Florida Senate - 2009                          SENATOR AMENDMENT
       Bill No. CS for CS for CS for SB's 2430 & SB 1960
       
       
       
       
       
       
                                Barcode 973076                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: WD/2R          .                                
             04/24/2009 04:29 PM       .                                
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       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   30  of chapter 90-132, s. 7, Laws of Florida, but repealed by the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,