Florida Senate - 2009 SENATOR AMENDMENT Bill No. CS for CS for CS for SB's 2430 & SB 1960 Barcode 479628 LEGISLATIVE ACTION Senate . House . . . Floor: 4/AD/2R . 04/24/2009 04:31 PM . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— 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