Florida Senate - 2009 CS for SB 728
By the Committee on Judiciary and Senator Bennett
590-02133-09 2009728c1
1 A bill to be entitled
2 An act relating to the excise tax on documents;
3 amending s. 201.02, F.S.; imposing the tax on deeds,
4 instruments, and other writings on the consideration
5 for a transfer of real property pursuant to a short
6 sale; providing that the consideration subject to the
7 tax does not include unpaid indebtedness that is
8 forgiven by a mortgagee; defining the term “short
9 sale”; providing an effective date.
10
11 Be It Enacted by the Legislature of the State of Florida:
12
13 Section 1. Section 201.02, Florida Statutes, is amended to
14 read:
15 201.02 Tax on deeds and other instruments relating to real
16 property or interests in real property.—
17 (1) On deeds, instruments, or writings whereby any lands,
18 tenements, or other real property, or any interest therein,
19 shall be granted, assigned, transferred, or otherwise conveyed
20 to, or vested in, the purchaser or any other person by his or
21 her direction, on each $100 of the consideration therefor the
22 tax shall be 70 cents. When the full amount of the consideration
23 for the execution, assignment, transfer, or conveyance is not
24 shown in the face of such deed, instrument, document, or
25 writing, the tax shall be at the rate of 70 cents for each $100
26 or fractional part thereof of the consideration therefor. For
27 purposes of this section, consideration includes, but is not
28 limited to, the money paid or agreed to be paid; the discharge
29 of an obligation; and the amount of any mortgage, purchase money
30 mortgage lien, or other encumbrance, whether or not the
31 underlying indebtedness is assumed. If the consideration paid or
32 given in exchange for real property or any interest therein
33 includes property other than money, it is presumed that the
34 consideration is equal to the fair market value of the real
35 property or interest therein.
36 (2) The tax imposed by subsection (1) shall also be payable
37 upon documents by which the right is granted to a tenant
38 stockholder to occupy an apartment in a building owned by a
39 cooperative apartment corporation or in a dwelling on real
40 property owned by any other form of cooperative association as
41 defined in s. 719.103.
42 (3) The tax imposed by subsection (2) shall be paid by the
43 purchaser, and the document recorded in the office of the clerk
44 of the circuit court as evidence of ownership.
45 (4) The tax imposed by subsection (1) shall also be payable
46 upon documents which convey or transfer, pursuant to s. 689.071,
47 any beneficial interest in lands, tenements, or other real
48 property, or any interest therein, even though such interest may
49 be designated as personal property, notwithstanding the
50 provisions of s. 689.071(6). The tax shall be paid upon
51 execution of any such document.
52 (5) All conveyances of real property to a partner from a
53 partnership which property was conveyed to the partnership after
54 July 1, 1986, are taxable if:
55 (a) The partner receiving the real property from the
56 partnership is a partner other than the partner who conveyed the
57 real property to the partnership; or
58 (b) The partner receiving the real property from the
59 partnership is the partner who conveyed the real property to the
60 partnership and there is a mortgage debt or other debt secured
61 by such real property for which the partner was not personally
62 liable prior to conveying the real property to the partnership.
63 For purposes of this subsection, the value of the consideration
64 paid for the conveyance of the real property to the partner from
65 the partnership includes, but is not limited to, the amount of
66 any outstanding mortgage debt or other debt which the partner
67 pays or agrees to pay in exchange for the real property,
68 regardless of whether the partner was personally liable for the
69 debts of the partnership prior to the conveyance to the partner
70 from the partnership.
71 (6) Taxes imposed by this section shall not apply to any
72 assignment, transfer, or other disposition, or any document,
73 which arises out of a transfer of real property from a nonprofit
74 organization to the Board of Trustees of the Internal
75 Improvement Trust Fund, to any state agency, to any water
76 management district, or to any local government. For purposes of
77 this subsection, “nonprofit organization” means an organization
78 whose purpose is the preservation of natural resources and which
79 is exempt from federal income tax under s. 501(c)(3) of the
80 Internal Revenue Code. The Department of Revenue shall provide a
81 form, or a place on an existing form, for the nonprofit
82 organization to indicate its exempt status.
83 (7) Taxes imposed by this section do not apply to a deed,
84 transfer, or conveyance between spouses or former spouses
85 pursuant to an action for dissolution of their marriage wherein
86 the real property is or was their marital home or an interest
87 therein. Taxes paid pursuant to this section shall be refunded
88 in those cases in which a deed, transfer, or conveyance occurred
89 1 year before a dissolution of marriage. This subsection applies
90 in spite of any consideration as defined in subsection (1). This
91 subsection does not apply to a deed, transfer, or conveyance
92 executed before July 1, 1997.
93 (8) Taxes imposed by this section do not apply to a
94 contract to sell the residence of an employee relocating at his
95 or her employer's direction or to documents related to the
96 contract, which contract is between the employee and the
97 employer or between the employee and a person in the business of
98 providing employee relocation services. In the case of such
99 transactions, taxes apply only to the transfer of the real
100 property comprising the residence by deed that vests legal title
101 in a named grantee.
102 (9) A certificate of title issued by the clerk of court
103 under s. 45.031(5) in a judicial sale of real property under an
104 order or final judgment issued pursuant to a foreclosure
105 proceeding is subject to the tax imposed by subsection (1).
106 However, the amount of the tax shall be computed based solely on
107 the amount of the highest and best bid received for the property
108 at the foreclosure sale. This subsection is intended to clarify
109 existing law and shall be applied retroactively.
110 (10)(a) In recognition of the special escrow requirements
111 that apply to sales of timeshare interests in timeshare plans
112 pursuant to s. 721.08, tax on deeds or other instruments
113 conveying any interest in Florida real property which are
114 executed in conjunction with the sale by a developer of a
115 timeshare interest in a timeshare plan is due and payable on the
116 earlier of the date on which:
117 1. The deed or other instrument conveying the interest in
118 Florida real property is recorded; or
119 2. All of the conditions precedent to the release of the
120 purchaser's escrowed funds or other property pursuant to s.
121 721.08(2)(c) have been met, regardless of whether the developer
122 has posted an alternative assurance. Tax due pursuant to this
123 subparagraph is due and payable on or before the 20th day of the
124 month following the month in which these conditions were met.
125 (b)1. If tax has been paid to the department pursuant to
126 subparagraph (a)2., and the deed or other instrument conveying
127 the interest in Florida real property with respect to which the
128 tax was paid is subsequently recorded, a notation reflecting the
129 prior payment of the tax must be made upon the deed or other
130 instrument conveying the interest in Florida real property.
131 2. Notwithstanding paragraph (a), if funds are designated
132 on a closing statement as tax collected from the purchaser, but
133 a default or cancellation occurs pursuant to s. 721.08(2)(a) or
134 (b) and no deed or other instrument conveying interest in
135 Florida real property has been recorded or delivered to the
136 purchaser, the tax must be paid to the department on or before
137 the 20th day of the month following the month in which the funds
138 are available for release from escrow unless the funds have been
139 refunded to the purchaser.
140 (c) The department may adopt rules to administer the method
141 for reporting tax due under this subsection.
142 (11) The documentary stamp tax imposed by this section
143 applies to a deed, instrument, or writing that transfers any
144 interest in real property pursuant to a short sale, as defined
145 in this subsection. The taxable consideration for a short sale
146 transfer does not include unpaid indebtedness that is forgiven
147 or released by a mortgagee holding a mortgage on the grantor’s
148 interest in the property. A short sale is a purchase and sale of
149 real property in which:
150 (a) The grantor’s interest in the real property is
151 encumbered by a mortgage or mortgages securing indebtedness in
152 an aggregate amount greater than the purchase price paid by the
153 grantee;
154 (b) A mortgagee releases the real property from its
155 mortgage in exchange for a partial payment of less than all of
156 the outstanding mortgage indebtedness owing to the releasing
157 mortgagee;
158 (c) Neither the releasing mortgagee nor any person related
159 to the releasing mortgagee receives any interest in the property
160 transferred; and
161 (d) The releasing mortgagee is not controlled by or related
162 to the grantor or the grantee, and the grantor and the grantee
163 are not controlled by or related to each other.
164 Section 2. This act shall take effect July 1, 2009.