Florida Senate - 2009 SENATOR AMENDMENT Bill No. CS for CS for CS for SB's 2430 & SB 1960 Barcode 973076 LEGISLATIVE ACTION Senate . House . . . Floor: WD/2R . 04/24/2009 04:29 PM . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— Senator Altman moved the following: 1 Senate Amendment (with title amendment) 2 3 4 Delete lines 223 - 320 5 and insert: 6 Section 3. (1) The Legislature finds that the Florida 7 Supreme Court opinion in Crescent Miami Center, LLC v. Florida 8 Department of Revenue, 903 So. 2d 913 (Fla. 2005), interprets s. 9 201.02, Florida Statutes, in a manner that permits tax avoidance 10 inconsistent with the intent of the Legislature at the time the 11 statute was amended 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 that prevents tax avoidance consistent 17 with the intent of the Legislature at the time the statute was 18 amended in 1990. 19 (3) The Legislature recognizes that the Supreme Court’s 20 opinion in Crescent is limited to the facts of the case and 21 accepts the court’s interpretation of s. 201.02, Florida 22 Statutes, that no consideration exists when owners of real 23 property unencumbered by a mortgage convey an interest in such 24 property to an artificial entity whose ownership is identical to 25 the ownership of the real property before conveyance. The 26 Legislature expressly rejects any application of the court’s 27 interpretation where the facts are not identical to the facts in 28 Crescent and finds that rule 12B-4.013(7), (8), and (10), 29 Florida Administrative Code, which was premised on the enactment 30 of chapter 90-132, s. 7, Laws of Florida, but repealed by the 31 Department of Revenue in 2007, reflects the Legislature’s intent 32 in adopting the 1990 amendments to s. 201.02, Florida Statutes, 33 in such situations. However, because the Supreme Court’s 34 interpretation, combined with other settled law regarding the 35 application of s. 201.02, Florida Statutes, allows for the tax 36 free transfer of ownership interests in real property from one 37 owner to another through the use of artificial entities, it is 38 the Legislature’s intent by this act to impose the documentary 39 stamp tax when the beneficial ownership of real property is 40 transferred to a new owner or owners by the use of techniques 41 that apply the Supreme Court’s decision in Crescent in 42 combination with respect to transfers of ownership of, or 43 distributions from, artificial entities. 44 Section 4. Subsection (1) of section 201.02, Florida 45 Statutes, is amended, and subsection (11) is added to that 46 section, to read: 47 201.02 Tax on deeds and other instruments relating to real 48 property or interests in real property.— 49 (1)(a) On deeds, instruments, or writings whereby any 50 lands, tenements, or other real property, or any interest 51 therein, shall be granted, assigned, transferred, or otherwise 52 conveyed to, or vested in, the purchaser or any other person by 53 his or her direction, on each $100 of the consideration therefor 54 the tax shall be 70 cents. When the full amount of the 55 consideration for the execution, assignment, transfer, or 56 conveyance is not shown in the face of such deed, instrument, 57 document, or writing, the tax shall be at the rate of 70 cents 58 for each $100 or fractional part thereof of the consideration 59 therefor. For purposes of this section, consideration includes, 60 but is not limited to, the money paid or agreed to be paid; the 61 discharge of an obligation; and the amount of any mortgage, 62 purchase money mortgage lien, or other encumbrance, whether or 63 not the underlying indebtedness is assumed. If the consideration 64 paid or given in exchange for real property or any interest 65 therein includes property other than money, it is presumed that 66 the consideration is equal to the fair market value of the real 67 property or interest therein. 68 (b)1. For purposes of this paragraph the term: 69 a. “Conduit entity” means an entity that is not a natural 70 person to which real property is conveyed without full 71 consideration or a successor entity. 72 b. “Full consideration” means the consideration that would 73 be paid in an arm’s length transaction between unrelated 74 parties. 75 2. If an ownership interest in real property is conveyed to 76 a conduit entity and an ownership interest in the conduit entity 77 is subsequently transferred for consideration within 3 years of 78 such conveyance, tax is imposed each time an interest in the 79 conduit entity is transferred for consideration at the rate of 80 70 cents for each $100 or fraction thereof of the consideration 81 paid or given in exchange for the ownership interest in the 82 conduit entity. 83 3. If the ownership interest in the conduit entity being 84 transferred includes assets other than the real property 85 conveyed to the conduit entity, the tax shall be prorated based 86 on the percentage the value of such real property represents of 87 the total value of all assets owned by the conduit entity. 88 4. If the real property is transferred as a gift and is not 89 encumbered by any mortgage, no tax is due. If the real property 90 is transferred as a gift and is encumbered by a mortgage, tax is 91 due on the amount due on the mortgage. 92 5. The purpose of this paragraph is to impose the 93 documentary stamp tax on the transfer for consideration of a 94 beneficial interest in real property. The provisions of this 95 paragraph are to be construed liberally to effectuate this 96 purpose. 97 (11) The documentary stamp tax imposed by this section 98 applies to a deed, instrument, or writing that transfers any 99 interest in real property pursuant to a short sale, as defined 100 in this subsection. The taxable consideration for a short sale 101 transfer does not include unpaid indebtedness that is forgiven 102 or released by a mortgagee holding a mortgage on the grantor’s 103 interest in the property. A short sale is a purchase and sale of 104 real property in which: 105 (a) The grantor’s interest in the real property is 106 encumbered by a mortgage or mortgages securing indebtedness in 107 an aggregate amount greater than the purchase price paid by the 108 grantee; 109 (b) A mortgagee releases the real property from its 110 mortgage in exchange for a partial payment of less than all of 111 the outstanding mortgage indebtedness owing to the releasing 112 mortgagee; 113 (c) The releasing mortgagee does not receive, directly or 114 indirectly, any interest in the property transferred; and 115 (d) The releasing mortgagee, grantor, and grantee are 116 dealing with each other at arm’s length. 117 Section 5. The amendments to subsections (1) and (11) of s. 118 201.02, Florida Statutes, made by this act and 119 120 ================= T I T L E A M E N D M E N T ================ 121 And the title is amended as follows: 122 Delete lines 30 - 48 123 and insert: 124 involving legal entities; amending s. 201.02, F.S.; defining 125 terms; imposing the tax on deeds, instruments, and other 126 writings to certain transfers of a conduit entity; providing for 127 the apportionment of the consideration for an interest in a 128 conduit entity between real property interests and other assets; 129 exempting from the tax property transferred as a gift, unless 130 the property is encumbered by a mortgage; providing legislative 131 intent; imposing the tax on deeds,