Like many states, Florida has enacted a renewable energy device exemption legislation that is intended to incentivize construction of residential, building and utility size solar and wind farms. After all, it is the Sunshine State! Incentives include an eighty percent exemption from property taxation, but can the developer rely upon that exemption for the full term of the statute (presently, 2037)? Not necessarily.[i]

Tangible Personal Property Tax

Under Florida law, all property is taxable; unless, it is specifically exempted.[ii] Whether a property is subject to tax valuation, tax levy, or exemption, each year’s assessment constitutes an annual determination, and thereby, “independent” of the prior year.[iii] Thus, Florida, like most states, generally, requires a taxpayer to annually file an exemption or exemption renewal application.[iv] For any exemption application, the burden of showing that the property is exempt lies with the taxpayer.[v]

Florida taxes both real and tangible business personal property. Tangible personal property includes anything other than real estate that is used in a business or rental property. Every new business owning tangible personal property on January 1 must file an initial tax return.[vi] Property owners, who lease, lend, or rent property must also file. Thereafter, annually by April 1, owners of tangible personal property having value in excess of $25,000 are required to file Form DR-405, Tangible Property Tax Return (“Form DR-405”) in the county where the property is located. The owner of tangible personal property must file a separate return for each site in the county where he or she transacts business.[vii]

The taxable value of tangible personal property tax is the just value (fair market value) of the property adjusted for exclusions, differentials, or exemptions allowed by the Constitution and Florida Statutes. The Constitution strictly limits the Legislature’s authority to provide exemptions or adjustments to fair market value.[viii] The tax rate for tangible personal property is the same millage rate levied by counties, cities, school districts, and special districts on real property.

By the 2017 Florida Senate Bill No. 90, tangible personal property that constituted renewable energy source devices were given an eighty (80%) percent exemption from ad valorem taxation.[ix]

Exemption Application 

1. Generally 

To obtain an exemption, the application process commences upon the filing of an application with the appropriate county on the form prescribed by the Florida Department of Revenue.[x] Following the receipt of the exemption application (or renewal application), the county appraiser determines if the property is or remains exempt.[xi][xii] As part of this review, the county appraiser may seek additional information from the taxpayer. Thus, and provided it is filed prior to March 1, the filing of an exemption application merely commences the administrative review process. Only upon the granting of the exemption and the assessment rolls being made final (July 1) are the exemption rights “vested”.[xiii]

2. Renewable Energy Source Devices Application

Being a State defined partial exemption, the application for an exemption must be made on the form prescribed by the Florida Department of Revenue. For renewable energy source devices, in 2016, the DOR repealed Form DR-455, which had served as the renewable energy device exemption application.[xiv] In its proposed rules and forms arising from the 2017 legislation, the DOR had not proposed an exemption application form specific to the renewable energy source devices. Instead, it amended Form DR-405 to include a new line “24” to report costs specific for the renewable energy source devices.[xv] As the purpose of Form DR-405 is to obtain cost information for the County Appraiser to compute a personal property value, it is not, per se, an exemption application. As such, its filing date is April 1, as opposed to March 1 (for exemption applications). However, to the extent that Form DR-405 must be filed as the application for exemption, its filing must be on or before March 1 of every year that an exemption is sought.[xvi] A taxpayer might also consider filing the general exemption application form (DR-504), with the DR-405 (again, on or before March 1).

At the time the taxpayer files the exemption application, the renewable energy source devices must exist and have been “installed” on or before January 1 of the year that the exemption application is being filed.[xvii] Upon receipt of the application, the County Appraiser determines whether the installed tangible personal property is exempt pursuant to FS §196.182. This statute requires the property to be a “renewable energy source device” as defined in FS §193.624, which include solar devices, provided such devices are installed on or after January 1, 2018. To be exempt in any given year, and using 2018 as an example, the renewable energy source devices would have had to been both existing and installed on or before January 1, 2018.[xviii] The Florida Supreme Court has held that “the actual use of the property as of the assessment date, rather than its intended future use, … controls the determination of whether the property qualifies for an exemption from ad valorem taxes.”[xix] In Cedars, the Supreme Court stated, ‘[I]t is immaterial that the corporation intended to use the property for an exempt purpose subsequent to January 1; the controlling factor was that, as of the assessment date, it was not actually in use for such purpose.’[xx]

For determining the meaning of “installed”, “[o]ne of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless the words are defined in the statute or by the clear intent of the Legislature. If necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary.”[xxi] After consulting various dictionaries, a multitude of courts have defined “install” as follows:

Install: to place or fix (equipment or machinery) in position ready for use.

See e.g., Meriam Webster Dictionary; or Oxford English Dictionary. If the exemption application is granted for the renewable energy source devices, the eighty percent partial exemption is applied to the derived just value for the year that the application or renewal is filed.

Term of Exemption – Revocable

It is axiomatic that statutes defining an exemption can be amended or repealed by subsequent legislative actions.[xxii] Any future legislation that amends or repeals the renewable energy source device exemption prior to July 1 of a given year may not constitute a violation of a taxpayer’s due process rights.[xxiii] However, such legislation should not be able to reach back into prior years where the final assessment rolls had been finalized and the exemption’s application already enjoyed by the taxpayer. The United States Supreme Court has repeatedly concluded that the retroactive application of tax laws is permissible when the period of retroactivity is limited.[xxiv]

Although Florida has presently committed to an 80% exemption for renewable energy source devices until 2037, the Florida Legislature may enact future legislation that either amends or repeals such exemption. That is, just as the Legislature may enact statutes authorizing the grant of tax exemptions, “it lies within the legislature’s prerogative to repeal tax exemptions and impose taxes on lands previously exempt.”[xxv]