Florida Senate - 2009            CS for CS for SB 2430 & SB 1960
       
       
       
       By the Committees on Finance and Tax; and Judiciary; and
       Senators Lawson and Gelber
       
       
       
       593-04396B-09                                         20092430c2
    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; providing legislative intent to reverse a
   29         judicial opinion relating to the application of the
   30         excise tax on documents to certain transactions
   31         involving legal entities; amending s. 201.02, F.S.;
   32         providing that the excise tax on documents applies to
   33         transfers involving the exchange of real property for
   34         shares of stock or as a capital contribution; imposing
   35         the tax on deeds, instruments, and other writings on
   36         the consideration for a transfer of real property
   37         pursuant to a short sale; providing that the
   38         consideration subject to the tax does not include
   39         unpaid indebtedness that is forgiven by a mortgagee;
   40         defining the term “short sale”; directing the
   41         Department of Revenue to readopt rules relating to the
   42         application of the excise tax on documents to
   43         transfers of real property involving a legal entity;
   44         providing intent that the statutory changes relating
   45         to the application of the excise tax on documents for
   46         transfers involving legal entities are to be
   47         clarifying and remedial in nature; authorizing the
   48         Department of Revenue to adopt emergency rules
   49         relating to short sales; amending s. 201.031, F.S.;
   50         expanding requirements for counties levying the
   51         discretionary surtax to include housing plan,
   52         affordable housing element, and annual reporting
   53         requirements; amending s. 719.105, F.S.; conforming a
   54         cross-reference; providing for application of
   55         specified provisions of the act; providing effective
   56         dates.
   57  
   58  Be It Enacted by the Legislature of the State of Florida:
   59  
   60         Section 1. Section 3 of chapter 83-220, Laws of Florida, as
   61  amended by section 1 of chapter 84-270, Laws of Florida, and
   62  section 1 of chapter 89-252, Laws of Florida, is amended to
   63  read:
   64         Section 3. Sections 1 and 2 of chapter 83-220, Laws of
   65  Florida, as amended by this act, are repealed effective October
   66  1, 2031 2011.
   67         Section 2. Section 125.0167, Florida Statutes, is amended
   68  to read:
   69         125.0167 Discretionary surtax on documents; adoption;
   70  application of revenue.—
   71         (1) Pursuant to the provisions of s. 201.031, the governing
   72  authority in each county, as defined by s. 125.011(1), is
   73  authorized to levy a discretionary surtax on documents for the
   74  purpose of establishing and financing a Housing Assistance Loan
   75  Trust Fund to assist in the financing of construction,
   76  rehabilitation, or purchase of housing for low-income and
   77  moderate-income families. No less than 50 percent of the funds
   78  used in each county to provide such housing assistance shall be
   79  for the benefit of low-income families. For the purpose of this
   80  section, “low-income family” means a family whose income does
   81  not exceed 80 percent of the median income for the area, and
   82  “moderate-income family” means a family whose income is in
   83  excess of 80 percent but less than 140 percent of the median
   84  income for the area. For purposes of this section, the term
   85  “housing” is not limited to single-family, detached dwellings.
   86  The rate of the surtax shall not exceed the rate of 45 cents for
   87  each $100 or fractional part thereof of the consideration
   88  therefor. Such surtax shall apply only to those documents
   89  taxable under s. 201.02, except that there shall be no surtax on
   90  any document pursuant to which the interest granted, assigned,
   91  transferred, or conveyed involves only a single-family
   92  residence. Such single-family residence may be a condominium
   93  unit, a unit held through stock ownership or membership
   94  representing a proprietary interest in a corporation owning a
   95  fee or a leasehold initially in excess of 98 years, or a
   96  detached dwelling.
   97         (2) The levy of the discretionary surtax and the creation
   98  of a Housing Assistance Loan Trust Fund shall be by ordinance
   99  which shall set forth the policies and procedures of the
  100  assistance program. The ordinance shall be proposed at a regular
  101  meeting of the governing authority at least 2 weeks prior to
  102  formal adoption. Formal adoption shall not be effective unless
  103  approved on final vote by a majority of the total membership of
  104  the governing authority. The ordinance shall not take effect
  105  until 90 days after formal adoption.
  106         (3) The county shall deposit revenues from the
  107  discretionary surtax in the Housing Assistance Loan Trust Fund
  108  of the county, except that a portion of such revenues may be
  109  deposited into the Home Investment Trust Fund of the county as
  110  defined by and created pursuant to the requirements of federal
  111  law. The county shall use the revenues only to help finance the
  112  construction, rehabilitation, or purchase of housing for low
  113  income families and moderate-income families, to pay necessary
  114  costs of collection and enforcement of the surtax, and to fund
  115  any local matching contributions required pursuant to federal
  116  law. For purposes of this section, authorized uses of the
  117  revenues include, but are not limited to, providing funds for
  118  first and second mortgages and acquiring property for the
  119  purpose of forming housing cooperatives. Special consideration
  120  shall be given toward using the revenues in the neighborhood
  121  economic development programs of community development
  122  corporations. No more than 50 percent of the revenues collected
  123  each year pursuant to this section may be used to help finance
  124  new construction as provided herein. The proceeds of the surtax
  125  shall not be used for rent subsidies or grants.
  126         (4)No more than 10 percent of surtax revenues collected
  127  under this section by the Department of Revenue and remitted to
  128  the county in any fiscal year may be used for administrative
  129  costs.
  130         (5)(a)Notwithstanding the provisions of subsection (3), of
  131  the discretionary surtax revenues collected by the Department of
  132  Revenue remaining after any deduction for administrative costs
  133  as provided in subsection (4), no less than 35 percent shall be
  134  used to provide homeownership assistance for low-income and
  135  moderate-income families, and no less than 35 percent shall be
  136  used for construction, rehabilitation, and purchase of rental
  137  housing units. The remaining amount may be allocated to provide
  138  for homeownership assistance or rental housing units, at the
  139  discretion of the county. Any funds allocated for homeownership
  140  assistance or rental housing units which are not committed at
  141  the end of the fiscal year shall be available for homeownership
  142  assistance or construction, rehabilitation, and purchase of
  143  rental housing units in subsequent years.
  144         (b)For purposes of this subsection, the term
  145  “homeownership assistance” means assisting low-income and
  146  moderate-income families in purchasing a home as their primary
  147  residence, including, but not limited to, reducing the cost of
  148  the home with below-market construction financing, the amount of
  149  down payment and closing costs paid by the borrower, or the
  150  mortgage payment to an affordable amount for the purchaser or
  151  using any other financial assistance measure set forth in s.
  152  420.5088.
  153         (6)Rehabilitation of housing owned by a recipient
  154  government may be authorized only after a determination approved
  155  by a majority of the governing body that no other sources of
  156  funds are available.
  157         (7)(a)The governing body of each county as defined in s.
  158  125.011(1) may, by county ordinance and pursuant to procedures
  159  and requirements provided by such ordinance, create a housing
  160  choice assistance voucher program.
  161         (b)For purposes of this subsection, the term:
  162         1.“Housing choice assistance voucher” means the document
  163  used to access assistance paid by the county from the
  164  discretionary surtax balance in the Housing Assistance Trust
  165  Fund to a prospective purchaser of a single-family residence,
  166  which must be the purchaser’s homestead.
  167         2.“Purchasing employer” means a business or business
  168  entity that has acquired real property within the county and
  169  paid the surtax due as a result of the acquisition of that
  170  property pursuant to this section.
  171         (c)Housing choice assistance vouchers shall be used for
  172  down payment assistance for the purchase of a single-family
  173  residence by low-income or moderate-income persons within the
  174  county and within a 5-mile radius of the purchasing employer who
  175  are:
  176         1.Actively employed by the purchasing employer or by a
  177  business entity directly affiliated with the purchasing
  178  employer.
  179         2.Prequalified for a mortgage loan by a certified lending
  180  institution.
  181         (d)Upon payment of the discretionary surtax pursuant to
  182  this section, the purchasing employer may file for an allocation
  183  for housing choice assistance vouchers from the county in an
  184  amount not to exceed 50 percent of the amount of the
  185  discretionary surtax paid. The purchasing employer shall
  186  distribute the allocation to employees in the form of housing
  187  choice assistance vouchers pursuant to rules and procedures
  188  established for the program.
  189         (e)Any housing choice assistance voucher allocation not
  190  distributed to employees and redeemed by an employee within 1
  191  year after the date the discretionary surtax is paid may not be
  192  used for housing choice assistance vouchers under this
  193  subsection.
  194         (f)Any housing assistance paid pursuant to the housing
  195  choice assistance voucher program shall be included in the
  196  calculation determining the percentage of discretionary surtax
  197  funds used for homeownership purposes during the year in which
  198  the surtax funds for such purposes are expended.
  199         (8)By June 30, 2012, and every 5 years thereafter, the
  200  Office of Program Policy Analysis and Government Accountability
  201  shall review the discretionary surtax program operated by
  202  counties under this section and shall provide a report to the
  203  President of the Senate and the Speaker of the House of
  204  Representatives.
  205         Section 3. (1)The Legislature finds that the Florida
  206  Supreme Court opinion in Crescent Miami Canter, LLC v. Florida
  207  Department of Revenue, 903 So. 2d 913 (Fla. 2005) interprets s.
  208  201.02, Florida Statutes, in a manner inconsistent with the
  209  intent of the Legislature at the time that statute was amended
  210  in 1990.
  211         (2)The Legislature finds that the opinion of the District
  212  Court of Appeal for the Third District of Florida in Crescent
  213  Miami Center, LLC v. Florida Department of Revenue, 857 So. 2d
  214  904 (Fla. 3d D.C.A. 2003), interprets s. 201.02, Florida
  215  Statutes, in a manner consistent with the intent of the
  216  Legislature.
  217         (3)The Legislature finds that the administrative rules
  218  adopted by the department premised on the enactment of s. 7,
  219  chapter 90-132, Laws of Florida, correctly interpret s. 201.02,
  220  Florida Statutes, in a manner consistent with the intent of the
  221  Legislature.
  222         (4)The Legislature intends, by this act, to return Florida
  223  law, administrative rules, and policy on the issue addressed in
  224  the cited opinions to the state of such law, rule, and policy
  225  which existed prior to the Supreme Court opinion.
  226         Section 4. Subsection (1) of section 201.02, Florida
  227  Statutes, is amended, and subsection (11) is added that section,
  228  to read:
  229         201.02 Tax on deeds and other instruments relating to real
  230  property or interests in real property.—
  231         (1) On deeds, instruments, or writings whereby any lands,
  232  tenements, or other real property, or any interest therein,
  233  shall be granted, assigned, transferred, or otherwise conveyed
  234  to, or vested in, the purchaser or any other person by his or
  235  her direction, on each $100 of the consideration therefor the
  236  tax shall be 70 cents. When the full amount of the consideration
  237  for the execution, assignment, transfer, or conveyance is not
  238  shown in the face of such deed, instrument, document, or
  239  writing, the tax shall be at the rate of 70 cents for each $100
  240  or fractional part thereof of the consideration therefor. For
  241  purposes of this section, consideration includes, but is not
  242  limited to, the money paid or agreed to be paid; the discharge
  243  of an obligation; and the amount of any mortgage, purchase money
  244  mortgage lien, or other encumbrance, whether or not the
  245  underlying indebtedness is assumed; and conveyance of real
  246  property to a corporation in exchange for shares of its capital
  247  stock, or as a contribution to the capital of a corporation. If
  248  the consideration paid or given in exchange for real property or
  249  any interest therein includes property other than money, it is
  250  presumed that the consideration is equal to the fair market
  251  value of the real property or interest therein.
  252         (11)The documentary stamp tax imposed by this section
  253  applies to a deed, instrument, or writing that transfers any
  254  interest in real property pursuant to a short sale, as defined
  255  in this subsection. The taxable consideration for a short sale
  256  transfer does not include unpaid indebtedness that is forgiven
  257  or released by a mortgagee holding a mortgage on the grantor’s
  258  interest in the property. A short sale is a purchase and sale of
  259  real property in which:
  260         (a)The grantor’s interest in the real property is
  261  encumbered by a mortgage or mortgages securing indebtedness in
  262  an aggregate amount greater than the purchase price paid by the
  263  grantee;
  264         (b)A mortgagee releases the real property from its
  265  mortgage in exchange for a partial payment of less than all of
  266  the outstanding mortgage indebtedness owing to the releasing
  267  mortgagee;
  268         (c)The releasing mortgagee does not receive, directly or
  269  indirectly, any interest in the property transferred; and
  270         (d)The releasing mortgagee, grantor, and grantee are
  271  dealing with each other at arm’s length.
  272         Section 5. The Department of Revenue is directed to readopt
  273  administrative rules and policies substantially similar to those
  274  that are no longer enforced, or were changed, repealed, or
  275  discontinued, as a result of Crescent Miami Canter, LLC v.
  276  Florida Department of Revenue, 903 So. 2d 913 (Fla. 2005).
  277         Section 6. The amendment to subsection (1) of section
  278  201.02, Florida Statutes, made by this act and the provisions of
  279  sections 3 and 5 of this act are intended to be clarifying and
  280  remedial in nature, but do not provide a basis for assessments
  281  of tax, or refunds of tax, for periods before July 1, 2009.
  282         Section 7. Effective upon this act becoming a law, the
  283  Department of Revenue is authorized, and all conditions are
  284  deemed met, to adopt emergency rules under ss. 120.536(1) and
  285  120.54(4), Florida Statutes, to implement section 4 of this act
  286  relating to short sales. Notwithstanding any other provision of
  287  law, such emergency rules shall remain effective for 6 months
  288  after the date of adoption and may be renewed during the
  289  pendency of procedures to adopt rules addressing the subject of
  290  the emergency rules.
  291         Section 8. Section 201.031, Florida Statutes, is amended to
  292  read:
  293         201.031 Discretionary surtax; administration and
  294  collection; Housing Assistance Loan Trust Fund; reporting
  295  requirements.—
  296         (1) Each county, as defined by s. 125.011(1), may levy,
  297  subject to the provisions of s. 125.0167, a discretionary surtax
  298  on documents taxable under the provisions of s. 201.02, except
  299  that there shall be no surtax on any document pursuant to which
  300  the interest granted, assigned, transferred, or conveyed
  301  involves only a single-family residence. The Such single-family
  302  residence may be a condominium unit, a unit held through stock
  303  ownership or membership representing a proprietary interest in a
  304  corporation owning a fee or a leasehold initially in excess of
  305  98 years, or a detached dwelling.
  306         (2) All provisions of chapter 201, except s. 201.15, shall
  307  apply to the surtax. The Department of Revenue shall pay to the
  308  governing authority of the county which levies the surtax all
  309  taxes, penalties, and interest collected under this section less
  310  any costs of administration.
  311         (3) Each county that which levies the surtax shall:
  312         (a) Include in the financial report required under s.
  313  218.32 information showing the revenues and the expenses of the
  314  trust fund for the fiscal year.
  315         (b)Adopt a housing plan every 3 years which includes
  316  provisions substantially similar to the plans required in s.
  317  420.9075(1).
  318         (c)Have adopted an affordable housing element of its
  319  comprehensive land use plan which complies with s.
  320  163.3177(6)(f).
  321         (d)Require by resolution that the staff or entity that has
  322  administrative authority for implementing the housing plan
  323  prepare and submit to the county’s governing body an annual
  324  report substantially similar to the annual report required in s.
  325  420.9075(10).
  326         Section 9. Paragraph (a) of subsection (1) of section
  327  719.105, Florida Statutes, is amended to read:
  328         719.105 Cooperative parcels; appurtenances; possession and
  329  enjoyment.—
  330         (1) Each cooperative parcel has, as appurtenances thereto:
  331         (a) Evidence of membership, ownership of shares, or other
  332  interest in the association with the full voting rights
  333  appertaining thereto. Such evidence must include a legal
  334  description of each dwelling unit and must be recorded in the
  335  office of the clerk of the circuit court as required by s.
  336  201.02(4) s. 201.02(3).
  337         Section 10. Except as otherwise expressly provided in this
  338  act and except for this section, which shall take effect upon
  339  becoming a law, this act shall take effect July 1, 2009, and
  340  section 3 of this act applies to transfers of real property
  341  occurring on or after July 1, 2009.