Florida Senate - 2009              PROPOSED COMMITTEE SUBSTITUTE
       Bill No. CS for SB 2430 & SB 1960 & CS for SB 728
       
       
       
       
       
                                Barcode 919544                          
       
       593-03666B-09                                                   
       Proposed Committee Substitute by the Committee on Finance and
       Tax
    1                        A bill to be entitled                      
    2         An act relating to the discretionary surtax on
    3         documents; amending s. 3, ch. 83-220, Laws of Florida,
    4         as amended; extending a future repeal date of
    5         provisions authorizing counties to levy a
    6         discretionary surtax on documents; amending s.
    7         125.0167, F.S.; limiting the percentage of surtax
    8         revenues that may be used for administrative costs;
    9         specifying a minimum amount of surtax revenues to be
   10         used for housing for certain low-income and moderate
   11         income families; requiring an affirmative vote of a
   12         local government governing body to rehabilitate
   13         certain government-owned housing; authorizing certain
   14         counties to create by ordinance a housing choice
   15         assistance voucher program for the purpose of down
   16         payment assistance; providing definitions; providing
   17         eligibility requirements for such vouchers;
   18         authorizing purchasing employers to file for
   19         allocations for such vouchers; limiting allocations;
   20         requiring distribution of allocations to employees in
   21         the form of such vouchers; prohibiting use of
   22         allocations for such vouchers if not awarded within a
   23         certain period after certain documentary stamps taxes
   24         are collected; requiring the Office of Program Policy
   25         Analysis and Government Accountability to conduct a
   26         continuing review of the discretionary surtax program
   27         operated by counties; requiring reports to the
   28         Legislature; amending s. 201.02, F.S.; applying the
   29         excise tax on documents to certain transfers involving
   30         certain legal entities; providing for a credit against
   31         the tax under certain circumstances; specifying the
   32         rate of tax; imposing the tax on deeds, instruments,
   33         and other writings on the consideration for a transfer
   34         of real property pursuant to a short sale; providing
   35         that the consideration subject to the tax does not
   36         include unpaid indebtedness that is forgiven by a
   37         mortgagee; defining the term “short sale”; authorizing
   38         the Department of Revenue to adopt emergency rules;
   39         amending s. 201.031, F.S.; expanding requirements for
   40         counties levying the discretionary surtax to include
   41         housing plan, affordable housing element, and annual
   42         reporting requirements; amending s. 719.105, F.S.;
   43         conforming a cross-reference; providing for
   44         application of specified provisions of the act;
   45         providing effective dates.
   46  
   47  Be It Enacted by the Legislature of the State of Florida:
   48  
   49         Section 1. Section 3 of chapter 83-220, Laws of Florida, as
   50  amended by section 1 of chapter 84-270, Laws of Florida, and
   51  section 1 of chapter 89-252, Laws of Florida, is amended to
   52  read:
   53         Section 3. Sections 1 and 2 of chapter 83-220, Laws of
   54  Florida, as amended by this act, are repealed effective October
   55  1, 2031 2011.
   56         Section 2. Section 125.0167, Florida Statutes, is amended
   57  to read:
   58         125.0167 Discretionary surtax on documents; adoption;
   59  application of revenue.—
   60         (1) Pursuant to the provisions of s. 201.031, the governing
   61  authority in each county, as defined by s. 125.011(1), is
   62  authorized to levy a discretionary surtax on documents for the
   63  purpose of establishing and financing a Housing Assistance Loan
   64  Trust Fund to assist in the financing of construction,
   65  rehabilitation, or purchase of housing for low-income and
   66  moderate-income families. No less than 50 percent of the funds
   67  used in each county to provide such housing assistance shall be
   68  for the benefit of low-income families. For the purpose of this
   69  section, “low-income family” means a family whose income does
   70  not exceed 80 percent of the median income for the area, and
   71  “moderate-income family” means a family whose income is in
   72  excess of 80 percent but less than 140 percent of the median
   73  income for the area. For purposes of this section, the term
   74  “housing” is not limited to single-family, detached dwellings.
   75  The rate of the surtax shall not exceed the rate of 45 cents for
   76  each $100 or fractional part thereof of the consideration
   77  therefor. Such surtax shall apply only to those documents
   78  taxable under s. 201.02, except that there shall be no surtax on
   79  any document pursuant to which the interest granted, assigned,
   80  transferred, or conveyed involves only a single-family
   81  residence. Such single-family residence may be a condominium
   82  unit, a unit held through stock ownership or membership
   83  representing a proprietary interest in a corporation owning a
   84  fee or a leasehold initially in excess of 98 years, or a
   85  detached dwelling.
   86         (2) The levy of the discretionary surtax and the creation
   87  of a Housing Assistance Loan Trust Fund shall be by ordinance
   88  which shall set forth the policies and procedures of the
   89  assistance program. The ordinance shall be proposed at a regular
   90  meeting of the governing authority at least 2 weeks prior to
   91  formal adoption. Formal adoption shall not be effective unless
   92  approved on final vote by a majority of the total membership of
   93  the governing authority. The ordinance shall not take effect
   94  until 90 days after formal adoption.
   95         (3) The county shall deposit revenues from the
   96  discretionary surtax in the Housing Assistance Loan Trust Fund
   97  of the county, except that a portion of such revenues may be
   98  deposited into the Home Investment Trust Fund of the county as
   99  defined by and created pursuant to the requirements of federal
  100  law. The county shall use the revenues only to help finance the
  101  construction, rehabilitation, or purchase of housing for low
  102  income families and moderate-income families, to pay necessary
  103  costs of collection and enforcement of the surtax, and to fund
  104  any local matching contributions required pursuant to federal
  105  law. For purposes of this section, authorized uses of the
  106  revenues include, but are not limited to, providing funds for
  107  first and second mortgages and acquiring property for the
  108  purpose of forming housing cooperatives. Special consideration
  109  shall be given toward using the revenues in the neighborhood
  110  economic development programs of community development
  111  corporations. No more than 50 percent of the revenues collected
  112  each year pursuant to this section may be used to help finance
  113  new construction as provided herein. The proceeds of the surtax
  114  shall not be used for rent subsidies or grants.
  115         (4) No more than 10 percent of surtax revenues collected
  116  under this section by the Department of Revenue and remitted to
  117  the county in any fiscal year may be used for administrative
  118  costs.
  119         (5)(a) Notwithstanding the provisions of subsection (3), of
  120  the discretionary surtax revenues collected by the Department of
  121  Revenue remaining after any deduction for administrative costs
  122  as provided in subsection (4), no less than 35 percent shall be
  123  used to provide homeownership assistance for low-income and
  124  moderate-income families, and no less than 35 percent shall be
  125  used for construction, rehabilitation, and purchase of rental
  126  housing units. The remaining amount may be allocated to provide
  127  for homeownership assistance or rental housing units, at the
  128  discretion of the county. Any funds allocated for homeownership
  129  assistance or rental housing units which are not committed at
  130  the end of the fiscal year shall be available for homeownership
  131  assistance or construction, rehabilitation, and purchase of
  132  rental housing units in subsequent years.
  133         (b) For purposes of this subsection, the term
  134  “homeownership assistance” means assisting low-income and
  135  moderate-income families in purchasing a home as their primary
  136  residence, including, but not limited to, reducing the cost of
  137  the home with below-market construction financing, the amount of
  138  down payment and closing costs paid by the borrower, or the
  139  mortgage payment to an affordable amount for the purchaser or
  140  using any other financial assistance measure set forth in s.
  141  420.5088.
  142         (6) Rehabilitation of housing owned by a recipient
  143  government may be authorized only after a determination approved
  144  by a majority of the governing body that no other sources of
  145  funds are available.
  146         (7)(a) The governing body of each county as defined in s.
  147  125.011(1) may, by county ordinance and pursuant to procedures
  148  and requirements provided by such ordinance, create a housing
  149  choice assistance voucher program.
  150         (b) For purposes of this subsection, the term:
  151         1. “Housing choice assistance voucher” means the document
  152  used to access assistance paid by the county from the
  153  discretionary surtax balance in the Housing Assistance Trust
  154  Fund to a prospective purchaser of a single-family residence,
  155  which must be the purchaser’s homestead.
  156         2. “Purchasing employer” means a business or business
  157  entity that has acquired real property within the county and
  158  paid the surtax due as a result of the acquisition of that
  159  property pursuant to this section.
  160         (c) Housing choice assistance vouchers shall be used for
  161  down payment assistance for the purchase of a single-family
  162  residence by low-income or moderate-income persons within the
  163  county and within a 5-mile radius of the purchasing employer who
  164  are:
  165         1. Actively employed by the purchasing employer or by a
  166  business entity directly affiliated with the purchasing
  167  employer.
  168         2. Prequalified for a mortgage loan by a certified lending
  169  institution.
  170         (d) Upon payment of the discretionary surtax pursuant to
  171  this section, the purchasing employer may file for an allocation
  172  for housing choice assistance vouchers from the county in an
  173  amount not to exceed 50 percent of the amount of the
  174  discretionary surtax paid. The purchasing employer shall
  175  distribute the allocation to employees in the form of housing
  176  choice assistance vouchers pursuant to rules and procedures
  177  established for the program.
  178         (e) Any housing choice assistance voucher allocation not
  179  distributed to employees and redeemed by an employee within 1
  180  year after the date the discretionary surtax is paid may not be
  181  used for housing choice assistance vouchers under this
  182  subsection.
  183         (f) Any housing assistance paid pursuant to the housing
  184  choice assistance voucher program shall be included in the
  185  calculation determining the percentage of discretionary surtax
  186  funds used for homeownership purposes during the year in which
  187  the surtax funds for such purposes are expended.
  188         (8) By June 30, 2012, and every 5 years thereafter, the
  189  Office of Program Policy Analysis and Government Accountability
  190  shall review the discretionary surtax program operated by
  191  counties under this section and shall provide a report to the
  192  President of the Senate and the Speaker of the House of
  193  Representatives.
  194         Section 3. Section 201.02, Florida Statutes, is amended to
  195  read:
  196         201.02 Tax on deeds and other instruments relating to real
  197  property or interests in real property.—
  198         (1) On deeds, instruments, documents, or writings whereby
  199  any lands, tenements, or other real property, or any interest
  200  therein, shall be granted, assigned, transferred, or otherwise
  201  conveyed to, or vested in, the purchaser or any other person by
  202  his or her direction, on each $100 of the consideration therefor
  203  the tax shall be 70 cents. When the full amount of the
  204  consideration for the execution, assignment, transfer, or
  205  conveyance is not shown in the face of such deed, instrument,
  206  document, or writing, the tax shall be at the rate of 70 cents
  207  for each $100 or fractional part thereof of the consideration
  208  therefor. For purposes of this section, consideration includes,
  209  but is not limited to, the money paid or agreed to be paid; the
  210  discharge of an obligation; and the amount of any mortgage,
  211  purchase money mortgage lien, or other encumbrance, whether or
  212  not the underlying indebtedness is assumed. If the consideration
  213  paid or given in exchange for real property or any interest
  214  therein includes property other than money, it is presumed that
  215  the consideration is equal to the fair market value of the real
  216  property or interest therein.
  217         (2)(a)A tax is hereby imposed on all transfers of an
  218  ownership interest in real property which entitle the purchaser
  219  to the use or occupancy of land, including transfers of
  220  beneficial ownership interests, when the transfer is by means of
  221  the sale or exchange of shares, or of comparable rights or
  222  property interests, in a real property entity.
  223         (b)A real property entity is a corporation, limited
  224  liability company, or any other form of organization or legal
  225  entity, such as a trust, which owns real property that
  226  constitutes at least 80 percent of the value of the entity’s
  227  assets.
  228         (c)If a transfer that is taxable under this subsection
  229  also involves an instrument, document, or writing that is
  230  taxable under subsection (1), a credit against the tax imposed
  231  under this subsection shall be given for any tax paid pursuant
  232  to subsection (1) if the taxable instrument, document, or
  233  writing is executed coincident to the transfer. To qualify for
  234  this credit, the person liable for payment of the tax imposed
  235  under subsection (1) must:
  236         1.Cause a notation to be made on the document taxable
  237  pursuant to subsection (1), filed in the public records, which
  238  identifies the persons party to the transfer and states the
  239  amount of tax paid; and
  240         2.Include evidence in its return as specified by rule of
  241  the department showing payment of the tax imposed under
  242  subsection (1).
  243         (d)The tax imposed by this subsection shall be at the rate
  244  of 70 cents for each $100 or fractional part thereof or such
  245  other rate provided by law or local ordinance. The tax is
  246  imposed on the present fair market value of the real property
  247  multiplied by the percentage of interest transferred. The tax
  248  shall be due, collected, and remitted in the same manner as the
  249  tax imposed under subsection (1). The fair market value of the
  250  real property is measured without reduction for any lien,
  251  mortgage indebtedness, or other encumbrance.
  252         (e)For purposes of this subsection, a transfer does not
  253  occur upon a trade or sale of the regulated security of a public
  254  company.
  255         (f)For each transfer of an interest in real property
  256  subject to tax imposed by this subsection, the grantor and the
  257  grantee shall file a joint return on a form prescribed by the
  258  department.
  259         (g)The tax imposed by this subsection does not apply to a
  260  transfer between a person or persons and a legal entity or
  261  entities that results solely in a change in the method of
  262  holding title or to the form of its ownership and in which the
  263  proportional beneficial interests of all parties remain the same
  264  before and after the transfer.
  265         (h)The tax imposed by this subsection does not apply to
  266  transfers between a family corporation, family partnership,
  267  family limited partnership, family trust, or family limited
  268  liability company and its stockholders, partners, limited
  269  partners, beneficiaries, or members for the purpose of
  270  transferring real property in the organization, dissolution, or
  271  liquidation of the family corporation, family partnership,
  272  family limited partnership, family trust, or family limited
  273  liability company under the laws of this state if the transfer
  274  is made for no consideration other than shares, interests, or
  275  debt securities of the family corporation, family partnership,
  276  family limited partnership, family trust, or the family limited
  277  liability company. For purposes of this paragraph, a family
  278  corporation, family partnership, family limited partnership,
  279  family trust, or a family limited liability company is an entity
  280  in which the majority of the voting stock or ownership interest
  281  is held by persons who are related to each other, including by
  282  adoption, as descendants, spouses, parents, grandparents, lineal
  283  ascendants of grandparents or their spouses, or persons acting
  284  in a fiduciary capacity for persons so related.
  285         (i)The provisions of subsections (7) through (12) apply to
  286  the tax imposed by this subsection.
  287         (3)(2) The tax imposed by subsection (1) shall also be
  288  payable upon documents by which the right is granted to a
  289  tenant-stockholder to occupy an apartment in a building owned by
  290  a cooperative apartment corporation or in a dwelling on real
  291  property owned by any other form of cooperative association as
  292  defined in s. 719.103.
  293         (4)(3) The tax imposed by subsection (2) shall be paid by
  294  the purchaser, and the document recorded in the office of the
  295  clerk of the circuit court as evidence of ownership.
  296         (5)(4) The tax imposed by subsection (1) shall also be
  297  payable upon documents which convey or transfer, pursuant to s.
  298  689.071, any beneficial interest in lands, tenements, or other
  299  real property, or any interest therein, even though such
  300  interest may be designated as personal property, notwithstanding
  301  the provisions of s. 689.071(6). The tax shall be paid upon
  302  execution of any such document.
  303         (6)(5) All conveyances of real property to a partner from a
  304  partnership which property was conveyed to the partnership after
  305  July 1, 1986, are taxable if:
  306         (a) The partner receiving the real property from the
  307  partnership is a partner other than the partner who conveyed the
  308  real property to the partnership; or
  309         (b) The partner receiving the real property from the
  310  partnership is the partner who conveyed the real property to the
  311  partnership and there is a mortgage debt or other debt secured
  312  by such real property for which the partner was not personally
  313  liable prior to conveying the real property to the partnership.
  314  
  315  For purposes of this subsection, the value of the consideration
  316  paid for the conveyance of the real property to the partner from
  317  the partnership includes, but is not limited to, the amount of
  318  any outstanding mortgage debt or other debt which the partner
  319  pays or agrees to pay in exchange for the real property,
  320  regardless of whether the partner was personally liable for the
  321  debts of the partnership prior to the conveyance to the partner
  322  from the partnership.
  323         (7)(6) Taxes imposed by this section shall not apply to any
  324  assignment, transfer, or other disposition, or any document,
  325  which arises out of a transfer of real property from a nonprofit
  326  organization to the Board of Trustees of the Internal
  327  Improvement Trust Fund, to any state agency, to any water
  328  management district, or to any local government. For purposes of
  329  this subsection, “nonprofit organization” means an organization
  330  whose purpose is the preservation of natural resources and which
  331  is exempt from federal income tax under s. 501(c)(3) of the
  332  Internal Revenue Code. The Department of Revenue shall provide a
  333  form, or a place on an existing form, for the nonprofit
  334  organization to indicate its exempt status.
  335         (8)(7) Taxes imposed by this section do not apply to a
  336  deed, transfer, or conveyance between spouses or former spouses
  337  pursuant to an action for dissolution of their marriage wherein
  338  the real property is or was their marital home or an interest
  339  therein. Taxes paid pursuant to this section shall be refunded
  340  in those cases in which a deed, transfer, or conveyance occurred
  341  1 year before a dissolution of marriage. This subsection applies
  342  in spite of any consideration as defined in subsection (1). This
  343  subsection does not apply to a deed, transfer, or conveyance
  344  executed before July 1, 1997.
  345         (9)(8) Taxes imposed by this section do not apply to a
  346  contract to sell the residence of an employee relocating at his
  347  or her employer’s direction or to documents related to the
  348  contract, which contract is between the employee and the
  349  employer or between the employee and a person in the business of
  350  providing employee relocation services. In the case of such
  351  transactions, taxes apply only to the transfer of the real
  352  property comprising the residence by deed that vests legal title
  353  in a named grantee.
  354         (10)(9) A certificate of title issued by the clerk of court
  355  under s. 45.031(5) in a judicial sale of real property under an
  356  order or final judgment issued pursuant to a foreclosure
  357  proceeding is subject to the tax imposed by subsection (1).
  358  However, the amount of the tax shall be computed based solely on
  359  the amount of the highest and best bid received for the property
  360  at the foreclosure sale. This subsection is intended to clarify
  361  existing law and shall be applied retroactively.
  362         (11)(10)(a) In recognition of the special escrow
  363  requirements that apply to sales of timeshare interests in
  364  timeshare plans pursuant to s. 721.08, tax on deeds or other
  365  instruments conveying any interest in Florida real property
  366  which are executed in conjunction with the sale by a developer
  367  of a timeshare interest in a timeshare plan is due and payable
  368  on the earlier of the date on which:
  369         1. The deed or other instrument conveying the interest in
  370  Florida real property is recorded; or
  371         2. All of the conditions precedent to the release of the
  372  purchaser’s escrowed funds or other property pursuant to s.
  373  721.08(2)(c) have been met, regardless of whether the developer
  374  has posted an alternative assurance. Tax due pursuant to this
  375  subparagraph is due and payable on or before the 20th day of the
  376  month following the month in which these conditions were met.
  377         (b)1. If tax has been paid to the department pursuant to
  378  subparagraph (a)2., and the deed or other instrument conveying
  379  the interest in Florida real property with respect to which the
  380  tax was paid is subsequently recorded, a notation reflecting the
  381  prior payment of the tax must be made upon the deed or other
  382  instrument conveying the interest in Florida real property.
  383         2. Notwithstanding paragraph (a), if funds are designated
  384  on a closing statement as tax collected from the purchaser, but
  385  a default or cancellation occurs pursuant to s. 721.08(2)(a) or
  386  (b) and no deed or other instrument conveying interest in
  387  Florida real property has been recorded or delivered to the
  388  purchaser, the tax must be paid to the department on or before
  389  the 20th day of the month following the month in which the funds
  390  are available for release from escrow unless the funds have been
  391  refunded to the purchaser.
  392         (c) The department may adopt rules to administer the method
  393  for reporting tax due under this subsection.
  394         (12)The documentary stamp tax imposed by this section
  395  applies to a deed, instrument, or writing that transfers any
  396  interest in real property pursuant to a short sale, as defined
  397  in this subsection. The taxable consideration for a short sale
  398  transfer does not include unpaid indebtedness that is forgiven
  399  or released by a mortgagee holding a mortgage on the grantor’s
  400  interest in the property. A short sale is a purchase and sale of
  401  real property in which:
  402         (a)The grantor’s interest in the real property is
  403  encumbered by a mortgage or mortgages securing indebtedness in
  404  an aggregate amount greater than the purchase price paid by the
  405  grantee;
  406         (b)A mortgagee releases the real property from its
  407  mortgage in exchange for a partial payment of less than all of
  408  the outstanding mortgage indebtedness owing to the releasing
  409  mortgagee;
  410         (c)Neither the releasing mortgagee nor any person related
  411  to the releasing mortgagee receives any interest in the property
  412  transferred; and
  413         (d)The releasing mortgagee is not controlled by or related
  414  to the grantor or the grantee, and the grantor and the grantee
  415  are not controlled by or related to each other.
  416         Section 4. Effective upon this act becoming law, the
  417  Department of Revenue is authorized, and all conditions are
  418  deemed met, to adopt emergency rules under ss. 120.536(1) and
  419  120.54(4), Florida Statutes, to implement section 3 of this act.
  420  Notwithstanding any other provision of law, such emergency rules
  421  shall remain effective for 6 months after the date of adoption
  422  and may be renewed during the pendency of procedures to adopt
  423  rules addressing the subject of the emergency rules.
  424         Section 5. Section 201.031, Florida Statutes, is amended to
  425  read:
  426         201.031 Discretionary surtax; administration and
  427  collection; Housing Assistance Loan Trust Fund; reporting
  428  requirements.—
  429         (1) Each county, as defined by s. 125.011(1), may levy,
  430  subject to the provisions of s. 125.0167, a discretionary surtax
  431  on documents taxable under the provisions of s. 201.02, except
  432  that there shall be no surtax on any document pursuant to which
  433  the interest granted, assigned, transferred, or conveyed
  434  involves only a single-family residence. The Such single-family
  435  residence may be a condominium unit, a unit held through stock
  436  ownership or membership representing a proprietary interest in a
  437  corporation owning a fee or a leasehold initially in excess of
  438  98 years, or a detached dwelling.
  439         (2) All provisions of chapter 201, except s. 201.15, shall
  440  apply to the surtax. The Department of Revenue shall pay to the
  441  governing authority of the county which levies the surtax all
  442  taxes, penalties, and interest collected under this section less
  443  any costs of administration.
  444         (3) Each county that which levies the surtax shall:
  445         (a) Include in the financial report required under s.
  446  218.32 information showing the revenues and the expenses of the
  447  trust fund for the fiscal year.
  448         (b) Adopt a housing plan every 3 years which includes
  449  provisions substantially similar to the plans required in s.
  450  420.9075(1).
  451         (c) Have adopted an affordable housing element of its
  452  comprehensive land use plan which complies with s.
  453  163.3177(6)(f).
  454         (d) Require by resolution that the staff or entity that has
  455  administrative authority for implementing the housing plan
  456  prepare and submit to the county’s governing body an annual
  457  report substantially similar to the annual report required in s.
  458  420.9075(10).
  459         Section 6. Paragraph (a) of subsection (1) of section
  460  719.105, Florida Statutes, is amended to read:
  461         719.105 Cooperative parcels; appurtenances; possession and
  462  enjoyment.—
  463         (1) Each cooperative parcel has, as appurtenances thereto:
  464         (a) Evidence of membership, ownership of shares, or other
  465  interest in the association with the full voting rights
  466  appertaining thereto. Such evidence must include a legal
  467  description of each dwelling unit and must be recorded in the
  468  office of the clerk of the circuit court as required by s.
  469  201.02(4) s. 201.02(3).
  470         Section 7. Except as otherwise expressly provided in this
  471  act and except for this section, which shall take effect upon
  472  becoming a law, this act shall take effect July 1, 2009, and
  473  section 3 of this act applies to transfers of real property
  474  occurring on or after July 1, 2009.