STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AMERICAN FOAM RUBBER ) DISTRIBUTORS INC., and ) EDWARD ROTHBARD, )
)
Petitioner, )
)
vs. ) CASE NO. 76-212
)
STATE OF FLORIDA, ) DEPARTMENT OF REVENUE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on June 1, 1976 at Coral Gables, Florida.
APPEARANCES
For Petitioner: Ainslee R. Ferdie, Esquire
Suite 215, 717 Ponce DeLeon Boulevard Coral Gables, Florida 33134
For Respondent: Patricia S. Turner, Esquire
Assistant Attorney General Department of Legal Affairs The Capitol
Tallahassee, Florida 32304
By this petition American Foam Rubber Distributors, Inc. (AFRD) and Edward Rothbard seek to have the Department of Revenue's assessment for documentary tax stamp and penalties on a transfer of real property by quitclaim deed from Edward Rothbard to AFRD set aside. Petitioners contend that the transfer was without consideration and therefore nontaxable under sec. 201.02 F.S. while Respondent contends that consideration flowed to the grantor by virtue of the grantee making the mortgage payments; and therefore, documentary tax stamps were due on the deed of conveyance computed on the amount of the mortgage at the time of transfer. One witness testified in behalf of Petitioners and four exhibits were admitted into evidence. From the pleadings, interrogatories, and evidence presented at the hearing the facts are largely undisputed and are as follows.
FINDINGS OF FACT
Edward Rothbard owns 100 percent of the outstanding stock of AFRD and he has been the sole shareholder and chief executive officer of the company since the company s inception in 1962.
On March 9, 1973 the Seaboard Coastline Railroad (SCL) entered into an agreement with AFRD to sell a tract of land in Miami to the latter at an agreed price of $116,978.00 with certain conditions. The principal condition was that the grantee erect a warehouse on the property within one year from the date of the transfer.
By deed dated August 23, 1973 the property was conveyed by SCL to Edward Rothbard rather than as per the contract. This deed was apparently delivered in late October, 1973 and the proper documentary stamp tax was paid on this transaction. Mr. Rothbard's testimony that the sole reason for taking the property in his name was to expedite the transaction was not rebutted. In exhibits 1 and 2 copies of letters from SCL dated September 21 and 26, 1973, SCL referred to Rothbard as nominee of AFRD to be grantee of the property.
Exhibit 4, the title page of an interim title insurance binder, indicates that the title insurance policy on the property purchased from SCL was intended to be in the name of AFRD.
In August, 1974 the building erected on the site for the use and benefit of AFRD was completed and Edward Rothbard mortgaged the property to secure a note in the amount of $550,000.00. His wife also executed the note and mortgage. AFRD occupied the building in September, 1975 and made all mortgage payments to the mortgagee including the first payment.
By quitclaim deed executed February 26, 1975 Edward Rothbard conveyed the property here involved to AFRD subject to the mortgage. Minimum documentary tax stamps were placed on this deed.
On February 26, 1975 the outstanding balance due on the mortgage was
$543,969.59.
CONCLUSIONS OF LAW
Section 201.02 F.S. is the basis for the requirement that documentary tax stamps be placed on instruments relating to land and provides in pertinent part:
"(1) On deeds, instruments or writings whereby any lands, tenements, or other realty, or any interest therein, shall be granted, assigned, transferred,
or otherwise conveyed to, or vested in, the purchaser, or any other person by his direction, on each 100 dollars of the consideration there for the tax shall be 30 cents. When the full amount of the considera- tion for the execution, assignment, transfer or conveyance is not shown on the face of such deed, instrument, document, or writing, the tax shall be
at the rate of 30 cents for each 100 dollars or fraction thereof of the consideration therefor."
The first requirement for the taxation of an instrument, in the nature of a deed, under sec. 201.02 F.S. is that such instrument convey or transfer the title to the lands or an interest therein to a purchaser; and the second is that a consideration measured in U.S. money be given therefor. If the instrument affecting a parcel of real property has the effect of transferring such property from one legal entity to another, such an instrument would appear to be within the purview of 20l.02 F.S. and subject to taxation if there be a
taxable consideration passing from grantee to grantor. AGO 063-18. Neither "monetary value", "value", nor "market value" can be substituted for the word "consideration" in sec. 201.02 F.S. Culbreath v. Reid 65 So.2d 556, 557 (Fla.
1953).
While the Florida documentary stamp tax laws were adopted from similar federal laws, the latter exempts from the documentary stamp tax "the value of any lien or encumbrance remaining thereon at the time of sale". That exemption is not contained in the Florida Statute. Accordingly, under the statute above quoted the consideration paid for the land on which the tax is computed is the value of the interest or property conveyed, without any deduction on account of outstanding liens or encumbrances remaining thereon at the time of sale. Rasberry v. Dickinson 243 So.2d 236 (Fla. App. 1971). In the Rasberry case the deed recited that the conveyance was subject to outstanding mortgages which the grantee assumed and agreed to pay. The court held that the documentary stamp tax was properly computed by including the amount of the existing mortgage in determining the full consideration paid by purchaser. The rationale of the decision is that the amount of the outstanding mortgage indebtedness was fully considered and taken into account by the purchaser in determining the value of the land and the amount he was willing to pay for it. Further, the obligation of the purchaser to pay the mortgage indebtedness was a valuable consideration passing to the grantor of a value equivalent to the obligation itself, and, therefore comprises part of the total consideration for the conveyance against which the amount of tax should be properly computed.
In Kendell House Apartments, Inc. v. The Department of Revenue 245 So.2d 221 (Fla. 1971) the grantee took title to property subject to an existing mortgage, paid the documentary stamp tax on a sum which included the amount of mortgage at time of conveyance and brought mandamus to recover the amount of the tax computed by including the value of the mortgage. The grator made mortgage payments until the time of the conveyance and the grantee made these mortgage payments thereafter. The court stated at page 223:
"In the instant case the concept of consideration' as used in Florida Statutes sec. 201.02 F.S.A. is clearly satisfied. The Sale and Purchase Agreement of the parties dated April 26, 1968, contemplates a transfer of the burden of making the mortgage payments to the grantee as of the date of closing and a corresponding benefit derived by the grantor who agreed to make mortgage payments only up until the time of closing, including June 1, 1968. The Stipulation of the parties filed in this Court states that the grantee of the property had, in fact, made all mortgage payments since the closing date. This arrangement constitutes a part of the consideration for the transfer of the property.
Any other view of the situation is unrealistic."
The above decision followed 4 Pomeroy's Equity Jurisdiction, 5th Edition, 614, 615, sec. 1205 wherein it is stated that:
"A grantee who thus takes a conveyance subject to
a mortgage is presumed to have included the mortgage debt in the purchase price and is not therefore permitted to dispute the validity of the mortgage;
[Although he is not personally liable for the mortgage debt].
In 59 J.C.S. 561 sec. 397 under the title "Presumptions" the statement is made that:
"In the event of a conveyance of mortgaged property subject to the mortgage it is generally presumed that the amount of the mortgage has been deducted from and is a part of the purchase price. It is consequently frequently asserted that mortgaged property transferred subject to the mortgage is the primary source for the satisfaction of the mortgage. The ordinary significance of this statement is that:, as between the parties to the transfer, and to the extent of the grantees interest in the property,
the grantee is a principal and the grantor is a surety."
The presumption that the mortgage obligation was included in the purchase price to be paid is a rebuttable presumption which may be overcome by competent evidence. AGO 062-299. This Attorney General Opinion further held that in the absence of sufficient competent evidence to the contrary, the mortgage obligation should be included when imposing documentary stamps where the interests of a vendor in a contract to sell and convey real property is conveyed or assigned to a third person where such real property is subject to an outstanding-mortgage.
The conveyance here in question was by quitclaim deed. Therein the grantor conveyed to the grantee only that interest in the property held by the grator. Since grantor's interest was subject to the mortgage that his all he purported to convey; and the recitation in the deed that the conveyance was subject to an existing mortgage' was redundant and, perhaps, without legal efficacy.
Where the transaction involves a closely held corporation and its shareholders it still involves two distinct legal entities; however, in order to be taxable consideration must flow to the grantor. AGO 073-68. Consideration may be found by an increase in the value of the closely held stock if a capital asset is conveyed to the corporation.
In Florida Department of Revenue v. DeMaria, 321 So.2d 101 (Fla. App. 1975) the court held that the transfer of real property from a corporation to its sole stockholder subject to an outstanding mortgage which the stockholder did not assume, but which he paid, was not a "reasonably determinable consideration" for the conveyance so as to be subject to documentary stamp taxes on the amount of the mortgage.
The case at hand is a mirror image of DeMaria. Transfer or real property from a corporation to his shareholders may be a distribution of capital, which has the effect of reducing the value of the shares held by the shareholders, and not taxable under S202.02 F.S. Palmer - Fla. Corp. v. Green,
88 So.2d 493. On the other hand a conveyance of real property from shareholders to a corporation was held taxable under sec. 201.02 F.S. as it had the effect of increasing the value of the shares of the corporation held by the shareholders. AGO 073-68.
The sole issue here in contention is consideration. In DeVore v. Gay,
65 So.2d 556, 557 the court held:
"When taxes are to be levied according to a monetary consideration, the law contemplates that such tax should be confined to the actual monetary consideration or considerations which have a reasonable pecuniary value."
In DeMaria, supra, the court also held the transfer of the property from the corporation to the sole stockholder of the corporation was in no sense a "sale" to a "purchaser" as contemplated by sec. 20l.02 F.S. but a mere book transaction.
In the instant case the corporation commenced making the mortgage payments as soon as the mortgage was placed upon the property. It did not "relieve" the grantor of his obligation to make the mortgage payments only after the date of the conveyance; and in no sense can it be said that the grantor was ever relieved of his obligation as surety on the note and mortgage.
Rule 12A- 13 (19) F.A.C. under the heading Gift Transactions; Mortgage on Property, provides:
"A gift transaction whereby a conveyance is made subject to a mortgage and mortgage payment is to be made by grantee is taxable. Taxes to be computed on unpaid balance of the mortgage.
(AGO 061-77, May 12, 1961, 1961-62 Biennial
Report, Page 124; Kendell House -Apartments, Inc.
v. Department of Revenue (1971) 245 So.2d 221) Cross reference - Rule 12A-4.14 (2)."
This is a long standing administrative determination of the agency. This constitutes a departmental construction of sec. 201.02 F.S. by the agency charged with the enforcement of the act and authorized to make reasonable rules and regulations, and as such is to be accorded considerable weight unless clearly contrary to the intent of the statute. 1 FLA. JUR ADM LAW sec. 73 and cases there cited. Furthermore, the fact that this interpretation of sec.
201.02 F.S. is one of long standing increases the persuasiveness of such an interpretation. State ex rel. Fronton Exhibition Co. v. Stein, (Fla. 1940) 185 So. 82. The fact that the legislature has not modified 201.02 F.S. since Rule 12A-13 (19) F.A.C. above quoted was promulgated, leads to the inference that the legislature has accepted this interpretation of the legislative intent of sec. 201.02 F.S.
Although no specific issue regarding a trust was raised at the hearing, Petitioner's Exhibits referred to Rothbard as "nominee" of AFRD when the property was conveyed to him by SCL. Thus, the issue of whether or not a trust was created should be considered. Nowhere on any instrument here involved was Rothbard referred to as "trustee" so no express trust was created. As stated in Columbia Bank of Cooperatives v. Okeelanta Sugar Corporation, 52 So.2d 670, 672 (Fla. 1951):
"An express trust cannot exist unless there is an execution of an intention to create such a trust by the one having legal and equitable dominion over the property made subject to it."
Nor do the facts here involved create a resulting trust. A resulting trust arises where the purchase price of land is paid by one and the title is taken by another, the parties intending that the holder of the title is to hold on behalf of the other. Rothbard was both: legal and equitable owner of the property at the time he conveyed it to AFRD.
From the foregoing it is concluded that the Department of Revenue's interpretation of sec. 201.02 F.S. as contained in Rule 12A-13 (19) F.A.C. is controlling in this case until reversed by judicial decision. It is therefore,
RECOMMENDED that the Petitioner be assessed the taxes and penalties set forth in the Revised Notice of Assessment of Tax and Penalty under Chapter 201, F.S., dated January 6,1976.
DONE and ENTERED this 7th day of June, 1976, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF REVENUE
AMERICAN FOAM RUBBER DISTRIBUTORS, INC., and EDWARD, ROTHBARD,
Petitioner,
vs. CASE NO. 76-212
STATE OF FLORIDA, DEPARTMENT OF REVENUE,
Respondent.
/
FINAL ORDER OF DEPARTMENT OF REVENUE
This cause cones before the Department of Revenue after hearing having been held pursuant to Chapter 120, Florida Statutes, before a Hearing Officer of the Division of Administrative Hearings. Said Hearing Officer has heretofore
submitted to the Department of Revenue a Recommended Order dated June 24, 1976. Appearances at the Administrative Hearing were:
For Petitioner: Ainslee R. Ferdie, Esquire
Suite 215, 717 Ponce DeLeon Blvd. Coral Gables, Florida 33134
For Respondent: Ms. Patricia S. Turner
Assistant Attorney General Department of Legal Affairs The Capitol
Tallahassee, Florida 32304
As required by Chapter 120, Florida Statutes, the Department has allowed counsel for the respective parties the opportunity to file written exceptions to the Recommended Order. Both the Petitioner and the Department of Revenue, through their respective counsel, have filed exceptions to the Recommended Order.
The Department of Revenue has determined that the exceptions filed in behalf of the Respondent are well taken and accordingly rules as follows:
ISSUE
By this petition, American Foam Rubber Distributors, Inc. (AFRD) and Edward Rothbard seek to have the Department of Revenue's assessment for documentary stamp tax and penalties on a transfer of real property by quit claim deed from Edward Rothbard to AFRD set aside. Petitioners contend that the transfer was without consideration and therefore nontaxable under sec. 201.02, F.S. , while Respondent contends that consideration flowed to the grantor by virtue of the grantee making the mortgage payments; and therefore, documentary tax stamps were due on the deed of conveyance computed on the amount of the mortgage at the time of transfer. One witness testified in behalf of Petitioners and four exhibits were admitted into evidence. From the pleadings, interrogatories and evidence presented at the hearing, the facts are largely undisputed and are as follows:
FINDINGS OF FACT
Edward Rothbard owns 100 percent of the outstanding stock of AFRD and he has been the sole shareholder and chief executive officer of the company since the company's inception in 1962.
On March 9, 1973, the Seaboard Coastline Railroad (SCL) entered into an agreement with AFRD to sell a tract of land in Miami to the latter at an agreed price of $116,978.00 with certain conditions. The principal condition was that the grantee erect a warehouse on the property within one year from the date of the transfer.
By deed dated August 23, 1973, the property was conveyed by SCL to Edward Rothbard rather than as per the contract. This deed was apparently delivered in late October, 1973 and the proper documentary stamp tax was paid on this transaction. Mr. Rothbard`s testimony that the sole reason for taking the property in his name was to expedite the transaction was not rebutted. In exhibit5 1 and 2 copies of letters from SCL dated September 21 and 26, 1973, SCL referred to Rothbard as nominee of AFRD to be grantee of the property.
Exhibit 4, the title page of an interim title insurance binder, indicates that the title insurance policy on the property purchased from SCL was intended to he in the name of AFRD.
In August, 1974, the building erected on the site for the use and benefit of AFRD was completed and Edward Rothbard mortgaged the property to secure a note in the amount of $550,000.00. His wife also executed the note and mortgage. AFRD occupied the building in September, 1975 and made all mortgage payments to the mortgagee including the first payment.
By quitclaim deed executed February 26, 1975, Edward Rothbard conveyed the property here involved to AFRD subject to the mortgage. Minimum documentary tax stamps were placed on this deed.
On February 26, 1975, the outstanding balance due on the mortgage was
$543,969.59.
CONCLUSIONS OF LAW
Section 201.02, F.S. , is the basis for the requirement that documentary tax stamps be placed on instruments relating to land and provides in pertinent part:
"(1) On deeds, instruments, or writings whereby any lands, tenements, or other realty, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser, or any other person by his direction, on each $100 of the con- sideration therefor the tax shall be 30
cents. When the full amount of the con- sideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, docu- ment, or writing, the tax shall be at
the rate of 30 cents for each $100 or fractional part thereof of the consider- ation therefor."
The first requirement for the taxation of am instrument, in the nature of a deed, under sec. 201.02, F.S. , is that such instrument convey or transfer the title to the lands or an interest therein to a purchaser; and the second is that a consideration which must be an actual monetary consideration or consideration with a reasonably determinable pecuniary value be given therefor. If the instrument affecting a parcel of real property has the effect of transferring such property from one legal entity to another, such an instrument would appear to be within the purview of sec. 201.02, F.S. , and subject to taxation if there be a taxable consideration passing from grantee to grantor. AGO 063-18. Neither "monetary value," "value" nor "market value" can be substituted for the word "consideration" in sec. 201.02, F.S. Culbreath v. Reid 65 So.2d 556, 557 (Fla. 1953).
While the Florida documentary stamp tax laws were adopted from similar federal laws, the latter exempts from the documentary stamp tax "the value of any lien or encumbrance remaining thereon at the time of sale." That exemption is not contained in the Florida Statute. Accordingly, under the statute above
quoted the consideration paid for the land on which the tax is computed is the value of the interest or property conveyed, without any deduction on account of outstanding liens or encumbrances remaining thereon at the time of sale.
Rasberry v. Dickinson 243 So.2d 236 (Fla. App. 1971). In the Rasberry case the deed recited that the conveyance was subject to outstanding mortgages which the grantee assumed and agreed to pay. The court held that the documentary stamp tax was properly computed by including the amount of the existing mortgage in determining the full consideration paid by purchaser. The rationale of the decision is that the amount of the outstanding mortgage indebtedness was fully considered and taken into account by the purchaser in determining the value of the land and the amount he was willing to pay for it. Further, the obligation of the purchaser to pay the mortgage indebtedness was a valuable consideration passing to the grantor of a value equivalent to the obligation itself, and, therefore, comprises part of the total consideration for the conveyance against which the amount of tax should be properly computed.
In Kendall House Apartments, Inc. v. The Department of Revenue 245 So.2d 221 (Fla. 1971) the grantee took title to property subject to an existing mortgage, paid the documentary stamp tax on a sun which included the amount of mortgage at time of conveyance and brought mandamus to recover the amount of the tax computed by including the value of the mortgage. The grantor made mortgage payments until the time of the conveyance and the grantee made these mortgage payments thereafter. The court stated at page 223:
"In the instant case, the concept of consideration' as used in Florida Statutes sec. 201.02, F.S.A. is clearly satisfied. The Sale and Purchase Agreement of the parties dated April 26, 1968, contemplates a transfer of the burden of making the mortgage payments to the grantee as of the date of closing and a corresponding benefit derived by the grantor who agreed to make mort- gage payments only up until the time
of closing, including June 1, 1968. The Stipulation of the parties filed in this Court states that the grantee of the property had, in fact, made all mortgage payments since the closing date. This arrangement constitutes
a part of the consideration for the transfer of the property. Any other view of the situation is unrealistic."
The above decision followed 4 Pomeroy's Equity Jurisdiction, 5th Edition, 614, 615, sec. 1205 wherein it is stated that:
"A grantee who thus takes a conveyance subject to a mortgage is presumed to have included the mortgage debt in the purchase price, and is not, therefore, permitted to dispute the validity of the mortgage;..." [Although he is not
personally liable for the mortgage debt.]
In 37 Am. Jur. 381, sec. 1102, it is stated that:
"In the event of a conveyance of mortgaged property subject to the mort- gage, it is generally presumed that the amount of the-mortgage has been deducted from and is' a part of the purchase price. It is consequently frequently asserted that mortgaged property transferred subject to the mortgage is the primary source for the satisfaction of the mortgage. The ordinary significance of this state- ment is that as between the parties
to the transfer, and to the extent of the grantee's interest in the property, the grantee is a principal and the grantor a surety."
The presumption that the mortgage obligation was included in the purchase price to be paid is a rebuttable presumption which may be overcome by competent evidence. AGO 062-299. This Attorney General Opinion further held that in the absence of sufficient competent evidence to the contrary, the mortgage obligation should be included when imposing documentary stamps where the interests of a vendor in a contract to sell and convey real property is conveyed or assigned to a third person where such real property is subject to an outstanding mortgage.
The conveyance here in question was by quitclaim deed. Therein the grantor conveyed to the grantee only that interest in the property held by the grantor. Since grantor's interest was subject to the mortgage, and since the deed recited that the conveyance was subject to an existing mortgage, said recitation did have legal efficacy.
Where the transaction involves a closely held corporation and its shareholders, it still involves two distinct legal entities; however, in order to be taxable, consideration must flow to the grantor. AGO 073-68. Consideration may be found by an increase in the value of the closely held stock if a capital asset is conveyed to the corporation.
In Florida Department of Revenue v. DeMaria, 321 So.2d 101 (Fla. App. 1975) the court held that the transfer of real property from a corporation to its sole stockholder subject to an outstanding mortgage which the stockholder did not assume, but which he paid, was not a "reasonably determinable consideration" for the conveyance so as to be subject to documentary stamp taxes on the amount of the mortgage.
The case at hand is a mirror image of DeMaria. Transfer of real property from a corporation to his shareholders nay be a distribution of capital, which has the effect of reducing the value of the shares held by the shareholders, and not taxable under sec. 202.02, F.S. , State v. Green, 88 So.2d 493. On the other hand a conveyance of real property from shareholders to a corporation was held taxable under sec. 201.02, F.S. as it had the effect of increasing the value of the shares of the corporation held by the shareholders. AGO 073-68.
The sole issue here in contention is consideration. In De Vore v. Gay, 39 So.2d 796, the court held:
"When taxes are to be levied according to a monetary consi- deration, the law contemplates that such tax should be confined to the actual monetary considera- tions or to considerations which have a reasonably determinable pecuniary value."
In DeMaria, supra, the court also held the transfer of the property from the corporation to the sole stockholder of the corporation was in no sense a "sale" to a "purchaser" as contemplated by sec. 201.02, F.S. , but a mere book transaction.
In the instant case, the corporation commenced making the mortgage payments as soon as the mortgage was placed upon the property. It did not "relieve" the grantor of his obligation to make the mortgage payments only after the date of the conveyance; and in no sense can it be said that the grantor was ever relieved of is obligation as surety on the note and mortgage.
Rule 12A-4.13(19), F.A.C., under the heading Gift Transactions; Mortgage on Property, provides:
"A gift transaction whereby a conveyance is made subject to a mortgage and mortgage payment
is to be made by grantee is tax- able. Tax is to be computed on unpaid balance of the mortgage. (Attorney General Opinion 061-77, May 12, 1961, 1961-62 Biennial Report, Page 124; Kendall House Apartments, Inc. v. The Department of Revenue (1971) 245 So.2d 221) Cross Reference - Rule 12A-4.14(2)"
This is & long standing administrative determination of the agency. This constitutes a departmental construction of sec. 201.02, F.S. , by the agency charged with the enforcement of the act and authorized to make reasonable rules and regulations, and as such is to be accorded considerable weight unless clearly contrary to the intent of the statute. 1 Fla. Jur, Administrative Law, sec. 73 and cases there cited. Furthermore, the fact that this interpretation of sec. 201.02, F.S., is one of long standing increases the persuasiveness of such an interpretation. State v. Stein, (Fla. 1940) 198 So. 82. The fact that the legislature has not modified sec. 201.02, F.S., since Rule 12A-4.13(19), F.A.C., above quoted was promulgated, leads to the inference that the legislature has accepted this interpretation of the legislative intent of sec. 201.02, F.S.
Although no specific issue regarding a trust was raised at the- hearing, Petitioner's Exhibits referred to Rothbard as "nominee" of AFRD when the property was conveyed to him by SCL. Thus, the issue of whether or not a trust was created should be considered. Nowhere on any instrument here involved was Rothbard referred to as "trustee" so no express trust was created. As
stated in Columbia Bank for Cooperatives v. Okeelanta Sugar Cooperative, 52 So.2d 670, 672 (Fla. 1951):
"An express trust cannot exist unless there is an execution of an intention to create such a trust by the one having legal and equitable dominion over the property made subject to it."
The facts here involved do not create a resulting trust. A resulting trust arises where the purchase price of land is paid by one party and the title is taken in the name of another party, the parties intending that the title is being held by the holder thereof on behalf of the other. Rothbard was both legal and equitable owner of the property at the time he conveyed it to AFRD.
CONCLUSION
It is concluded by the Department of Revenue that its interpretation of Section 201.g2, F.S. as set forth in Rule 12A-4.13(19), F.A.C., is controlling in this case and that the tax and penalty set forth in the Revised Notice of Assessment of Tax and Penalty under Chapter 201, F.S. , dated January 6, 1976, are due and payable.
CERTIFICATION
I certify that the foregoing is the Final Order of the Department of Revenue adopted by the Governor and Cabinet on September 21, 1976.
J Ed Straughn, Executive Director State of Florida
Department of Revenue
Room 102, Carlton Building Tallahassee, Florida 32304
Dated this 21st day of September, 1976.
| Issue Date | Proceedings |
|---|---|
| Sep. 21, 1976 | Final Order filed. |
| Jun. 24, 1976 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 21, 1976 | Agency Final Order | |
| Jun. 24, 1976 | Recommended Order | Petitioner owes penalties and tax on transfer of real estate from self to corporation. Include the amount of the mortgage. |
BERNARD HUTNER AND SHIRLEY R. HUTNER vs. DEPARTMENT OF REVENUE, 76-000212 (1976)
WISCONSIN REAL ESTATE INVESTMENT TRUST vs. DEPARTMENT OF REVENUE, 76-000212 (1976)
NORTHWESTERN FINANCIAL INVESTORS vs. DEPARTMENT OF REVENUE, 76-000212 (1976)
SHERIDAN VENTURES, INC. vs. DEPARTMENT OF REVENUE, 76-000212 (1976)
