92.086. List of municipalities with business license tax ordinances to be published--revenue director to collect tax, when--basis for tax--rulemaking authority--intent of general assembly--review of r
List of municipalities with business license tax ordinances to bepublished--revenue director to collect tax, when--basis fortax--rulemaking authority--intent of general assembly--review ofrevenue collected--audit authority.
92.086. 1. On or before January 1, 2006, the director shall publish alist of the municipalities which have, prior to August 28, 2005, enactedordinances imposing a business license tax on a telecommunications company.The list shall contain:
(1) The name of the municipality imposing the tax;
(2) The name of the tax as denoted by the municipality;
(3) The citation to the municipal code provisions imposing the tax; and
(4) The percentage of gross receipts.
The director shall not be required to include any figures for the percentageof gross receipts if the municipality in question at the time of August 28,2005, had an ordinance which imposed a flat fee instead of a fee based ongross receipts as its business license tax. In compiling the list, thedirector shall collect information from telecommunications companies,municipalities, municipal codes, and other reliable sources.
2. (1) On or before February 1, 2006, all telecommunications companiesin Missouri shall provide the director and the state auditor with the amountof municipal business license tax which they paid each Missouri municipalityidentified by the director in accordance with subsection 1 of this section forthe previous four quarters. On or before February 1, 2006, alltelecommunications companies in Missouri shall provide the director and thestate auditor with an itemized list establishing their gross receipts for theprevious four quarters for each category of gross receipts in eachmunicipality identified by the director in accordance with subsection 1 ofthis section upon which a sales tax is paid.
(2) On or before February 1, 2006, each municipality shall provide thedirector and state auditor with the total amount of tax revenue collected forthe previous fiscal year of taxable gross receipts from telecommunicationscompanies. Any inconsistency or dispute arising from the information providedby the municipalities and telecommunications companies shall be resolvedthrough an audit performed by the state auditor.
3. Beginning on July 1, 2006, the director shall henceforth collect,administer, and distribute telecommunications business license tax revenues inaccordance with the provisions of sections 92.074 to 92.095.
4. Notwithstanding the provisions of any municipal business license taxordinance, effective July 1, 2006, all business license taxes shall be basedsolely and exclusively on those gross receipts of telecommunications companiesfor the retail sale of telecommunications services which are subject totaxation under sections 144.010 and 144.020, RSMo. Any provisions in anymunicipal taxing ordinances which provide different definitions, rules, orprovisions are expressly preempted and are null and void.
5. The director is authorized to promulgate regulations to establish theappropriate procedures for collecting, administering, and distributing suchtaxes. A telecommunications company shall file a quarterly return with thedirector with an attached schedule setting forth the total amount of taxablegross receipts for the quarter and the amount of business license tax due toeach municipality. The director shall distribute the appropriate amounts, asset forth in this section, to the municipalities. In exchange for itscollection, administration, and distribution functions, the department ofrevenue shall retain a collection fee of up to one percent (not to exceed theactual costs incurred) on all funds collected and distributed and shall beallowed to collect the interest off such funds during the time betweencollection and distribution. In no event shall the director fail todistribute the collected funds to a municipality more than thirty days afterthe collection of the funds.
6. It is the intent of the general assembly that sections 92.074 to92.095 comply with article X, section 22 of the Missouri Constitution, so thatthe application of sections 92.074 to 92.095 shall have a revenue-neutraleffect. Because business license taxes shall now be based on the grossreceipts subject to the sales tax, it is anticipated that the base of theexisting business license taxes in most cases shall be broadened, so in orderto comply with article X, section 22 of the Missouri Constitution, themunicipality shall adjust the gross receipts percentage rate identified by thedirector in accordance with subsection 2 of this section so that the amountcollectible, in total from all telecommunications companies, excluding thecollection fee authorized in subsection 5 as defined herein, before andimmediately after enactment remains the same in each municipality. If thedetermination is made by a municipality that in order to comply with articleX, section 22 of the Missouri Constitution the gross receipts percentage ratemust be increased, such increase shall be passed by a majority vote of thequalified voters voting in that municipality. The existing tax base shall bean amount equal to the total amount of telecommunications business licensetaxes collected by a municipality for fiscal year 2005, increased by fiftypercent of the difference between such amount and the business license taxreceipts that would have been yielded by applying the gross receiptspercentage rate identified in accordance with subsection 1 of this section tothe total gross receipts for all wireless telecommunications services providedby telecommunications companies as identified in 47 U.S.C. Section 332(D)(1)and 47 C.F.R. Parts 22 or 24 in such fiscal year attributable to themunicipality. Based upon the rate information received from the directorunder this section, each municipality shall, no later than April 1, 2006,promulgate and publish the revenue-neutral rates to be applied in eachmunicipality. Such tax rates shall be the applicable business license taxrate for bills rendered on or after July 1, 2006. Any percentages in anyordinance that are contrary to that established by the municipality herein arenull and void. If any municipal business license tax ordinance as of January1, 2005, had a provision stating that the tax only applied to businesscustomers, the new calculated rate under this section also shall be determinedbased only on business customers and shall apply only to business customers.
7. On or before April 1, 2007, the director, in consultation with thestate auditor and municipalities, shall examine revenues collected andforecast whether a shortfall or excess in municipal revenues for eachmunicipality is likely to occur for the fiscal year ending June 30, 2007, dueto data reporting errors or other errors in the calculation of therevenue-neutral tax rate. Section 32.057, RSMo, shall not restrict thedisclosure of information to perform such consultation. If a shortfall orexcess is expected, the director, after review and comment from municipalitiesand telecommunications companies, shall promulgate and publish an adjustmentin the rate in such municipalities. Such tax rate adjustment, if necessary,shall apply to bills issued after July 1, 2007.
8. The director shall be notified in writing within thirty days of anychange in the municipal business license tax rate adopted by a municipality.The director shall promulgate such rate changes, but such rate changes mayonly take effect on the first day of a calendar quarter and only after aminimum of ninety days notice from the director to a telecommunicationscompany. Any subsequent increase in the business license tax rate passedthrough an ordinance by a municipality which is above that rate as establishedby the municipality under subsection 6 of this section shall be passed by amajority vote of the qualified voters voting in that municipality. Nomunicipal tax rate shall exceed the cap provided in subsection 9 of thissection.
9. Notwithstanding the provisions of subsections 3 to 8 of this sectionor any other provision of law to the contrary, for any municipality notsubject to the provisions of subsection 10 of this section, the maximum rateof taxation on gross receipts shall not exceed five percent for bills renderedon or after July 1, 2006, except if the business license tax rate for anymunicipality, as calculated in subsection 6 of this section, or if necessary,subsection 7 of this section, is determined to be greater than five percent,then, notwithstanding the provisions of such subsections, the business licensetax rates for such municipality on and after July 1, 2006, shall be asfollows:
(1) For bills rendered between July 1, 2006, and June 30, 2008, the rateshall be the actual adjusted rate as determined by subsection 6 of* thissection, or, if necessary, subsection 7 of this section;
(2) For bills rendered between July 1, 2008, and June 30, 2010, the rateshall be half the sum of the rate determined in subdivision (1) of thissubsection and five percent; and
(3) For all bills rendered on and after July 1, 2010, five percent.
10. (1) Any municipality which prior to November 4, 1980, had anordinance imposing a business license tax on telecommunications companieswhich specifically included the words "wireless", "cell phones", or "mobilephones" in its business license tax ordinance as revenues upon which abusiness license tax could be imposed, and had not limited its tax to localexchange telephone service or landlines, and had taken affirmative action tocollect such tax from wireless telecommunications providers prior to January15, 2005, shall not be required to adjust its business license tax rate asprovided in subsection 6 of this section and shall not be subject to theprovisions of subsection 9 of this section.
(2) Any municipality which has an ordinance or an amendment to anordinance imposing a business license tax on telecommunications companieswhich was authorized or amended by a public vote subsequent to November 4,1980, and such authorization specifically included the terms "wireless", "cellphones", or "mobile telephones" as revenues upon which a business license taxcould be imposed, and had not limited its tax to local exchange telephoneservice or landlines, and had taken affirmative action to collect such taxfrom wireless telecommunications providers prior to January 15, 2005, shallnot be required to adjust its business license tax rate as provided insubsection 6 of this section and shall not be subject to the provisions ofsubsection 9 of this section.
11. For purposes of sections 92.074 to 92.095, the director and anymunicipality shall have the authority to audit any telecommunications company. Notwithstanding the provisions of section 32.057, RSMo, the director ofrevenue shall furnish any municipality with information it requests to permitthe municipality to review and audit the payments of any telecommunicationscompany.
12. The statute of limitations shall be three years for the allegednonpayment or underpayment of the business license tax.
13. Any telecommunications company is authorized to pass through to itsretail customers all or part of the business license tax.
14. The provisions of subsection 5 of section 144.190, RSMo, andsubdivision (3) of subsection 12 of section 32.087, RSMo, shall apply to thetax imposed under sections 92.074 to 92.095.
15. Unless specifically stated otherwise in sections 92.074 to 92.095,taxpayer remedies, enforcement mechanisms, tax refunds, tax protests,assessments, and all other procedures shall be the same as those provided inchapter 144, RSMo.
16. Any rule or portion of a rule, as that term is defined in section536.010, RSMo, that is created under the authority delegated in this sectionshall become effective only if it complies with and is subject to all of theprovisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo.This section and chapter 536, RSMo, are nonseverable and if any of the powersvested with the general assembly pursuant to chapter 536, RSMo, to review, todelay the effective date, or to disapprove and annul a rule are subsequentlyheld unconstitutional, then the grant of rulemaking authority and any ruleproposed or adopted after August 28, 2005, shall be invalid and void.
(L. 2005 H.B. 209)*Word "or" appears in original rolls.
(2006) Subsection 10 of section 92.086, RSMo, is a special law prohibited under subdivision (30), section 40, article III, Constitution of Missouri. Under the nonseverability clause in section 92.092, RSMo, sections 92.074, 92.077, 92.080, 92.083, 92.086, and 92.089, RSMo, are invalid in their entirety. City of Springfield v. Spring Spectrum, L.P., 203 S.W.3d 177 (Mo.banc).