Florida Senate - 2009 COMMITTEE AMENDMENT
Bill No. PCS (939510) for CS for SB 2430 & SB 1960
Barcode 877852
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
04/06/2009 .
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The Committee on Finance and Tax (Pruitt) recommended the
following:
1 Senate Substitute for Amendment (606638) (with title
2 amendment)
3
4
5 Delete lines 197 - 427
6 and insert:
7 Section 3. (1) The Legislature finds that the Florida
8 Supreme Court opinion in Crescent Miami Canter, LLC v. Florida
9 Department of Revenue, 903 So. 2d 913 (Fla. 2005) interprets s.
10 201.02, Florida Statutes, in a manner inconsistent with the
11 intent of the Legislature at the time that statute was amended
12 in 1990.
13 (2) The Legislature finds that the opinion of the District
14 Court of Appeal for the Third District of Florida in Crescent
15 Miami Center, LLC v. Florida Department of Revenue, 857 So. 2d
16 904 (Fla. 3d D.C.A. 2003), interprets s. 201.02, Florida
17 Statutes, in a manner consistent with the intent of the
18 Legislature.
19 (3) The Legislature finds that the administrative rules
20 adopted by the department premised on the enactment of s. 7,
21 chapter 90-132, Laws of Florida, correctly interpret s. 201.02,
22 Florida Statutes, in a manner consistent with the intent of the
23 Legislature.
24 (4) The Legislature intends, by this act, to return Florida
25 law, administrative rules, and policy on the issue addressed in
26 the cited opinions to the state of such law, rule, and policy
27 which existed prior to the Supreme Court opinion.
28 Section 4. Subsection (1) of section 201.02, Florida
29 Statutes, is amended, and subsection (11) is added that section,
30 to read:
31 201.02 Tax on deeds and other instruments relating to real
32 property or interests in real property.—
33 (1) On deeds, instruments, or writings whereby any lands,
34 tenements, or other real property, or any interest therein,
35 shall be granted, assigned, transferred, or otherwise conveyed
36 to, or vested in, the purchaser or any other person by his or
37 her direction, on each $100 of the consideration therefor the
38 tax shall be 70 cents. When the full amount of the consideration
39 for the execution, assignment, transfer, or conveyance is not
40 shown in the face of such deed, instrument, document, or
41 writing, the tax shall be at the rate of 70 cents for each $100
42 or fractional part thereof of the consideration therefor. For
43 purposes of this section, consideration includes, but is not
44 limited to, the money paid or agreed to be paid; the discharge
45 of an obligation; and the amount of any mortgage, purchase money
46 mortgage lien, or other encumbrance, whether or not the
47 underlying indebtedness is assumed; and conveyance of real
48 property to a corporation in exchange for shares of its capital
49 stock, or as a contribution to the capital of a corporation. If
50 the consideration paid or given in exchange for real property or
51 any interest therein includes property other than money, it is
52 presumed that the consideration is equal to the fair market
53 value of the real property or interest therein.
54 (11) The documentary stamp tax imposed by this section
55 applies to a deed, instrument, or writing that transfers any
56 interest in real property pursuant to a short sale, as defined
57 in this subsection. The taxable consideration for a short sale
58 transfer does not include unpaid indebtedness that is forgiven
59 or released by a mortgagee holding a mortgage on the grantor’s
60 interest in the property. A short sale is a purchase and sale of
61 real property in which:
62 (a) The grantor’s interest in the real property is
63 encumbered by a mortgage or mortgages securing indebtedness in
64 an aggregate amount greater than the purchase price paid by the
65 grantee;
66 (b) A mortgagee releases the real property from its
67 mortgage in exchange for a partial payment of less than all of
68 the outstanding mortgage indebtedness owing to the releasing
69 mortgagee;
70 (c) The releasing mortgagee does not receive, directly or
71 indirectly, any interest in the property transferred; and
72 (d) The releasing mortgagee, grantor, and grantee are
73 dealing with each other at arm’s length.
74 Section 5. The Department of Revenue is directed to readopt
75 administrative rules and policies substantially similar to those
76 that are no longer enforced, or were changed, repealed, or
77 discontinued, as a result of Crescent Miami Canter, LLC v.
78 Florida Department of Revenue, 903 So. 2d 913 (Fla. 2005).
79 Section 6. The amendment to subsection (1) of section
80 201.02, Florida Statutes, made by this act and the provisions of
81 sections 3 and 5 of this act are intended to be clarifying and
82 remedial in nature, but do not provide a basis for assessments
83 of tax, or refunds of tax, for periods before July 1, 2009.
84 Section 7. Effective upon this act becoming a law, the
85 Department of Revenue is authorized, and all conditions are
86 deemed met, to adopt emergency rules under ss. 120.536(1) and
87 120.54(4), Florida Statutes, to implement section 3 of this act
88 relating to short sales. Notwithstanding any other provision of
89 law, such emergency rules shall remain effective for 6 months
90 after the date of adoption and may be renewed during the
91 pendency of procedures to adopt rules addressing the subject of
92 the emergency rules.
93
94 ================= T I T L E A M E N D M E N T ================
95 And the title is amended as follows:
96 Delete lines 28 - 41
97 and insert:
98 Legislature; providing intent to reverse a judicial opinion
99 relating to the application of the excise tax on documents to
100 certain transactions involving legal entities; amending s.
101 201.02, F.S.; providing that the excise tax on documents applies
102 to transfers involving the exchange of real property for shares
103 of stock or as a capital contribution; imposing the tax on
104 deeds, instruments, and other writings on the consideration for
105 a transfer of real property pursuant to a short sale; providing
106 that the consideration subject to the tax does not include
107 unpaid indebtedness that is forgiven by a mortgagee; defining
108 the term “short sale”; directing the Department of Revenue to
109 re-adopt rules relating to the application of the excise tax on
110 documents to transfers of real property involving a legal
111 entity; providing intent that the statutory changes relating to
112 the application of the excise tax on documents for transfers
113 involving legal entities are to be clarifying and remedial in
114 nature; providing for the expiration of provisions relating to
115 the application of the excise tax on documents on certain
116 transactions involving legal entities; authorizing the
117 Department of Revenue to adopt emergency rules relating to short
118 sales; amending s. 201.031,