12B-4.013. Conveyances Subject to Tax

(1) Exchange of Property: In an exchange of real property by the respective owners of the property exchanged, lands are given as consideration for the transfer of other lands between the parties. The consideration has a reasonably determinable value, (DeVore v. Gay, 39 So. 2d 796 (Fla. 1949)) and is property other than money. The consideration for each deed is the fair market value of the property transferred up by the transferor plus any other consideration given.

(2) Defaulting Mortgagor: Where a mortgagor, in full or partial satisfaction of the mortgage indebtedness or in lieu of foreclosure of a mortgage, conveys the mortgaged premises to the mortgagee, documentary stamp taxes are due on the transaction. The tax will be due on the unpaid portion of any mortgages or other encumbrances the property is subject to, plus any other consideration as defined in Section 201.02(1), F.S., including accrued interest.

(3)(a) Clerk of the Court, Master, Sheriff. A conveyance by a master in chancery, a sheriff, or a clerk of the court for realty sold under foreclosure or execution is subject to tax. The tax is computed on the amount of the highest and best bid received for the property at the foreclosure sale. The Clerk of the Court is required to collect the tax from the highest bidder when the Certificate of Title is recorded.

(b) The documentary stamp taxes cannot reduce the claim of the mortgagee when the mortgagee is an agent of the federal government. The mortgagor is liable for the payment of the tax from any funds paid to the mortgagor after the payment of prior claims of, or in connection with the foreclosure. (1960 Op. Att’y. Gen. Fla. 060-125 (July 29, 1960))

Cross Reference – subsection 12B-4.013(6), F.A.C.

(4) Eminent Domain Proceedings, Threat of: Conveyances of realty made to a governmental entity under threat of condemnation or as part of an out-of-court settlement of condemnation proceedings are not subject to documentary stamp tax. Threat of condemnation exists when a property owner is informed in writing by a representative of a governmental body or public official authorized to acquire property for public use, that such body or official has decided to acquire the property and the property owner has reasonable grounds to believe that the necessary steps to condemn the property will be instituted if a voluntary sale is not arranged. Conveyances to nongovernmental entities are subject to tax.

Cross-Reference – subsection 12B-4.014(13), F.A.C.

(5) State, County, Municipality: Conveyance to or by the state, a county, a municipality or other public agency to or by a non-exempt party is subject to tax. The state, county, municipality or other public agency is exempt from payment of tax but the non-exempt party is not exempt. (1936 Op. Att’y. Gen. Fla. 1935-36 Biennial Report, Page 29 (April 10, 1936); 1962 Op. Att’y. Gen. Fla. 062-150 (Nov. 8, 1962); 1968 Op. Att’y. Gen. Fla. 068-10 (Jan. 19, 1968); 1971 Op. Att’y. Gen. Fla. 071-100 (May 12, 1971))

Cross Reference – subsection 12B-4.002(3), F.A.C.

(6) United States, Its Agencies or Instrumentalities: Conveyance to the United States, its agencies or instrumentalities from non-exempt party, except as provided in subsection 12A-4.014(11), F.A.C., is subject to tax. (1960 Op. Att’y. Gen. Fla. 060-125 (July 29, 1960); 1961 Op. Att’y. Gen. Fla. 061-84 (May 19, 1961); 1961 Op. Att’y. Gen. Fla. 061-122 (Aug. 1, 1961); 1965 Op. Att’y. Gen. Fla. 065-59 (July 15, 1965); 1971 Op. Att’y. Gen. Fla. 071-100 (May 12, 1971))

(7) Timber, Oil, Gas, and Mineral – Contracts or Assignments: Contracts, agreements, leases, and other documents conveying any interest in standing timber, pine stumps, oil or gas leases and assignments or conveyances of oil, gas, mineral rights or royalty interests affecting lands in this state are subject to tax. (1945 Op. Att’y. Gen. Fla. 045-328 (Oct. 19, 1945); 1950 Op. Att’y. Gen. Fla. 050-140 (Mar. 22, 1950); 1962 Op. Att’y. Gen. Fla. 062-114 (Aug. 29, 1962); 1971 Op. Att’y. Gen. Fla. 071-30 (Feb. 19, 1971))

(8) Cooperative Units: Instruments by which the right is granted to a tenant-stockholder to occupy a unit owned by a cooperative corporation are subject to tax.

Cross Reference – subsection 12B-4.011(2), F.A.C.

(9) Condominium Units: Instruments conveying interest or ownership in a condominium unit are subject to tax.

(10) Cemetery Lots, Interment Rights, Sepulcher Rights: Documents conveying cemetery lots, interment rights, sepulcher rights or any other interest in realty are subject to tax. (1932 Op. Att’y. Gen. Fla. 1931-32 Biennial Report, Page 1000 (June 11, 1932); 1970 Op. Att’y. Gen. Fla. 070-169 (Dec. 4, 1970))

(11) Easements: Easements constitute transfers of interest in realty are subject to tax. (Letter from Att’y. Gen. Fla. to State Comptroller (April 15, 1932))

(12) Banks: Conveyances executed to or by State or National banks are subject to tax.

(13) Savings and Loan Associations: Conveyances executed to or by savings and loan associations are subject to tax.

(14) Agreement or Contract for Deed: Consideration for the conveyance of an equitable interest in real property pursuant to an agreement or contract for deed includes the amount of any payments made and the unpaid balance of the agreement or contract. Tax is therefore calculated on the full contract price and tax shall be paid on the contract when made. No stamp tax is due on the recorded deed made when the proper amount of taxes have been paid on the contract. The deed shall indicate, by notation on the contract, that the proper amount of stamp tax has been paid. The agreement may also be subject to tax under Section 201.08, F.S. (1959 Op. Att’y. Gen. Fla. 059-244 rev. (Feb. 25, 1960); 1970 Op. Att’y. Gen. Fla. 070-171 (Dec. 8, 1970))

(15) Cancellation of Contract or Agreement for Deed: A conveyance of the purchaser’s interest to the seller in satisfaction of the purchaser’s obligation under a contract or agreement for deed where the indebtedness of the purchaser is canceled or otherwise rendered unenforceable is subject to tax. The measure of the tax payable is determined by the amount of the indebtedness canceled or otherwise rendered unenforceable and any other consideration given by the seller. (1960 Op. Att’y. Gen. Fla. 060-165 (Oct. 11, 1960))

Cross Reference – subsection 12B-4.014(12), F.A.C.

(16) Assignment of Contract for Deed: The assignment of a prior purchaser’s interest under a contract or agreement for deed to a new purchaser is a conveyance of an equitable interest which the prior purchaser had in the real property. Consideration for the transfer includes the amount paid by the new purchaser and the unpaid balance of the contract for deed. Tax is due based on the total consideration. No stamp tax is due on the recorded deed when the proper amount of tax has been paid on the assignment. The deed shall indicate by notation that proper stamp tax has been paid. Tax is also due under Section 201.08, F.S., if the remaining balance of the contract is assumed by the new purchaser. (1959 Op. Att’y. Gen. Fla. 059-244 Rev. (Feb. 25, 1960); Department of Revenue v. Mesmer, 345 So. 2d 384 (Fla. 1st DCA 1977))

(17) Industrial Development Authority and Florida Housing Finance Corporation: Conveyances of realty by industrial development authorities and the Florida Housing Finance Corporation to private corporations are taxable.

Cross Reference – subsection 12B-4.054(26), F.A.C.

(18) Gift Transactions; Mortgage on Property: A gift of mortgaged realty is taxable based upon the unpaid balance of the mortgage at the time of transfer.

(19) Combined Sale of Land and Improvements: Where conveyance of realty is made by a corporation or person engaged in the business of land sales and construction of buildings and other improvements, stamp tax is imposed on the conveyance based on the amount of consideration paid or to be paid upon delivery of the deed to the purchaser. If the deed is not delivered to the purchaser until construction is completed, stamp tax is required on the total consideration paid for the land and improvements, regardless of the date of recordation. However, proper stamp tax shall be paid when the deed is recorded.

(20) “Wrap-Around” Mortgages: Where a “wrap-around” mortgage is given to secure the unpaid balance of the purchase price for the transfer of realty, documentary stamp tax is to be paid on the total consideration which shall include the amount of any “wrap-around” mortgage. (Department of Revenue v. Brookwood Associates, Limited, 324 So. 2d 184 (Fla. 1st DCA 1975))

(21) Mortgage on Property: When computing the tax under Section 201.02, F.S., on a deed of conveyance, the total consideration includes any mortgages encumbering the property being transferred.

Cross Reference – subsections 12B-4.013(7), (8), (10) and (31), F.A.C.

(22) Mobile Homes: A mobile home which has been permanently affixed to land and taxed as real property is issued an “RP” series license plate by the appropriate county tax collector. Tax applies to the sale of mobile homes in the following manner:

(a) When a mobile home is affixed to realty, bears an “RP” license tag and is sold in conjunction with the sale of realty as a package deal, the transaction constitutes the transfer of an interest in real property and is taxable under Chapter 201, F.S., and the instrument by which the interest in real property is transferred must evidence payment of documentary stamp tax and surtax levied under Chapter 201, F.S., based upon the consideration paid.

(b) When a mobile home is affixed to realty and bears an “MH” tag or is untagged, the sale of the mobile home does not constitute the transfer of an interest in real property even though the land is sold in conjunction with the mobile home. However, the land which is sold in conjunction with the sale of the mobile home is taxable under Chapter 201, F.S., based upon the fair market value of the land conveyed and the instrument by which the interest in the real property is conveyed must evidence payment of documentary stamp tax and surtax levied under Chapter 201, F.S., based upon the consideration paid.

(c) Where members of a mobile home park have practical dominion over designated sites on which a mobile home is located which is essentially equivalent to ownership, each member’s interest in the site on which his home is affixed constitutes “ownership” rendering mobile homes taxable as real property. Therefore, any instruments transferring interest, ownership or membership in a site owned by a cooperative mobile home corporation are subject to tax. Mikos v. King’s Gate Club, Inc., 426 So. 2d 74 (Fla. 2nd DCA, 1983); Nordbeck v. Williamson, 529 So. 2d 360 (Fla. 2nd DCA 1988).

(23) Assignment of Lease or Other Conveyance of Leasehold Interest in Realty: All assignments of leases or other conveyances of leasehold interests in real property are taxable under Section 201.02, F.S., based upon the consideration paid, including leasehold mortgages encumbering the interest conveyed. However, mortgages encumbering the fee title are not consideration, except when assumed by the assignee.

(24) Assignment of Successful Bid – An interest in realty transferred or conveyed by assignment of successful bid at a foreclosure sale is taxable under Section 201.02, F.S.

(25) Assignment of Beneficial Interest in Trust created under Chapter 689, F.S.: Effective July 3, 1979, any document which conveys any beneficial interest in a trust agreement is subject to tax, and the tax is to be paid upon execution of the document. 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. Tax is due on any assignment of a beneficial interest in a trust created under Chapter 689, F.S., based on the consideration paid for such assignment.

(26) Construction Mortgage: When realty is conveyed subject to a construction mortgage, the deed is subject to tax based upon the unpaid balance of the mortgage debt at the time of conveyance, in addition to any other consideration given.

(27) Deeds Between Spouses.

(a) A deed that transfers any interest in Florida real property between spouses is taxable based on the consideration for the property interest transferred. When the property is encumbered, the consideration includes the mortgage balance in proportion to the interest transferred.

(b) No tax is due on a deed that transfers the marital home, or an interest therein, between spouses or former spouses pursuant to an action for dissolution of marriage when the transfer is made at the time of or following divorce. The marital home means the primary residence of the married couple. Tax is due on a deed that transfers the marital home, or an interest therein, between spouses when the transfer is made prior to the final dissolution of the marriage. Tax paid on such deed within one year prior to the final dissolution of the marriage may be refunded. To request a refund, a completed Form DR-26, Application for Refund, must be submitted with proof of payment of the tax, including a copy of the final divorce decree. Proof that the real property was the marital home is also required.

(c) No tax is due on a deed that transfers any interest in homestead property between spouses, when the only consideration for the transfer is the amount of a mortgage or other lien encumbering the homestead property at the time of the transfer. When there is consideration other than a mortgage or other lien encumbering the homestead property, tax is due on the total consideration including any mortgages or liens encumbering the property at the time of the transfer. For the purpose of this paragraph, the term “homestead property” has the same meaning as the term “homestead” as defined in Section 192.001, F.S., and s. 6(a), Art. VII of the State Constitution.

(28) Trusts Pursuant to Chapter 689, F.S.: A deed to or from a trustee conveying real property is taxable to the extent that the deed transfers the beneficial ownership of the real property and to the extent that there is consideration for the transfer. The following are examples of taxable and exempt conveyances to or from a trustee.

(a) No change in Beneficial Ownership: A deed from X to a trustee is exempt from the stamp tax to the extent of X’s beneficial ownership interest as a trust beneficiary, whether or not the real property is encumbered by a mortgage. For example, if X owns encumbered or unencumbered real property and conveys it to the trustee of a trust of which X is the sole beneficiary, the conveyance is exempt from the stamp tax.

(b) Change in Beneficial Ownership: If persons other than X are trust beneficiaries, then a deed from X to a trustee is taxable to the extent of the consideration, if any, for the beneficial interest in the real property transferred to such other persons. The stamp tax is based on any cash, note, release or other consideration from the trust beneficiaries other than X, including their proportionate share of any mortgage encumbering the real property. For example, if X owns unencumbered real property valued at $100 and X conveys the property to the trustee of a trust of which X and Y are each 50% beneficiaries, and Y pays $50 cash for the conveyance to the trustee, then stamp tax would be due based on a consideration of $50.

(c) Gift in Trust: A deed from X to a trustee is exempt from the stamp tax if persons other than X are trust beneficiaries, the transfer is a gift from X to those beneficiaries, and the real property is not encumbered by any mortgage. If the real property is encumbered by any mortgage, then the stamp tax is based on the other beneficiaries’ proportionate share of the mortgage indebtedness allocated according to their respective percentage beneficial interest. For example, if X owns real property valued at $100 which is encumbered by a mortgage of $50 and X conveys the property to the trustee of a trust of which X and X’s daughter are each 50% beneficiaries, and there is no consideration other than the mortgage, then stamp tax would be due based on a consideration of $25 (one-half of the mortgage indebtedness).

(d) Successor or Substitute Trustee: A deed from a trustee to a successor or substitute trustee of the same trust is not subject to the stamp tax.

(e) Trustee’s Deed to Beneficiary: A deed of real property from a trustee to X is not subject to the stamp tax to the extent of X’s beneficial ownership interest as a trust beneficiary immediately before the conveyance, whether or not the real property is encumbered by a mortgage. Except as provided in paragraph (f) of this rule below, however, the stamp tax applies to the extent that the trustee transfers to X an ownership interest in the real property greater than X’s percentage beneficial ownership interest as a trust beneficiary immediately before the transfer, based on the consideration, if any, for the transfer of the additional interest, including the proportionate share of any mortgage indebtedness encumbering the additional percentage interest in the real property transferred to X by the trustee. For example, if X and X’s spouse are each beneficiaries of a trust of which X owns 60% interest and X’s spouse owns 40% interest and the trustee conveys to X real property valued at $100 which is encumbered by a mortgage of $50, and there is no consideration other than the mortgage, then stamp tax would be due based on a consideration of $20 (40% of the mortgage indebtedness).

(f) Trustee’s Power to Apportion: When trust beneficiaries hold undivided percentage interests in the corpus of the trust rather than specific interests in each parcel of real property held in the trust, and a trust instrument grants the trustee the power to apportion and distribute the various assets of the trust among the beneficiaries, then stamp tax is due on the conveyance of real property from the trustee to a beneficiary only to the extent that the value of that real property exceeds the value of the beneficiary’s undivided percentage interest in the trust. For example, a grantor conveys Blackacre and Whiteacre to a trustee for the benefit of the grantor’s two children, X and Y, who each have an undivided 50% interest in the trust. The terms of the trust provide that when both X and Y reach 21 years of age, the trustee will liquidate the trust and distribute the assets of the trust between X and Y as the trustee shall determine provided that each beneficiary shall receive property of approximately equal value. Blackacre and Whiteacre are equal in value when X and Y reach 21, and the trustee conveys Blackacre to X and Whiteacre to Y. Stamp tax is due on the initial conveyance from the grantor to the trustee to the extent of any taxable consideration, such as a mortgage on the property (see foregoing paragraph (c) of this rule), but no stamp tax is due on the subsequent conveyances from the trustee to X and Y, regardless of whether any mortgage then encumbers the property.

(g) Trustee’s Deed to Non-Beneficiary: The stamp tax applies to a trustee’s deed of real property to grantees that are not beneficial owners as trust beneficiaries immediately before the conveyance, to the extent of the consideration given, if any, for the interest in the real property transferred to the non-beneficiary grantees. The stamp tax is based on any cash, note, release or other consideration from the non-beneficiary grantees, including their proportionate share of any mortgage encumbering the real property. For example, if X is the sole beneficiary of a trust and the trustee conveys to X and Y, as 50% tenants-in-common, real property valued at $100 which is encumbered by a mortgage of $60, and Y pays $20 cash for Y’s 50% interest in the property, then stamp tax would be due based on the consideration of $50 ($20 cash plus 50% of the mortgage indebtedness).

(h) Identity of Parties; Nature of Trust: All conveyances to or from a trustee are equally taxable or exempt as provided in this rule, regardless of:

1. Whether the trustee is the same person as grantor, grantee, or beneficiary,

2. Whether the trustee or grantor or grantee or beneficiary is a natural person or an entity, and,

3. Whether a recorded instrument confers on the trustee the powers and authority specified in Section 689.071(1), F.S., or declares the interest of the beneficiaries is personal property as specified in Section 689.071(4), F.S.

(i) Revocable Trust: A deed to a trustee from a grantor who has the power to revoke the trust instrument, and a deed back to the grantor from the trustee upon revocation of the trust, are not transfers of ownership subject to the stamp tax.

Rulemaking Authority 201.11, 213.06(1) FS. Law Implemented 201.01, 201.02 FS. History–New 8-18-73, Formerly 12A-4.13, Amended 12-11-74, 2-21-77, 5-23-77, 12-26-77, 7-3-79, 9-16-79, 11-29-79, 3-27-80, 12-23-80, 12-30-82, Formerly 12B-4.13, Amended 12-5-89, 6-4-90, 2-13-91, 2-16-93, 10-18-94, 12-30-97, 7-28-98, 1-4-01, 5-4-03, 4-5-07, 7-30-13, 12-12-19.