Northwest Dade and North Central Dade. [17] Section 206.41, entitled, "State taxes imposed on motor fuel" reads in pertinent part as follows: (1) The following taxes are imposed on motor fuel under the circumstances described in subsection (6): (a) An excise or license tax of 2 cents per net gallon, which is the tax as levied by s....
...facilities, roads, bridges, and paths. See, e.g., Fla. Const. Art. 12, § 9(c)(5); Fla.
Stat. §§ 206.60(1)(b)(1), 206.605(1), (2). For administrative convenience, the State
precollects the tax from suppliers of fuel before the suppliers sell the fuel to
consumers. See Fla. Stat. § 206.41(4)(a), (6)....
...s fuel at a retail gas
station. Even though the Department precollects the tax from a supplier before the
fuel is sold to the ultimate consumer, Florida law provides that the “legal incidence
of the tax” is “on the ultimate consumer.” Id. § 206.41(4)(a).
Florida law exempts some consumers, but not the Tribe, from the fuel tax. If
a consumer is exempt from the tax, then the consumer may obtain a refund from
the Department for the amount of fuel taxes the consumer has paid. Id.
§ 206.41(4), (5)....
...3
Case: 13-10566 Date Filed: 05/05/2014 Page: 4 of 34
municipality for fuel used in a municipal vehicle, and the municipality uses that
refund for the construction and maintenance of roadways within its borders. Id.
§ 206.41(4)(d). Likewise, any consumer who uses fuel for agricultural,
aquacultural, commercial fishing, or commercial aviation purposes is exempt from
the tax and eligible for a refund from the Department. Id. § 206.41(4)(c).
Florida law does not exempt the Tribe from the fuel tax, and the Department
has refused to refund taxes the Tribe paid when it purchased fuel at gas stations
located off tribal lands....
...at 1639 (“Ex parte Young cannot be used
to obtain an injunction requiring the payment of funds from the State’s treasury.”).
A declaratory ruling that the Tribe is exempt from the tax would amount to a
judgment that the Tribe is entitled to a refund under Florida law. See Fla. Stat.
§ 206.41(4), (5). The tax is precollected from suppliers of fuel, so every consumer
must pay the tax at the pump, and any exempt consumer may then collect a refund
after-the-fact. Id. § 206.41(5)....
...at already have been assessed, is
prospective, and therefore available under the Ex parte Young doctrine.”). The
only distinction here is that Florida precollects its fuel tax from suppliers for mere
“administrative convenience,” Fla. Stat. § 206.41(4)(a), but that is a distinction
without a difference, and the majority’s opinion therefore creates a circuit split.
25
Case: 13-10566 Date Filed: 05/05/2014 Page: 26 of 34...
...for the circuit court to enter summary judgment in favor of the Department. On July 12, 2007, the School Board filed a request for a refund of motor fuel taxes paid during the two quarters ending in December 31, 2006, and March 31, 2007, pursuant to section 206.41, Florida Statutes (2006). In a final agency decision, the Department denied the School Board's request for a refund of motor fuel taxes paid during those two quarters. The Department denied the refund because the requests were time-barred under subsection 206.41(5)(c)(1)....
...sues of any material facts and they were entitled to summary judgment as a matter of law. The circuit court granted the School Board's motion, denied the Department's motion, and entered a final judgment in favor of the School Board, finding that subsection 206.41(5)(c)(1) did not apply to the School Board. The Department *688 then brought this appeal, arguing that by its plain meaning subsection (5)(c)(1) applies to the School Board. Subsection 206.41(4) provides for refunds on motor fuel taxes....
...ict." Finally, subsection (4)(e)(1) notes that "[a] school district . . . shall be entitled to take a credit on the monthly diesel fuel tax return not to exceed the tax imposed . . . on those gallons which would otherwise be eligible for refund." Subsection 206.41(5) provides the mechanism by which these refunds may be claimed: (5)(a)1....
...No refund will be authorized unless the amount due is for $5 or more for any refund period and unless application is made upon forms prescribed by the department. It is undisputed that the School Board's refund requests for the quarters ending in December 31, 2006, and March 31, 2007, were untimely filed under subsection 206.41(5)(c)(1)....
...7, respectively. But the School Board filed its requests on July 12, 2007. The requests did not include any excuse for late filing, and they would have been untimely even if the School Board had been granted a one-month extension as allowed under subsection 206.41(5)(c)(1). The circuit court nonetheless granted the School Board's motion for summary judgment, finding that subsection 206.41(5)(c)(1) did not apply to the School Board....
...Second, the court found that failing to return the funds to the School Board would constitute forfeiture. We review the circuit court's decision de novo. See Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 869 (Fla. 2d DCA 2010). For the reasons set forth below, we hold that the plain language of subsection 206.41(5)(c)(1) applies to the School Board and, accordingly, the School Board is not entitled to a refund of the motor fuel taxes it paid during the two quarters in question. Instead, the Department is entitled to summary judgment as a matter of law. See id. *689 The phrases "shall be returned" and "is entitled to a refund" are used interchangeably throughout section 206.41. Even subsection (4)(e)(1) that the circuit court relies on uses the word "return" as well as "refund" to reference a school district's entitlement to funds. Section 206.41 does not provide any alternative mechanism to request the "return" of funds as opposed to a "refund." There is simply no substantive difference between the terms used....
...A "basic rule of statutory construction requires a court to avoid a literal interpretation that would result in an absurd or ridiculous conclusion." M.D. v. State, 993 So.2d 1061, 1063 (Fla. 1st DCA 2008). Here, the circuit court's interpretation of subsections 206.41(4)-(5) would allow for an automatic return of the funds to the School Board at any time whatsoever....
...("[W]hen a statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent, or resort to rules of statutory construction to ascertain intent insofar as this would constitute an abrogation of legislative power."). Moreover, section 206.41 does not provide any alternative mechanism to request the "return" of funds as opposed to a "refund." Subsection (5)(c)(1) delineates the sole method of requesting the funds....
...d or return of the motor fuel taxes it paid during the two quarters in question. And finally, we reject the argument that the School Board has forfeited the funds. The circuit court's reliance on criminal forfeiture cases has no application here. Subsection 206.41(2) provides that the revenues from motor fuel taxes "become state funds at the time of collection." Because the School Board's refund requests were untimely filed, we reverse the final judgment entered in favor of the School Board and...
Published | Court of Appeals for the Eleventh Circuit
...facilities, roads, bridges, and paths. See, e.g., Fla. Const. Art. 12, § 9(c)(5); Fla.
Stat. §§ 206.60(1)(b)(1), 206.605(1), (2). For administrative convenience, the State
precollects the tax from suppliers of fuel before the suppliers sell the fuel to
consumers. See Fla. Stat. § 206.41(4)(a), (6)....
...s fuel at a retail gas
station. Even though the Department precollects the tax from a supplier before the
fuel is sold to the ultimate consumer, Florida law provides that the “legal incidence
of the tax” is “on the ultimate consumer.” Id. § 206.41(4)(a).
Florida law exempts some consumers, but not the Tribe, from the fuel tax. If
a consumer is exempt from the tax, then the consumer may obtain a refund from
the Department for the amount of fuel taxes the consumer has paid. Id.
§ 206.41(4), (5)....
...3
Case: 13-10566 Date Filed: 05/05/2014 Page: 4 of 34
municipality for fuel used in a municipal vehicle, and the municipality uses that
refund for the construction and maintenance of roadways within its borders. Id.
§ 206.41(4)(d). Likewise, any consumer who uses fuel for agricultural,
aquacultural, commercial fishing, or commercial aviation purposes is exempt from
the tax and eligible for a refund from the Department. Id. § 206.41(4)(c).
Florida law does not exempt the Tribe from the fuel tax, and the Department
has refused to refund taxes the Tribe paid when it purchased fuel at gas stations
located off tribal lands....
...at 1639 (“Ex parte Young cannot be used
to obtain an injunction requiring the payment of funds from the State’s treasury.”).
A declaratory ruling that the Tribe is exempt from the tax would amount to a
judgment that the Tribe is entitled to a refund under Florida law. See Fla. Stat.
§ 206.41(4), (5). The tax is precollected from suppliers of fuel, so every consumer
must pay the tax at the pump, and any exempt consumer may then collect a refund
after-the-fact. Id. § 206.41(5)....
...at already have been assessed, is
prospective, and therefore available under the Ex parte Young doctrine.”). The
only distinction here is that Florida precollects its fuel tax from suppliers for mere
“administrative convenience,” Fla. Stat. § 206.41(4)(a), but that is a distinction
without a difference, and the majority’s opinion therefore creates a circuit split.
25
Case: 13-10566 Date Filed: 05/05/2014 Page: 26 of 34...
1968 Florida Constitution as amended, and Section 206.41, Florida Statutes (1983), the state imposes
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. For legal consultation, call 904-383-7448.
