Under the example, one person transfers real estate to his wholly-owned LLC, and within 3 years transfers 50% of the LLC to a second person. On November 3, 2011, the Florida DOR issued Emergency Rule 12B11-17 to provide guidance on application of the documentary stamp tax to such transfers of LLC interests. Florida imposes a documentary stamp tax of 70 cents ($1.00 in Miami-Dade) per $100 of the purchase consideration for the sale of real estate located in Florida. However, because the Supreme Court’s interpretation, combined with other settled law regarding the application of s. 201.02, allows for the tax-free transfer of ownership interests in real property from one owner to another through the use of artificial entities, it is the Legislature’s intent by this act to impose the documentary stamp tax when the beneficial ownership of real property is transferred to a new owner … Deeds 2. The opinions expressed in this are the opinions of the author, and cannot be attributed to the law firm of Johnson, Pope, Bokor, Ruppel & Burns, LLP and its attorneys. The Florida Department of Revenue (DOR) denied the application, and the transferee filed suit in Miami-Dade Circuit Court challenging the DOR’s refund denial. In addition to the payment of any increase in taxes during such 10-year period, the property owner would be required to pay interest at a 15 percent annual rate on such increase in taxes and a penalty of 50 percent of such increase in taxes.22. 8 Jeff Ostrowski, Critics Push to Plug Hole in Tax Loophole, Palm Beach Post, August 12, 2007. Florida imposes a transfer tax on the transfer of real property in Florida. Documentary stamp tax is levied on documents as provided under Chapter 201, Florida Statutes(F.S.). 2009-131, §4. 9, p. 52 (Nov. 2010), Tags: Limited liability company|Florida|Documentary Stamp Tax, The content of this site is intended to provide information, not legal or tax advice. The Florida Documentary Stamp is a tax levied in Florida on documents that transfer a property interest in Florida. It resolves the quandary created for property appraisers where the transfer of real property is accomplished through the sale of an ownership interest in an entity. According to the court, there was no consideration or purchaser with respect to the transfer of the property to CMC, since “nothing was exchanged by CMC for the grant of property from [the transferor]; [and] thus, there was no consideration or purchaser in the transaction, just a ‘mere change in form of the stockholder’s equity in the corporation.’”5 Furthermore, the court stated “[t]he argument that the increase in the value of [the transferor’s] interest in CMC constituted consideration is not persuasive, as this increased interest resulted from the transfer and was not the consideration for making the transfer.”6 The Florida Supreme Court quashed the Third District Court of Appeal’s decision and remanded the case to the district court for further consideration consistent with the Florida Supreme Court’s opinion.7. Since documentary stamp tax must be of concern in every conveyance of Florida real property, let's take a closer look at what it is and how it is assessed. (The Miami-Dade County rate is $.60 on all documents plus $.45 surtax on documents transferring anything other than a single-family residence). When real property is sold, the property is typically assessed the following January 1 in part based on the recorded sales price. Most practitioners and real estate investors are familiar with the 2005landmark case Crescent Miami Center, LLC v. Florida Department of Revenue which, at its core, centered on the imposition of documentary stamp tax where an entity transfers property to another entity (where the grantor’s ownership interest in the selling entity is identical to the grantor’s ownership interest in the … 1. The County Clerk collects this tax when the document transferring property is recorded. For purposes of this section, consideration includes, but is not limited to, the money paid or agreed to be paid; the discharge of an obligation; and the amount of any mortgage, purchase money mortgage lien, or other encumbrance, whether or not the underlying indebtedness is assumed. On this point, the legislature stated: The Legislature recognizes that the Supreme Court’s opinion in Crescent is limited to the facts of the case and accepts the court’s interpretation of s. 201.02, Florida Statutes, that no consideration exists when owners of real property unencumbered by a mortgage convey an interest in such property to an artificial entity whose ownership is identical to the ownership of the real property before conveyance. He earned his B.S. ‘To inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence.’ Thus, the provision excludes from documentary stamp tax a transaction that for state law purposes is a sale for consideration, but which is ignored under a fiction created by federal tax law. In Florida, the Department of Revenue charges “documentary stamp taxes” on real estate transactions. © 2021 The Florida Bar. That offers some support for the proposition that a transfer of interests in a conduit entity to another entity owned by the same person is not a taxable transaction. The deed stated that CMC paid $10 and “other good and valuable consideration” for the property. Previous posts in this Blog discussed the recent Florida Supreme Court decision on the documentary stamp tax in the Crescent case. In the wake of the Crescent decision, which was published during one of the most active real estate markets in Florida’s history, practitioners began structuring sales of Florida real property to avoid the imposition of Florida documentary stamp tax.8 The benefit of this planning approach is illustrated by the following example: Assume seller S and purchaser P have entered into a purchase and sale contract with a purchase price of $5 million in connection with the sale of real estate. © 2011-2016 Vitauts M. Gulbis Contact Me. 44 (Oct. 2005). The rate is equal to 70 cents per $100 of the deed's consideration. You should consult with your own attorney or other tax advisor before applying any of the content of this website to your individual situation. The Florida Documentary Stamp Tax (Stamp Tax) is an excise tax levied upon a variety of documents in Florida. In addition, the statute borrows the federal income tax concept of “grantor trusts” to define a nontaxable transfer. Florida imposes a documentary stamp tax of 70 cents ($1.00 in Miami-Dade) per $100 of the purchase consideration for the sale of real estate located in Florida. For over half a century, Florida tax practitioners have struggled to answer a relatively simple question. 201.02. In the state of Florida, when property is transferred, documentary stamp tax is assessed on any outstanding mortgage debt at a rate of 70 cents per every 100 dollars. Documentary stamp taxes did not apply to the transfer of the LLC interests. As an initial matter, it is difficult to properly define “a transfer for purposes of estate planning,” as estate planning itself is an extremely broad concept. The initial transfer of unencumbered real estate to the LLC as a capital contribution was not subject to documentary stamp taxes under, Effective July 1, 2009, the “drop-and-transfer” strategy was eliminated. He is board certified by The Florida Bar in taxation. The DOR concludes that the transfer of stock in the corporation which holds the LLC interests is subject to documentary stamps. The documentary stamps are determined based upon the proportion of the corporation’s value which reflects the indirect interest in the real estate through the LLC. tax on sales and rentals of many items, a 5% income tax on C corporation income, documentary stamp taxes on real estate transfers and mortgages, and intangible taxes on borrowing. Documentary Stamp Tax at $.70 per $100, rounded up, based on the total purchase price. This makes it difficult for a county property appraiser to determine when the property has been sold. . Estate planners often refer to these irrevocable grantor trusts as “intentionally defective grantor trusts.”. Documentary stamp tax of $210 was paid on the document that transferred the real property to the LLC. The Crescent decision resulted in the proliferation of transaction planning that avoided the imposition of the deed tax and caused a headache for property appraisers attempting to determine the valuation of Florida real property for ad valorem tax purposes.2 In response to the “abuse” of Crescent, the legislature amended §201.02 in 2009 to apply the Florida documentary stamp tax to the sale of ownership interests in an entity that owns Florida real property where such real property was conveyed to the entity within three years of sale.3 In addition, in 2007, the legislature enacted §193.1556 to require notice to property appraisers upon the change of control of certain entities owning Florida real estate. Center, LLC v. Florida Department of Revenue, holding that when unencumbered property is transferred from the owner to a wholly owned legal entity – such as a limited liability company or wholly owned partnership - it is not subject to the Florida documentary stamp tax. The potential liabilities associated with real property can be significant, including environmental exposure and premises liability. 3 2009 Fla. Laws Ch. Step two would not be subject to the documentary stamp tax because there is no conveyance of real estate, since S is assigning a membership interest in a limited liability company. The three-year holding period in many ways diminishes the desirability of structuring a sale of real property through a conduit entity. The tax rate for documents that transfer an interest in real property is $.70 per $100 (or portion thereof) of the total consideration paid, or to be paid, for the transfer. There is no maximum tax on these documents. When the full amount of the consideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax shall be at the rate of 70 cents for each $100 or fractional part thereof of the consideration therefor. Code R. 12B-4.014(2)(a) (2009). On November 3, 2011, the Florida DOR issued Emergency Rule 12B11-17 to provide guidance on application of the documentary stamp tax to such transfers of LLC interests. Under the grantor trust provisions, a grantor is taxed on trust income if the grantor retains a reversionary interest whose value is initially greater than five percent of the value of the trust or specified rights to control beneficial enjoyment of the corpus or income or if the grantor retains or vests in a nonadverse party certain administrative powers. An exception is Miami-Dade County, where the rate is $.60 per $100 (or portion thereof) when the property is a single-family residence. Instead, it objects to the concept that ownership interests in entities may be conveyed without the imposition of a Florida documentary stamp tax. She later sells the interests in the corporation which holds her interests in the underlying LLC. Because there is a separate exception for gifts, the “estate planning” exception in the amendment likely refers to a sale to an irrevocable grantor trust that completes the transfer for estate tax purposes, but which is ignored for income tax purposes by application of the grantor trust rules. The grantor either gratuitously transfers assets to such trusts or sells assets to such trusts. Absent any documentary stamp tax planning, the sale of the real estate would generate a documentary stamp tax of $35,000. The tax is called documentary stamp tax and is an excise tax on the deed or other instrument transferring the interest in real property. 10 The Florida Legislature’s response is discussed later in this article. All rights reserved. Despite its long history, the Documentary Stamp Tax has continued to receive updates and shows no signs of being repealed in the future. Prior to July 1, 2009, sellers of unencumbered Florida real estate were able to avoid the documentary stamp tax by first transferring the real estate to a limited liability company wholly-owned by the sellers, then transferring the LLC interests to the buyer. Generally, a transfer tax is imposed on documents that convey an interest in real property from one person or legal entity to another person or legal entity. Deeds and other documents that transfer an interest in Florida real property are subject to documentary stamp tax. The treatment of a merger or conversion as a conveyance potentially accomplishes two goals. The conveyance or merger would start the three-year clock running. The Crescent Case and Its Aftermath In Crescent, the Florida Supreme Court addressed the application of the Florida documentary tax to the conveyance of a commercial building located in downtown Miami from a limited partnership to a wholly owned, second-tier subsidiary limited liability company called Crescent Miami Center, LLC (CMC). The Emergency Rule provides guidance on indirect transfers of LLC interests by providing an example of an indirect transfer and an example involving successive transfers. This example illustrates how the application of Crescent effectively repealed the documentary stamp tax for a significant number of real estate transactions. In acquiring the ownership interests of an entity, the buyer assumes all known and unknown liabilities of the entity. Additionally, a documentary stamp tax will be imposed on the mortgage in the amount of $350 ($100,000/100 x .35). DOCUMENTARY STAMP TAX: Add to MyFLRules Favorites: View Chapter: 12B-4. Second, the transfer of shares or similar equity interests in a conduit entity which are dealt in or traded on public, regulated security exchanges or markets is not subject to tax.19 This provision apparently contemplates a conveyance of real property to a conduit entity, which becomes a public company within three years of transfer. Additionally, there would be no public record of the consideration for the transfer of the membership interest for the property appraiser to consider in assessing the value of the property.10, The 2009 Documentary Stamp Tax Legislation In its 2009 amendment to §201.02, the Florida Legislature clearly articulated its disdain for the use of the Crescent decision as a deed tax avoidance device, stating: “The Legislature finds that the Florida Supreme Court opinion in Crescent Miami Center, LLC v. Florida Department of Revenue, 903 So. However, the subsequent sale of the ownership interest in such entity within three years of the conveyance of the Florida real property would be subject to the documentary stamp tax. in taxation at the University of Florida. Florida’s Constitution prohibits a state income tax and would be very difficult to amend. Notes and other written obligations to pay money 4. The examples provided by Emergency Rule 12B11-17 illustrate how the Florida DOR intends to apply the documentary stamp tax to indirect and successive transfers of conduit entities. He received his J.D., summa cum laude, in 2006 and his LL.M. A change of ownership or control generally means any sale, foreclosure, transfer of legal title or beneficial title in equity to any person, or the cumulative transfer of control or of more than 50 percent of the ownership of the legal entity that owned the property when it was most recently assessed at just value.21 The change of ownership is reported on Form DR-430, Notice of Change of Ownership or Control Non-Homestead Property, by the owner to the property appraiser in the county where the property is located. No documentary stamp tax was due on the transfer of Section 212.02(c) provides that the conversion or merger of a trust that is not a legal entity that owns real property in Florida into a legal entity is treated as a conveyance of real property. Under. One of the sellers subsequently transfers her LLC interests to a corporation that she owns. Another provision in the legislation addresses trust conversions and mergers. Instead, contact this office by phone or in writing. If you do not want your E-mail address released in response to a public records request, do not send electronic mail to this entity. This column is submitted on behalf of the Tax Section, Guy E. Whitesman, chair, and Michael D. Miller and Benjamin Jablow, editors. The Florida documentary stamp tax applies to transfers of interests in Florida LLCs which hold real estate acquired on or after July 1, 2009 if the real estate was acquired by the LLC without the payment of documentary stamp taxes. 76 Fla. B. J. at 42 (May 2002). The American Influence on International Commercial Arbitration: Doctrinal Developments and Discovery Methods. 1 Bernard A. Barton, Jr., David P. Burke & Mitchell I. Horowitz, Kuro and Muben-Lamar in the Eye of the Beholder? The law is effective where the first transfer to a “conduit entity” occurred after July 1, 2009. Adi Rappoport is a shareholder of Gunster, Yoakley & Stewart, P.A., residing in the firm’s West Palm Beach office. Although this has been included to facilitate “estate planning,” it is not entirely clear what this provision accomplishes. First, a gift of an ownership interest in a conduit entity is not subject to tax to the extent that there is no consideration.17 This exception is consistent with the general rule that the documentary stamp tax does not apply to gifts of unencumbered realty.18. There are a few exceptions to the 2009 Documentary Stamp Tax law, including an exception for transfers to grantor trusts. , an entity which acquires Florida real property without payment of a documentary stamp is classified as a “conduit entity.” Transfers of interests in conduit entities within 3 years after the date on which the entity received the Florida real estate are subject to the documentary stamp tax. Bonds 3. The documentary stamp tax as applied to deeds conveying real property is set out in section 201.02(1), Florida Statutes (2003), which states: 2 Dist. J. Both parties moved for summary judgment in the circuit court, and final summary judgment was entered in favor of the DOR. The documentary stamp tax, sometimes called transfer tax, is assessed on the amount of the consideration paid for the transfer of any interest in real property located in Florida. Calculations. If the consideration paid or given in exchange for real property or any interest therein includes property other than money, it is presumed that the consideration is equal to the fair market value of the real property or interest therein.4. (Note: the doc stamp rate is $.70 per $100 for all Florida counties except Miami-Dade where the rate is $.60 per $100. The stated purpose of the transfer was to segregate the property in order to … The fed- eral government imposed a documentary stamp tax on transfers of real property deeds until the tax was re- pealed in 1967. The Emergency Rule implements Chapter 2009-131, Laws of Florida, which imposes a documentary stamp tax at the rate of 70¢ per US$100 (or fraction thereof) on any transfer of an ownership interest in a so-called "conduit entity" when the transfer occurs within three years of a post-July 1, 2009 transfer of Florida real property into the conduit entity. — The 10-cent tax increase in the documentary stamp tax levied by s. 2, chapter 92-317, does not apply to deeds and other taxable instruments relating to real property located in any county that has implemented the provisions of chapter 83-220, Laws of Florida, as amended by chapters 84-270, 86-152, and 89-252, Laws of Florida. Cancellation of Indebtedness; Debt for Equity Exchange, Voluntary Worker Classification Settlement Program. The Florida documentary stamp tax statute provides in pertinent part: On deeds, instruments, or writings whereby any lands, tenements, or other real property, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or any other person by his or her direction, on each $100 of the consideration therefor the tax shall be 70 cents. The Florida Documentary Stamp Tax Florida imposes a documentary stamp tax on transfers of real estate by deed at a rate of $.70 per $100 or part thereof of consideration. No attorney-client relationship is established through the use of this site or any e-mail or other communication to the author. May 15, 1998), and as finally confirmed by the Florida Supreme Court in Crescent Miami Center LLC in 2005, transfers of Florida real property from owners to wholly-owned entities are not subject to Florida documentary stamp taxes, at least when the property is unencumbered. The stated purpose of the transfer was to segregate the property in order to facilitate future unsecured financing. The Documentary Stamp Tax also applies to documents executed or delivered in the state of Florida. On November 3, 2011, the Florida DOR issued Emergency Rule 12B11-17 to provide additional guidance on application of the documentary stamp tax to such transfers of LLC interests. The legislature was probably aware of this dynamic in requiring a three-year holding period. Documentary stamp taxes are calculated at a rate of 70 cents for each $100 of consideration. The tax is imposed on a tax base equal to the consideration given for the transfer, rounded up to the nearest $100. An interesting consequence of the Crescent decision is its impact on ad valorem taxes and the ability of property appraisers to determine the value of Florida real estate. Under Crescent, there was no documentary stamp tax due on steps one or three since each of these transfers is a mere book transaction where beneficial ownership of the property has not changed. The provision in Section 689.071(4), F.S., which defines the interest of a beneficiary under a trust agreement to be personal property only, does not exempt a transfer of the beneficial interest in the trust from documentary stamp tax. 2d 913 (Fla. 2005), interprets s. 201.02, Florida Statutes, in a manner that permits tax avoidance inconsistent with the intent of the Legislature at the time the statute was amended in 1990.”11. However, because the Supreme Court’s interpretation, combined with other settled law regarding the application of s. 201.02, Florida Statutes, allows for the tax-free transfer of ownership interests in real property from one owner to another through the use of artificial entities, it is the Legislature’s intent by this act to impose the documentary stamp tax when the beneficial ownership of real property is transferred to a new owner or owners by the use of techniques that apply the Supreme Court’s decision in. It is interesting to note that the example assumes that the transfer of the LLC interest by one co-owner to her wholly-owned corporation was not subject to documentary stamp taxes. Hank transfers a Florida beach house valued at $1 million with a $750,000 mortgage balance to a LLC that is 100% owned by him. in taxation in 2008, both from the University of Florida College of Law. The first lesson to be drawn is that the DOR purports to reach the use of tiered structures to make indirect transfers of conduit entities. in accounting, J.D., and LL.M. Florida imposes a documentary stamp tax on deeds and other documents that transfer an interest in Florida real property. Florida imposes a documentary stamp tax on transfers of real estate by deed at a rate of $0.70 per $100 or part thereof of consideration. Over the years the answer to this question has shifted from “no” to “yes” and back to “no” as Florida courts and the Florida Legislature interpreted and refined the concepts of “purchaser” and “consideration” for purposes of the deed tax.1 The most recent (and presumably final) answer to this question came in 2005, when the Florida Supreme Court held in Crescent Miami Center, LLC v. Florida Department of Revenue, 903 So. Under Florida law, E-mail addresses are public records. The amendment to the statute accomplishes this result by creating the concept of a “conduit entity,” which is defined as a legal entity to which real property is conveyed without full consideration by a grantor who owns a direct or indirect interest in the entity, or a successor entity.13 The term “full consideration” means the consideration that would be paid in an arm’s length transaction between unrelated parties.14, The amended statute provides that when real property is conveyed to a conduit entity and all or a portion of the grantor’s direct or indirect ownership interest in the conduit entity is subsequently transferred for consideration within three years of such conveyance, then tax is imposed on each such transfer of a conduit entity interest for consideration at the rate of $.70 for each $100 or fraction thereof of the consideration paid or given in exchange for the ownership interest in the conduit entity.15, When an ownership interest is transferred in a conduit entity that owns assets other than the real property conveyed to the conduit entity, the tax is prorated on the percentage the value of such real property represents of the total value of all assets owned by the conduit entity.16. This includes when property is transferred from one spouse to another. The notification requirement provides the property appraiser with information concerning the sale of real property through entities so that a property’s assessed value for property tax purposes are determined by taking into account recent transactions that change beneficial ownership. Outside of Miami-Dade County, the transfer tax rate is 70 cents per $100 of the deed's consideration. Beginning with Kuro, Inc. v. State, 713 So.2d 1021 (Fla.App. In other words, you can calculate the transfer tax in the following way: (Total Price/$100) x.70 = Doc Stamps Cost So, let's say you live in Key West. Under current law, Florida Statute 201.02 imposes documentary stamps on most conveyances between spouses, if there is an underlying mortgage. CMC appealed the adverse summary judgment to the Third District Court of Appeal, which affirmed the order of the lower court in favor of the DOR. When the full amount of the consideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax shall be at the rate of 70 cents for each $100 or fractional part thereof of the consideration therefor. A documentary stamp tax will be due on the deed transferring the property in an amount equal to $1,400 ($200,000/100 x .70). The buyer would typically prefer to acquire the real property outright. 2d 913 (Fla. 2005), that such conveyances are not subject to documentary stamp tax. The 2007 Notice of Change of Control Legislation In 2007, the Florida Legislature enacted §193.1556, which requires any person or entity that owns nonhomestead real property to promptly notify the property appraiser of any change of ownership or control. However, because the Supreme Court’s interpretation, combined with other settled law regarding the application of s. 201.02, Florida Statutes, allows for the tax-free transfer of ownership interests in real property from one owner to another through the use of artificial entities, it is the Legislature’s intent by this act to impose the documentary stamp tax when the beneficial ownership of real property is transferred to a new owner or owners by the use of techniques that apply the Supreme Court’s decision in Crescent in combination with transfers of ownership of, or distributions from, artificial entities.12. the transfer was $30,000. First, it maintains the integrity of the three-year period during which the documentary stamp tax applies to the sale of conduit entities. While the legislature voiced its endorsement of the opinion issued by the Third District Court of Appeal in Crescent, which the legislature stated interpreted §201.02 in a manner that prevented tax avoidance, it also stated that it does not intend to overturn the Florida Supreme Court’s decision in Crescent with respect to the conveyance of unencumbered Florida real property to artificial entities. The legislature addressed its stated concerns by amending §201.02 to confirm the essence of the Florida Supreme Court’s opinion in Crescent that a conveyance of unencumbered real property to an entity is not subject to documentary stamp tax. A sale of real estate transactions which the documentary stamp tax of $ 350 ( $ 100,000/100.35. Deed stated that CMC paid $ 10 and “ other good and valuable ”... Either gratuitously transfers assets to such trusts he received his J.D., summa cum laude, in and. It difficult for a refund of the content of this paragraph are be. 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