Florida Senate - 2009 COMMITTEE AMENDMENT
Bill No. PCS (939510) for CS for SB 2430 & SB 1960
Barcode 752038
LEGISLATIVE ACTION
Senate . House
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The Committee on Finance and Tax (Pruitt) recommended the
following:
1 Senate Amendment (with title amendment)
2
3
4 Delete lines 197 - 427
5 and insert:
6 Section 3. (1) The Legislature finds that the Florida
7 Supreme Court opinion in Crescent Miami Canter, LLC v. Florida
8 Department of Revenue, 903 So. 2d 913 (Fla. 2005) interprets s.
9 201.02, Florida Statutes, in a manner inconsistent with the
10 intent of the Legislature at the time that statute was amended
11 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 consistent with the intent of the
17 Legislature.
18 (3) The Legislature finds that the administrative rules
19 adopted by the department premised on the enactment of s. 7,
20 chapter 90-132, Laws of Florida, correctly interpret s. 201.02,
21 Florida Statutes, in a manner consistent with the intent of the
22 Legislature.
23 (4) The Legislature intends, by this act, to return Florida
24 law, administrative rules, and policy on the issue addressed in
25 the cited opinions to the state of such law, rule, and policy
26 which existed prior to the Supreme Court opinion.
27 Section 4. Subsection (1) of section 201.02, Florida
28 Statutes, is amended, and subsection (11) is added that section,
29 to read:
30 201.02 Tax on deeds and other instruments relating to real
31 property or interests in real property.—
32 (1) On deeds, instruments, or writings whereby any lands,
33 tenements, or other real property, or any interest therein,
34 shall be granted, assigned, transferred, or otherwise conveyed
35 to, or vested in, the purchaser or any other person by his or
36 her direction, on each $100 of the consideration therefor the
37 tax shall be 70 cents. When the full amount of the consideration
38 for the execution, assignment, transfer, or conveyance is not
39 shown in the face of such deed, instrument, document, or
40 writing, the tax shall be at the rate of 70 cents for each $100
41 or fractional part thereof of the consideration therefor. For
42 purposes of this section, consideration includes, but is not
43 limited to, the money paid or agreed to be paid; the discharge
44 of an obligation; and the amount of any mortgage, purchase money
45 mortgage lien, or other encumbrance, whether or not the
46 underlying indebtedness is assumed; and conveyance of real
47 property to a corporation in exchange for shares of its capital
48 stock, or as a contribution to the capital of a corporation. If
49 the consideration paid or given in exchange for real property or
50 any interest therein includes property other than money, it is
51 presumed that the consideration is equal to the fair market
52 value of the real property or interest therein.
53 (11) The documentary stamp tax imposed by this section
54 applies to a deed, instrument, or writing that transfers any
55 interest in real property pursuant to a short sale, as defined
56 in this subsection. The taxable consideration for a short sale
57 transfer does not include unpaid indebtedness that is forgiven
58 or released by a mortgagee holding a mortgage on the grantor’s
59 interest in the property. A short sale is a purchase and sale of
60 real property in which:
61 (a) The grantor’s interest in the real property is
62 encumbered by a mortgage or mortgages securing indebtedness in
63 an aggregate amount greater than the purchase price paid by the
64 grantee;
65 (b) A mortgagee releases the real property from its
66 mortgage in exchange for a partial payment of less than all of
67 the outstanding mortgage indebtedness owing to the releasing
68 mortgagee;
69 (c) The releasing mortgagee does not receive, directly or
70 indirectly, any interest in the property transferred; and
71 (d) The releasing mortgagee, grantor, and grantee are
72 dealing with each other at arm’s length.
73 Section 5. The Department of Revenue is directed to readopt
74 administrative rules and policies substantially similar to those
75 that are no longer enforced, or were changed, repealed, or
76 discontinued, as a result of Crescent Miami Canter, LLC v.
77 Florida Department of Revenue, 903 So. 2d 913 (Fla. 2005).
78 Section 6. The amendment to subsection (1) of section
79 201.02, Florida Statutes, made by this act and the provisions of
80 sections 3 and 5 of this act are intended to be clarifying and
81 remedial in nature, but do not provide a basis for assessments
82 of tax, or refunds of tax, for periods before July 1, 2009.
83 Section 7. Effective upon this act becoming a law, the
84 Department of Revenue is authorized, and all conditions are
85 deemed met, to adopt emergency rules under ss. 120.536(1) and
86 120.54(4), Florida Statutes, to implement section 3 of this act
87 relating to short sales. Notwithstanding any other provision of
88 law, such emergency rules shall remain effective for 6 months
89 after the date of adoption and may be renewed during the
90 pendency of procedures to adopt rules addressing the subject of
91 the emergency rules.
92
93 ================= T I T L E A M E N D M E N T ================
94 And the title is amended as follows:
95 Delete lines 28 - 41
96 and insert:
97 Legislature; providing intent to reverse a judicial opinion
98 relating to the application of the excise tax on documents to
99 certain transactions involving legal entities; amending s.
100 201.02, F.S.; providing that the excise tax on documents applies
101 to transfers involving the exchange of real property for shares
102 of stock or as a capital contribution; imposing the tax on
103 deeds, instruments, and other writings on the consideration for
104 a transfer of real property pursuant to a short sale; providing
105 that the consideration subject to the tax does not include
106 unpaid indebtedness that is forgiven by a mortgagee; defining
107 the term “short sale”; directing the Department of Revenue to
108 re-adopt rules relating to the application of the excise tax on
109 documents to transfers of real property involving a legal
110 entity; providing intent that the statutory changes relating to
111 the application of the excise tax on documents for transfers
112 involving legal entities are to be clarifying and remedial in
113 nature; providing for the expiration of provisions relating to
114 the application of the excise tax on documents on certain
115 transactions involving legal entities; authorizing the
116 Department of Revenue to adopt emergency rules relating to short
117 sales; amending s. 201.031,