Florida Senate - 2013                                     SB 102
       
       
       
       By Senator Detert
       
       
       
       
       28-00111-13                                            2013102__
    1                        A bill to be entitled                      
    2         An act relating to charitable contributions; amending
    3         s. 726.102, F.S.; defining the terms “charitable
    4         contribution” and “qualified religious or charitable
    5         entity or organization”; amending s. 726.109, F.S.;
    6         providing that a transfer of a charitable contribution
    7         that is received in good faith by a qualified
    8         religious or charitable entity or organization is not
    9         a fraudulent transfer; providing exceptions; amending
   10         ss. 213.758, 718.704, and 721.05, F.S.; conforming
   11         cross-references; providing an effective date.
   12  
   13  Be It Enacted by the Legislature of the State of Florida:
   14  
   15         Section 1. Present subsections (3), (4), (5), (6), (7),
   16  (8), (9), (10), (11), (12), and (13) of section 726.102, Florida
   17  Statutes, are renumbered as subsections (4), (5), (6), (7), (8),
   18  (9), (10), (11), (13), (14), and (15), respectively, and new
   19  subsections (3) and (12) are added to that section, to read:
   20         726.102 Definitions.—As used in ss. 726.101-726.112:
   21         (3) “Charitable contribution” means a charitable
   22  contribution as that term is defined in s. 170(c) of the
   23  Internal Revenue Code of 1986, if that contribution consists of:
   24         (a) A financial instrument as defined in s. 731(c)(2)(C) of
   25  the Internal Revenue Code of 1986; or
   26         (b) Cash.
   27         (12) “Qualified religious or charitable entity or
   28  organization” means:
   29         (a) An entity described in s. 170(c)(1) of the Internal
   30  Revenue Code of 1986; or
   31         (b) An entity or organization described in s. 170(c)(2) of
   32  the Internal Revenue Code of 1986.
   33         Section 2. Subsection (7) is added to section 726.109,
   34  Florida Statutes, to read:
   35         726.109 Defenses, liability, and protection of transferee.—
   36         (7)(a) The transfer of a charitable contribution that is
   37  received in good faith by a qualified religious or charitable
   38  entity or organization is not a fraudulent transfer under this
   39  chapter.
   40         (b) However, a charitable contribution from a natural
   41  person is a fraudulent transfer if the transfer was received on,
   42  or within 2 years before, the earlier of the date of
   43  commencement of an action under this chapter, the filing of a
   44  petition under the federal Bankruptcy Code, or the commencement
   45  of insolvency proceedings by or against the transferor under any
   46  state or federal law, including the filing of an assignment for
   47  the benefit of creditors or the appointment of a receiver,
   48  unless:
   49         1. The transfer was consistent with the practices of the
   50  transferor in making charitable contribution; or
   51         2. The transfer was received in good faith and the amount
   52  of the contribution did not exceed 15 percent of the gross
   53  annual income of the transferor for the year in which the
   54  transfer of the contribution was made.
   55         Section 3. Paragraph (c) of subsection (1) of section
   56  213.758, Florida Statutes, is amended to read:
   57         213.758 Transfer of tax liabilities.—
   58         (1) As used in this section, the term:
   59         (c) “Insider” means:
   60         1. Any person included within the meaning of insider as
   61  used in s. 726.102(7); or
   62         2. A manager of, a managing member of, or a person who
   63  controls a transferor that is a limited liability company, or a
   64  relative as defined in s. 726.102(11) of any such persons.
   65         Section 4. Subsection (4) of section 718.704, Florida
   66  Statutes, is amended to read:
   67         718.704 Assignment and assumption of developer rights by
   68  bulk assignee; bulk buyer.—
   69         (4) An acquirer of condominium parcels is not a bulk
   70  assignee or a bulk buyer if the transfer to such acquirer was
   71  made:
   72         (a) Before the effective date of this part;
   73         (b) With the intent to hinder, delay, or defraud any
   74  purchaser, unit owner, or the association; or
   75         (c) By a person who would be considered an insider under s.
   76  726.102(7).
   77         Section 5. Subsection (10) of section 721.05, Florida
   78  Statutes, is amended to read:
   79         721.05 Definitions.—As used in this chapter, the term:
   80         (10) “Developer” includes:
   81         (a)1. A “creating developer,” which means any person who
   82  creates the timeshare plan;
   83         2.(b) A “successor developer,” which means any person who
   84  succeeds to the interest of the persons in this subsection by
   85  sale, lease, assignment, mortgage, or other transfer, but the
   86  term includes only those persons who offer timeshare interests
   87  in the ordinary course of business; and
   88         3.(c) A “concurrent developer,” which means any person
   89  acting concurrently with the persons in this subsection with the
   90  purpose of offering timeshare interests in the ordinary course
   91  of business.
   92         (b)(d) The term “developer” does not include:
   93         1. An owner of a timeshare interest who has acquired the
   94  timeshare interest for his or her own use and occupancy and who
   95  later offers it for resale; provided that a rebuttable
   96  presumption exists shall exist that an owner who has acquired
   97  more than seven timeshare interests did not acquire them for his
   98  or her own use and occupancy;
   99         2. A managing entity, not otherwise a developer, that
  100  offers, or engages a third party to offer on its behalf,
  101  timeshare interests in a timeshare plan which it manages,
  102  provided that such offer complies with the provisions of s.
  103  721.065;
  104         3. A person who owns or is conveyed, assigned, or
  105  transferred more than seven timeshare interests and who
  106  subsequently conveys, assigns, or transfers all acquired
  107  timeshare interests to a single purchaser in a single
  108  transaction, which transaction may occur in stages; or
  109         4. A person who acquires has acquired or has the right to
  110  acquire more than seven timeshare interests from a developer or
  111  other interestholder in connection with a loan, securitization,
  112  conduit, or similar financing arrangement transaction and who
  113  subsequently arranges for all or a portion of the timeshare
  114  interests to be offered by a developer one or more developers in
  115  the ordinary course of business on its their own behalf behalves
  116  or on behalf of such person.
  117         (c)(e) A successor or concurrent developer is shall be
  118  exempt from any liability inuring to a predecessor or concurrent
  119  developer of the same timeshare plan, except as provided in s.
  120  721.15(7)., provided that This exemption does shall not apply to
  121  any of the successor or concurrent developer’s responsibilities,
  122  duties, or liabilities with respect to the timeshare plan which
  123  that accrue after the date the successor or concurrent developer
  124  became a successor or concurrent developer, and provided that
  125  such transfer does not constitute a fraudulent transfer. In
  126  addition to other provisions of law, A transfer by a predecessor
  127  developer to a successor or concurrent developer shall be deemed
  128  fraudulent if the predecessor developer made the transfer:
  129         1. With actual intent to hinder, delay, or defraud any
  130  purchaser or the division; or
  131         2. To a person that would constitute an insider under s.
  132  726.102(7).
  133  
  134  The provisions of This paragraph does shall not be construed to
  135  relieve any successor or concurrent developer from the
  136  obligation to comply with the provisions of any applicable
  137  timeshare instrument.
  138         Section 6. This act shall take effect upon becoming a law.