Florida Senate - 2009                          SENATOR AMENDMENT
       Bill No. CS for CS for CS for SB's 2430 & SB 1960
       
       
       
       
       
       
                                Barcode 479628                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 4/AD/2R         .                                
             04/24/2009 04:31 PM       .                                
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       Senator Gelber moved the following:
       
    1         Senate Substitute for Amendment (950276) (with title
    2  amendment)
    3  
    4         Delete lines 223 - 320
    5  and insert:
    6         Section 3. (1)The Legislature finds that the Florida
    7  Supreme Court opinion in Crescent Miami Center, LLC v. Florida
    8  Department of Revenue, 903 So. 2d 913 (Fla. 2005), interprets s.
    9  201.02, Florida Statutes, in a manner that permits tax avoidance
   10  inconsistent with the intent of the Legislature at the time the
   11  statute was amended in 1990.
   12         (2)The Legislature finds that the opinion of the District
   13  Court of Appeal for the Third District of Florida in Crescent
   14  Miami Center, LLC v. Florida Department of Revenue, 857 So. 2d
   15  904 (Fla. 3d D.C.A. 2003), interprets s. 201.02, Florida
   16  Statutes, in a manner that prevents tax avoidance consistent
   17  with the intent of the Legislature at the time the statute was
   18  amended in 1990.
   19         (3)The Legislature recognizes that the Supreme Court’s
   20  opinion in Crescent is limited to the facts of the case and
   21  accepts the court’s interpretation of s. 201.02, Florida
   22  Statutes, that no consideration exists when owners of real
   23  property unencumbered by a mortgage convey an interest in such
   24  property to an artificial entity whose ownership is identical to
   25  the ownership of the real property before conveyance. The
   26  Legislature expressly rejects any application of the court’s
   27  interpretation where the facts are not comparable to the facts
   28  in Crescent. However, because the Supreme Court’s
   29  interpretation, combined with other settled law regarding the
   30  application of s. 201.02, Florida Statutes, allows for the tax
   31  free transfer of ownership interests in real property from one
   32  owner to another through the use of artificial entities, it is
   33  the Legislature’s intent by this act to impose the documentary
   34  stamp tax when the beneficial ownership of real property is
   35  transferred to a new owner or owners by the use of techniques
   36  that apply the Supreme Court’s decision in Crescent in
   37  combination with respect to transfers of ownership of, or
   38  distributions from, artificial entities.
   39         Section 4. Subsection (1) of section 201.02, Florida
   40  Statutes, is amended, and subsection (11) is added to that
   41  section, to read:
   42         201.02 Tax on deeds and other instruments relating to real
   43  property or interests in real property.—
   44         (1)(a) On deeds, instruments, or writings whereby any
   45  lands, tenements, or other real property, or any interest
   46  therein, shall be granted, assigned, transferred, or otherwise
   47  conveyed to, or vested in, the purchaser or any other person by
   48  his or her direction, on each $100 of the consideration therefor
   49  the tax shall be 70 cents. When the full amount of the
   50  consideration for the execution, assignment, transfer, or
   51  conveyance is not shown in the face of such deed, instrument,
   52  document, or writing, the tax shall be at the rate of 70 cents
   53  for each $100 or fractional part thereof of the consideration
   54  therefor. For purposes of this section, consideration includes,
   55  but is not limited to, the money paid or agreed to be paid; the
   56  discharge of an obligation; and the amount of any mortgage,
   57  purchase money mortgage lien, or other encumbrance, whether or
   58  not the underlying indebtedness is assumed. If the consideration
   59  paid or given in exchange for real property or any interest
   60  therein includes property other than money, it is presumed that
   61  the consideration is equal to the fair market value of the real
   62  property or interest therein.
   63         (b)1.For purposes of this paragraph the term:
   64         a.“Conduit entity” means a legal entity to which real
   65  property is conveyed without full consideration by a grantor who
   66  owns an interest in the entity, or a successor entity.
   67         b.“Full consideration” means the consideration that would
   68  be paid in an arm’s length transaction between unrelated
   69  parties.
   70         2.When an ownership interest in real property is conveyed
   71  to a conduit entity and an ownership interest in the conduit
   72  entity is subsequently transferred for consideration within 3
   73  years of such conveyance, tax is imposed each time an interest
   74  in the conduit entity is transferred for consideration at the
   75  rate of 70 cents for each $100 or fraction thereof of the
   76  consideration paid or given in exchange for the ownership
   77  interest in the conduit entity.
   78         3.When the ownership interest in the conduit entity being
   79  transferred includes assets other than the real property
   80  conveyed to the conduit entity, the tax on the transfer of the
   81  ownership interests in the conduit entity shall be prorated
   82  based on the percentage the value of such real property
   83  represents of the total value of all assets owned by the conduit
   84  entity.
   85         4.The gift of an ownership interest in a conduit entity is
   86  not subject to tax to the extent there is no consideration.If
   87  the real property is transferred as a gift and is encumbered by
   88  a mortgage,tax is due on the amount due on the mortgage.
   89         5.The transfer for purposes of estate planning by a
   90  natural person of an interest in a conduit entity to an
   91  irrevocable grantor trust pursuant to subpart e, of Part 1, of
   92  Subchapter J, of Chapter 1, of the United States Revenue Code is
   93  not subject to tax under this subsection.
   94         6.The purpose of this paragraph is to impose the
   95  documentary stamp tax on the transfer for consideration of a
   96  beneficial interest in real property. The provisions of this
   97  paragraph are to be construed liberally to effectuate this
   98  purpose.
   99         (c)Conversion or merger of a trust that is not a legal
  100  entity that owns real property in this state into a legal entity
  101  shall be treated as a conveyance of the real property for the
  102  purposes of this section.
  103         (d)Taxes imposed by this subsection shall be paid pursuant
  104  to s.201.133 when no document is recorded. If a document is
  105  recorded, taxes imposed by the paragraph shall be paid as
  106  required for all other taxable documents that are recorded.
  107         (11)The documentary stamp tax imposed by this section
  108  applies to a deed, instrument, or writing that transfers any
  109  interest in real property pursuant to a short sale, as defined
  110  in this subsection. The taxable consideration for a short sale
  111  transfer does not include unpaid indebtedness that is forgiven
  112  or released by a mortgagee holding a mortgage on the grantor’s
  113  interest in the property. A short sale is a purchase and sale of
  114  real property in which:
  115         (a)The grantor’s interest in the real property is
  116  encumbered by a mortgage or mortgages securing indebtedness in
  117  an aggregate amount greater than the purchase price paid by the
  118  grantee;
  119         (b)A mortgagee releases the real property from its
  120  mortgage in exchange for a partial payment of less than all of
  121  the outstanding mortgage indebtedness owing to the releasing
  122  mortgagee;
  123         (c)The releasing mortgagee does not receive, directly or
  124  indirectly, any interest in the property transferred; and
  125         (d)The releasing mortgagee, grantor, and grantee are
  126  dealing with each other at arm’s length.
  127  Section 5. The amendments to subsections (1) and (11) of s.
  128  201.02, Florida Statutes, made by this act and
  129  
  130  ================= T I T L E  A M E N D M E N T ================
  131         And the title is amended as follows:
  132         Delete lines 30 - 48
  133  and insert:
  134  involving legal entities; amending s. 201.02, F.S.; defining
  135  terms; imposing the tax on certain transfers of a conduit
  136  entity; providing for the apportionment of the consideration for
  137  an interest in a conduit entity between real property interests
  138  and other assets; exempting from the tax property transferred as
  139  a gift to the extent there is no consideration; providing for
  140  trusts; providing legislative intent; providing for tax;
  141  imposing the tax on