Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. CS for CS for SB 2430 & SB 1960
       
       
       
       
       
       
                                Barcode 946986                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/17/2009           .                                
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       The Policy and Steering Committee on Ways and Means (Gelber)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3  
    4         Delete lines 216 - 281
    5  and insert:
    6  
    7         Section 4. (1)The Legislature finds that the Florida
    8  Supreme Court opinion in Crescent Miami Center, LLC v. Florida
    9  Department of Revenue, 903 So. 2d 913 (Fla. 2005), interprets s.
   10  201.02, Florida Statutes, in a manner that permits tax avoidance
   11  inconsistent with the intent of the Legislature at the time said
   12  statute was amended in 1990.
   13         (2)The Legislature finds that the District Court of
   14  Appeals for the Third District of Florida opinion 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 that prevents tax avoidance consistent
   18  with the intent of the Legislature at the time said statute was
   19  amended in 1990.
   20         (3)The Legislature intends, by this act, to prevent tax
   21  avoidance through the use of artificial entities to transfer the
   22  beneficial ownership of real property that changes, by a step or
   23  series of steps, excluding certain entities that are used for
   24  estate planning purposes.
   25         Section 5. Subsection (1) of section 201.02, Florida
   26  Statutes, is amended and subsections (11) through (13) are added
   27  to that section to read:
   28         201.02 Tax on deeds and other instruments relating to real
   29  property or interests in real property.—
   30         (1)(a) On deeds, instruments, or writings whereby any
   31  lands, tenements, or other real property, or any interest
   32  therein, shall be granted, assigned, transferred, or otherwise
   33  conveyed to, or vested in, the purchaser or any other person by
   34  his or her direction, on each $100 of the consideration therefor
   35  the tax shall be 70 cents. When the full amount of the
   36  consideration for the execution, assignment, transfer, or
   37  conveyance is not shown in the face of such deed, instrument,
   38  document, or writing, the tax shall be at the rate of 70 cents
   39  for each $100 or fractional part thereof of the consideration
   40  therefor. For purposes of this section, consideration includes,
   41  but is not limited to, the money paid or agreed to be paid; the
   42  discharge of an obligation; and the amount of any mortgage,
   43  purchase money mortgage lien, or other encumbrance, whether or
   44  not the underlying indebtedness is assumed. If the consideration
   45  paid or given in exchange for real property or any interest
   46  therein includes property other than money, it is presumed that
   47  the consideration is equal to the fair market value of the real
   48  property or interest therein.
   49         (b)Except as provided in subsection (11), consideration is
   50  given for real property when conveyance of an interest in real
   51  property is made between a person or persons and a legal entity,
   52  or between legal entities, whether or not the conveyance is
   53  characterized as a mere change in the method of holding title or
   54  of the legal form of ownership or the proportional beneficial
   55  interests of all parties remain the same before and after the
   56  conveyance. The consideration given is presumed to equal the
   57  fair market value of the real property or interest therein.
   58         (11)The conveyance of an interest in real property between
   59  a person or persons and a legal entity or between legal entities
   60  is exempt from the tax imposed by paragraph (1)(b) when the
   61  conveyance is not a precursor to the transfer of the ownership
   62  or control of an interest in the entity or a conveyance of the
   63  real property by whatever method, means, or operation of law. If
   64  within three years from the date of the conveyance exempt
   65  pursuant to this section a subsequent direct or indirect
   66  transfer of all or a portion of an interest in the entity or a
   67  conveyance of the real property is made, the original conveyance
   68  is presumed to have been a precursor to the transfer or
   69  conveyance and the tax imposed by this section is due on the
   70  subsequent transfer or conveyance of that portion of the real
   71  property transferred measured by the fair market value of the
   72  portion of the transferred real property at the time of the
   73  subsequent transfer or conveyance.
   74         (12)The requirements of this section do not apply to any
   75  deed, instrument, or other writing which transfers or conveys
   76  real property, or an interest therein, other than that portion
   77  subject to the tax imposed by paragraph (1)(a), when the
   78  transfer or conveyance is by inter vivos gift for purposes of
   79  estate planning, or when by reason of the death of any person,
   80  such real property, or interests therein, are transferred
   81  outright to, or in trust for the benefit of, any person or
   82  entity.
   83         (13)The documentary stamp tax imposed by this section
   84  applies to a deed, instrument, or writing that transfers any
   85  interest in real property pursuant to a short sale, as defined
   86  in this subsection. The taxable consideration for a short sale
   87  transfer does not include unpaid indebtedness that is forgiven
   88  or released by a mortgagee holding a mortgage on the grantor’s
   89  interest in the property. A short sale is a purchase and sale of
   90  real property in which:
   91         (a)The grantor’s interest in the real property is
   92  encumbered by a mortgage or mortgages securing indebtedness in
   93  an aggregate amount greater than the purchase price paid by the
   94  grantee;
   95         (b)A mortgagee releases the real property from its
   96  mortgage in exchange for a partial payment of less than all of
   97  the outstanding mortgage indebtedness owing to the releasing
   98  mortgagee;
   99         (c)The releasing mortgagee does not receive, directly or
  100  indirectly, any interest in the property transferred; and
  101         (d)The releasing mortgagee, grantor, and grantee are
  102  dealing with each other at arm’s length.
  103  
  104  ================= T I T L E  A M E N D M E N T ================
  105         And the title is amended as follows:
  106         Delete lines 31 - 47
  107  and insert:
  108  
  109  involving legal entities; amending s. 201.02, F.S.; creating a
  110  presumption for purposes of the excise tax on documents that
  111  consideration is given for deeds, instruments, or writings that
  112  convey property between certain individuals and entities;
  113  creating a presumption of the amount of the consideration;
  114  creating an exemption from the tax for certain deeds,
  115  instruments, or writings that convey property; creating a
  116  presumption that the deed, instrument, or writing was taxable if
  117  a subsequent conveyance of the property or grantee entity is
  118  made within a certain period of time; specifying the calculation
  119  of tax due on the original conveyance; providing that the tax on
  120  the original deed, instrument, or writing does not apply if the
  121  subsequent conveyance is the result of an inter vivos gift or
  122  the death of any person; providing that the tax applies to
  123  transfers involving the exchange of real property for shares of
  124  stock or as a capital contribution; imposing the tax on deeds,
  125  instruments, and other writings on the consideration for a
  126  transfer of real property pursuant to a short sale; providing
  127  that the consideration subject to the tax does not include
  128  unpaid indebtedness that is forgiven by a mortgagee; defining
  129  the term “short sale”; authorizing the