Florida’s estate tax is based on the federal credit for state death taxes. Effective January 1, 2005, the effective rate for the federal credit was reduced to zero, and a deduction was enacted. Since, the effective rate for the federal credit is now ...

DEPARTMENT OF REVENUE
Corporate, Estate and Intangible Tax

RULE NO: RULE TITLE
12C-3.0015: Documents, Extensions, and Due Dates for Filing
12C-3.007: Interest on Overpayment of Taxes
12C-3.008: Public Use Forms
12C-3.009: Penalties and Interest
12C-3.010: Final Certificate and Nontaxable Certificate Mailing Procedure
12C-3.013: Protest Procedures
PURPOSE AND EFFECT: Florida’s estate tax is based on the federal credit for state death taxes. Effective January 1, 2005, the effective rate for the federal credit was reduced to zero, and a deduction was enacted. Since, the effective rate for the federal credit is now zero, the Florida estate tax is zero. This federal provision is scheduled to sunset on December 31, 2010. In the event that no further action is taken by the United States Congress and President regarding the federal credit, the Florida estate tax will be applicable for the estate of a decedent whose date of death is after December 31, 2010.
Florida continues to impose an automatic lien on a decedent’s Florida real property. To remove the lien, the estate must file certain forms regarding Florida estate tax with the clerk of the court. These proposed changes are necessary to update the Florida estate tax rules and forms while simplifying and easing the filing burden on estates.
SUMMARY: The proposed amendments to Rule 12C-3.0015, F.A.C.( Documents, Extensions, and Due Dates for Filing): (1) remove the requirement to file Form DR-301, Preliminary Notice and Report, which lists the assets of the estate; (2) update the provisions regarding when an estate is required to file a Florida estate tax return and what documentation must be filed with that return; and (3) provide what documents will be issued by the Department to remove the automatic Florida estate tax lien on the decedent's real property when a Florida estate tax return is required, including when a federal return is required and when no federal return is required.
The proposed repeal of Rule 12C-3.007, F.A.C. (Interest on Overpayments of Taxes) removes the obsolete provision that no interest will be paid on refunded estate tax or interest. Section 213.255, F.S., and Rule 12-3.0015, F.A.C., provide for the payment of interest on overpayments of taxes administered by the Department.
The proposed amendments to Rule 12C-3.008, F.A.C. (Public Use Forms): (1) update information on how to obtain forms from the Department; (2) remove Form DR-301, Preliminary Notice and Report, which is no longer used by the Department; (3) adopt, by reference, changes to Form DR-308, Request and Certificate for Waiver and Release of Florida Estate Tax Lien, to include the social security number of the decedent as an identifying number to administer the removal of Florida's automatic lien on the decedent's real property and to remove the social security number from the portion of the form that is filed with the clerk of the circuit court; (4) adopt, by reference, new Form DR-313, Affidavit of No Florida Estate Tax Due When Federal Return is Required; and (5) adopt, by reference, updates to Form F-706, Florida Estate Tax Return for Residents, Nonresidents, and Nonresident Aliens.
The proposed repeal of Rule 12C-3.009, F.A.C. (Penalties and Interest), removes obsolete or unnecessary provisions regarding the imposition of penalties and interest imposed on a deficiency in filing a Florida estate tax return or paying the amount of estate tax due with a return that are provided in Sections 198.15, 198.18, and 198.37-198.40, F.S.
The proposed amendments to Rule 12C-3.010, F.A.C. (Final Certificate and Nontaxable Certificate Mailing Procedure), provide that the Department will no longer issue a Final Certificate or Nontaxable Certificate to the personal representative of an estate for a decedent who died after December 31, 2004, and before January 1, 2011, and state which affidavits may be filed by the personal representative to evidence that no Florida estate tax liability is due for decedents who died during that period.
The proposed repeal of Rule 12C-3.013, F.A.C. (Protest Procedures), removes the unnecessary referral to Rule 12-6.0033, F.A.C., to protest any billing issued to an estate by the Department.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 72.011, 198.08, 198.32(2), 213.06(1), 213.21 FS.
LAW IMPLEMENTED: 72.011, 92.525(1)(b), 198.02, 198.03, 198.04, 198.05, 198.08, 198.12, 198.13, 198.14, 198.15, 198.16, 198.18, 198.19, 198.22, 198.26, 198.29, 198.32, 198.33(1), 198.37, 198.38, 198.39, 198.40, 213.21, 213.235, 213.37, 837.06 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: January 15, 2009, 10:30 a.m.
PLACE: Room 118, Carlton Building, 501 S. Calhoun Street, Tallahassee, Florida
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 48 hours before the workshop/meeting by contacting: Larry Green at [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Joe Parramore, Revenue Program Administrator I, Technical Assistance and Dispute Resolution, Department of Revenue, P. O. Box 7443, Tallahassee, Florida 32314-7443, telephone [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

12C-3.0015 Documents, Extensions, and Due Dates for Filing.

(1) Preliminary Notice and Report. For estates of decedents dying before January 1, 2000, within 2 months after the decedent’s death or within a like period after qualifying as such, the personal representative shall submit to the Department of Revenue Form DR-301, Preliminary Notice and Report, to determine whether or not the estate is subject to tax.

(1)(2) Decedents who died prior to January 1, 2005, or, after December 31, 2010 Estate Not Subject to Tax.

(a)1. When the decedent died prior to January 1, 2005, or after December 31, 2010, and the personal representative of an estate is required to file a federal estate tax form (Form 706 or 706-NA), the personal representative of every Florida resident, nonresident, or alien decedent whose estate includes Florida real property is required to file with the Department within nine months from the date of decedent’s death: For decedents dying prior to January 1, 2000:

If the estate is not required to file the federal estate tax Form 706, upon receipt of the Form DR-301 and a $5 fee, a nontaxable certificate will be issued to the estate’s representative. This nontaxable certificate (Form DR-302) may be recorded in the county where the decedent owned property.

a. A Florida estate tax return (Form F-706, incorporated by reference in Rule 12C-3.008, F.A.C.);

b. A copy of the executed federal estate tax return; and

c. Any payment of the Florida estate tax due.

2. When the estate owes Florida estate tax, upon receipt of a copy of the closing letter issued by the Internal Revenue Service and the payment of any Florida estate tax, penalty, or interest due, the Department will issue a Final Certificate for Estate Tax (Form DR-304). This certificate has the same effect as a receipt.

3. If the Internal Revenue Service determines that the estate owes no federal estate tax, a nontaxable certificate may be requested from the Department when filing Form F-706. Upon receipt of a copy of the closing letter issued by the Internal Revenue Service, the Department will issue a Nontaxable Certificate and Receipt for Estate Tax (Form DR-302).

(b) To remove any Florida estate tax lien on the decedent’s Florida real property, certificates issued by the Department (Forms DR-302 and DR-304) must be filed with the clerk of the circuit court in every county where the decedent owned real property. For decedents dying on or after January 1, 2000:

The Department will no longer issue a Nontaxable Certificate and Receipt for Estate Tax (Form DR-302) in this instance. For decedents dying on or after January 1, 2000, if the estate is not required to file federal estate tax Form 706 or Florida estate tax Form F-706, the personal representative may file an Affidavit of No Florida Estate Tax Due (Form DR-312) with the Clerk of Court in each county where the decedent owned property. The affidavit will attest that no federal estate tax return (Form 706) is required to be filed for the estate and no Florida estate tax is due pursuant to Chapter 198, F.S. The certificate (Form DR-302) or affidavit (Form DR-312), when recorded in the county where the decedent’s property is located, will remove the Department’s lien. The certificate or affidavit is admissible as evidence to show nonliability for tax.

(2)(3) Decedents who died on or after January 1, 2005, and prior to January 1, 2011 Estate Possibly Subject to Tax.

(a) No Florida estate tax return is required to be filed when the decedent died on or after January 1, 2005, and prior to January 1, 2011. For decedents dying prior to January 1, 2000;

In addition to the form DR-301, the personal representative (as defined in Section 198.01(2), F.S.) of every estate of a Florida resident, nonresident, or alien decedent whose estate includes Florida property and is required to file under the federal Internal Revenue Code shall file a copy of the executed federal estate tax return (federal form 706 or federal form 706-NA), together with any payment of the Florida estate tax due within nine months from the date of death. If the Department of Revenue determines that the estate owes no tax to Florida, upon payment of a $5 fee and receipt of a copy of the federal closing letter, the Department will issue to the personal representative a Nontaxable Certificate and Receipt for Estate Tax (form DR-302). This certificate has the same effect as a receipt. It may be recorded in the county or counties in which the decedent owned property. The certificate is admissible as evidence that the estate owes no Florida estate tax.

(b) When the personal representative is not required to file a federal estate tax form (Form 706 or 706-NA), an Affidavit of No Florida Estate Tax Due (Form DR-312, incorporated by reference in Rule 12C-3.008, F.A.C.) must be filed with the clerk of the circuit court in every county where the decedent owned real property to remove any Florida estate tax lien on the decedent's real property. This affidavit is admissible as evidence that no Florida estate tax is due by the estate. For decedents dying on or after January 1, 2000;

The personal representative of an estate owning Florida property must file the Florida Estate Tax Return for Residents, Nonresidents and Nonresident Aliens (Form F-706), and a copy of the executed federal estate tax return (Form 706 or Form 706-NA), together with any payment of Florida estate tax estimated to be due. Upon receipt of a copy of the federal closing letter and payment of any Florida estate tax due, the Department will issue a Final Certificate for Estate Tax (Form DR-304). This certificate may be recorded as evidence that no additional Florida Estate Tax is due. If no tax is due, upon payment of a $5 fee and receipt of a copy of the federal closing letter, the Department will issue a Nontaxable Certificate and Receipt for Estate Tax (Form DR-302).

(c) When the personal representative is required to file a federal estate tax form (Form 706 or 706-NA) and owes no Florida estate tax, an Affidavit of No Florida Estate Tax Due When Federal Return is Required (Form DR-313, incorporated by reference in Rule 12C-3.008, F.A.C.) must be filed with the clerk of the circuit court to remove any Florida estate tax lien on the decedent’s real property. This affidavit is admissible as evidence that no Florida estate tax is due by the estate.

(4) Domicile Statement – If the estate is filing as a nonresident or nonresident alien, the personal representative must file a the Domicile Statement (Form DR-310, incorporated by reference in Rule 12C-3.008, F.A.C.), with the copies of the executed Florida Form F-706 and executed federal Form 706.

(5) through (6) No change.

Specific Authority 198.08, 198.32(2), 213.06(1) FS. Law Implemented 198.02, 198.03, 198.04, 198.05, 198.13, 198.14, 198.15, 198.32 FS. History–New 12-13-94, Amended 1-22-01,________.

 

12C-3.007 Interest on Overpayment of Taxes.

No interest shall be paid on refunded taxes or interest.

Specific Authority 198.08, 213.06(1) FS. Law Implemented 198.29 FS., Decision of Supreme Court of Florida in case of Mailman v. Green, 111 So. 2d 267. History–New 2-19-72, Formerly 12C-3.07, Repealed________.

 

12C-3.008 Public Use Forms.

(1)(a) The following public‑use forms and instructions are employed by the Department in its administration of the Florida estate tax dealings with the public and are hereby adopted by reference.

(b) Copies of these forms are available, without cost, by one or more of the following methods: 1) downloading these forms from the Department’s Internet site at www.myflorida.com/dor/forms; or, 2) faxing a forms request to the Distribution Center at [phone]; or, 3) calling the Department at [phone], Monday through Friday, 8 a.m. to 7 p.m., Eastern Time; or, 3) visiting any local Department of Revenue Service Center Distribution Center at [phone]; or, 4) writing the Florida Department of Revenue, Distribution Center, 168A Blountstown Highway, Tallahassee, Florida 32304; or, 5) visiting any local Department of Revenue Service Center to personally obtain a copy. Persons with hearing or speech impairments may call the Department’s TDD at [phone] or [phone].

Form Number       Title                                                              Effective Date

(2) DR-301             Preliminary Notice and Report
                                (R. 08/06)                                                     10/06

(2)(3) DR-308        Request and Certificate for

                                Waiver and Release of

                                Florida Estate Tax Lien

                                (R. 12/07 08/06)                                          ____ 10/06

(3)(4) DR-310        Domicile Statement

                                (R. 12/07 08/06)                                          ____ 10/06

(4)(5) No change.

(5) DR-313             Affidavit of No Florida Estate

                                Tax Due When

                                Federal Return is Required

                                N. 12/07)                                                      _____

(6) F-706                Florida Estate Tax Return for

                                Residents, Nonresidents and

                                Nonresident Aliens

                                (R. _____ 08/06)                                         ____ 10/06

Specific Authority 198.08, 198.32(2), 213.06(1) FS. Law Implemented 92.525(1)(b), 198.08, 198.13, 198.22, 198.26, 198.32(2), 198.33(1), 198.38, 198.39, 213.37, 837.06 FS. History– New 9-26-77, Formerly 12C-3.08, Amended 1-11-93, 8-25-94, 1-22-01, 5-4-03, 10-30-06, 11-6-07,________.

 

12C-3.009 Penalties and Interest.

(1) Civil Penalties:

(a) Late Payment. In addition to any other penalties, for any estate tax due on or after July 1, 1991 that is not paid by the due date or by the due date of any extension granted by the Department, specific penalties shall be added to the tax:

Effective:

July 1, 1991:                 5 percent of the unpaid tax if paid by the 30th day after the due date.

After 30 days:             10 percent of the unpaid tax.

Effective:

January 1, 1993:          10 percent of the unpaid tax if paid by the 30th day after the due date.

After 30 days:             20 percent of the unpaid tax.

(b) Failure to Pay Tax. In addition to any other penalties, if any part of a deficiency in Florida estate tax due is due to negligence or intentional disregard of the provisions of Chapter 198, F.S., and these rules, but without fraud, the specific penalty for non-payment of estate tax is:

Effective:

July 1, 1991:                5 percent per month of the unpaid tax up to a maximum of 25 percent of the unpaid tax.

Effective:

January 1, 1993:         10 percent per month of the unpaid tax up to a maximum of 50 percent of the unpaid tax.

(c) If the deficiency is due to fraud, an additional penalty shall be added to the tax owed:

Effective:

July 1, 1991:                50 percent of the unpaid tax.

Effective:

January 1, 1993:         100 percent of the unpaid tax.

(2) Criminal Penalties:

(a) Failure to Make Return. Any person who willfully fails to pay the tax, make the return, keep records necessary for preparing the return and computing the tax, or supply information required by law or regulations, is guilty of a first degree misdemeanor.

(b) False Return. Any person who willfully aids or assists in, or procures, counsels or advises the preparation or presentation of a false or fraudulent return, affidavit, claim, or document is guilty of a third degree felony.

(c) False Statement in Return. Any person who knowingly makes any false statement in any notice or return required to be filed under Chapter 198, F.S., is guilty of a first degree misdemeanor.

(d) Failure to Pay Tax, Evasion of Tax. Any person who is required to but fails to collect, account for, and pay over any estate tax imposed is guilty of a third degree felony. Any person who willfully attempts in any manner to evade or defeat this estate tax or the payment of this estate tax is guilty of a third degree felony.

(3) Interest.

(a) Interest shall be calculated at the following rate:

1. One percent per month (prorated daily using the daily factor of .000328767) for payments due prior to January 1, 2000.

2. For payments due on or after January 1, 2000, the rate of interest established pursuant to Section 213.235, F.S., and Rule 12-3.0015, F.A.C. (prorated daily).

(b) Interest accrues on the amount due from the original due date of the estate tax to the date the tax is paid. Interest is not imposed on penalties.

Specific Authority 198.08, 213.06(1) FS. Law Implemented 198.15, 198.16, 198.18, 198.37, 198.38, 198.39, 198.40, 213.235 FS. History– New 4-2-78, Formerly 12C-3.09, Amended 1-11-93, 8-25-94, 4-2-00, Repealed ________.

 

12C-3.010 Final Certificate and Nontaxable Certificate Mailing Procedure.

(1) When the decedent died prior to January 1, 2005, or after December 31, 2010, Section 198.19, F.S., requires that a Final Certificate (DR-304) be issued to the personal representative. However, if an attorney is representing the estate and files the estate tax return, the Final Certificate will be mailed to the attorney, and a copy of the Final Certificate transmittal letter will be sent to the personal representative. Otherwise, the Final Certificate will be mailed to the personal representative. If it is determined that no estate taxes are due to the State of Florida, the Department (upon receipt of a $5.00 fee for each certificate requested) will issue a Nontaxable Certificate to either the personal representative, administrator, curator, heirs, devisees, or legatees of the decedent.

(2) For decedents who died on or after January 1, 2005, and prior to January 1, 2011, the Department will not issue a Final Certificate or Nontaxable Certificate to the personal representative of the estate, as defined in Section 198.01(2), F.S. The personal representative may file an Affidavit of No Florida Estate Tax Due (Form DR-312) or an Affidavit of No Florida Estate Tax Due When Federal Return is Required (Form DR-313), as provided in Rule 12C-3.0015, F.A.C., to evidence that no Florida estate tax liability is due.

Specific Authority 198.08, 213.06(1) FS. Law Implemented 198.12, 198.19 FS. History–New 6-7-78, Formerly 12C-3.10, Amended 1-11-93, 8-25-94, 12-13-94,________.

 

12C-3.013 Protest Procedures.

The personal representative of an estate shall use the procedures contained in Rule 12-6.0033, F.A.C., to protest any billing issued to the estate by the Department.

Specific Authority 72.011, 198.08, 213.06(1), 213.21 FS. Law Implemented 72.011, 198.08, 213.21 FS. History–New 8-25-94, Amended 1-22-01, Repealed________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Joe Parramore, Revenue Program Administrator I, Technical Assistance and Dispute Resolution, Department of Revenue, P.O. Box 7443, Tallahassee, Florida 32314-7443, telephone [phone]
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governor Charlie Crist and members of the Florida Cabinet, Attorney General Bill McCollum, Chief Financial Officer Alex Sink, and Agriculture Commissioner Charles H. Bronson, as agency head of the Department of Revenue
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 9, 2008
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: A Notice of Proposed Rule Development was published in the Florida Administrative Weekly on September 26, 2008 (Vol. 34, No. 39, pp. 4982-4983). No comments were received by the Department.