Florida Senate - 2009              PROPOSED COMMITTEE SUBSTITUTE
       Bill No. CS for SB 2430 & SB 1960
       
       
       
       
       
                                Barcode 939510                          
       
       593-04161-09                                                    
       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 criteria by rule
   39         indicating that a purported short sale is not an arm’s
   40         length transaction; authorizing the Department of
   41         Revenue to adopt emergency rules; amending s. 201.031,
   42         F.S.; expanding requirements for counties levying the
   43         discretionary surtax to include housing plan,
   44         affordable housing element, and annual reporting
   45         requirements; amending s. 719.105, F.S.; conforming a
   46         cross-reference; providing for application of
   47         specified provisions of the act; providing effective
   48         dates.
   49  
   50  Be It Enacted by the Legislature of the State of Florida:
   51  
   52         Section 1. Section 3 of chapter 83-220, Laws of Florida, as
   53  amended by section 1 of chapter 84-270, Laws of Florida, and
   54  section 1 of chapter 89-252, Laws of Florida, is amended to
   55  read:
   56         Section 3. Sections 1 and 2 of chapter 83-220, Laws of
   57  Florida, as amended by this act, are repealed effective October
   58  1, 2031 2011.
   59         Section 2. Section 125.0167, Florida Statutes, is amended
   60  to read:
   61         125.0167 Discretionary surtax on documents; adoption;
   62  application of revenue.—
   63         (1) Pursuant to the provisions of s. 201.031, the governing
   64  authority in each county, as defined by s. 125.011(1), is
   65  authorized to levy a discretionary surtax on documents for the
   66  purpose of establishing and financing a Housing Assistance Loan
   67  Trust Fund to assist in the financing of construction,
   68  rehabilitation, or purchase of housing for low-income and
   69  moderate-income families. No less than 50 percent of the funds
   70  used in each county to provide such housing assistance shall be
   71  for the benefit of low-income families. For the purpose of this
   72  section, “low-income family” means a family whose income does
   73  not exceed 80 percent of the median income for the area, and
   74  “moderate-income family” means a family whose income is in
   75  excess of 80 percent but less than 140 percent of the median
   76  income for the area. For purposes of this section, the term
   77  “housing” is not limited to single-family, detached dwellings.
   78  The rate of the surtax shall not exceed the rate of 45 cents for
   79  each $100 or fractional part thereof of the consideration
   80  therefor. Such surtax shall apply only to those documents
   81  taxable under s. 201.02, except that there shall be no surtax on
   82  any document pursuant to which the interest granted, assigned,
   83  transferred, or conveyed involves only a single-family
   84  residence. Such single-family residence may be a condominium
   85  unit, a unit held through stock ownership or membership
   86  representing a proprietary interest in a corporation owning a
   87  fee or a leasehold initially in excess of 98 years, or a
   88  detached dwelling.
   89         (2) The levy of the discretionary surtax and the creation
   90  of a Housing Assistance Loan Trust Fund shall be by ordinance
   91  which shall set forth the policies and procedures of the
   92  assistance program. The ordinance shall be proposed at a regular
   93  meeting of the governing authority at least 2 weeks prior to
   94  formal adoption. Formal adoption shall not be effective unless
   95  approved on final vote by a majority of the total membership of
   96  the governing authority. The ordinance shall not take effect
   97  until 90 days after formal adoption.
   98         (3) The county shall deposit revenues from the
   99  discretionary surtax in the Housing Assistance Loan Trust Fund
  100  of the county, except that a portion of such revenues may be
  101  deposited into the Home Investment Trust Fund of the county as
  102  defined by and created pursuant to the requirements of federal
  103  law. The county shall use the revenues only to help finance the
  104  construction, rehabilitation, or purchase of housing for low
  105  income families and moderate-income families, to pay necessary
  106  costs of collection and enforcement of the surtax, and to fund
  107  any local matching contributions required pursuant to federal
  108  law. For purposes of this section, authorized uses of the
  109  revenues include, but are not limited to, providing funds for
  110  first and second mortgages and acquiring property for the
  111  purpose of forming housing cooperatives. Special consideration
  112  shall be given toward using the revenues in the neighborhood
  113  economic development programs of community development
  114  corporations. No more than 50 percent of the revenues collected
  115  each year pursuant to this section may be used to help finance
  116  new construction as provided herein. The proceeds of the surtax
  117  shall not be used for rent subsidies or grants.
  118         (4)No more than 10 percent of surtax revenues collected
  119  under this section by the Department of Revenue and remitted to
  120  the county in any fiscal year may be used for administrative
  121  costs.
  122         (5)(a)Notwithstanding the provisions of subsection (3), of
  123  the discretionary surtax revenues collected by the Department of
  124  Revenue remaining after any deduction for administrative costs
  125  as provided in subsection (4), no less than 35 percent shall be
  126  used to provide homeownership assistance for low-income and
  127  moderate-income families, and no less than 35 percent shall be
  128  used for construction, rehabilitation, and purchase of rental
  129  housing units. The remaining amount may be allocated to provide
  130  for homeownership assistance or rental housing units, at the
  131  discretion of the county. Any funds allocated for homeownership
  132  assistance or rental housing units which are not committed at
  133  the end of the fiscal year shall be available for homeownership
  134  assistance or construction, rehabilitation, and purchase of
  135  rental housing units in subsequent years.
  136         (b)For purposes of this subsection, the term
  137  “homeownership assistance” means assisting low-income and
  138  moderate-income families in purchasing a home as their primary
  139  residence, including, but not limited to, reducing the cost of
  140  the home with below-market construction financing, the amount of
  141  down payment and closing costs paid by the borrower, or the
  142  mortgage payment to an affordable amount for the purchaser or
  143  using any other financial assistance measure set forth in s.
  144  420.5088.
  145         (6)Rehabilitation of housing owned by a recipient
  146  government may be authorized only after a determination approved
  147  by a majority of the governing body that no other sources of
  148  funds are available.
  149         (7)(a)The governing body of each county as defined in s.
  150  125.011(1) may, by county ordinance and pursuant to procedures
  151  and requirements provided by such ordinance, create a housing
  152  choice assistance voucher program.
  153         (b)For purposes of this subsection, the term:
  154         1.“Housing choice assistance voucher” means the document
  155  used to access assistance paid by the county from the
  156  discretionary surtax balance in the Housing Assistance Trust
  157  Fund to a prospective purchaser of a single-family residence,
  158  which must be the purchaser’s homestead.
  159         2.“Purchasing employer” means a business or business
  160  entity that has acquired real property within the county and
  161  paid the surtax due as a result of the acquisition of that
  162  property pursuant to this section.
  163         (c)Housing choice assistance vouchers shall be used for
  164  down payment assistance for the purchase of a single-family
  165  residence by low-income or moderate-income persons within the
  166  county and within a 5-mile radius of the purchasing employer who
  167  are:
  168         1.Actively employed by the purchasing employer or by a
  169  business entity directly affiliated with the purchasing
  170  employer.
  171         2.Prequalified for a mortgage loan by a certified lending
  172  institution.
  173         (d)Upon payment of the discretionary surtax pursuant to
  174  this section, the purchasing employer may file for an allocation
  175  for housing choice assistance vouchers from the county in an
  176  amount not to exceed 50 percent of the amount of the
  177  discretionary surtax paid. The purchasing employer shall
  178  distribute the allocation to employees in the form of housing
  179  choice assistance vouchers pursuant to rules and procedures
  180  established for the program.
  181         (e)Any housing choice assistance voucher allocation not
  182  distributed to employees and redeemed by an employee within 1
  183  year after the date the discretionary surtax is paid may not be
  184  used for housing choice assistance vouchers under this
  185  subsection.
  186         (f)Any housing assistance paid pursuant to the housing
  187  choice assistance voucher program shall be included in the
  188  calculation determining the percentage of discretionary surtax
  189  funds used for homeownership purposes during the year in which
  190  the surtax funds for such purposes are expended.
  191         (8)By June 30, 2012, and every 5 years thereafter, the
  192  Office of Program Policy Analysis and Government Accountability
  193  shall review the discretionary surtax program operated by
  194  counties under this section and shall provide a report to the
  195  President of the Senate and the Speaker of the House of
  196  Representatives.
  197         Section 3. Section 201.02, Florida Statutes, is amended to
  198  read:
  199         201.02 Tax on deeds and other instruments relating to real
  200  property or interests in real property.—
  201         (1) On deeds, instruments, documents, or writings whereby
  202  any lands, tenements, or other real property, or any interest
  203  therein, shall be granted, assigned, transferred, or otherwise
  204  conveyed to, or vested in, the purchaser or any other person by
  205  his or her direction, on each $100 of the consideration therefor
  206  the tax shall be 70 cents. When the full amount of the
  207  consideration for the execution, assignment, transfer, or
  208  conveyance is not shown in the face of such deed, instrument,
  209  document, or writing, the tax shall be at the rate of 70 cents
  210  for each $100 or fractional part thereof of the consideration
  211  therefor. For purposes of this section, consideration includes,
  212  but is not limited to, the money paid or agreed to be paid; the
  213  discharge of an obligation; and the amount of any mortgage,
  214  purchase money mortgage lien, or other encumbrance, whether or
  215  not the underlying indebtedness is assumed. If the consideration
  216  paid or given in exchange for real property or any interest
  217  therein includes property other than money, it is presumed that
  218  the consideration is equal to the fair market value of the real
  219  property or interest therein.
  220         (2)(a)A tax is hereby imposed on all transfers of an
  221  ownership interest in real property which entitle the purchaser
  222  to the use or occupancy of land, including transfers of
  223  beneficial ownership interests, when the transfer is by means of
  224  the sale or exchange of shares, or of comparable rights or
  225  property interests, in a real property entity.
  226         (b)A real property entity is a corporation, limited
  227  liability company, or any other form of organization or legal
  228  entity, such as a trust, which owns real property that
  229  constitutes at least 80 percent of the value of the entity’s
  230  assets.
  231         (c)If a transfer that is taxable under this subsection
  232  also involves an instrument, document, or writing that is
  233  taxable under subsection (1), a credit against the tax imposed
  234  under this subsection shall be given for any tax paid pursuant
  235  to subsection (1) if the taxable instrument, document, or
  236  writing is executed coincident to the transfer. To qualify for
  237  this credit, the person liable for payment of the tax imposed
  238  under subsection (1) must:
  239         1.Cause a notation to be made on the document taxable
  240  pursuant to subsection (1), filed in the public records, which
  241  identifies the persons party to the transfer and states the
  242  amount of tax paid; and
  243         2.Include evidence in its return as specified by rule of
  244  the department showing payment of the tax imposed under
  245  subsection (1).
  246         (d)The tax imposed by this subsection shall be at the rate
  247  of 70 cents for each $100 or fractional part thereof or such
  248  other rate provided by law or local ordinance. The tax is
  249  imposed on the present fair market value of the real property
  250  multiplied by the percentage of interest transferred. The tax
  251  shall be due, collected, and remitted in the same manner as the
  252  tax imposed under subsection (1). The fair market value of the
  253  real property is measured without reduction for any lien,
  254  mortgage indebtedness, or other encumbrance.
  255         (e)For purposes of this subsection, a transfer does not
  256  occur upon a trade or sale of the regulated security of a public
  257  company.
  258         (f)For each transfer of an interest in real property
  259  subject to tax imposed by this subsection, the grantor and the
  260  grantee shall file a joint return on a form prescribed by the
  261  department.
  262         (g)The tax imposed by this subsection does not apply to a
  263  transfer between a person or persons and a legal entity or
  264  entities that results solely in a change in the method of
  265  holding title or to the form of its ownership and in which the
  266  proportional beneficial interests of all parties remain the same
  267  before and after the transfer.
  268         (h)The tax imposed by this subsection does not apply to
  269  transfers between a family corporation, family partnership,
  270  family limited partnership, family trust, or family limited
  271  liability company and its stockholders, partners, limited
  272  partners, beneficiaries, or members for the purpose of
  273  transferring real property in the organization, dissolution, or
  274  liquidation of the family corporation, family partnership,
  275  family limited partnership, family trust, or family limited
  276  liability company under the laws of this state if the transfer
  277  is made for no consideration other than shares, interests, or
  278  debt securities of the family corporation, family partnership,
  279  family limited partnership, family trust, or the family limited
  280  liability company. For purposes of this paragraph, a family
  281  corporation, family partnership, family limited partnership,
  282  family trust, or a family limited liability company is an entity
  283  in which the majority of the voting stock or ownership interest
  284  is held by persons who are related to each other, including by
  285  adoption, as descendants, spouses, parents, grandparents, lineal
  286  ascendants of grandparents or their spouses, or persons acting
  287  in a fiduciary capacity for persons so related.
  288         (i)The provisions of subsections (7)-(12) apply to the tax
  289  imposed by this subsection.
  290         (3)(2) The tax imposed by subsection (1) shall also be
  291  payable upon documents by which the right is granted to a
  292  tenant-stockholder to occupy an apartment in a building owned by
  293  a cooperative apartment corporation or in a dwelling on real
  294  property owned by any other form of cooperative association as
  295  defined in s. 719.103.
  296         (4)(3) The tax imposed by subsection (2) shall be paid by
  297  the purchaser, and the document recorded in the office of the
  298  clerk of the circuit court as evidence of ownership.
  299         (5)(4) The tax imposed by subsection (1) shall also be
  300  payable upon documents which convey or transfer, pursuant to s.
  301  689.071, any beneficial interest in lands, tenements, or other
  302  real property, or any interest therein, even though such
  303  interest may be designated as personal property, notwithstanding
  304  the provisions of s. 689.071(6). The tax shall be paid upon
  305  execution of any such document.
  306         (6)(5) All conveyances of real property to a partner from a
  307  partnership which property was conveyed to the partnership after
  308  July 1, 1986, are taxable if:
  309         (a) The partner receiving the real property from the
  310  partnership is a partner other than the partner who conveyed the
  311  real property to the partnership; or
  312         (b) The partner receiving the real property from the
  313  partnership is the partner who conveyed the real property to the
  314  partnership and there is a mortgage debt or other debt secured
  315  by such real property for which the partner was not personally
  316  liable prior to conveying the real property to the partnership.
  317  
  318  For purposes of this subsection, the value of the consideration
  319  paid for the conveyance of the real property to the partner from
  320  the partnership includes, but is not limited to, the amount of
  321  any outstanding mortgage debt or other debt which the partner
  322  pays or agrees to pay in exchange for the real property,
  323  regardless of whether the partner was personally liable for the
  324  debts of the partnership prior to the conveyance to the partner
  325  from the partnership.
  326         (7)(6) Taxes imposed by this section shall not apply to any
  327  assignment, transfer, or other disposition, or any document,
  328  which arises out of a transfer of real property from a nonprofit
  329  organization to the Board of Trustees of the Internal
  330  Improvement Trust Fund, to any state agency, to any water
  331  management district, or to any local government. For purposes of
  332  this subsection, “nonprofit organization” means an organization
  333  whose purpose is the preservation of natural resources and which
  334  is exempt from federal income tax under s. 501(c)(3) of the
  335  Internal Revenue Code. The Department of Revenue shall provide a
  336  form, or a place on an existing form, for the nonprofit
  337  organization to indicate its exempt status.
  338         (8)(7) Taxes imposed by this section do not apply to a
  339  deed, transfer, or conveyance between spouses or former spouses
  340  pursuant to an action for dissolution of their marriage wherein
  341  the real property is or was their marital home or an interest
  342  therein. Taxes paid pursuant to this section shall be refunded
  343  in those cases in which a deed, transfer, or conveyance occurred
  344  1 year before a dissolution of marriage. This subsection applies
  345  in spite of any consideration as defined in subsection (1). This
  346  subsection does not apply to a deed, transfer, or conveyance
  347  executed before July 1, 1997.
  348         (9)(8) Taxes imposed by this section do not apply to a
  349  contract to sell the residence of an employee relocating at his
  350  or her employer’s direction or to documents related to the
  351  contract, which contract is between the employee and the
  352  employer or between the employee and a person in the business of
  353  providing employee relocation services. In the case of such
  354  transactions, taxes apply only to the transfer of the real
  355  property comprising the residence by deed that vests legal title
  356  in a named grantee.
  357         (10)(9) A certificate of title issued by the clerk of court
  358  under s. 45.031(5) in a judicial sale of real property under an
  359  order or final judgment issued pursuant to a foreclosure
  360  proceeding is subject to the tax imposed by subsection (1).
  361  However, the amount of the tax shall be computed based solely on
  362  the amount of the highest and best bid received for the property
  363  at the foreclosure sale. This subsection is intended to clarify
  364  existing law and shall be applied retroactively.
  365         (11)(10)(a) In recognition of the special escrow
  366  requirements that apply to sales of timeshare interests in
  367  timeshare plans pursuant to s. 721.08, tax on deeds or other
  368  instruments conveying any interest in Florida real property
  369  which are executed in conjunction with the sale by a developer
  370  of a timeshare interest in a timeshare plan is due and payable
  371  on the earlier of the date on which:
  372         1. The deed or other instrument conveying the interest in
  373  Florida real property is recorded; or
  374         2. All of the conditions precedent to the release of the
  375  purchaser’s escrowed funds or other property pursuant to s.
  376  721.08(2)(c) have been met, regardless of whether the developer
  377  has posted an alternative assurance. Tax due pursuant to this
  378  subparagraph is due and payable on or before the 20th day of the
  379  month following the month in which these conditions were met.
  380         (b)1. If tax has been paid to the department pursuant to
  381  subparagraph (a)2., and the deed or other instrument conveying
  382  the interest in Florida real property with respect to which the
  383  tax was paid is subsequently recorded, a notation reflecting the
  384  prior payment of the tax must be made upon the deed or other
  385  instrument conveying the interest in Florida real property.
  386         2. Notwithstanding paragraph (a), if funds are designated
  387  on a closing statement as tax collected from the purchaser, but
  388  a default or cancellation occurs pursuant to s. 721.08(2)(a) or
  389  (b) and no deed or other instrument conveying interest in
  390  Florida real property has been recorded or delivered to the
  391  purchaser, the tax must be paid to the department on or before
  392  the 20th day of the month following the month in which the funds
  393  are available for release from escrow unless the funds have been
  394  refunded to the purchaser.
  395         (c) The department may adopt rules to administer the method
  396  for reporting tax due under this subsection.
  397         (12)The documentary stamp tax imposed by this section
  398  applies to a deed, instrument, or writing that transfers any
  399  interest in real property pursuant to a short sale, as defined
  400  in this subsection. The taxable consideration for a short sale
  401  transfer does not include unpaid indebtedness that is forgiven
  402  or released by a mortgagee holding a mortgage on the grantor’s
  403  interest in the property. A short sale is a purchase and sale of
  404  real property in which:
  405         (a)The grantor’s interest in the real property is
  406  encumbered by a mortgage or mortgages securing indebtedness in
  407  an aggregate amount greater than the purchase price paid by the
  408  grantee;
  409         (b)A mortgagee releases the real property from its
  410  mortgage in exchange for a partial payment of less than all of
  411  the outstanding mortgage indebtedness owing to the releasing
  412  mortgagee;
  413         (c)The releasing mortgagee does not receive, directly or
  414  indirectly, any interest in the property transferred; and
  415         (d)The releasing mortgagee, grantor, and grantee are
  416  dealing with each other at arm’s length.
  417         Section 4. The Department of Revenue may adopt rules to
  418  specify criteria indicating that a purported short sale is not
  419  an arm’s length transaction.
  420         Section 5. Effective upon this act becoming a law, the
  421  Department of Revenue is authorized, and all conditions are
  422  deemed met, to adopt emergency rules under ss. 120.536(1) and
  423  120.54(4), Florida Statutes, to implement section 3 of this act.
  424  Notwithstanding any other provision of law, such emergency rules
  425  shall remain effective for 6 months after the date of adoption
  426  and may be renewed during the pendency of procedures to adopt
  427  rules addressing the subject of the emergency rules.
  428         Section 6. Section 201.031, Florida Statutes, is amended to
  429  read:
  430         201.031 Discretionary surtax; administration and
  431  collection; Housing Assistance Loan Trust Fund; reporting
  432  requirements.—
  433         (1) Each county, as defined by s. 125.011(1), may levy,
  434  subject to the provisions of s. 125.0167, a discretionary surtax
  435  on documents taxable under the provisions of s. 201.02, except
  436  that there shall be no surtax on any document pursuant to which
  437  the interest granted, assigned, transferred, or conveyed
  438  involves only a single-family residence. The Such single-family
  439  residence may be a condominium unit, a unit held through stock
  440  ownership or membership representing a proprietary interest in a
  441  corporation owning a fee or a leasehold initially in excess of
  442  98 years, or a detached dwelling.
  443         (2) All provisions of chapter 201, except s. 201.15, shall
  444  apply to the surtax. The Department of Revenue shall pay to the
  445  governing authority of the county which levies the surtax all
  446  taxes, penalties, and interest collected under this section less
  447  any costs of administration.
  448         (3) Each county that which levies the surtax shall:
  449         (a) Include in the financial report required under s.
  450  218.32 information showing the revenues and the expenses of the
  451  trust fund for the fiscal year.
  452         (b)Adopt a housing plan every 3 years which includes
  453  provisions substantially similar to the plans required in s.
  454  420.9075(1).
  455         (c)Have adopted an affordable housing element of its
  456  comprehensive land use plan which complies with s.
  457  163.3177(6)(f).
  458         (d)Require by resolution that the staff or entity that has
  459  administrative authority for implementing the housing plan
  460  prepare and submit to the county’s governing body an annual
  461  report substantially similar to the annual report required in s.
  462  420.9075(10).
  463         Section 7. Paragraph (a) of subsection (1) of section
  464  719.105, Florida Statutes, is amended to read:
  465         719.105 Cooperative parcels; appurtenances; possession and
  466  enjoyment.—
  467         (1) Each cooperative parcel has, as appurtenances thereto:
  468         (a) Evidence of membership, ownership of shares, or other
  469  interest in the association with the full voting rights
  470  appertaining thereto. Such evidence must include a legal
  471  description of each dwelling unit and must be recorded in the
  472  office of the clerk of the circuit court as required by s.
  473  201.02(4) s. 201.02(3).
  474         Section 8. Except as otherwise expressly provided in this
  475  act and except for this section, which shall take effect upon
  476  becoming a law, this act shall take effect July 1, 2009, and
  477  section 3 of this act applies to transfers of real property
  478  occurring on or after July 1, 2009.