Florida Tax Swap Plan Thrown Off November Ballot

A proposed constitutional amendment in Florida which could lead to a serious battle over taxing business services such as advertising has been thrown off the November ballot by a state Circuit Court.  Circuit Judge John Cooper ruled that the ballot title and summary for Amendment 5, the tax swap proposal, was misleading and ordered the proposal to be removed from the ballot.  The proponents of the amendment are expected to appeal that decision.  We will keep you informed about further developments.


In April, the Florida Taxation and Budget Reform Commission approved a proposed constitutional amendment to substantially revamp the way the state pays for schools.  The amendment would cut local property tax bills by at least 25% and require the Florida Legislature to replace the lost revenue, which is estimated to be at least $9 billion.  The proposed amendment directs the legislature to choose among one or more of four options for making up the lost revenue: (1) repealing sales tax exemptions "which are determined not to advance or serve a public purpose;" (2) increasing the current sales tax rate by one percent; (3) spending cuts in other state programs; and (4) "other revenues identified or created by the legislature."  A one percent increase in the sales tax would raise only about $4 billion, so there would be considerable political pressure to repeal exemptions to make up the difference.  

The proposed constitutional amendment was pushed through the Commission by former State Senate President John McKay, a longtime proponent of repealing the sales tax exemptions for various business services.  The proposal was scheduled to be on the ballot in the November election.  The tax swap would take effect on January 1, 2010. 

A number of major industry groups in the state filed a lawsuit challenging the constitutionality of the proposal.

ANA has been working closely with member companies and other industry groups to monitor developments on this proposal.  Florida was once ground zero for advertising taxes.  In 1987, the Florida Legislature passed a broad tax on all professional services, including advertising, but repealed it one year later after considerable industry lobbying.  We are very concerned that passage of this proposed constitutional amendment could ultimately lead to a repeat of that battle over taxing advertising.    

The former Senate President has fought this battle before.  In January of 2002, he proposed a bill to eliminate the sales tax exemptions for almost all products and services, including advertising time and space.  On the last day of the session, the Legislature approved a proposed constitutional amendment to create a special legislative panel to review all sales tax exemptions, including the exemption for advertising services.  That proposal was struck down by the courts and never made it to the ballot.

Senator McKay was term-limited out of office in 2002 but continued his battle as a private citizen.  In 2005, he joined with former Comptroller Bob Milligan and former Attorney General Bob Butterworth to propose a similar constitutional amendment to repeal most business service exemptions.  That proposal was also struck down by the courts and never made it to the ballot.

We are hopeful that the appellate courts will agree that proposed Amendment 5 should not be on the November ballot.

If you have any questions or more information about the proposal, please contact Keith Scarborough, Senior Vice President for Government Relations in ANA's Washington, DC office at kscarborough@ana.net or (202) 296-1883.