Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. PCS (939510) for CS for SB 2430 & SB 1960
       
       
       
       
       
       
                                Barcode 606638                          
       
                              LEGISLATIVE ACTION                        
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       The Committee on Finance and Tax (Altman) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3  
    4         Delete lines 197 - 478
    5  and insert:
    6         Section 3. Subsection (1) of section 201.02, Florida
    7  Statutes, is amended, and subsection (11) is added to that
    8  section to read:
    9         201.02 Tax on deeds and other instruments relating to real
   10  property or interests in real property.—
   11         (1) On deeds, instruments, documents, or writings whereby
   12  any lands, tenements, or other real property, or any interest
   13  therein, shall be granted, assigned, transferred, or otherwise
   14  conveyed to, or vested in, the purchaser or any other person by
   15  his or her direction, on each $100 of the consideration therefor
   16  the tax shall be 70 cents. When the full amount of the
   17  consideration for the execution, assignment, transfer, or
   18  conveyance is not shown in the face of such deed, instrument,
   19  document, or writing, the tax shall be at the rate of 70 cents
   20  for each $100 or fractional part thereof of the consideration
   21  therefor. For purposes of this section, consideration includes,
   22  but is not limited to, the money paid or agreed to be paid; the
   23  discharge of an obligation; and the amount of any mortgage,
   24  purchase money mortgage lien, or other encumbrance, whether or
   25  not the underlying indebtedness is assumed. If the consideration
   26  paid or given in exchange for real property or any interest
   27  therein includes property other than money, it is presumed that
   28  the consideration is equal to the fair market value of the real
   29  property or interest therein.
   30         (11)The documentary stamp tax imposed by this section
   31  applies to a deed, instrument, or writing that transfers any
   32  interest in real property pursuant to a short sale, as defined
   33  in this subsection. The taxable consideration for a short sale
   34  transfer does not include unpaid indebtedness that is forgiven
   35  or released by a mortgagee holding a mortgage on the grantor’s
   36  interest in the property. A short sale is a purchase and sale of
   37  real property in which:
   38         (a)The grantor’s interest in the real property is
   39  encumbered by a mortgage or mortgages securing indebtedness in
   40  an aggregate amount greater than the purchase price paid by the
   41  grantee;
   42         (b)A mortgagee releases the real property from its
   43  mortgage in exchange for a partial payment of less than all of
   44  the outstanding mortgage indebtedness owing to the releasing
   45  mortgagee;
   46         (c)The releasing mortgagee does not receive, directly or
   47  indirectly, any interest in the property transferred; and
   48         (d)The releasing mortgagee, grantor, and grantee are
   49  dealing with each other at arm’s length.
   50         Section 4. The Department of Revenue may adopt rules to
   51  specify criteria indicating that a purported short sale is not
   52  an arm’s length transaction.
   53         Section 5. Effective upon this act becoming a law, the
   54  Department of Revenue is authorized, and all conditions are
   55  deemed met, to adopt emergency rules under ss. 120.536(1) and
   56  120.54(4), Florida Statutes, to implement section 3 of this act
   57  relating to short sales. Notwithstanding any other provision of
   58  law, such emergency rules shall remain effective for 6 months
   59  after the date of adoption and may be renewed during the
   60  pendency of procedures to adopt rules addressing the subject of
   61  the emergency rules.
   62         Section 6. Effective July 1, 2010, subsection (1) of
   63  section 201.02, Florida Statutes, as amended by this act, is
   64  amended, and subsections (12) and (13) are added to that
   65  section, to read:
   66         201.02 Tax on deeds and other instruments relating to real
   67  property or interests in real property.—
   68         (1) On deeds, instruments, documents, or writings whereby
   69  any lands, tenements, or other real property, or any interest
   70  therein, shall be granted, assigned, transferred, or otherwise
   71  conveyed to, or vested in, the purchaser or any other person by
   72  his or her direction, on each $100 of the consideration therefor
   73  the tax shall be 70 cents. When the full amount of the
   74  consideration for the execution, assignment, transfer, or
   75  conveyance is not shown in the face of such deed, instrument,
   76  document, or writing, the tax shall be at the rate of 70 cents
   77  for each $100 or fractional part thereof of the consideration
   78  therefor. For purposes of this section, consideration includes,
   79  but is not limited to, the money paid or agreed to be paid; the
   80  discharge of an obligation; and the amount of any mortgage,
   81  purchase money mortgage lien, or other encumbrance, whether or
   82  not the underlying indebtedness is assumed; and any
   83  consideration given in exchange for a direct or indirect
   84  ownership interest in a grantee entity within the holding period
   85  pursuant to subsection (13). If the consideration paid or given
   86  in exchange for real property or any interest therein includes
   87  property other than money, it is presumed that the consideration
   88  is equal to the fair market value of the real property or
   89  interest therein.
   90         (12)If a deed, instrument, document, or writing grants,
   91  assigns, transfers, or conveys any interest in real property
   92  from a grantor that is a corporation, partnership, limited
   93  liability company, or other business entity to one or more
   94  grantees that wholly or partially own such grantor entity,
   95  whether directly or indirectly through another intermediate
   96  entity or entities, to the extent that such interest in real
   97  property received by such a grantee is in the same proportion as
   98  the grantee’s direct or indirect ownership interest in the
   99  grantor entity, the consideration for such transfer for purposes
  100  of this section shall not be deemed to include any change in the
  101  value of the grantee’s ownership interest in the grantor entity
  102  or in any intermediate entity resulting from such transfer.
  103         (13)(a)If a deed, instrument, document, or writing grants,
  104  assigns, transfers, or conveys any interest in real property
  105  from one or more grantors to a grantee that is a corporation,
  106  partnership, limited liability company, or other business entity
  107  that is wholly or partially owned by the grantor or grantors,
  108  whether directly or indirectly through another intermediate
  109  entity or entities, to the extent that the interest in real
  110  property transferred by such a grantor is in the same proportion
  111  as the grantor’s ownership interest in the grantee entity, the
  112  consideration for such transfer for purposes of this section
  113  shall not be deemed to include any change in the value of the
  114  grantor’s ownership interest in the grantee entity or in any
  115  intermediate entity resulting from such transfer, to the extent
  116  that the grantor continues to own directly or indirectly the
  117  same percentage of the ownership interests in the grantee entity
  118  for a holding period ending on the earlier of:
  119         1.The date that is 1 year after the transfer of such
  120  interest in real property to the grantee entity; or
  121         2.The date that the grantee entity no longer owns any
  122  interest in such real property, whether directly or indirectly
  123  through another intermediate entity or entities.
  124         (b)Upon the transfer for consideration of all or any
  125  portion of the direct or indirect ownership interest of such a
  126  grantor in the grantee entity to a purchaser other than the
  127  grantor within the holding period set forth in paragraph (a),
  128  whether by sale, assignment, merger, exchange, consolidation,
  129  conversion, or otherwise, the consideration given for the
  130  transferred ownership interest shall be deemed to have been
  131  exchanged for the previous transfer of the interest in real
  132  property to the grantee entity, and the tax imposed by
  133  subsection (1) applies to the previous transfer of the interest
  134  in real property to the grantee entity based on such deemed
  135  consideration. The direct or indirect ownership interests in a
  136  grantee entity described in this subsection does not include any
  137  shares or similar equity interests dealt in or traded on
  138  securities exchanges or in securities markets.
  139         (c)The cumulative amount of all such deemed consideration
  140  under this subsection may not in any event exceed the fair
  141  market value of the transferred real property interest at the
  142  time of the transfer of the ownership interest in the grantee
  143  entity, less any consideration on which tax was paid.
  144         (d)Upon the transfer of such direct or indirect ownership
  145  interest in a grantee entity that owns assets other than such
  146  real property interest, the deemed consideration described in
  147  this subsection shall be prorated based on the fair market value
  148  of the real property interest and the fair market value of the
  149  other assets at the time of such transfer of the ownership
  150  interest in the grantee entity, and only the portion of the
  151  deemed consideration prorated to the real property interest
  152  shall be subject to the tax under subsection (1).
  153         (e)The tax becoming payable as set forth in this
  154  subsection shall be paid prior to the 20th day of the month
  155  following the transfer of the ownership interest.
  156         Section 7. The Department of Revenue may adopt rules to
  157  administer or illustrate the application of section 6 of this
  158  act.
  159         Section 8. Section 201.031, Florida Statutes, is amended to
  160  read:
  161         201.031 Discretionary surtax; administration and
  162  collection; Housing Assistance Loan Trust Fund; reporting
  163  requirements.—
  164         (1) Each county, as defined by s. 125.011(1), may levy,
  165  subject to the provisions of s. 125.0167, a discretionary surtax
  166  on documents taxable under the provisions of s. 201.02, except
  167  that there shall be no surtax on any document pursuant to which
  168  the interest granted, assigned, transferred, or conveyed
  169  involves only a single-family residence. The Such single-family
  170  residence may be a condominium unit, a unit held through stock
  171  ownership or membership representing a proprietary interest in a
  172  corporation owning a fee or a leasehold initially in excess of
  173  98 years, or a detached dwelling.
  174         (2) All provisions of chapter 201, except s. 201.15, shall
  175  apply to the surtax. The Department of Revenue shall pay to the
  176  governing authority of the county which levies the surtax all
  177  taxes, penalties, and interest collected under this section less
  178  any costs of administration.
  179         (3) Each county that which levies the surtax shall:
  180         (a) Include in the financial report required under s.
  181  218.32 information showing the revenues and the expenses of the
  182  trust fund for the fiscal year.
  183         (b)Adopt a housing plan every 3 years which includes
  184  provisions substantially similar to the plans required in s.
  185  420.9075(1).
  186         (c)Have adopted an affordable housing element of its
  187  comprehensive land use plan which complies with s.
  188  163.3177(6)(f).
  189         (d)Require by resolution that the staff or entity that has
  190  administrative authority for implementing the housing plan
  191  prepare and submit to the county’s governing body an annual
  192  report substantially similar to the annual report required in s.
  193  420.9075(10).
  194         Section 9. Paragraph (a) of subsection (1) of section
  195  719.105, Florida Statutes, is amended to read:
  196         719.105 Cooperative parcels; appurtenances; possession and
  197  enjoyment.—
  198         (1) Each cooperative parcel has, as appurtenances thereto:
  199         (a) Evidence of membership, ownership of shares, or other
  200  interest in the association with the full voting rights
  201  appertaining thereto. Such evidence must include a legal
  202  description of each dwelling unit and must be recorded in the
  203  office of the clerk of the circuit court as required by s.
  204  201.02(4) s. 201.02(3).
  205         Section 10. Except as otherwise expressly provided in this
  206  act and except for this section, which shall take effect upon
  207  becoming a law, this act shall take effect July 1, 2009. Section
  208  3 of this act applies to transfers of real property occurring on
  209  or after July 1, 2009. Section 6 of this act applies to
  210  transfers of real property for which the first transfer to a
  211  grantee entity occurs on or after January 1, 2010.
  212  
  213  ================= T I T L E  A M E N D M E N T ================
  214         And the title is amended as follows:
  215         Delete lines 28 - 41
  216  and insert:
  217  Legislature; amending s. 201.02, F.S.; imposing the tax on
  218  deeds, instruments, and other writings on the consideration for
  219  a transfer of real property pursuant to a short sale; providing
  220  that the consideration subject to the tax does not include
  221  unpaid indebtedness that is forgiven by a mortgagee; defining
  222  the term “short sale”; authorizing the Department of Revenue to
  223  adopt criteria by rule indicating that a purported short sale is
  224  not an arm’s length transaction; authorizing the Department of
  225  Revenue to adopt emergency rules; applying the excise tax on
  226  documents to certain transfers involving certain legal entities;
  227  authorizing the Department of Revenue to adopt rules to
  228  administer or illustrate the application of the tax on certain
  229  transactions involving legal entities; amending s. 201.031,