House Bill 1875

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    Florida House of Representatives - 1999                HB 1875

        By Representative Cantens






  1                      A bill to be entitled

  2         An act relating to intangible personal property

  3         taxes; amending ss. 199.023, 199.052, 199.175,

  4         and 199.183, F.S.; providing that a trustee is

  5         not required to pay annual tax on trust

  6         property; providing that intangible personal

  7         property owned, managed, or controlled by a

  8         trustee of a trust is exempt from the annual

  9         tax; redefining "beneficial interest" in a

10         trust and providing that a Florida resident

11         with a beneficial interest in a trust is

12         responsible for returns and payment of tax for

13         his or her equitable share; revising provisions

14         relating to the responsibilities of a bank or

15         savings association acting as agent of a trust

16         other than as a trustee; amending s. 199.143,

17         F.S.; revising provisions which specify when

18         the nonrecurring tax is paid when a mortgage,

19         deed of trust, or other lien secures a line of

20         credit; providing effective dates.

21

22  Be It Enacted by the Legislature of the State of Florida:

23

24         Section 1.  Subsection (7) of section 199.023, Florida

25  Statutes, 1998 Supplement, is amended to read:

26         199.023  Definitions.--As used in this chapter:

27         (7)  A person resident has a "beneficial interest" in a

28  foreign trust if the person resident has a vested interest,

29  even if subject to divestment, which includes at least a

30  current right to income and either a power to revoke the trust

31

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  1  or a general power of appointment, as defined in 26 U.S.C. s.

  2  2041(b)(1).

  3         Section 2.  Subsections (5), (6), (9), and (15) of

  4  section 199.052, Florida Statutes, 1998 Supplement, are

  5  amended to read:

  6         199.052  Annual tax returns; payment of annual tax.--

  7         (5)  The trustee of a Florida-situs trust is not

  8  primarily responsible for returning the trust's intangible

  9  personal property and shall not be required to pay any paying

10  the annual tax on it.

11         (a)  A trust has a Florida situs when:

12         1.  All trustees are residents of the state;

13         2.  There are three or more trustees sharing equally in

14  the ownership, management, or control of the trust's

15  intangible property, and the majority of the trustees are

16  residents of this state; or

17         3.  Trustees consist of both residents and nonresidents

18  and management or control of the trust is with a resident

19  trustee.

20         (b)  When trustees consist of both residents and

21  nonresidents and management or control is with a nonresident

22  trustee, the trust does not have Florida situs and no return

23  is necessary by any resident trustee.

24         (c)  A portion of the trust has Florida situs when

25  there are two trustees, one a resident of this state and one a

26  nonresident, and they share equally in the ownership,

27  management, or control of the trust's intangible property. The

28  tax on such property shall be based on the value apportioned

29  between them.

30         (d)  If there is more than one trustee in the state,

31  only one tax return for the trust must be filed.

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  1         (e)  The trust's beneficiaries, however, may

  2  individually return their equitable shares of the trust's

  3  intangible personal property and pay the tax on such shares,

  4  in which case the trustee need not return such property or pay

  5  such tax, although The department may require the trustee to

  6  file an informational return.

  7         (6)  Each Florida resident with a beneficial interest,

  8  as defined in s. 199.023(7), in a foreign-situs trust, that

  9  is, a trust with situs outside of this state, is primarily

10  responsible for returning the resident's equitable share of

11  the trust's intangible personal property and paying the annual

12  tax on it.  The trustee of a foreign trust may return and pay

13  the tax on the equitable shares of all Florida residents

14  having beneficial interests, in which case the residents need

15  not return such property or pay such tax.

16         (9)  Where an agent other than a trustee has control or

17  management of intangible personal property, the principal is

18  primarily responsible for returning such property and paying

19  the annual tax on it, but the agent shall return such property

20  on behalf of the principal and pay the annual tax on it if the

21  principal fails to do so.  The department may in any case

22  require the agent to file an informational return.

23         (15)  If a bank or savings association, as defined in

24  s. 220.62, acts as a fiduciary or agent of a trust other than

25  as a trustee, the bank or savings association shall not be

26  responsible for returning the trust's intangible personal

27  property and shall not be required to pay any annual tax on

28  it, and of the trust shall not have taxable situs in this

29  state pursuant to s. 199.175 solely by virtue of the

30  management or control of the bank or savings association shall

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    Florida House of Representatives - 1999                HB 1875

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  1  not be used as a basis to impose any annual tax on any person

  2  or any assets of the trust.

  3         Section 3.  Effective January 1, 2000, section 199.143,

  4  Florida Statutes, is amended to read:

  5         199.143  Future advances.--

  6         (1)  Except as provided in subsection (3), if the

  7  mortgage, deed of trust, or other lien is recorded or executed

  8  after December 31, 1985, and secures a line of credit or

  9  otherwise secures future advances, as provided in s. 697.04,

10  the nonrecurring tax shall initially be paid on the initial

11  obligation secured, excluding future advances.  Each time an

12  additional amount is borrowed or a future advance is made,

13  additional nonrecurring tax shall be paid on the amount of the

14  advance.  However, any increase in the amount of original

15  indebtedness caused by interest accruing under an adjustable

16  interest rate obligation having an initial interest rate

17  adjustment interval of not less than 6 months shall be taxable

18  as a future advance only to the extent such increase is a

19  computable sum certain when the original indebtedness is

20  incurred.

21         (2)  The trustee, if a deed of trust, or the owner of

22  the obligation, if a mortgage or other lien, making the

23  advance shall pay the additional tax to the clerk to whom the

24  initial tax was paid.  The clerk shall note the amount

25  received upon the instrument, if one has been recorded, or

26  shall otherwise give a receipt.

27         (3)  If the property subject to the mortgage, deed of

28  trust, or other lien which secures a line of credit is a

29  residence of the borrower at the time the mortgage, deed of

30  trust, or other lien is created, then the nonrecurring tax

31  shall be paid as provided in s. 199.135 on the maximum amount

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  1  of the line of credit, except as limited by s. 199.133, and no

  2  further nonrecurring tax shall be due on any borrowing under

  3  the line of credit.  As used in this subsection, "residence"

  4  includes only a dwelling unit that is a primary, secondary, or

  5  vacation home of the borrower, who is a natural person, and

  6  that has been primarily occupied for residential or

  7  recreational purposes at any time during the immediately

  8  preceding 1-year period by the borrower or by the borrower's

  9  spouse or children.  The term excludes any dwelling that is

10  used primarily as a rental unit.  Use by a member of the

11  borrower's immediate family for consideration is deemed rental

12  of the dwelling unit.  Notwithstanding the fact that title to

13  a dwelling unit is held by a trustee, the dwelling unit shall

14  be considered a residence of the borrower and may be used as

15  security for a line of credit under this subsection, as long

16  as the dwelling unit is a residence of the borrower, as

17  defined in this subsection.

18         Section 4.  Paragraph (a) of subsection (1) of section

19  199.175, Florida Statutes, 1998 Supplement, is amended to

20  read:

21         199.175  Taxable situs.--For purposes of the annual tax

22  imposed under this chapter:

23         (1)  Intangible personal property shall have a taxable

24  situs in this state when it is owned, managed, or controlled

25  by any person domiciled in this state on January 1 of the tax

26  year.  Such intangibles shall be subject to annual taxation

27  under this chapter, unless the person who owns, manages, or

28  controls them is specifically exempt or unless the property is

29  specifically exempt. This provision shall apply regardless of

30  where the evidence of the intangible property is kept; where

31  the intangible is created, approved, or paid; or where

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  1  business may be conducted from which the intangible arises.

  2  The fact that a Florida corporation owns the stock of an

  3  out-of-state corporation and manages and controls such

  4  corporation from a location in this state shall not operate to

  5  give a taxable situs in this state to the intangibles owned by

  6  the out-of-state corporation, which intangibles arise out of

  7  business transacted outside this state.

  8         (a)  For the purposes of this chapter, "any person

  9  domiciled in this state" means:

10         1.  Any natural person who is a legal resident of this

11  state;

12         2.  Any bank or financial institution, business,

13  business trust as described in chapter 609, company,

14  corporation, insurance company, partnership, or other

15  artificial entity organized or created under the law of this

16  state, except a trust; or

17         3.  Any person, excluding including a trust, who has

18  established a commercial domicile in this state.

19         Section 5.  Effective July 1, 2000, paragraph (a) of

20  subsection (1) of section 199.175, Florida Statutes, 1998

21  Supplement, as amended by section 5 of chapter 98-132, Laws of

22  Florida, is amended to read:

23         199.175  Taxable situs.--For purposes of the annual tax

24  imposed under this chapter:

25         (1)  Intangible personal property shall have a taxable

26  situs in this state when it is owned, managed, or controlled

27  by any person domiciled in this state on January 1 of the tax

28  year.  Such intangibles shall be subject to annual taxation

29  under this chapter, unless the person who owns, manages, or

30  controls them is specifically exempt or unless the property is

31  specifically exempt. This provision shall apply regardless of

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    Florida House of Representatives - 1999                HB 1875

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  1  where the evidence of the intangible property is kept; where

  2  the intangible is created, approved, or paid; or where

  3  business may be conducted from which the intangible arises.

  4  The fact that a Florida corporation owns the stock of an

  5  out-of-state corporation and manages and controls such

  6  corporation from a location in this state shall not operate to

  7  give a taxable situs in this state to the intangibles owned by

  8  the out-of-state corporation, which intangibles arise out of

  9  business transacted outside this state.

10         (a)  For the purposes of this chapter, "any person

11  domiciled in this state" means:

12         1.  Any natural person who is a legal resident of this

13  state;

14         2.  Any business, business trust as described in

15  chapter 609, company, corporation, partnership, or other

16  artificial entity organized or created under the law of this

17  state, except a trust; or

18         3.  Any person, excluding including a trust, who has

19  established a commercial domicile in this state.

20         Section 6.  Subsection (4) is added to section 199.183,

21  Florida Statutes, to read:

22         199.183  Taxpayers exempt from annual and nonrecurring

23  taxes.--

24         (4)  Intangible personal property owned, managed, or

25  controlled by a trustee of a trust shall be exempt from annual

26  tax under this chapter. This exemption does not exempt from

27  annual tax:

28         (a)  Persons who own, manage, or control intangible

29  personal property that is also owned, managed, or controlled

30  by a trustee.

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  1         (b)  Florida residents with a taxable beneficial

  2  interest, as defined in s. 199.023(7), in a trust.

  3         Section 7.  Except as otherwise provided herein, this

  4  act shall take effect July 1, 1999, and shall apply to

  5  intangible personal property taxes imposed on and after that

  6  date.

  7

  8            *****************************************

  9                          HOUSE SUMMARY

10
      Provides that a trustee is not required to pay annual
11    intangible personal property tax on trust property and
      that intangible personal property owned, managed, or
12    controlled by a trustee of a trust is exempt from the
      annual tax. Redefines "beneficial interest" in a trust
13    and provides that a Florida resident with a beneficial
      interest in a trust is responsible for returns and
14    payment of tax for his or her equitable share. Revises
      provisions relating to the responsibilities of a bank or
15    savings association acting as agent of a trust other than
      as a trustee.
16

17    Revises provisions which specify when the nonrecurring
      intangible personal property tax is paid when a mortgage,
18    deed of trust, or other lien secures a line of credit.

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