| 1 | Representative Robaina offered the following: |
| 2 |
|
| 3 | Amendment (with title amendment) |
| 4 | Remove everything after the enacting clause and insert: |
| 5 | Section 1. Section 3 of chapter 83-220, Laws of Florida, |
| 6 | as amended by section 1 of chapter 84-270, Laws of Florida, and |
| 7 | section 1 of chapter 89-252, Laws of Florida, is amended to |
| 8 | read: |
| 9 | Section 3. Sections 1 and 2 of chapter 83-220, Laws of |
| 10 | Florida, as amended by this act, are repealed effective October |
| 11 | 1, 2031 2011. |
| 12 | Section 2. Section 125.0167, Florida Statutes, is amended |
| 13 | to read: |
| 14 | 125.0167 Discretionary surtax on documents; adoption; |
| 15 | application of revenue.-- |
| 16 | (1) Pursuant to the provisions of s. 201.031, the |
| 17 | governing authority in each county, as defined by s. 125.011(1), |
| 18 | is authorized to levy a discretionary surtax on documents for |
| 19 | the purpose of establishing and financing a Housing Assistance |
| 20 | Loan Trust Fund to assist in the financing of construction, |
| 21 | rehabilitation, or purchase of housing for low-income and |
| 22 | moderate-income families. No less than 50 percent of the funds |
| 23 | used in each county to provide such housing assistance shall be |
| 24 | for the benefit of low-income families. For the purpose of this |
| 25 | section, "low-income family" means a family whose income does |
| 26 | not exceed 80 percent of the median income for the area, and |
| 27 | "moderate-income family" means a family whose income is in |
| 28 | excess of 80 percent but less than 140 percent of the median |
| 29 | income for the area. For purposes of this section, the term |
| 30 | "housing" is not limited to single-family, detached dwellings. |
| 31 | The rate of the surtax shall not exceed the rate of 45 cents for |
| 32 | each $100 or fractional part thereof of the consideration |
| 33 | therefor. Such surtax shall apply only to those documents |
| 34 | taxable under s. 201.02, except that there shall be no surtax on |
| 35 | any document pursuant to which the interest granted, assigned, |
| 36 | transferred, or conveyed involves only a single-family |
| 37 | residence. Such single-family residence may be a condominium |
| 38 | unit, a unit held through stock ownership or membership |
| 39 | representing a proprietary interest in a corporation owning a |
| 40 | fee or a leasehold initially in excess of 98 years, or a |
| 41 | detached dwelling. |
| 42 | (2) The levy of the discretionary surtax and the creation |
| 43 | of a Housing Assistance Loan Trust Fund shall be by ordinance |
| 44 | which shall set forth the policies and procedures of the |
| 45 | assistance program. The ordinance shall be proposed at a regular |
| 46 | meeting of the governing authority at least 2 weeks prior to |
| 47 | formal adoption. Formal adoption shall not be effective unless |
| 48 | approved on final vote by a majority of the total membership of |
| 49 | the governing authority. The ordinance shall not take effect |
| 50 | until 90 days after formal adoption. |
| 51 | (3) The county shall deposit revenues from the |
| 52 | discretionary surtax in the Housing Assistance Loan Trust Fund |
| 53 | of the county, except that a portion of such revenues may be |
| 54 | deposited into the Home Investment Trust Fund of the county as |
| 55 | defined by and created pursuant to the requirements of federal |
| 56 | law. The county shall use the revenues only to help finance the |
| 57 | construction, rehabilitation, or purchase of housing for low- |
| 58 | income families and moderate-income families, to pay necessary |
| 59 | costs of collection and enforcement of the surtax, and to fund |
| 60 | any local matching contributions required pursuant to federal |
| 61 | law. For purposes of this section, authorized uses of the |
| 62 | revenues include, but are not limited to, providing funds for |
| 63 | first and second mortgages and acquiring property for the |
| 64 | purpose of forming housing cooperatives. Special consideration |
| 65 | shall be given toward using the revenues in the neighborhood |
| 66 | economic development programs of community development |
| 67 | corporations. No more than 50 percent of the revenues collected |
| 68 | each year pursuant to this section may be used to help finance |
| 69 | new construction as provided herein. The proceeds of the surtax |
| 70 | shall not be used for rent subsidies or grants. |
| 71 | (4) No more than 10 percent of surtax revenues collected |
| 72 | under this section by the Department of Revenue and remitted to |
| 73 | the county in any fiscal year may be used for administrative |
| 74 | costs. |
| 75 | (5)(a) Notwithstanding the provisions of subsection (3), |
| 76 | of the discretionary surtax revenues collected by the Department |
| 77 | of Revenue remaining after any deduction for administrative |
| 78 | costs as provided in subsection (4), no less than 35 percent |
| 79 | shall be used to provide homeownership assistance for low-income |
| 80 | and moderate-income families, and no less than 35 percent shall |
| 81 | be used for construction, rehabilitation, and purchase of rental |
| 82 | housing units. The remaining amount may be allocated to provide |
| 83 | for homeownership assistance or rental housing units, at the |
| 84 | discretion of the county. Any funds allocated for homeownership |
| 85 | assistance or rental housing units which are not committed at |
| 86 | the end of the fiscal year shall be available for homeownership |
| 87 | assistance or construction, rehabilitation, and purchase of |
| 88 | rental housing units in subsequent years. |
| 89 | (b) For purposes of this subsection, the term |
| 90 | "homeownership assistance" means assisting low-income and |
| 91 | moderate-income families in purchasing a home as their primary |
| 92 | residence, including, but not limited to, reducing the cost of |
| 93 | the home with below-market construction financing, the amount of |
| 94 | down payment and closing costs paid by the borrower, or the |
| 95 | mortgage payment to an affordable amount for the purchaser or |
| 96 | using any other financial assistance measure set forth in s. |
| 97 | 420.5088. |
| 98 | (6) Rehabilitation of housing owned by a recipient |
| 99 | government may be authorized only after a determination approved |
| 100 | by a majority of the governing body that no other sources of |
| 101 | funds are available. |
| 102 | (7)(a) The governing body of each county as defined in s. |
| 103 | 125.011(1) may, by county ordinance and pursuant to procedures |
| 104 | and requirements provided by such ordinance, create a housing |
| 105 | choice assistance voucher program. |
| 106 | (b) For purposes of this subsection, the term: |
| 107 | 1. "Housing choice assistance voucher" means the document |
| 108 | used to access assistance paid by the county from the |
| 109 | discretionary surtax balance in the Housing Assistance Trust |
| 110 | Fund to a prospective purchaser of a single-family residence, |
| 111 | which must be the purchaser's homestead. |
| 112 | 2. "Purchasing employer" means a business or business |
| 113 | entity that has acquired real property within the county and |
| 114 | paid the surtax due as a result of the acquisition of that |
| 115 | property pursuant to this section. |
| 116 | (c) Housing choice assistance vouchers shall be used for |
| 117 | down payment assistance for the purchase of a single-family |
| 118 | residence by low-income or moderate-income persons within the |
| 119 | county and within a 5-mile radius of the purchasing employer who |
| 120 | are: |
| 121 | 1. Actively employed by the purchasing employer or by a |
| 122 | business entity directly affiliated with the purchasing |
| 123 | employer. |
| 124 | 2. Prequalified for a mortgage loan by a certified lending |
| 125 | institution. |
| 126 | (d) Upon payment of the discretionary surtax pursuant to |
| 127 | this section, the purchasing employer may file for an allocation |
| 128 | for housing choice assistance vouchers from the county in an |
| 129 | amount not to exceed 50 percent of the amount of the |
| 130 | discretionary surtax paid. The purchasing employer shall |
| 131 | distribute the allocation to employees in the form of housing |
| 132 | choice assistance vouchers pursuant to rules and procedures |
| 133 | established for the program. |
| 134 | (e) Any housing choice assistance voucher allocation not |
| 135 | distributed to employees and redeemed by an employee within 1 |
| 136 | year after the date the discretionary surtax is paid may not be |
| 137 | used for housing choice assistance vouchers under this |
| 138 | subsection. |
| 139 | (f) Any housing assistance paid pursuant to the housing |
| 140 | choice assistance voucher program shall be included in the |
| 141 | calculation determining the percentage of discretionary surtax |
| 142 | funds used for homeownership purposes during the year in which |
| 143 | the surtax funds for such purposes are expended. |
| 144 | (8) By June 30, 2012, and every 5 years thereafter, the |
| 145 | Office of Program Policy Analysis and Government Accountability |
| 146 | shall review the discretionary surtax program operated by |
| 147 | counties under this section and shall provide a report to the |
| 148 | President of the Senate and the Speaker of the House of |
| 149 | Representatives. |
| 150 | Section 3. (1) The Legislature finds that the Florida |
| 151 | Supreme Court opinion in Crescent Miami Center, LLC v. Florida |
| 152 | Department of Revenue, 903 So.2d 913 (Fla. 2005) interprets s. |
| 153 | 201.02, Florida Statutes, in a manner inconsistent with the |
| 154 | intent of the Legislature at the time that statute was amended |
| 155 | in 1990. |
| 156 | (2) The Legislature finds that the opinion of the District |
| 157 | Court of Appeal for the Third District of Florida in Crescent |
| 158 | Miami Center, LLC v. Florida Department of Revenue, 857 So.2d |
| 159 | 904 (Fla. 3d D.C.A. 2003), interprets s. 201.02, Florida |
| 160 | Statutes, in a manner consistent with the intent of the |
| 161 | Legislature. |
| 162 | (3) The Legislature finds that the administrative rules |
| 163 | adopted by the department premised on the enactment of s. 7, |
| 164 | chapter 90-132, Laws of Florida, correctly interpret s. 201.02, |
| 165 | Florida Statutes, in a manner consistent with the intent of the |
| 166 | Legislature. |
| 167 | (4) The Legislature intends, by this act, to return |
| 168 | Florida law, administrative rules, and policy on the issue |
| 169 | addressed in the cited opinions to the state of such law, rule, |
| 170 | and policy which existed prior to the Supreme Court opinion. |
| 171 | Section 4. Subsection (1) of section 201.02, Florida |
| 172 | Statutes, is amended, and subsection (11) is added that section, |
| 173 | to read: |
| 174 | 201.02 Tax on deeds and other instruments relating to real |
| 175 | property or interests in real property.-- |
| 176 | (1) On deeds, instruments, or writings whereby any lands, |
| 177 | tenements, or other real property, or any interest therein, |
| 178 | shall be granted, assigned, transferred, or otherwise conveyed |
| 179 | to, or vested in, the purchaser or any other person by his or |
| 180 | her direction, on each $100 of the consideration therefor the |
| 181 | tax shall be 70 cents. When the full amount of the consideration |
| 182 | for the execution, assignment, transfer, or conveyance is not |
| 183 | shown in the face of such deed, instrument, document, or |
| 184 | writing, the tax shall be at the rate of 70 cents for each $100 |
| 185 | or fractional part thereof of the consideration therefor. For |
| 186 | purposes of this section, consideration includes, but is not |
| 187 | limited to, the money paid or agreed to be paid; the discharge |
| 188 | of an obligation; and the amount of any mortgage, purchase money |
| 189 | mortgage lien, or other encumbrance, whether or not the |
| 190 | underlying indebtedness is assumed; and conveyance of real |
| 191 | property to a corporation in exchange for shares of its capital |
| 192 | stock, or as a contribution to the capital of a corporation. If |
| 193 | the consideration paid or given in exchange for real property or |
| 194 | any interest therein includes property other than money, it is |
| 195 | presumed that the consideration is equal to the fair market |
| 196 | value of the real property or interest therein. |
| 197 | (11) The documentary stamp tax imposed by this section |
| 198 | applies to a deed, instrument, or writing that transfers any |
| 199 | interest in real property pursuant to a short sale, as defined |
| 200 | in this subsection. The taxable consideration for a short sale |
| 201 | transfer does not include unpaid indebtedness that is forgiven |
| 202 | or released by a mortgagee holding a mortgage on the grantor's |
| 203 | interest in the property. A short sale is a purchase and sale of |
| 204 | real property in which: |
| 205 | (a) The grantor's interest in the real property is |
| 206 | encumbered by a mortgage or mortgages securing indebtedness in |
| 207 | an aggregate amount greater than the purchase price paid by the |
| 208 | grantee; |
| 209 | (b) A mortgagee releases the real property from its |
| 210 | mortgage in exchange for a partial payment of less than all of |
| 211 | the outstanding mortgage indebtedness owing to the releasing |
| 212 | mortgagee; |
| 213 | (c) The releasing mortgagee does not receive, directly or |
| 214 | indirectly, any interest in the property transferred; and |
| 215 | (d) The releasing mortgagee, grantor, and grantee are |
| 216 | dealing with each other at arm's length. |
| 217 | Section 5. The Department of Revenue is directed to |
| 218 | readopt administrative rules and policies substantially similar |
| 219 | to those that are no longer enforced, or were changed, repealed, |
| 220 | or discontinued, as a result of Crescent Miami Center, LLC v. |
| 221 | Florida Department of Revenue, 903 So.2d 913 (Fla. 2005). |
| 222 | Section 6. The amendment to subsection (1) of section |
| 223 | 201.02, Florida Statutes, made by this act and the provisions of |
| 224 | sections 3 and 5 of this act are intended to be clarifying and |
| 225 | remedial in nature, but do not provide a basis for assessments |
| 226 | of tax, or refunds of tax, for periods before July 1, 2009. |
| 227 | Section 7. Effective upon this act becoming a law, the |
| 228 | Department of Revenue is authorized, and all conditions are |
| 229 | deemed met, to adopt emergency rules under ss. 120.536(1) and |
| 230 | 120.54(4), Florida Statutes, to implement section 4 of this act |
| 231 | relating to short sales. Notwithstanding any other provision of |
| 232 | law, such emergency rules shall remain effective for 6 months |
| 233 | after the date of adoption and may be renewed during the |
| 234 | pendency of procedures to adopt rules addressing the subject of |
| 235 | the emergency rules. |
| 236 | Section 8. Section 201.031, Florida Statutes, is amended |
| 237 | to read: |
| 238 | 201.031 Discretionary surtax; administration and |
| 239 | collection; Housing Assistance Loan Trust Fund; reporting |
| 240 | requirements.-- |
| 241 | (1) Each county, as defined by s. 125.011(1), may levy, |
| 242 | subject to the provisions of s. 125.0167, a discretionary surtax |
| 243 | on documents taxable under the provisions of s. 201.02, except |
| 244 | that there shall be no surtax on any document pursuant to which |
| 245 | the interest granted, assigned, transferred, or conveyed |
| 246 | involves only a single-family residence. The Such single-family |
| 247 | residence may be a condominium unit, a unit held through stock |
| 248 | ownership or membership representing a proprietary interest in a |
| 249 | corporation owning a fee or a leasehold initially in excess of |
| 250 | 98 years, or a detached dwelling. |
| 251 | (2) All provisions of chapter 201, except s. 201.15, shall |
| 252 | apply to the surtax. The Department of Revenue shall pay to the |
| 253 | governing authority of the county which levies the surtax all |
| 254 | taxes, penalties, and interest collected under this section less |
| 255 | any costs of administration. |
| 256 | (3) Each county that which levies the surtax shall: |
| 257 | (a) Include in the financial report required under s. |
| 258 | 218.32 information showing the revenues and the expenses of the |
| 259 | trust fund for the fiscal year. |
| 260 | (b) Adopt a housing plan every 3 years which includes |
| 261 | provisions substantially similar to the plans required in s. |
| 262 | 420.9075(1). |
| 263 | (c) Have adopted an affordable housing element of its |
| 264 | comprehensive land use plan which complies with s. |
| 265 | 163.3177(6)(f). |
| 266 | (d) Require by resolution that the staff or entity that |
| 267 | has administrative authority for implementing the housing plan |
| 268 | prepare and submit to the county's governing body an annual |
| 269 | report substantially similar to the annual report required in s. |
| 270 | 420.9075(10). |
| 271 | Section 9. Paragraph (a) of subsection (1) of section |
| 272 | 719.105, Florida Statutes, is amended to read: |
| 273 | 719.105 Cooperative parcels; appurtenances; possession and |
| 274 | enjoyment.-- |
| 275 | (1) Each cooperative parcel has, as appurtenances thereto: |
| 276 | (a) Evidence of membership, ownership of shares, or other |
| 277 | interest in the association with the full voting rights |
| 278 | appertaining thereto. Such evidence must include a legal |
| 279 | description of each dwelling unit and must be recorded in the |
| 280 | office of the clerk of the circuit court as required by s. |
| 281 | 201.02(4) s. 201.02(3). |
| 282 | Section 10. Except as otherwise expressly provided in this |
| 283 | act and except for this section, which shall take effect upon |
| 284 | becoming a law, this act shall take effect July 1, 2009, and |
| 285 | section 3 of this act applies to transfers of real property |
| 286 | occurring on or after July 1, 2009. |
| 287 |
|
| 288 |
|
| 289 | ----------------------------------------------------- |
| 290 | T I T L E A M E N D M E N T |
| 291 | Remove the entire title and insert: |
| 292 | A bill to be entitled |
| 293 | An act relating to the discretionary surtax on documents; |
| 294 | amending s. 3, ch. 83-220, Laws of Florida, as amended; |
| 295 | extending a future repeal date of provisions authorizing |
| 296 | counties to levy a discretionary surtax on documents; |
| 297 | amending s. 125.0167, F.S.; limiting the percentage of |
| 298 | surtax revenues that may be used for administrative costs; |
| 299 | specifying a minimum amount of surtax revenues to be used |
| 300 | for housing for certain low-income and moderate-income |
| 301 | families; requiring an affirmative vote of a local |
| 302 | government governing body to rehabilitate certain |
| 303 | government-owned housing; authorizing certain counties to |
| 304 | create by ordinance a housing choice assistance voucher |
| 305 | program for the purpose of down payment assistance; |
| 306 | providing definitions; providing eligibility requirements |
| 307 | for such vouchers; authorizing purchasing employers to |
| 308 | file for allocations for such vouchers; limiting |
| 309 | allocations; requiring distribution of allocations to |
| 310 | employees in the form of such vouchers; prohibiting use of |
| 311 | allocations for such vouchers if not awarded within a |
| 312 | certain period after certain documentary stamps taxes are |
| 313 | collected; requiring the Office of Program Policy Analysis |
| 314 | and Government Accountability to conduct a continuing |
| 315 | review of the discretionary surtax program operated by |
| 316 | counties; requiring reports to the Legislature; providing |
| 317 | legislative intent to reverse a judicial opinion relating |
| 318 | to the application of the excise tax on documents to |
| 319 | certain transactions involving legal entities; amending s. |
| 320 | 201.02, F.S.; providing that the excise tax on documents |
| 321 | applies to transfers involving the exchange of real |
| 322 | property for shares of stock or as a capital contribution; |
| 323 | imposing the tax on deeds, instruments, and other writings |
| 324 | on the consideration for a transfer of real property |
| 325 | pursuant to a short sale; providing that the consideration |
| 326 | subject to the tax does not include unpaid indebtedness |
| 327 | that is forgiven by a mortgagee; defining the term "short |
| 328 | sale"; directing the Department of Revenue to readopt |
| 329 | rules relating to the application of the excise tax on |
| 330 | documents to transfers of real property involving a legal |
| 331 | entity; providing intent that the statutory changes |
| 332 | relating to the application of the excise tax on documents |
| 333 | for transfers involving legal entities are to be |
| 334 | clarifying and remedial in nature; authorizing the |
| 335 | Department of Revenue to adopt emergency rules relating to |
| 336 | short sales; amending s. 201.031, F.S.; expanding |
| 337 | requirements for counties levying the discretionary surtax |
| 338 | to include housing plan, affordable housing element, and |
| 339 | annual reporting requirements; amending s. 719.105, F.S.; |
| 340 | conforming a cross-reference; providing for application of |
| 341 | specified provisions of the act; providing effective |
| 342 | dates. |