Findings Of Fact Prior to the bankruptcy of Recreation Corporation of America (RCA), Drexel Properties (Drexel), predecessor in interest to Petitioner Sheridan Ventures, Inc., engaged in negotiations with RCA and Fidelco Growth Investors (Fidelco) for the purchase of some eighty-three acres of land owned by RCA that was located in Hollywood and Dania, Florida. Fidelco held a mortgage on the property in the amount of $2,400,000.00. On January 20, 1976, a bankruptcy judge in the United States District Court for the Southern District of Florida issued an amended order in Case No. 75-16-BK-JE-H, authorizing the trustee in bankruptcy of the estate of RCA, bankrupt, to accept the offer of Drexel to purchase the trustee's equity in the real property of the bankrupt for the sum of $15,000.00, subject to the first lien of Fidelco, taxes, interest, certain costs, and two subordinate liens in the amounts of $5,939.92 and $2,691.50. On January 28, 1976, the trustee executed a Bankruptcy Trustee's Deed conveying the property in question to Petitioner, subject to the Fidelco lien and taxes. Petitioner recorded the aforesaid deed in Broward County on February 27, 1976, and state documentary tax stamps in the amount of $45.00 were paid. (Testimony of Mehallis, Exhibits 1-2, Exhibit D to Petition) Respondent issued a proposed notice of assessment of documentary stamp tax, penalty, and interest in the total amount of $14,807.52 on September 7, 1976, based on a taxable consideration of $2,415,000.00. This sum represented the $15,000.00 cash paid by Petitioner and the $2,400,000.00 existing mortgage on the property. In this assessment, Petitioner was credited with the $45.00 previously paid for documentary tax stamps. An informal conference was held on September 21, 1976, after which a revised assessment in an increased amount was withdrawn when both parties agreed that the subordinate liens had been satisfied out of the $15,000.00 cash given for the deed. Subsequently, Respondent issued Revised Assessment No. 2, dated September 22, 1976, reflecting a sum due of $7,653.30 payable for documentary stamp tax, a like sum as a penalty, and interest for six months and five days in the amount of $471.83, for a total of $15,778.43. It was stipulated by the parties at the hearing that this amount is correctly computed and is the proper amount payable if the Petitioner is deemed liable therefor. (Exhibits A, C, E to Petition, Exhibit 3) At the time Petitioner purchased the trustee's interest in the property, it had no intention of paying Fidelco's full lien because the amount of that mortgage exceeded the fair market value of the land. It intended to use the trustee's deed as a negotiating tool to get a better arrangement with Fidelco. Consequently, it made no payments on the mortgage and, on April 7, 1976, Fidelco filed foreclosure proceedings in the Broward County Circuit Court. Petitioner interposed set-off and a counter claim in an amount exceeding $500,000.00 based on funds it had previously advanced to RCA under a prior contract. (Testimony of Mehallis) A real estate appraisal of the property established its fair market value to be $1,120,000.00 as of January, 1976. (Testimony of Lukacs)
Recommendation That Petitioner be held liable for the proposed assessment of documentary stamp tax, penalty, and interest under Chapter 201, Florida Statutes, in the amount of $15,778.43. DONE and ENTERED this 28th day of April 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Edwin J. Stacker, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 Brian C. Deuschle, Esquire Spear, Deuschle and Curran, P.A. 5554 North Federal Highway Ft. Lauderdale, Florida 33308
Findings Of Fact Petitioner is in the land development business. Petitioner sold residential lots to various purchasers and contracted through a sister corporation to construct homes on the lots. At the time the lots were conveyed no improvements had been made. Petitioner placed documentary tax stamps and documentary surtax stamps upon the deeds reflecting the consideration for the deeds as the price of the lots. Respondent contends that stamps should have been placed on the deeds reflecting the consideration as the price of the lots plus improvements. Accordingly Respondent is proposing to assess additional stamp taxes, surtaxes, penalties and interest upon the Petitioner in the total amount of $13,002.10. The pleadings, answers to interrogatories and responses to requests for admissions establish that unless Rule 12A-4.13(22), Florida Administrative Code is invalid, Petitioner is liable for the taxes Respondent proposes to assess. The transactions which form the basis of the proposed assessment are package deals within the meaning of the Rule.
Findings Of Fact The stipulated facts are as follow: The Petitioners are purchasers of subleasehold interests in Ocean Club III, a condominium in Indian River County, Florida. All of the Petitioners purchased their subleasehold interests from Dye and Reeves Development Company in 1973, except the Petitioner Helen Bane, who purchased her subleasehold interest from the Petitioner Richard Long in 1974. The duration of the subleases was approximately 98 years, and they were paid for with present consideration consisting of cash and mortgages. The document included as Exhibit "A", entitled Unit Sublease, represents the conveyance by which each of the Petitioners acquired his or her subleasehold. No documentary stamp taxes or surtaxes were paid on these conveyances. Prior to closing with the Petitioners, the attorney for the Dye and Reeves Development Company requested William Stanley, Chief of the Documentary Stamp Tax Bureau, Department of Revenue, to give an opinion on whether the Unit Sublease, Exhibit "A", requires documentary stamp taxes and surtaxes. Stanley, in a letter dated July 3, 1973, stated his opinion to be that no documentary stamp taxes and surtaxes were due. A copy of this letter is attached as Exhibit "B." On November 13, 1974, the Attorney General released an official opinion, AGO 074-350, which reversed the position earlier taken by Stanley regarding taxability of conveyances of subleasehold interests. The Department of Revenue has adopted this ruling as its own. Based upon the letter from Stanley, the Dye and Reeves Development Company assured the Petitioners that no documentary stamp taxes or surtaxes would be required on the Unit Sublease. The Petitioners had knowledge of the letter or its contents at the time they closed the transaction, but at the time of closing nevertheless requested an Indemnification Agreement, Exhibit "C" herein, in which Dye and Reeves agreed to bear the cost of documentary stamp taxes due upon the Sublease. Exhibits "A," "B," and "C" represent all the relevant documents in this litigation. The Department of Revenue has issued Proposed Notices of Assessment against the Petitioners based upon an alleged documentary stamp tax and surtax liability under the Unit Sublease. The Department of Revenue has not assessed any penalties against the Petitioners. The Petitioners are unable to recover the sums alleged to be due as to taxes and surtaxes from the Dye and Reeves Development Company because the Company has no assets. Petitioners are also barred by limitations from recovering the money from the estate of Mr. Dye, who is deceased. The Petitioners and the Department of Revenue's Tax Examiner have held an informal conference, in which the two parties were unable to resolve their differences concerning the aforementioned assessment. If the Petitioners are found to be liable for documentary stamp taxes and surtaxes, the following amounts represent the proper computation of their liability: NAME TAX SURTAX TOTAL EDWARD K. HALSEY 106.50 10.45 116.95 HELEN C. BANE 117.60 43.45 161.05 W.B. WHITAKER, et ux. 165.00 16.50 181.50 JAMES N. SKINNER 115.50 11.55 127.05 MARY GLENNAN 98.40 36.30 134.70 JOHN F. McFEATTERS, et ux. 127.50 46.75 174.25 ALLEN TOUZALIN 121.50 14.85 136.35 RICHARD LONG, et ux. 117.60 11.00 128.60 HOWARD BAIN, et ux. 103.50 7.70 111.20 JOHN MYLES DEWAR, et ux. 126.00 46.20 172.20 JOHN S. STEPHENS, et ux. 99.00 7.70 106.70 PHYLLIS T. HERMAN 103.50 10.45 113.95 CHARLES W. CHRISS, et ux. 96.00 7.15 103.15 KATHRYN LOCKWOOD, et ux. 97.50 35.75 133.25 KATHRYN LOCOD, et ux. 163.50 59.95 233.45 KATHRYN LOCKWOOD, et ux. 100.50 36.85 137.35 The sums stated above do not include any interest which may have accrued on the alleged liability. Pursuant to stipulation of the parties, the testimony of Howard W. Bain, a Petitioner, was offered on behalf of all of the Petitioners in this case. He testified that he purchased a unit at Ocean Club III from Dye and Reeves Development Company in early June, 1973. Prior to the closing of that purchase, he was advised by his attorney that the latter expected to be provided by the developer's attorney a letter from the Department of Revenue that would state documentary stamps were not payable on the purchase of the condominium unit. Bain would not have closed the purchase if he had had to pay documentary stamp taxes on the transaction. It was his understanding that if any taxes did become due and payable they would be paid by the developer incident to the indemnification agreement. He was unaware at the time that Dye and Reeves Development Company might go out of business in the future. (Testimony of Bain).
Recommendation That Petitioners L.L. Lockwood and Kathryn H. Lockwood, his wife; Howard H. Bain and Mary C. Bain, his wife; Richard H. Long and J. Ann Long, his wife; Edward K. Halsey; Mary Glennan; W.B. Whitaker; Allen Touzalin; and John F. McFeatters and Emily J. McFeatters, his wife, be relieved from any liability from documentary stamp tax or surtax under Chapter 201, F.S. That Petitioners Helen C. Bane, James M. Skinner, John Myles Dewar, et ux., John S. Stephens, et ux., Phillis T. Herman, and Charles W. Chriss, et ux., be held liable for the payment of documentary stamp tax, surtax, and interest thereon, pursuant to Chapter 201, Florida Statutes, in the amounts set forth in the foregoing Findings of Fact. DONE and ORDERED this 9th day of December, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1976.
Findings Of Fact The facts of this case are undisputed and derived from documentary evidence and the testimony of Larry B. Dunn. At an undisclosed time in 1976, Russell E. Schlitter and Nena Schlitter, his wife, of Tallahassee, Florida, informed petitioner that they wished to have a home built in that city. Dunn advised them to first find a lot for the prospective residence. The Schlitters found a lot they desired in the Betton Hills section of Tallahassee. The lot in question was deeded to petitioner by J. Lamarr Cox and Jewel R. Cox, his wife, on September 17, 1976. (Exhibit 2, Testimony of Dunn) On September 28, 1976, petitioner, "as seller" or "contractor," entered into a contract with the Schlitters, as "buyer," which provided that the seller had contracted to purchase a lot selected by the buyer and that the seller would purchase the said lot in the buyer's name and thereafter sell the lot to the buyer and construct a dwelling thereon within 180 days from the date that the buyer secured a construction loan, for a total price of $70,085.00. The contract recited receipt of $4,000.00 from the buyer as a "binder" toward the purchase of the lot and as a "deposit toward the total purchase price of this contract." The contract was conditioned upon the buyer being able to obtain a firm commitment for the construction loan on specified terms. (Exhibit 3) On September 29, 1976, petitioner executed a mortgage deed and note to Cox and his wife in the principal sum of $8,000, plus 10 percent interest, the total to be paid on obtaining a permanent mortgage on the real estate or within nine months. The mortgage recited that it was subordinate and inferior to a construction loan mortgage to be executed in the future by petitioner or successors. Dunn is the controlling shareholder of petitioner corporation. He testified that he took title to the lot to hold it until the Schlitters secured a construction loan. (Exhibit 4, Testimony of Dunn) On November 1, 1976, petitioner's mortgage to Cox and his wife was satisfied and extinguished. On November 11, petitioner executed a warranty deed to the Schlitters on the property in question. State documentary stamp tax and surtax in the sums of $33.00 and $13.20 respectively were paid when the deed was recorded. On the same day, the Schlitters executed a note and mortgage on the property to Tallahassee Federal Savings and Loan Association in the amount of $54,900.00. A Notice of Commencement of Construction of the residence was executed by the Schlitters also on November 11 and recorded on November 12 in the public records of Leon County. (Exhibits 5-8) Respondent issued a Notice of Proposed Assessment under Chapter 201, Florida Statutes, on March 14, 1977, to Schlitter in the amount of $465.68. The proposed assessment on the deed was based on a taxable consideration of $66,900.00 which included $12,000.00 cash and $54,900.00 representing the purchase money mortgage. After crediting the taxpayer for taxes already paid, respondent's proposed assessment is for $167.70 for documentary stamp tax under Section 201.02 and a penalty in a like amount under Section 201.17, plus interest in the amount of $6.82. It further asserts a balance due for documentary surtax in the sum of $60.50 under Section 201.021 and a penalty in a like amount, plus interest in the amount of $2.46. The parties stipulated that the sums in question are correct and payable in the event liability on the part of petitioner is established. (Exhibit 1, Stipulation)
Recommendation That the proposed assessment against Signal Development Corporation under Chapter 201, F.S., be upheld except for the penalties therein which should be reduced to 25 percent of the stamps not affixed to the deed. DONE and ENTERED this 4th day of November, 1977, in Tallahassee, Florida THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Patricia Turner Assistant Attorney General The Capitol Tallahassee, Florida 32304 Larry B. Dunn, President Signal Development Corporation 2042 Capital Circle, Northeast Tallahassee, Florida 32303
Findings Of Fact In time sequence, the following transactions took place: a. Petitioner, Myron Friedman, executed a contract with Willow Industries, Inc., a New York corporation, on August 14, 1973, for the purchase of properties located in Manatee County, Florida. Conquistador Estates, Inc., a Florida corporation, for profit, was incorporated under the laws of the State of Florida on September 25, 1973. Petitioner, Myron Friedman, borrowed $650,000 from Franklin National Bank of Long Island, New York, on October 29, 1973. Mr. Friedman executed a personal note to the Florida National Bank on October 29, 1973. Myron Friedman made a loan to Conquistador Estates, Inc. in the amount of $400,000 to purchase the Manatee County property on October 30, 1973. Conquistador Estates, Inc. purchased the properties described in the contract from Willow Industries, Inc. to Myron Friedman on October 30, 1973. Conquistador Estates, Inc. executed a mortgage to Myron Friedman in the amount of $400,000 on October 30, 1973, in exchange for the herein before mentioned loan of $400,000 on October 29, 1973. Myron Friedman assigned the herein before mentioned mortgage to Franklin National Bank as security for the personal loan of $650,000 on October 30, 1973. Conquistador Estates, Inc. deeded the properties acquired by it from Willow Industries, Inc. to Myron Friedman on May 28, 1974. Additional facts: The notes and the mortgage herein described are still in existence. Conquistador Estates, Inc. is still a viable corporation although it owns no property and Myron Friedman is the sole stockholder. There were no payments made to Petitioner, Myron Friedman, as required by the terms of the promissory note of Conquistador Estates, Inc. to Myron Friedman. In an Audit of documents recorded in the office of the Circuit Clerk in and for Manatee County, Florida, Respondent, Department of Revenue, determined that insufficient documentary stamps and documentary surtax stamps were affixed to the warranty deed dated May 28, 1974, between Conquistador Estates, Inc. and Petitioner, Myron Friedman, an individual. Subsequent to the audit, the Respondent issued a "Proposed Notice of Assessment of Tax and Penalty Under Chapter 201, Florida Statutes, documentary surtax in the amount of $439.45, pursuant to Section 201.021, Florida Statutes, and penalties in the amount of $1,639.14 pursuant to Section 201.17, Florida Statutes. Attached to the said notice was "Schedule A," an explanation of the basis for the demand for additional documentary stamp tax and documentary surtax. It explained that the warranty deed to Petitioner, Myron Friedman, individually, from Conquistador Estates, Inc., satisfied the existing mortgage and which rendered the mortgage unenforceable as to the original mortgagor, Conquistador Estates, Inc., and cited Department of Administration Rule 12A-4.13(2) Florida Administrative Code. "Defaulting Mortgagor: Where a mortgagor, in full or partial satisfaction of the mortgage indebtedness, conveys the mortgaged premises to the mortgagee, documentary stamp taxes are due on the transaction." Petitioner, Myron Friedman, contends: That Conquistador Estates, Inc. was just a nominee used for the purpose of securing a mortgage loan; That he is the sole owner of the corporation; That there was no conveyance in full or partial satisfaction of the mortgage since he is the sole owner of the corporation, and he is the grantee and that, therefore, no documentary stamp tax or surtax or penalty is due; That the mortgage itself is assigned and is still in existence. The Respondent contends: That the clear wording of statute, Section 201.02(1), F.S., controls the transaction which was a conveyance by warranty deed; That because the corporation, Conquistador Estates, Inc. has no assets and made no payments to Petitioner, the conveyance by warranty deed was in full satisfaction of the mortgage indebtedness and canceled the written obligation of the corporation to pay $400,000, the unpaid portion of the obligation secured by the mortgage. The Respondent further contends that the partial indebtness of the corporation itself to Petitioner was canceled.
Recommendation Assess the documentary stamp and the documentary surtax against Petitioner, Myron Friedman. Do not assess penalties for failure to pay tax required, inasmuch as it is apparent that the taxes which were paid were paid in good faith and that the taxes which were due and owing were not paid because of a misunderstanding of the requirements of Chapter 201, F.S. DONE and ORDERED this 28th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1976. COPIES FURNISHED: Robert H. Carr, Esquire Post Office Box 3798 Sarasota, Florida 33578 Patricia Turner, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32304
Findings Of Fact The facts in this case are undisputed. On April l6, 1976, petitioner Arthur J. Coyle and his wife Katie Coyle, became the sole shareholders of Sara- Wolf, Inc., a Florida Corporation, whose assets consisted of an apartment building in Miami Beach, Florida. Thereafter, the Coyles decided to transfer the corporate assets to themselves as individuals. They were advised by their attorney that, in view of the 1975 decision of the First District Court of Appeal in Florida Department of Revenue v. DeMaria, 321 So 2d 101 (Fla. 1st DCA 1975) in a similar factual situation, no state documentary stamp tax would be due on the transaction. Therefore, relying upon that judicial decision, petitioner and his wife proceeded to execute a quit claim deed of the corporate real estate to themselves on May 13, 1976, and file the same in the public records of Dade County, Florida, on May 18, 1976, with payment of only nominal documentary stamp tax. The decision of the District Court of Appeal had been stayed by the Supreme Court on December 8, 1975. Subsequent to the decision of the Supreme Court in the DeMaria case on October 14, 1976, which quashed the lower court's decision, respondent issued a notice of proposed assessment of documentary stamp tax in the amount of $526.50 based on a taxable consideration of $175,500, less 30 cents tax paid, for a total tax due of $526.20 plus a like amount as a penalty, and $42.00 in interest, for a total asserted liability of $1,094.40. (Testimony of petitioner, Exhibits 1-3)
Recommendation That the proposed assessment of $1,094.40 against petitioner Arthur J. Coyle and Katie Coyle is valid and should be enforced. DONE and ENTERED this 31st day of May, 1977 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert A. Glassman, Esquire 903 Biscayne Building 19 West Flagler Street Miami, Florida 33130 Edwin J. Stacker, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304
The Issue The sole issue posed herein is: Whether or not the transfer to Petitioner by individuals Hugh P. Conser, Stewart L. Krug and Sidney Barbane1 of certain real property located in Pinellas County, Florida, on or about October 26, 1974, constitutes a conveyance subject to the Documentary Stamp Tax Act, pursuant to Chapter 201, Florida Statutes.
Findings Of Fact On or about October 26, 1974, the Petitioner received title to certain real property located Pinellas County, Florida, from Stewart L. Krug, Sidney Barbanel and Hugh P. Conser, the principals in KBC Development Corporation, which was recorded in Official Records Book 4229, page 1052, Public Records of Pinellas County, Florida. The only consideration, as evidenced by the deeds filed in the case, is that the conveyance was for "good and valuable consideration and ten dollars". This other good and valuable consideration, according to Petitioner and the other record evidence, consisted of the issuance of all one hundred shares of the authorized stock of KBC Development Corporation, Petitioner, as evidenced by the Minutes of the Shareholders Meeting of such corporation which was held on July 18, 1973. (See the minutes reflected in an attachment to Petitioner's Exhibit Number 1.) The issued stock had a par value of $5.00. The corporate entity, KBC, as Petitioner, was formed for the purpose of taking title to the property in question and, as evidenced by the record, had no other assets when the subject property was conveyed. On May 6, 1975, the Florida `Department of Revenue, Respondent, recorded in the office of the Circuit Court of Pinellas County, Florida, a warrant for collection of delinquent documentary stamp taxes in connection with the above-referenced transaction in the amount of $27,599.70, plus an identical amount of penalty, for a total sum of $55,212.40. Said warrant is recorded in O.R. Book 4286, page 31, Public Records of Pinellas County, Florida. Following a conference with the Department of Revenue, the taxes were paid by the Petitioner under protest. That payment set the stage for the Petitioner's filing of the claim for refund with the Respondent, the Comptroller of the State of Florida, pursuant to Florida Statutes section 215.26. The Petitioner argues that the only taxable consideration resulting from the subject conveyance was the par value of the stock, of which amount sufficient documentary stamps were affixed to the deeds in question. In support of this position, the Petitioner cites the fact that there are no income tax returns filed by the corporation, FIG; no business activities pursued by the corporation; no bank account of the corporation; and no assets held by the corporation, except as agents for the three individuals, Krug, Barbanel and Conser, all of which were acknowledged by all of the mortgagees. Additionally, the Petitioner urges that the bank and lending institutions involved regarded and held each individual personally liable for the indebtedness in connection with the loans advanced for the property in question. Finally, the Petitioner urges that, based on the conveyance in question, there was no shift in the economic burden to the corporation and, therefore, no taxable transaction occurred when the property in question was conveyed from the individuals, Krug, Barbanel and Conser, to FIG Development Corporation.
Conclusions The documentary stamp tax provided by Florida Statutes section 201.02 is an excise tax imposed on particularly described transactions, and in the case of instruments relating to realty, is based upon the total consideration involved in the transfer or conveyance. Thus, the key point in determining whether documentary stamps are to be affixed to an instrument transferring an interest in realty is in the presence or absence of consideration for the transfer. Rule 12A-4 .14, Florida Administrative Code, describes conveyances not subject to the documentary stamp tax as those "conveyances of realty without consideration, including. . .a deed to or by a trustee not pursuant to a sale . . . ." The facts of this case clearly do not illustrate an express or resulting trust relationship between KBC Development Corporation and its principals, Stewart L. Krug, Sidney Barbanel and Hugh P. Conser. When KBC took title to the property from Krug, Conser and Barbanel, the consideration was $10.00 and other valuable consideration and, based on the face of the instrument, the conveyance was not made to KBC subject to payment of any mortgages, etc., by KPC (Petitioner's Exhibit No. 1). Section 201.02(1), Florida Statutes (1975). See Florida Department of Revenue v. De Maria, 338 So.2d 838 (Fla. 1976). Additionally, the facts herein reveal that the banks and lending institutions involved in the transaction required the personal guarantees of the individuals, Krug, Barbanel and Conser. No evidence was introduced indicating that Petitioner, KBC Development Corporation, was anything more than an entity whereby the lending institutions had advanced funds for the primary mortgages to Continental Investment and Development Company, which was in no way related to the present corporation, KBC, and that the corporate entity was used to protect the lending institutions from any possible violations of usurious transactions. As stated, the personal endorsements and/or guarantees of the individuals, Barbanel, Krug and Conser, were required by the lending institutions before the primary mortgagee, Continental Investment and Development Company, would be released. Krug, Barbanel and Conser were no more nor less obligated to pay and perform under the obligation, after the conveyance than before. Although there was a change in the form of the obligation, there was no change in the substance. See e.g., Straughn v. Story, 334 So.2d 337 (Fla. 1st DCA 1976) cert. discharged 348 So.2d 954 (1977). (See Petitioner's Exhibits 2, 3 and 4.) For all of these reasons, it is the considered opinion of the undersigned that the Respondents have failed to demonstrate that the consideration for the conveyances in question were anything more than the par value of the stock and, accordingly, documentary stamp taxes should only be assessed in the amount of $4.10. Accordingly, I shall recommend that the excess assessments which Petitioner paid under protest be refunded.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Petitioner be refunded the amount of taxes and penalties it paid to the Respondent, Department of Revenue, under protest, over and above the amount it should have paid on the par value of the stock of KBC Corporation when the abovedescribed conveyance was made during October, 1974. RECOMMENDED this 3rd day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Donald R. Hall, Esquire Goza, Hall & Peacock, P.A. 100 North Belcher Road Clearwater, Florida 33518 Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA, DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA KBC DEVELOPMENT CORPORATION, Petitioner, vs. CASE NO. 76-1596 GERALD LEWIS, as COMPTROLLER OF THE STATE OF FLORIDA, AND DEPARTMENT OF REVENUE, Respondents. / NOTICE TO: DONALD R. HALL, ESQUIRE ATTORNEY FOR PETITIONER GOZA, HALL & PEACOCK, P.A. 100 NORTH BELCHER ROAD CLEARWATER, FLORIDA 33518 CECIL L. DAVIS, JR., ESQUIRE ATTORNEY FOR RESPONDENTS ASSISTANT ATTORNEY GENERAL THE CAPITOL LL04 TALLAHASSEE, FLORIDA 32304 You will please take notice that the Governor and Cabinet, acting as head of the Department of Revenue at its meeting on the 12th day of June, 1979, approved the Respondent's Substituted Order, in lieu of the Division of Administrative Hearing's Recommended Order dated April 3, 1979. A copy of the Respondent's Proposed Substituted Order is attached. This constitutes final agency action by the Department of Revenue. JOHN D. MORIARTY, ATTORNEY DIVISION OF ADMINISTRATION DEPARTMENT OF REVENUE STATE OF FLORIDA ROOM 104, CARLTON BUILDING TALLAHASSEE, FLORIDA 32301 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Notice was furnished by mail to Donald R. Hall, Esquire, Goza, Hall & Peacock, P.A. 100 North Belcher Road, Clearwater, Florida 33518, Attorney for Petitioner; by hand delivery to Cecil L. Davis, Jr., Esquire, Assistant Attorney General, The Capitol LL04, Tallahassee, Florida 32304, Attorney for Respondents and James E. Bradwell, Esquire, Hearing Officer, Division of Administrative Hearings, Department of Administration, Room 530, Carrolton Building, Tallahassee, Florida 32304, this 14th day of June, 1979. JOHN D. MORIARTY, ATTORNEY Attachment STATE OF FLORIDA
Findings Of Fact On January 15, 1975, Gerardo Benesch, Jitka Benesch, H. Albert Grotte, Regina Grotte, Milorad Dordevic, Catalina Dordevic, Milodrag Savovic and Marina Savovic executed an agreement associating themselves in a general partnership, Andean Investment Company. The stated purpose of the partnership was to engage in the business of real estate development, selling, renting, and dealing generally in real estate of all kinds. It was recited in the agreement that, by forming the partnership, the parties wished to reduce their prior expense of managing separate properties through separate managerial agreements. To this end, they transferred certain real estate by quit-claim deed to the partnership, and these properties represented its capital. The agreement provided in Article IV that the net profits or net losses of the partnership would be distributed or chargeable, as the case might be, to each of the partners in percentage proportions based on the amount of their investment in the partnership. The property consisted of warehouses located in Deerfield Beach and Fort Lauderdale, Florida, from which rentals were derived (Petition and Exhibits thereto). All of the properties were encumbered by mortgages of varying amounts and all but two of the quit-claim deeds transferred title subject to the mortgage thereon. Two deeds provided specifically that the partnership assumed the existing mortgage. Although Petitioner's counsel states that this was not intended and was a "scrivener's error", Petitioner partnership has, in fact, made the mortgage payments on all of the properties since their transfer under the aforesaid deeds (Composite Exhibit 1, Stipulation). Petitioner paid only minimal documentary stamp tax on the deeds. Respondent thereafter issued four proposed Notices of Assessment of Documentary Stamp Tax, Surtax, and Penalty against the Petitioner on January 6, 1976, in the total amount of $3,797.00. The tax was computed under Rule 12A-4.13(10)(c), F.A.C., based on transfers of realty (Composite Exhibit 2, Testimony of Dahlem). At the hearing, Petitioner disputed the manner in which Respondent had computed the documentary stamp tax in that each assessment dealt with a husband and wife who held individual percentage interests in the net worth of the partnership. Respondent's computation did not take into consideration the double interest in each assessment. The parties therefore agreed that a recomputation would be made by Respondent and submitted as a late-filed exhibit. This was done and the new computation reflects a total tax liability, including surtax and penalty, in the total amount of $4,053.40 (Composite Exhibit 3).
Recommendation That Petitioner's request for relief from tax liability be denied, and that Petitioner's liability for documentary stamp tax, surtax, and penalties in the total amount of $4,053.40 be sustained. DONE and ORDERED this 26th day of May, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: E. Wilson Crump, II, Esquire Assistant Attorney General Department of Legal Affairs Tax Division, Northwood Mall Tallahassee, Florida 32303 Allan F. Meyer, Esquire Suite 1500 Post Office Box 14310 Ft. Lauderdale, Florida 33302 Zayle A. Bernstein, Esquire Post Office Box 14310 Fort Lauderdale, Florida 33302
Findings Of Fact Petitioner Kenneth Blume, an unmarried man, purchased real property in his name on December 19, 1988. Petitioner Kenneth Blume obtained a mortgage on the property in his own name with PNC Mortgage Servicing Company. Petitioner Kenneth Blume married Petitioner Tina Blume on November 3, 1990. Thereafter, Petitioner Kenneth Blume contacted a title company, Advance Title, Inc. to refinance the property and transfer the property from himself, as sole owner, to himself and his wife, Petitioner Tina Blume. On June 19, 1992, as part of the refinancing transaction, Petitioner Kenneth Blume transferred his individual mortgage with PNC Mortgage Servicing Company to Foundation Financial Services, Inc. which paid off Petitioner Kenneth Blume's original mortgage. On June 19, 1992, Petitioner Kenneth Blume gave Petitioner Tina Blume a legal interest in the property by transferring half of the encumbered property to her by quit claim deed. Petitioner Kenneth Blume executed the deed in the presence of Cheryl Scott, a notary public and an employee of Advance Title, Inc. Said deed lists Petitioner Kenneth Blume as grantor and Petitioner Kenneth Blume and his wife, Petitioner Tina Blume, as grantees. On June 19, 1992, as part of the refinancing transaction, Petitioners created a new first mortgage on the subject property in favor of Foundation Financial Services, Inc. This mortgage is the obligation of both Petitioners. The quit claim deed was prepared by Advance Title, Inc. on Petitioners' behalf. The quit claim deed showed that the consideration paid for the transfer of the encumbered property was $10. On June 24, 1992, Advance Title, Inc. went to the Clerk of the Circuit Court's Office to record the quit claim deed. As a condition precedent to the recordation of any deed transferring an interest in real property, Section 201.022, Florida Statutes, requires that the grantor, grantee, or agent for the grantee, execute and file a return with the Clerk of the Circuit Court. The return is identified as a Form DR-219, Return for Transfer of Interest in Real Property. On June 24, 1992, Advance Title, Inc. filled out and signed the Form DR-219, Return for Transfer of Interest in Real Property, as the agent of Petitioners. Advance Title, Inc., as Petitioners' agent, did not disclose the full amount of consideration on Form DR-219 as required by question 3. Instead, Advance Title, Inc. wrote that the property was sold for $10. Advance Title, Inc. did not disclose the extinguished or refinanced mortgage on Form DR-219. In response to the question whether the sale was financed, Advanced Title, Inc. did not check the "yes" box on Form DR-219. Form DR-219 defines the word "consideration", in pertinent part, as follows: the purchase price of the property or the total amount paid or to be paid for the transfer of any interest in real property. Consideration includes: cash; new mortgages placed on the property to finance all or part of the purchase; existing mortgages on the property either assumed or taken subject to; mortgages that are cancelled, satisfied or rendered unenforceable, settled by the sale or transfer or in lieu or foreclosure . . . . This definition is consistent with the Legislature's definition of consideration set forth in Section 201.02(1), Florida Statutes (1991), applicable here. Advance Title, Inc., as Petitioners' agent, stated on Form DR-219 that documentary stamp tax in the amount of $.60 was due on the subject transfer of interest in real property. On June 24, 1992, Advance Title, Inc. presented the quit claim deed to the Clerk of the Circuit Court for recordation together with the Form DR-219. The Clerk recorded the quit claim deed and collected $.60 in documentary stamp tax based on information that Advance Title, Inc. provided on the Form DR-219. The Clerk did not tell Advance Title, Inc. or Petitioners that additional documentary stamp taxes were due on the transfer. Respondent conducted a routine audit of the Clerk's records and determined that additional documentary stamp taxes were due on the deed transferring an interest in the encumbered property to Petitioner Tina Blume. The record contains no competent substantial evidence to show that Petitioners fall within an exception to or exemption from paying the additional documentary stamp tax in question here. Moreover, there is no competent persuasive evidence that an agent of the state of Florida or Santa Rosa County misrepresented a material fact on which Petitioners relied to their detriment. Petitioners have not met their burden of proving by a preponderance of the evidence that they do not owe additional documentary stamp taxes on the real estate transaction at issue here.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is recommended that Respondent enter a Final Order upholding its assessments as revised in a Notice of Reconsideration dated January 9, 1995, of documentary stamp tax, plus applicable interest and penalties against Petitioners Kenneth and Tina Blume. RECOMMENDED this 23rd day of October, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1995. APPENDIX The following constitutes the undersigned's specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Petitioners' Proposed Findings of Fact Petitioners' proposed recommended order for the most part is a memorandum of law and does not designate proposed findings of fact. However, the undersigned rules as follows on statements of fact contained within Petitioners' memorandum: Accept that Petitioner Kenneth Blume chose to sign the quit claim deed. No competent persuasive evidence regarding the Clerk of the Circuit Court's directions to Advance Title, Inc. or Petitioners. Uncorroborated hearsay evidence. Accept that Petitioners were not aware of Respondent's hotline service at the time of the conveyance; however, irrelevant. Reject that Petitioners made prudent and reasonable attempts to learn the requirements of Section 201.02, Florida Statutes. Petitioners had constructive notice of the published statutes and rules which were in effect at the time of the conveyance. Reject that the "system" deceived Petitioners. No competent persuasive evidence to support this fact. Reject that the "system" or "state" failed to disclose the law controlling taxes on real estate transactions. Applicable statutes and rules read together with the definition of consideration set forth on the Form DR-219 constitute sufficient notice to Petitioners. The "system" or "state" did not draft the language in the quit claim deed; therefore, the state was not required to include any language relating to the cost of the transaction. The Form DR-219 included a definition of consideration which is consistent with the language in the applicable statutes and rules. Reject that the state added new terms or changed the terms of the agreement memorialized in the quit claim deed. The state was not a party to the agreement between Petitioners. Reject that the system failed to inform Petitioners of "all" the terms in the contract as "offered" by the state. Respondent's assessment does not involve a contractual relationship between Respondent and Petitioners with the Respondent as a "seller" and Petitioner Kenneth Blume as a "buyer." Respondent's Proposed Findings of Fact The undersigned accepts the substance of Respondent's Proposed Findings of Fact 1-28 as modified in Findings of Fact 1-23 of this Recommended Order. COPIES FURNISHED: Nancy Francillon, Esquire Mark T. Aliff, Esquire Office of the Attorney General The Capitol - Tax Section Tallahassee, FL 32399-1050 Kenneth and Tina Blume 159 W. 29th Court Fayetteville, AR 72701 Linda Lettera, Esquire Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100
The Issue The issue in this unadopted-rule challenge is whether Respondent, in connection with the administration of the stamp tax, has formulated a statement of general applicability for allocating undifferentiated, lump-sum payments made in purchase- and-sale transactions involving joint real estate/personal property transfers; which meets the statutory definition of a rule but has not been adopted pursuant to the rulemaking procedure; and, as used by Respondent, has the effect of creating an entitlement to collect tax on 100% of the undifferentiated consideration.
Findings Of Fact On February 23, 2015, Petitioner 1701 Collins (Miami) Owner, LLC ("Taxpayer"), a Delaware limited liability company, entered into a Purchase and Sale Agreement ("Agreement") to sell a going concern, namely a hotel and conference center doing business in Miami Beach, Florida, as the SLS Hotel South Beach (the "Hotel Business"), to 1701 Miami (Owner), LLC, a Florida limited liability company ("Purchaser"). Purchaser paid Taxpayer $125 million for the Hotel Business. The Hotel Business comprised two categories of property, i.e., real estate ("RE") and personal property ("PP"). The PP, in turn, consisted of two subcategories of property, tangible personal property ("TPP") and intangible personal property ("ITPP"). It is undisputed that the property transferred pursuant to the Agreement included RE, TPP, and ITPP. The sale closed on June 5, 2015, and a special warranty deed was recorded on June 8, 2015, which showed nominal consideration of $10. Pursuant to the Agreement, Taxpayer was responsible for remitting the documentary stamp tax and the discretionary surtax (collectively, "stamp tax"). Stamp tax is due on instruments transferring RE; the amount of the tax, payable per instrument recorded, is based upon the consideration paid for RE. Stamp tax is not assessed on consideration given in exchange for PP. The Agreement contains a provision obligating the parties to agree, before closing, upon a reasonable allocation of the lump-sum purchase price between the three types of property comprising the Hotel Business. For reasons unknown, this allocation, which was to be made "for federal, state and local tax purposes," never occurred. The failure of the parties to agree upon an allocation, if indeed they even attempted to negotiate this point, did not prevent the sale from occurring. Neither party declared the other to be in breach of the Agreement as a result of their nonallocation of the consideration. The upshot is that, as between Taxpayer and the Purchaser, the $125 million purchase price was treated as undifferentiated consideration for the whole enterprise. Taxpayer paid stamp tax in the amount of approximately $1.3 million based on the full $125 million of undifferentiated consideration. Taxpayer paid the correct amount of stamp tax if the entire consideration were given in exchange for the RE transferred to Purchaser pursuant the Agreement——if, in other words, the Purchaser paid nothing for the elements of the Hotel Business consisting of PP. On February 6, 2018, Taxpayer timely filed an Application for Refund with Respondent Department of Revenue (the "Department"), which is the agency responsible for the administration of the state's tax laws. Relying on a report dated February 1, 2018 (the "Deal Pricing Analysis" or "DPA"), which had been prepared for Taxpayer by Bernice T. Dowell of Cynsur, LLC, Taxpayer sought a refund in the amount of $495,013.05. As grounds therefor, Taxpayer stated that it had "paid Documentary Stamp Tax on personal property in addition to real property." Taxpayer's position, at the time of the refund application and throughout this proceeding, is that its stamp tax liability should be based, not on the total undifferentiated consideration of $125 million given in the exchange for the Hotel Business, but on $77.8 million, which, according to the DPA, is the "implied value" of——i.e., the pro-rata share of the lump-sum purchase price that may be fairly allocated exclusively to——the RE transferred pursuant to the Agreement. Taxpayer claims that, to the extent it paid stamp tax on the "implied values" (as determined in the DPA) of the TPP ($7 million) and ITPP ($40.2 million) included in the transfer of the Hotel Business, it mistakenly overpaid the tax.1/ On February 23, 2018, the Department issued a Notice of Intent to Make Refund Claim Changes, which informed Taxpayer that the Department planned to "change" the refund amount requested, from roughly $500 thousand, to $0——to deny the refund, in other words. In explanation for this proposed decision, the Department wrote: "[The DPA] was produced 3 years after the [special warranty deed] was recorded. Please provide supporting information regarding allocation of purchase price on or around the time of the sale." This was followed, on April 2, 2018, by the Department's issuance of a Notice of Proposed Refund Denial, whose title tells its purpose. The grounds were the same as before: "[The DPA] was produced 3 years after the document was recorded." Taxpayer timely filed a protest to challenge the proposed refund denial, on May 31, 2018. Taxpayer argued that the $125 million consideration, which Purchaser paid for the Hotel Business operation, necessarily bought the RE, TPP, and ITPP constituting the going concern; and, therefore, because stamp tax is due only on the consideration exchanged for RE, and because there is no requirement under Florida law that the undifferentiated consideration exchanged for a going concern be allocated, at any specific time, to the categories or subcategories of property transferred in the sale, Taxpayer, having paid stamp tax on consideration given for TPP and ITPP, is owed a refund. The Department's tax conferee determined that the proposed denial of Taxpayer's refund request should be upheld because, as he explained in a memorandum prepared on or around December 27, 2018, "[t]he taxpayer [had failed to] establish that an allocation of consideration between Florida real property, tangible personal property, and intangible property was made prior to the transfer of the property such that tax would be based only on the consideration allocated to the real property." The Department issued its Notice of Decision of Refund Denial on January 9, 2019. In the "Law & Discussion" section of the decision, the Department wrote: When real and personal property are sold together, and there is no itemization of the personal property, then the sales price is deemed to be the consideration paid for the real property. [2] Likewise, when the personal property is itemized, then only the amount of the sales price allocated for the real property is consideration for the real property and subject to the documentary stamp tax. The first of these propositions will be referred to as the "Default Allocation Presumption." The second will be called "Consensual-Allocation Deference." The Department cited no law in support of either principle. In its intended decision, the Department found, as a matter of fact, that Taxpayer and Purchaser had not "established an allocation between all properties prior to the transfer" of the Hotel Business. Thus, the Department concluded that Taxpayer was not entitled to Consensual-Allocation Deference, but rather was subject to the Default Allocation Presumption, pursuant to which the full undifferentiated consideration of $125 million would be "deemed to be the consideration paid for the" RE. Taxpayer timely requested an administrative hearing to determine its substantial interests with regard to the refund request that the Department proposes to deny. Taxpayer also filed a Petition to Determine Invalidity of Agency Statement, which was docketed under DOAH Case No. 19-3639RU (the "Rule Challenge"). In its section 120.56(4) petition, Taxpayer alleges that the Department has taken a position of disputed scope or effect ("PDSE"), which meets the definition of a "rule" under section 120.52(16) and has not been adopted pursuant to the rulemaking procedure prescribed in section 120.54. The Department's alleged PDSE, as described in Taxpayer's petition, is as follows: In the administration of documentary stamp tax and surtax, tax is due on the total consideration paid for real property, tangible property and intangible property, unless an allocation of consideration paid for each type of property sold has been made by the taxpayer on or before the date the transfer of the property or recording of the deed. If the alleged PDSE is an unadopted rule, as Taxpayer further alleges, then the Department is in violation of section 120.54(1)(a). The questions of whether the alleged agency PDSE exists, and, if so, whether the PDSE is an unadopted rule, are common to Taxpayer's separate actions under sections 120.57(1) and 120.56(4), respectively, because neither the Department nor the undersigned may "base agency action that determines the substantial interests of a party on an unadopted rule." § 120.57(1)(e)1., Fla. Stat. Accordingly, the Rule Challenge was consolidated with Taxpayer's refund claim for hearing. It is determined that the Department, in fact, has taken a PDSE, which is substantially the same as Taxpayer described it. The undersigned rephrases and refines the Department's PDSE, to conform to the evidence presented at hearing, as follows: In determining the amount stamp tax due on an instrument arising from the lump-sum purchase of assets comprising both RE and PP, then, absent an agreement by the contracting parties to apportion the consideration between the categories or subcategories of property conveyed, made not later than the date of recordation (the "Deadline"), it is conclusively presumed that 100% of the undifferentiated consideration paid for the RE and PP combined is attributable to the RE alone. According to the PDSE, the parties to a lump-sum purchase of different classes of property (a "Lump—Sum Mixed Sale" or "LSMS") possess the power to control the amount of stamp tax by agreeing upon a distribution of the consideration between RE and PP, or not, before the Deadline.2/ If they timely make such an agreement, then, in accordance with Consensual-Allocation Deference, which is absolute, the stamp tax will be based upon whatever amount the parties attribute to the RE. If they do not, then, under the Default Allocation Presumption, which is irrebuttable, the stamp tax will be based upon the undifferentiated consideration. The Department has not published a notice of rulemaking under section 120.54(3)(a) relating to the PDSE. Nor has the Department presented evidence or argument on the feasibility or practicability of adopting the PDSE as a de jure rule. It is determined as a matter of ultimate fact that the PDSE has the effect of law because the Department, if unchecked, intends consistently to follow, and to enforce compliance with, the PDSE. Because, in the Department's hands, the PDSE creates an entitlement to collect stamp taxes while adversely affecting taxpayers, it is an unadopted rule.
