Tax Lawyer's Blog

When businesses charge sales tax to their customers, collect that tax and then fail to remit it to the Department of Revenue, the people responsible for that failure could be charged with theft of state funds.

Florida Statute 212.15(2) states,

(2)  Any person who, with intent to unlawfully deprive or defraud the state of its moneys or the use or benefit thereof, fails to remit taxes collected under this chapter is guilty of theft of state funds, punishable as follows:

(a)  If the total amount of stolen revenue is less than $300, the offense is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Upon a second conviction, the offender is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Upon a third or subsequent conviction, the offender is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b)  If the total amount of stolen revenue is $300 or more, but less than $20,000, the offense is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c)  If the total amount of stolen revenue is $20,000 or more, but less than $100,000, the offense is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(d)  If the total amount of stolen revenue is $100,000 or more, the offense is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The failure to pay over collected sales tax is analgous to the failure by an employer to remit to the IRS amounts withheld from an employees paycheck. However, the IRS rarely pursues such employers criminally. The same cannot be said for the State of Florida.  If you charge collect sales tax from your customers and don’t remit it to the state, expect a visit from a Department of Revenue criminal investigator.

I have represented dozens of clients who have failed to remit collected sales tax to the government in order to pay other bills of their business only to find out that Florida has a zero-tolerance policy on the theft of state funds. 

And once the wheels of the criminal justice system start turning, it is difficult to stop them – even in instances where the taxpayer offers to pay back the unremitted tax plus penalties and interest.

Moral of the story:  If you collect sales tax from your customers, remember, it isn’t your money. You are merely holding the funds in trust for the government. If you use those funds for any purpose, you are committing a felony. The State of Florida is more strict that even the IRS when it comes to a taxpayer’s failure to remit trust fund taxes because those taxes are the State’s primary source of revenue.

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