Florida Senate - 2009 CS for CS for SB 728
By the Committees on Finance and Tax; and Judiciary; and Senator
Bennett
593-04159-09 2009728c2
1 A bill to be entitled
2 An act relating to the excise tax on documents;
3 amending s. 201.02, F.S.; imposing the tax on deeds,
4 instruments, and other writings on the consideration
5 for a transfer of real property pursuant to a short
6 sale; providing that the consideration subject to the
7 tax does not include unpaid indebtedness that is
8 forgiven by a mortgagee; defining the term “short
9 sale”; authorizing the Department of Revenue to adopt
10 criteria by rule indicating that a purported short
11 sale is not an arm’s length transaction; providing an
12 effective date.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. Section 201.02, Florida Statutes, is amended to
17 read:
18 201.02 Tax on deeds and other instruments relating to real
19 property or interests in real property.—
20 (1) On deeds, instruments, or writings whereby any lands,
21 tenements, or other real property, or any interest therein,
22 shall be granted, assigned, transferred, or otherwise conveyed
23 to, or vested in, the purchaser or any other person by his or
24 her direction, on each $100 of the consideration therefor the
25 tax shall be 70 cents. When the full amount of the consideration
26 for the execution, assignment, transfer, or conveyance is not
27 shown in the face of such deed, instrument, document, or
28 writing, the tax shall be at the rate of 70 cents for each $100
29 or fractional part thereof of the consideration therefor. For
30 purposes of this section, consideration includes, but is not
31 limited to, the money paid or agreed to be paid; the discharge
32 of an obligation; and the amount of any mortgage, purchase money
33 mortgage lien, or other encumbrance, whether or not the
34 underlying indebtedness is assumed. If the consideration paid or
35 given in exchange for real property or any interest therein
36 includes property other than money, it is presumed that the
37 consideration is equal to the fair market value of the real
38 property or interest therein.
39 (2) The tax imposed by subsection (1) shall also be payable
40 upon documents by which the right is granted to a tenant
41 stockholder to occupy an apartment in a building owned by a
42 cooperative apartment corporation or in a dwelling on real
43 property owned by any other form of cooperative association as
44 defined in s. 719.103.
45 (3) The tax imposed by subsection (2) shall be paid by the
46 purchaser, and the document recorded in the office of the clerk
47 of the circuit court as evidence of ownership.
48 (4) The tax imposed by subsection (1) shall also be payable
49 upon documents which convey or transfer, pursuant to s. 689.071,
50 any beneficial interest in lands, tenements, or other real
51 property, or any interest therein, even though such interest may
52 be designated as personal property, notwithstanding the
53 provisions of s. 689.071(6). The tax shall be paid upon
54 execution of any such document.
55 (5) All conveyances of real property to a partner from a
56 partnership which property was conveyed to the partnership after
57 July 1, 1986, are taxable if:
58 (a) The partner receiving the real property from the
59 partnership is a partner other than the partner who conveyed the
60 real property to the partnership; or
61 (b) The partner receiving the real property from the
62 partnership is the partner who conveyed the real property to the
63 partnership and there is a mortgage debt or other debt secured
64 by such real property for which the partner was not personally
65 liable prior to conveying the real property to the partnership.
66
67 For purposes of this subsection, the value of the consideration
68 paid for the conveyance of the real property to the partner from
69 the partnership includes, but is not limited to, the amount of
70 any outstanding mortgage debt or other debt which the partner
71 pays or agrees to pay in exchange for the real property,
72 regardless of whether the partner was personally liable for the
73 debts of the partnership prior to the conveyance to the partner
74 from the partnership.
75 (6) Taxes imposed by this section shall not apply to any
76 assignment, transfer, or other disposition, or any document,
77 which arises out of a transfer of real property from a nonprofit
78 organization to the Board of Trustees of the Internal
79 Improvement Trust Fund, to any state agency, to any water
80 management district, or to any local government. For purposes of
81 this subsection, “nonprofit organization” means an organization
82 whose purpose is the preservation of natural resources and which
83 is exempt from federal income tax under s. 501(c)(3) of the
84 Internal Revenue Code. The Department of Revenue shall provide a
85 form, or a place on an existing form, for the nonprofit
86 organization to indicate its exempt status.
87 (7) Taxes imposed by this section do not apply to a deed,
88 transfer, or conveyance between spouses or former spouses
89 pursuant to an action for dissolution of their marriage wherein
90 the real property is or was their marital home or an interest
91 therein. Taxes paid pursuant to this section shall be refunded
92 in those cases in which a deed, transfer, or conveyance occurred
93 1 year before a dissolution of marriage. This subsection applies
94 in spite of any consideration as defined in subsection (1). This
95 subsection does not apply to a deed, transfer, or conveyance
96 executed before July 1, 1997.
97 (8) Taxes imposed by this section do not apply to a
98 contract to sell the residence of an employee relocating at his
99 or her employer’s direction or to documents related to the
100 contract, which contract is between the employee and the
101 employer or between the employee and a person in the business of
102 providing employee relocation services. In the case of such
103 transactions, taxes apply only to the transfer of the real
104 property comprising the residence by deed that vests legal title
105 in a named grantee.
106 (9) A certificate of title issued by the clerk of court
107 under s. 45.031(5) in a judicial sale of real property under an
108 order or final judgment issued pursuant to a foreclosure
109 proceeding is subject to the tax imposed by subsection (1).
110 However, the amount of the tax shall be computed based solely on
111 the amount of the highest and best bid received for the property
112 at the foreclosure sale. This subsection is intended to clarify
113 existing law and shall be applied retroactively.
114 (10)(a) In recognition of the special escrow requirements
115 that apply to sales of timeshare interests in timeshare plans
116 pursuant to s. 721.08, tax on deeds or other instruments
117 conveying any interest in Florida real property which are
118 executed in conjunction with the sale by a developer of a
119 timeshare interest in a timeshare plan is due and payable on the
120 earlier of the date on which:
121 1. The deed or other instrument conveying the interest in
122 Florida real property is recorded; or
123 2. All of the conditions precedent to the release of the
124 purchaser’s escrowed funds or other property pursuant to s.
125 721.08(2)(c) have been met, regardless of whether the developer
126 has posted an alternative assurance. Tax due pursuant to this
127 subparagraph is due and payable on or before the 20th day of the
128 month following the month in which these conditions were met.
129 (b)1. If tax has been paid to the department pursuant to
130 subparagraph (a)2., and the deed or other instrument conveying
131 the interest in Florida real property with respect to which the
132 tax was paid is subsequently recorded, a notation reflecting the
133 prior payment of the tax must be made upon the deed or other
134 instrument conveying the interest in Florida real property.
135 2. Notwithstanding paragraph (a), if funds are designated
136 on a closing statement as tax collected from the purchaser, but
137 a default or cancellation occurs pursuant to s. 721.08(2)(a) or
138 (b) and no deed or other instrument conveying interest in
139 Florida real property has been recorded or delivered to the
140 purchaser, the tax must be paid to the department on or before
141 the 20th day of the month following the month in which the funds
142 are available for release from escrow unless the funds have been
143 refunded to the purchaser.
144 (c) The department may adopt rules to administer the method
145 for reporting tax due under this subsection.
146 (11) The documentary stamp tax imposed by this section
147 applies to a deed, instrument, or writing that transfers any
148 interest in real property pursuant to a short sale, as defined
149 in this subsection. The taxable consideration for a short sale
150 transfer does not include unpaid indebtedness that is forgiven
151 or released by a mortgagee holding a mortgage on the grantor’s
152 interest in the property. A short sale is a purchase and sale of
153 real property in which:
154 (a) The grantor’s interest in the real property is
155 encumbered by a mortgage or mortgages securing indebtedness in
156 an aggregate amount greater than the purchase price paid by the
157 grantee;
158 (b) A mortgagee releases the real property from its
159 mortgage in exchange for a partial payment of less than all of
160 the outstanding mortgage indebtedness owing to the releasing
161 mortgagee;
162 (c) The releasing mortgagee does not receive, directly or
163 indirectly, any interest in the property transferred; and
164 (d) The releasing mortgagee, grantor, and grantee are
165 dealing with each other at arm’s length.
166 Section 2. The Department of Revenue may adopt rules to
167 specify criteria indicating that a purported short sale is not
168 an arm’s length transaction.
169 Section 3. This act shall take effect July 1, 2009.