TANGIBLE PERSONAL PROPERTY TAXATION

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1 BIENNIAL REPORT OF THE ATTORNEY GENERAL 265 TANGIBLE PERSONAL PROPERTY TAXATION December 28, ASSESSMENT AND TAXATION-RACE HORSES NONRESIDENT OWNERS QUESTION: Where the nonresident owner of a race horse brings the same into this state prior to January first of a tax year and registers said horse with the Florida Racing Commission for racing during the current racing season, is the said race. horse subject to taxation in this state for said tax year? To: Honorable John A. Gautier, Dade County Tax Assessor, Miami, Florida: Under , F. S., the county tax assessor is required to enter upon the tangible personal property tax roll the name of all persons who have located in the county tangible personal prop-. erty and also "all taxable tangible personal property usually kept and located' in the county, the ownership of which is unknown to him..." It is stated in 51 Am. JUl'. 468, 453, that "before tangible personal property may be taxed in a state other than the domicile of the owner, it must have acquired a more or less permanent. location in the state, not merely a transient or temporary one. Generally, chattels merely temporarily or transiently within the limits of a state are not subject to property taxes. Tangible personal property passing through, or in the state for temporary purposes only, if it belongs to a nonresident, is not subject to taxation under a statute providing that all real and personal property in the state shall be assessed and taxed. The state of origin remains the permanent situs of property for the purpose of taxation, notwithstanding the occasional excursion of the property to foreign parts." See also annotation in 110 A. L. R. page 717 and Guinness v. King County, 32 Wash. 2d. 503, 202 P. 2d 737, 6 A. L. R. 2d and annotation thereto concerning boats. The question appears to be primarily one of fact to be determined by the tax assessor; that is whether the tangible personal property in question has or has not acquired a more or less permanent location in the state, not merely a transient or temporary one. If the property has acquired a more or less permanent location in the state it is subject to taxation, but if it is in the state on a transient or temporary basis it is not subject to taxation. February 12, EXCISE TAX ON DOCUMENTS. DOCUMENTARY STAMP TAX-CONVEYANCE OF INTERESTS IN REAL PROPERTY-CONSIDERATION QUESTION: What is the interpretation and construction of , F. S., imposing documentary stamp tax upon conveyance of real property or of an interest therein?

2 266 BIENNIAL REPORT OF THE ATTORNEY GENERAL To: Honorable C. M. Gay, State Compt1'oller: "A deed is given and the consideration is love and affection and the property conveyed has a mortgage or indebtedness against it, the grantee takes the deed either subject to the mortgage or agrees to assume the mortgage. Under these circumstances the grantee, if he takes the deed subject to the mortgage, certainly would have to pay off the mortgage before he would have clear title. If he assumes the mortgage he thereby agrees to pay it off. In either instance it would seem that there is a valuable consideration." The answer to your question would appear to fall within the construction and interpretation applied to the subject section of the statutes by the Supreme Court of Florida in its decision in the case of DeVore vs. Gay, reported in 39 So. 2d 796, and followed by its decision in the recent case of Culbreath vs. Reid, reported in 65 So. 2d 556. In the former case the court held that the tax imposed by the subject statute is measured by the monetary consideration paid for the conveyance, and that the tax is confined to the actual monetary consideration or a consideration which has a reasonably determinable pecuniary value. In the latter case the court reaffirmed its construction of the statute to be that the tax is imposed only upon transfers of realty or any interest therein for monetary consideration. The court further held that "where love and affection constitutes the only consideration for a conveyance of realty to a grantor's daughter and she paid nothing for the deed and was not obligated to pay to the grantor anything of value therefor, the deed was not subject to documentary stamp tax, since the transfer was not for a monetary consideration." It is clear from the construction of the statute applied by the Supreme Court that the taxability of a deed of conveyance to lands is not dependent upon the nature or the quality or quantity of the title conveyed, but is dependent only upon the monetary consideration paid by the grantee for the interest acquired in such real property. The grant or conveyance of realty which is charged with the lien of a mortgage or other encumbrance is a grant upon condition which is subject to forfeiture upon the breach of the condition to discharge the lien by payment. The assumption of the payment of the lien is not a part of the consideration for the grant which may be considered as having a monetary value. Where a conveyance of property is made upon the consideration of love and affection, the grantee takes only such interest or title as the grantor has in the property at the time of the conveyance, for which the grantee pays no monetary consideration, which is the sole basis for the computation of the tax according to the judicial interpretation of the statute. The tax is not computable upon the "valuable" consideration for the transfer but upon the pecuniary or monetary consideration. Under the circumstances upon which your inquiry is predi-

3 BIENNIAL REPORT OF THE ATTORNEY GENERAL 267 'cated, the grantee is not a purchaser nor is there any monetary consideration upon which the amount of tax may be computed. It is my opinion that under the circumstances related, no tax may be imposed upon the subject conveyance. August 19, DOCUMENTARY STAMP TAXES-CERTIFICATE OF TITLE QUESTIONS: 1. Are "Certificates of Title" issued by a Clerk of the Circuit Court in this State within the purview of 3482, Title 26, of the United States Code, and F. S., so as to require documentary stamp taxes? 2. If the Clerk must place documentary stamp taxes on such "Certificates- of Title", is the amount of the consideration for the conveyance the amount bid at the sale and paid by the purchaser? 3. If the Clerk is required to place either, or both, Federal or State Revenue Stamps on the "Certificates of Title" who pays the costs of these stamps? 4. Are the "certificates of title" an instrument other titan m01"tgages conveying, or purporting to convey, any interest in real property, within the meaning of , F. S., requiring the Clerk to ascertain the correct Post Office address of the purchaser and include the same in the daily schedule of deeds and conveyances he furnished the county tax assessor? 5. If the Clerk must report the "Certificates of Title" to the County tax Assessor, does he receive the 10 cent fee (25 cents in Duval County' under the 1953 population act) for doing so prescribed in , F. S.? 6. From what source does the Clerk obtain the money for paying the cost of publishing the Notice of Sale required in , F. S., as amended? To: Honorable Leonard W. Thomas, Clerk Circuit Court, County Court House, Jacksonville, Florida: The question of the application of 3482, Title 26, of the United States Code, to "Certificates of Title" issued pursuant to S702.02, F. S., as amended by Ch , Laws of Florida, Acts of 1953, has been answered in the affirmative by an opinion rendered by the Acting Commissioner of Internal Revenue, of the Treasury Department of the United States, on August 12, The question of the applicability of the federal courts and authorities, and there appearing no material question of constitutionality of the federal statute, we accept the opinion of the Acting Commissioner as being a correct statement of the law. As the Florida documentary stamp taxing statute was taken in a large part from the federal statute the construction placed upon the federal statute by the federal authorities is highly persuasive in construing the state statute taken from the federal one (State v. Cook, 108 Fla. 157, 146 So. 223). The first question is, therefore, answered in the affirmative.

4 268 BIENNIAL REPORT OF THE ATTORNEY GENERAL Under or Regulation 71, by the Commissioner of Internal Revenue of the Treasury Department of the United States, relative to documentary stamp taxes under the federal statutes, "the tax is computed on the amount bid for the purchase of the property plus the costs if paid by the purchaser..." This appears to be a reasonable rule to be followed under both the federal and state statutes. The second question, is, therefore, answered in the affirmative unless there are other amounts to be paid by the purchaser, such as court costs, in addition to the amount bid, in which. case such additional expenses should be included. Subsection (2) of , F. S., as amended, provides that "101' his service in making such sale, the clerk shall receive a fee of five dollars." This fee was doubtless intended to compensate the the clerk's office for the services performed by the clerk in connection with the sale of the mortgaged property. This fee seems to be in addition to that fee or fees received by the clerk for filing papers and other services usually performed by the clerk, but are received by him in the same capacity. These fees may not be used in paying for revenue stamps, either federal or state which are usually considered as being part of the cost of the litigation. The obligation for furnishing stamps has not been changed by the 1951 amendment to , F. S. Such stamps are part of the costs and expenses for transferring title from the mortgagor to the mortgagee or his assignee. The third question is, therefore, answered by stating that the party responsible for stamps on a master's deed continues to be liable for such expenses under , F. S., as amended. Usually such expenses should be paid from the proceeds of the sale. Section , F. S., requires that "it shall be the duty of the several clerks of the circuit courts to ascertain of all persons presenting for public record any instrument other than mortgages conveying or purporting to convey any interest in real estate the correct post office address of the grantee or grantees named in such instrument, and it shall be the duty of the person presenting such instrument for recordation to furnish such information to said official." The "Certificates of Title" appear to be such instruments. This information is required to be passed on, by the clerk, to the county assessor of taxes, together with a description of the property conveyed ( , F. S.,) for which services the clerk is required to collect a fee of ten cents ( , F. S.). This fee seems to be assessed against the person offering the instrument for record. The fourth question is, therefore, answered in the affirmative. Although technically the ten cent fee should be collected from the purchaser at the sale it might be, with the court's consent, included in the report of costs and expenses of sale. The fifth question is, on the basis of our observations made as to the fourth question, answered in the affirmative. The notice of sale required, by subsection (2) of , F. S., as amended, to be published by the clerk is a counterpart to the notice of sale heretofore published by masters in chancery appointed by the court to conduct sales under foreclosure de-

5 BIENNIAL REPORT OF THE ATTORNEY GENERAL 269 crees and make conveyances pursuant to such sales. The clerk is by statute, although not so named, made a standing master (If the court for such purposes. As such costs were heretofore paid from the proceeds of the sale, as costs and expenses of the proceedings, we see no reason why the expenses incurred by the clerk in publishing the notice of sale should not be treated in the same way as were the costs of such notices published by the masters in chancery under the former practice. Until the question is finally determined by the court it is suggested that the costs and expenses of publication of the notice be included in the clerk's report of sale as an item or expense of such sale paid, or to be paid, from the proceeds of such sale. Often special masters and the like required the plaintiff to advance such costs at least in cases where there may have been doubt as to whether the property on sale would bring enough to pay the costs. Sometimes, in the past, mortgage 'sales made subject to one or more other mortgages brought very little at foreclosure sale; this is not a legal observation but a practical suggestion to the clerk. These observations seem to answer the sixth question. December 11, DOCUMENTARY STAMP TAX-INSTRUMENTS COLLATERAL AGREEMENT BETWEEN BANK AND CORPORATION QUESTION: Is an agreement in writing between a corporation and a bank, under the terms of which the bank agrees to loan and the corporation agrees to borrow money for corporate uses from time to time, and to secure the repayment thereof, together with interest at an agreed rate for the use thereof, by pledge of collateral security to the bank by the borrower, a "written obligation to pay money" within the provisions of , F. S., imposing a documentary excise tax upon such instruments? To: Honorable C. M. Gay, State Comptroller: The form of written instruments submitted with your request for opinion have been reviewed and applied to the legal interpretation and construction of the applicable statute. A study of the form entitled "Collateral Agreement" shows that the form is, when completed, in substance nothing more than a contract between a bank and a corporation, in which the bank contracts to make advances to the corporation, and the corporation pledges with the bank property of various kinds as collateral security to secure the payment of such loan, or loans, as may be made by the bank to the corporation under the terms of the agreement. The short form attached is to be used by the corporation when requesting the bank for future advances under the Collateral Agreement or Contract. Section , F. S., provides: "Tax on promissory notes, written obligations to pay money, assignments of wages, etc.-on promissory notes, non-negotiable notes, written obligations to pay money,

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