Florida Supreme Court Upholds Lower Court Ruling Throwing Tax Swap Plan Off November Ballot

A proposed constitutional amendment in Florida which could have lead to a serious battle over taxing business services such as advertising was thrown off the November ballot by a unanimous decision of the Florida Supreme Court yesterday.  This is a major victory for the business community.


In April, the Florida Taxation and Budget Reform Commission approved a proposed constitutional amendment to substantially revamp the way the state pays for schools - Amendment 5.  The amendment would have cut local property tax bills by at least 25% and required the Florida Legislature to replace the lost revenue, which is estimated to be at least $9 billion.  The proposed amendment directed 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.  On August 14th, a circuit court ruled that the ballot title and summary for Amendment 5 were misleading and ordered the proposal to be removed from the November ballot.  Proponents appealed and just hours after hearing oral arguments on the appeal, the Florida Supreme Court unanimously upheld that ruling.    

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  In 1987, the Florida Legislature passed a broad tax on all professional services, including advertising, but repealed it one year later after considerable industry lobbying.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 were 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 very pleased that the Florida Supreme Court has ruled that proposed Amendment 5 will 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.