Amid film incentives debate, questions arise over what constitutes a tax increase

On Friday morning, the House Appropriations Committee approved PCB APC 23-05, a new bill filed the evening before.

“Elimination of State Tax Exemptions,” would remove Florida’s Qualified Production Company Sales Tax Exemption from law. The provision was previously a part of the omnibus HB 5.

However, according to the House of Representatives professional staff analysis for HB 5, the bill contained a tax increase by virtue of a provision to eliminate a state tax exemption.

Procedurally, due to a relatively new provision adopted by voters, Florida Constitution single subject bills and a supermajority legislative vote are required to impose or raise a tax; that “raise” means: c. To decrease or eliminate a state tax or fee exemption or credit.

Therefore, the tax increase removed from HB 5 was offered as a stand-alone measure in PCB APC 23-05.

Opponents of APC23-05 say eliminating the program will raise taxes on thousands of small businesses that peripherally work in the film and television production industry in Florida.

Rep. Randy Fine, speaking for the measure referred to the tax exemption program as a “loophole” and disagreed with some members of the House Appropriations Committee who believe the bill constitutes a tax increase.

Fine said the bill was broken out from HB 5 as a matter of precaution, something required of a tax increase.

The House’s staff analysis of APC23-05 states: “This bill raises a tax or fee requiring a two-thirds vote of the membership of the House.”

Florida TaxWatch President & CEO Dominic Calabro says: “Per recent changes to the Florida Constitution, eliminating a tax exemption is considered an increase in taxes and would require a two-thirds supermajority vote of both houses.”

Rep. Christine Hunschofsky questioned: “Even though staff has said that the reason we have to have this separate bill is because of Article VII, Section 19, that you have to have a separate bill whenever imposing, authorizing, or raising a state tax or fee, and in this case, we are asking someone to pay more money than they would have paid prior to this, and you are rejecting that staff analysis?”

Rep. Bob Rommel, one of 25 current Republicans in the House who have taken Grover Norquist’s Americans for Tax Reform pledge to not raise taxes, said “I would argue that removing an incentive is not a tax increase.”

ATR was founded in 1985 by Norquist at the request of President Ronald Reagan about the Taxpayer Protection Pledge.

Fine indicated although it’s now in a single-subject bill, the new measure to raise taxes would relate to another new measure, APC9, to increase the Brownfields Tax Credit Program. 

The Florida constitution does not contemplate a tax swap comprised of two otherwise unrelated bills. Since the constitutional amendment was adopted, the Florida Legislature has enacted one tax swap — when they required out-of-state retailers with no physical presence in Florida to collect sales tax.

In that case, the Legislature swapped a tax increase with an equal reduction in the Business Rent tax. But the key here is that the tax increase was levied on out-of-state businesses and was swapped for broad-based tax relief. Under the proposal at hand, the legislature proposes to eliminate a broad-based tax exemption, in favor of a narrow-based tax credit, the “Brownfields Program.”

The 2021 Brownfields Program Annual Report showed 525 projected new direct jobs, 2,261 projected new indirect jobs and $56.4 million in new capital investment, resulting from $18.6 million invested in 156 brownfield sites. That is compared with the film tax exemption, which the Department of Economic Opportunity’s Office of Film and Entertainment reported in 2022 had 1,217 applicants who created 40,389 jobs and spurred more than $1.4 billion of economic activity, at a cost to the state of $28.9 million, for an ROI of over 51:1.

In public testimony, Paul Sirmons, a former State Film Commissioner and current president of the International Christian Visual Media Association said, “By definition of the Florida Constitution this is a tax increase” and continued by saying: “We conservative Republicans don’t raise taxes.”

He also referenced the multiple members of the committee who signed Norquist’s pledge not to raise taxes.

APC 23-05 has since been given the bill number HB 7073.  A Senate companion has not yet been introduced. Eight current members of the Florida Senate have also signed Norquist’s pledge not to raise taxes.

Absent the support of those members, the Senate would presumably not have a supermajority to pass a similar tax increase.