The Florida Senate

199.133  Levy of nonrecurring tax.

199.135  Due date and payment of nonrecurring tax.

199.143  Future advances.

199.145  Corrective mortgages; assignments; assumptions; refinancing.

199.155  Valuation.

199.183  Taxpayers exempt from nonrecurring taxes.

199.1851  Emergency rulemaking for ch. 2001-371.

199.133  Levy of nonrecurring tax.--

(1)  A one-time nonrecurring tax of 2 mills is hereby imposed on each dollar of the just valuation of all notes, bonds, and other obligations for payment of money which are secured by mortgage, deed of trust, or other lien upon real property situated in this state. This tax shall be assessed and collected as provided by this chapter.

(2)  The nonrecurring tax shall apply to a note, bond, or other obligation for payment of money only to the extent it is secured by mortgage, deed of trust, or other lien upon real property situated in this state. Where a note, bond, or other obligation is secured by personal property or by real property situated outside this state, as well as by mortgage, deed of trust, or other lien upon real property situated in this state, then the nonrecurring tax shall apply to that portion of the note, bond, or other obligation which bears the same ratio to the entire principal balance of the note, bond, or other obligation as the value of the real property situated in this state bears to the value of all of the security; however, if the security is solely made up of personal property and real property situated in this state, the taxpayer may elect to apportion the taxes based upon the value of the collateral, if any, to which the taxpayer by law or contract must look first for collection. In no event shall the portion of the note, bond, or other obligation which is subject to the nonrecurring tax exceed in value the value of the real property situated in this state which is the security.

History.--s. 10, ch. 85-342; s. 10, ch. 2006-312.

199.135  Due date and payment of nonrecurring tax.--The nonrecurring tax imposed on notes, bonds, and other obligations for payment of money secured by a mortgage, deed of trust, or other lien evidenced by a written instrument presented for recordation shall be due and payable when the instrument is presented for recordation. If there is no written instrument or if it is not so presented within 30 days following creation of the obligation, then the tax shall be due and payable within 30 days following creation of the obligation.

(1)  Where an instrument giving rise to the mortgage, deed of trust, or other lien is recorded, the person recording it shall pay the tax to the clerk of the circuit court to whom the instrument is presented for recording. The clerk shall note the amount received upon the instrument. If the instrument is being recorded in more than one county, the tax may be paid to the clerk of circuit court in any such county, and, upon request, such clerk shall notify the clerks of circuit court in the other counties as to such payment.

(2)  Where no instrument is recorded, the tax shall be paid to the department as provided by rule.

(3)  No later than 7 working days after the end of each week, each clerk shall transmit to the department all nonrecurring intangible taxes collected during the preceding week, together with a report certifying the amount of tax collected with respect to all instruments upon which the tax was paid. Each clerk shall be compensated 0.5 percent of any tax he or she collects under s. 199.133 as collection costs in the form of a deduction from the amount of tax due and remitted by the clerk, and the department shall allow the deduction to the clerk remitting the tax in the manner as provided by the department.

(4)  With respect to the nonrecurring tax imposed pursuant to s. 199.133, the taxpayer shall be solely liable for payment of the tax but may pass on the amount of such tax to the borrower or mortgagor.

(5)(a)  In recognition of the special escrow requirements that apply to sales of timeshare interests in timeshare plans pursuant to s. 721.08, tax on notes or other obligations secured by a mortgage, deed of trust, or other lien upon real property situated in this state executed in conjunction with the sale by a developer of a timeshare interest in a timeshare plan is due and payable on the earlier of the date on which:

1.  The mortgage, deed of trust, or other lien is recorded; or

2.  All of the conditions precedent to the release of the purchaser's escrowed funds or other property pursuant to s. 721.08(2)(c) have been met, regardless of whether the developer has posted an alternative assurance. Tax due under this subparagraph is due and payable on or before the 20th day of the month following the month in which these conditions were met.

(b)1.  If tax has been paid to the department under subparagraph (a)2., and the note, other written obligation, mortgage, deed of trust, or other lien with respect to which the tax was paid is subsequently recorded, a notation reflecting the prior payment of the tax must be made upon the mortgage or other lien.

2.  Notwithstanding paragraph (a), if funds are designated on a closing statement as tax collected from the purchaser, but the mortgage, deed of trust, or other lien with respect to which the tax was collected has not been recorded or filed in this state, the tax must be paid to the department on or before the 20th day of the month following the month in which the funds are available for release from escrow, unless the funds have been refunded to the purchaser.

(c)  The department may adopt rules to administer the method for reporting tax due under this subsection.

History.--s. 11, ch. 85-342; s. 4, ch. 87-102; s. 68, ch. 94-353; s. 1480, ch. 95-147; s. 3, ch. 2005-280.

199.143  Future advances.--

(1)  Except as provided in subsection (3), if the mortgage, deed of trust, or other lien is recorded or executed after December 31, 1985, and secures future advances, as provided in s. 697.04, the nonrecurring tax shall initially be paid on the initial obligation secured, excluding future advances. Each time a future advance is made, additional nonrecurring tax shall be paid on the amount of the advance. However, any increase in the amount of original indebtedness caused by interest accruing under an adjustable interest rate obligation having an initial interest rate adjustment interval of not less than 6 months shall be taxable as a future advance only to the extent such increase is a computable sum certain when the original indebtedness is incurred.

(2)  The trustee, if a deed of trust, or the owner of the obligation, if a mortgage or other lien, making the advance shall pay the additional tax to the clerk to whom the initial tax was paid. The clerk shall note the amount received upon the instrument, if one has been recorded, or shall otherwise give a receipt.

(3)  If the mortgage, deed of trust, or other lien secures a line of credit, the nonrecurring tax shall be paid as provided in s. 199.135 on the maximum amount of the line of credit, except as limited by s. 199.133, and no further nonrecurring tax shall be due on any borrowing under the line of credit.

History.--s. 12, ch. 85-342; s. 50, ch. 86-152; s. 1, ch. 97-123; s. 1, ch. 99-274.

199.145  Corrective mortgages; assignments; assumptions; refinancing.--

(1)  Any mortgage, deed of trust, or other lien given to replace a defective mortgage, deed of trust, or other lien, covering the identical real property as the original and securing the identical original note or obligation, may be recorded without payment of additional nonrecurring tax upon proof of payment of the tax upon the original recording. The clerk shall note the original payment on the new instrument.

(2)  No additional nonrecurring tax shall be due upon the assignment by the obligee of a note, bond, or other obligation for the payment of money upon which a nonrecurring tax has previously been paid.

(3)  No additional nonrecurring tax shall be due upon the assumption of a note, bond, or other obligation for the payment of money if a nonrecurring tax has previously been paid and the amount of the indebtedness remains the same, whether or not the original obligor is released from liability.

(4)  Where a note, bond, or other obligation upon which a nonrecurring tax has previously been paid is refinanced with the original obligee or its assignee:

(a)  No additional nonrecurring tax is due if the principal balance of the new obligation is less than or equal to the unpaid principal balance of the original obligation, plus accrued but unpaid interest, as of the refinancing.

(b)  Additional nonrecurring tax is due if the principal balance of the new obligation exceeds the principal balance of the original obligation, plus accrued but unpaid interest, as of the refinancing. If the original obligor is not liable to the obligee under the new obligation, the additional nonrecurring tax shall be computed on the entire principal balance of the new obligation; otherwise, the additional nonrecurring tax shall be computed on the excess of the principal balance of the new obligation over the principal balance of the original obligation, plus accrued but unpaid interest, as of the refinancing.

History.--s. 13, ch. 85-342.

199.155  Valuation.--Subject to the provisions of s. 199.133(2), all notes, bonds, and other obligations for payment of money subject to the nonrecurring tax shall be valued at the principal amount of indebtedness evidenced by such obligation.

History.--s. 14, ch. 85-342.

199.183  Taxpayers exempt from nonrecurring taxes.--

(1)  Intangible personal property owned by this state or any of its political subdivisions or municipalities shall be exempt from taxation under this chapter. This exemption does not apply to:

(a)  Any leasehold or other interest that is described in s. 199.023(1)(d), Florida Statutes 2005; or

(b)  Property related to the provision of two-way telecommunications services to the public for hire by the use of a telecommunications facility, as defined in s. 364.02(15), and for which a certificate is required under chapter 364, when the service is provided by any county, municipality, or other political subdivision of the state. Any immunity of any political subdivision of the state or other entity of local government from taxation of the property used to provide telecommunication services that is taxed as a result of this paragraph is hereby waived. However, intangible personal property related to the provision of telecommunications services provided by the operator of a public-use airport, as defined in s. 332.004, for the operator's provision of telecommunications services for the airport or its tenants, concessionaires, or licensees, and intangible personal property related to the provision of telecommunications services provided by a public hospital, are exempt from taxation under this chapter.

(2)  Intangible personal property owned by nonprofit religious, nonprofit educational, or nonprofit charitable institutions shall be exempt from taxation under this chapter. This exemption shall be strictly defined, limited, and applied in each category as follows:

(a)  "Religious institutions" means churches and ecclesiastical or denominational organizations having established physical places for worship in this state at which nonprofit religious services and activities are regularly conducted, as well as church cemeteries.

(b)  "Educational institutions" means only:

1.  Public or nonprofit private schools, colleges, or universities conducting regular classes and courses of study required for accreditation by, or membership in, the Southern Association of Colleges and Schools, Department of Education, or the Florida Council of Independent Schools; or

2.  Nonprofit libraries, art galleries, and museums open to the public.

(c)  "Charitable institutions" means only:

1.  Nonprofit corporations operating physical facilities in this state at which are provided charitable services, a reasonable percentage of which shall be without cost to those unable to pay; or

2.  Those institutions qualified as charitable under s. 501(c)(3) of the United States Internal Revenue Code of 1954.

Intangible personal property shall not be deemed to be owned by such exempt institutions if it is held in a trust of any kind under which the institution has no present interest in the trust principal except the right to compel the performance of the trust agreement.

History.--s. 16, ch. 85-342; s. 48, ch. 91-45; s. 2, ch. 96-283; s. 4, ch. 97-197; s. 6, ch. 2000-173; s. 21, ch. 2003-32; s. 21, ch. 2005-132; s. 11, ch. 2006-312.

199.1851  Emergency rulemaking for ch. 2001-371.--The Executive Director of the Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules under ss. 120.536(1) and 120.54(4) to implement this act. Notwithstanding any other provision of law, such emergency rules shall remain effective for 6 months after the date of adoption and may be renewed during the pendency of procedures to adopt rules addressing the subject of the emergency rules.

History.--s. 3, ch. 2001-371.

199.202  Administration of law; rules.

199.212  All state agencies to cooperate in administration of law.

199.218  Books and records.

199.232  Powers of department.

199.262  Tax liens and garnishment.

199.272  Suits for violation of this chapter; jurisdiction and service.

199.282  Penalties for violation of this chapter.

199.292  Disposition of intangible personal property taxes.

199.303  Declaration of legislative intent.

199.202  Administration of law; rules.--The department shall administer and enforce the assessment and collection of the taxes, interest, and penalties imposed by this chapter. It may by rule prescribe the form and content of all returns and reports. It has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to enforce the provisions of this chapter.

History.--s. 1, ch. 71-134; s. 18, ch. 85-342; s. 15, ch. 98-200.

199.212  All state agencies to cooperate in administration of law.--The department may call on any state, county, or municipal agency, department, bureau, or board for any information which may, in the department's judgment, assist it in administering this chapter. Such agency, department, bureau, or board shall promptly furnish such information.

History.--s. 1, ch. 71-134; s. 19, ch. 85-342.

199.218  Books and records.--Each taxpayer shall retain all books and other records necessary to identify the taxpayer's intangible personal property and to determine any tax due under this chapter, as well as all books and other records otherwise required by rule of the department with respect to any such tax, until the department's power to make an assessment with respect to such tax has terminated under s. 95.091(3).

History.--s. 20, ch. 85-342; s. 52, ch. 87-6; s. 6, ch. 2002-218; s. 12, ch. 2006-312.

199.232  Powers of department.--

(1)(a)  The department may audit the books and records of any person to determine whether a nonrecurring tax has been properly paid.

(b)  An audit is commenced by service in person or by certified mail of a written notice to the taxpayer of intent to audit.

(2)  The department may inspect all records of the taxpayer which may be relevant to the audit, and the department may compel the testimony of the taxpayer under oath or affirmation. The department may also issue subpoenas to compel the testimony of third parties under oath or affirmation and the production of records and other evidence held by third parties, including corporations and brokers. Any duly authorized representative of the department may administer an oath or affirmation. If the taxpayer fails to give testimony or to produce any requested records, or if a third party fails to comply with a subpoena, any circuit court having jurisdiction over the taxpayer or third party may, upon application of the department, issue such orders as are necessary to secure compliance.

(3)  With or without an audit, the department may assess any tax deficiency resulting from nonpayment or underpayment of the tax, as well as any applicable interest and penalties. The department shall assess on the basis of the best information available to it, including estimates based on the best information available to it if the taxpayer fails to permit inspection of the taxpayer's records, files a grossly incorrect return, or files a false and fraudulent return.

(4)  Following an assessment, the department shall collect the assessed amount from the taxpayer. The assessment is considered prima facie correct, and the taxpayer has the burden of showing any error in the assessment.

(5)  The department shall credit or refund any overpayment of tax that is revealed on an audit or for which a claim for refund is filed. A claim for refund may be filed within the period specified in s. 215.26(2). It must be filed by the taxpayer, or the taxpayer's heirs, personal representatives, successors, or assigns, and must include the information required by the department.

(6)  In its discretion, the department may, for reasonable cause, grant extensions of time not to exceed 3 months for paying any tax due, or for filing any return or report required, under this chapter.

(7)(a)  If it appears, upon examination of an intangible tax return made under this chapter or upon proof submitted to the department by the taxpayer, that an amount of intangible personal property tax has been paid in excess of the amount due, the department shall refund the amount of the overpayment to the taxpayer by a warrant of the Chief Financial Officer. The department shall refund the overpayment without regard to whether the taxpayer has filed a written claim for a refund; however, the department may request that the taxpayer file a statement affirming that the taxpayer made the overpayment.

(b)  Notwithstanding paragraph (a), a refund of the intangible personal property tax may not be made nor is a taxpayer entitled to bring an action for a refund of the intangible personal property tax after the period specified in s. 215.26(2) has elapsed.

(c)  If a refund issued by the department under this section is found to exceed the amount of refund legally due to the taxpayer, the provisions of s. 199.282 concerning penalties and interest do not apply if the taxpayer reimburses the department for any overpayment within 60 days after the taxpayer is notified that the overpayment was made.

History.--s. 1, ch. 71-134; s. 22, ch. 85-342; s. 5, ch. 86-152; s. 51, ch. 87-6; s. 7, ch. 94-314; ss. 5, 47, ch. 94-353; s. 177, ch. 2003-261; s. 13, ch. 2006-312.

199.262  Tax liens and garnishment.--

(1)  When any tax imposed by this chapter becomes delinquent, or is otherwise in jeopardy, the department shall issue a warrant for the full amount of tax due or estimated to be due, together with interest, penalties, and cost of collection. The warrant shall be directed to all and singular the sheriffs of the state. It shall be recorded with the clerk of the circuit court in the county where the delinquent taxpayer's property is located. Upon recording, the amount of the warrant shall become a lien upon the taxpayer's real and personal property in such county in the same manner as a judgment duly docketed and recorded, and the clerk of the circuit court shall issue execution on the warrant in the same manner as on a judgment. The sheriff shall then execute the warrant in the same manner prescribed by law for executions upon judgments, and he or she shall be entitled to the same fees for his or her services. Upon payment of the warrant, the department shall satisfy the lien of record within 30 days; and any interested person may thereafter compel the department to satisfy the lien of record. If there is jeopardy to the revenue and jeopardy is asserted in or with an assessment, the department shall proceed in the manner specified for jeopardy assessments in s. 213.732.

(2)  Whenever the department deems it necessary, the department may issue an alias tax execution. Each alias tax execution shall be so designated on its face. Each alias tax execution shall have the same force and effect as the original.

(3)  Tax executions may be levied upon any third party having any assets of the delinquent taxpayer in its possession or control or that is indebted to the delinquent taxpayer. When any tax execution is so levied, it shall have the force and effect of a writ of garnishment. The third party shall pay the debt or deliver the assets of the delinquent taxpayer to the department. The receipt of the department shall be complete discharge to the third party to the extent of the debt paid or assets turned over.

(4)  Any employee of the department may be designated in writing by the executive director of the department to make and sign assessments, tax warrants, assignments of tax warrants, and satisfactions of tax warrants.

(5)  Whenever any tax execution becomes void, the department may cancel it of record and shall do so upon the request of any interested person.

History.--s. 1, ch. 71-134; s. 1, ch. 78-43; s. 24, ch. 85-342; s. 9, ch. 92-315; s. 1046, ch. 95-147.

199.272  Suits for violation of this chapter; jurisdiction and service.--

(1)  All suits brought by the department against any person for any violation of this chapter shall be brought in the circuit courts of this state.

(2)  Every person having his or her principal place of business outside of this state but subject to the provisions of this chapter shall designate with the department an agent for service within the state for the purpose of enforcing this chapter. If such person has not designated an agent, the department may deem the Department of State or any agent or employee of the person within the state as agent for service.

History.--s. 1, ch. 71-134; s. 25, ch. 85-342; s. 1047, ch. 95-147.

199.282  Penalties for violation of this chapter.--

(1)  Any person willfully violating or failing to comply with any of the provisions of this chapter shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)  If any nonrecurring tax is not paid by the statutory due date, then despite any extension granted under s. 199.232(6), interest shall run on the unpaid balance from such due date until paid at the rate of 12 percent per year.

(3)  If any nonrecurring tax is not paid by the due date, a delinquency penalty shall be charged. The delinquency penalty shall be 10 percent of the delinquent tax for each calendar month or portion thereof from the due date until paid, up to a limit of 50 percent of the total tax not timely paid.

(4)  No mortgage, deed of trust, or other lien upon real property situated in this state shall be enforceable in any Florida court, nor shall any written evidence of such mortgage, deed of trust, or other lien be recorded in any public record of the state, until the nonrecurring tax imposed by this chapter, including any taxes due on future advances, has been paid and the clerk of circuit court collecting the tax has noted its payment on the instrument or given other receipt for it. However, failure to pay the correct amount of tax or failure of the clerk to note payment of the tax on the instrument shall not affect the constructive notice given by recording of the instrument.

(5)  Interest and penalties attributable to any tax shall be deemed assessed when the tax is assessed. Interest and penalties shall be assessed and collected by the department as provided in this chapter. The department may settle or compromise tax, interest, or penalties under the provisions of s. 213.21.

(6)  Any person who fails or refuses to make records available for inspection, when requested to do so by the department is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(7)  Any officer or director of a corporation who has administrative control over the filing of a return or payment of any tax due under this chapter and who willfully directs any employee of the corporation to fail to file the return or pay the tax due or to evade, defeat, or improperly account for the tax due, in addition to any other penalties provided by law, shall be liable for a penalty equal to the amount of tax not paid as required by this chapter. The filing of a protest based upon doubt as to liability for the tax shall not be deemed an attempt to evade or defeat the tax under this subsection. The penalty imposed hereunder shall be abated to the extent the tax is paid and may be compromised by the executive director of the department as provided in s. 213.21. An assessment of penalty made pursuant to this section shall be deemed prima facie correct in any judicial or quasi-judicial proceeding brought to collect this penalty.

History.--s. 1A, ch. 71-134; s. 26, ch. 85-342; s. 6, ch. 86-152; s. 64, ch. 87-6; s. 38, ch. 87-101; s. 5, ch. 87-102; s. 10, ch. 89-356; s. 21, ch. 90-203; s. 233, ch. 91-224; s. 6, ch. 92-320; s. 9, ch. 98-132; s. 7, ch. 2002-218; s. 17, ch. 2003-1; s. 14, ch. 2006-312.

199.292  Disposition of intangible personal property taxes.--All intangible personal property taxes collected pursuant to this chapter, except for revenues derived from the annual tax on a leasehold described in s. 199.023(1)(d), Florida Statutes 2005, shall be deposited into the General Revenue Fund. Revenues derived from the annual tax on a leasehold described in s. 199.023(1)(d), Florida Statutes 2005, shall be returned to the local school board for the county in which the property subject to the leasehold is situated.

History.--s. 1, ch. 71-134; s. 1, ch. 72-277; s. 18, ch. 72-360; s. 1, ch. 77-102; s. 5, ch. 77-476; s. 4, ch. 80-261; s. 4, ch. 80-274; s. 5, ch. 80-368; s. 8, ch. 81-308; s. 27, ch. 85-342; s. 5, ch. 90-132; s. 3, ch. 92-319; s. 10, ch. 98-132; s. 8, ch. 2000-173; s. 8, ch. 2004-234; s. 15, ch. 2006-312.

199.303  Declaration of legislative intent.--

(1)  If any section, subsection, sentence, clause, phrase, or word of this chapter is for any reason held or declared to be unconstitutional, invalid, inoperative, ineffective, inapplicable, or void, such invalidity or unconstitutionality shall not affect the portions of this chapter not so held to be unconstitutional, void, invalid, or ineffective, or affect the application of this chapter to other circumstances not so held to be invalid, it being the express legislative intent that any such unconstitutional, illegal, invalid, ineffective, inapplicable, or void portion or portions of this chapter did not induce its passage, and that without the inclusion of any such unconstitutional, illegal, invalid, ineffective, or void portions of this chapter, the Legislature would have enacted the valid and constitutional portions thereof.

(2)  It is hereby declared to be the specific legislative intent to tax all intangible personal property that may constitutionally be taxed subject only to the exemptions and credits allowed by law. However, if any application of these statutes is declared unconstitutional, the taxes imposed shall nevertheless remain in force, but only to the extent permitted by the constitutions of this state and of the United States.

(3)  It is hereby declared to be the specific intent of the Legislature that all annual intangible personal property taxes imposed as provided by law for calendar years 2006 and prior shall remain in full force and effect during the period specified by s. 95.091 for the year in which the tax was due. It is further the intent of the Legislature that the department continue to assess and collect all taxes due to the state under such provisions for all periods available for assessment, as provided for the year in which tax was due by s. 95.091.

History.--s. 5, ch. 92-319; s. 16, ch. 2006-312.