SUMMARY QUESTION: Are documentary stamp taxes due on a modification of a note and mortgage pursuant to a restructuring (a merger and restructuring) where the parties involved are a beneficiary and trustee (a corporation) of a land trust, with the land trust owning real property in Florida and the borrower under the note and mortgage being the trustee? ANSWER: No documentary stamp tax would be due on the modification of the note and mortgage as a result of the merger and conversion because there will be no change in obligor. The beneficiary will merge with the trustee, thereby merging the legal and beneficial title in the real property and terminating the land trust pursuant to the merger doctrine. The trustee will continue to exist as a corporation, and will then convert to an LLC. The property of the corporation will transfer to the LLC as the surviving entity by operation of law, and the LLC will become owner of the assets and liabilities as a result of the conversion. Since the trustee signed the original note and mortgage and the resultant entity after the conversion (the LLC) will sign the modification of the note and mortgage, there will be no change in obligor. September 19, 2008 Re: Technical Assistance Advisement No. 08B4-005 Dear: Documentary Stamp Tax Note and Mortgage Modification/Restructuring Alternatives Sections 201.02, 201.08, F.S. XXX ( Taxpayer/Current Beneficiary ) XXX ( Parent ) XXX ( Land Trust ) XXX ( Trustee ) This is in regard to your request for a Technical Assistance Advisement letter dated April 10, 2008, requesting a ruling as to the taxability for documentary stamp tax on certain restructuring activities involving an affirmation of a note and mortgage. Facts Presented by the Petitioner As a result of a restructuring on XXX, the Taxpayer/Current Beneficiary and the Trustee became wholly owned by the Parent, and the Taxpayer/Current Beneficiary became the sole beneficiary of the Land Trust. The Trustee (a corporation) of the Land Trust owns real property in Florida (the Property ). The Trustee is also the borrower on a non-recourse loan (the Loan ), which is encumbered by a mortgage (the Mortgage ) on the Property. The principal amount of the Loan is equal to the current amount owed of XXX, and the appropriate documentary stamp tax and nonrecurring intangible tax have been paid on the Loan.
Page 2 Prior to the restructuring, there were two beneficiaries (the Prior Beneficiaries ) of the Land Trust. As a result of a conversion and merger under the restructuring, the Prior Beneficiaries became the Taxpayer/Current Beneficiary of the Land Trust. Although the Trustee is the borrower on the Loan secured by the Mortgage, because the Trustee and the Land Trust exist merely to hold legal title to the property, to accomplish specific
Page 3 business purposes in connection with former partners of the Prior Beneficiaries of the Land Trust and to effectuate federal income tax planning, the Prior Beneficiaries of the Land Trust were always treated as the true borrowers under the Loan. Specifically, under the Land Trust, the Prior Beneficiaries reserved the rights to direct the Trustee with respect to all title and operational matters of the Property; to manage and control the Property; and to receive proceeds of the rental, sale, mortgage, or other disposition of the Property. Additionally, the Trustee, on behalf of the Prior Beneficiaries, determined the amount of principal and interest payments due, and to the extent there were not sufficient income and proceeds available, the Trustee could demand from the Prior Beneficiaries their respective proportionate shares of unpaid expenses and obligations, including without limitation for principal, interest, taxes, and any other liens or assessments. The Land Trust further provides that the Trustee had no individual liability or obligation arising from its ownership, as Trustee, of the legal title to the Property or with respect to any indebtedness incurred by it in dealing with the Property. The only personal liability under the Loan was the indemnifications and guaranties of the Parent and its controlling shareholders (this remained the same after the restructuring and will remain the same after the proposed alternatives presented in this request). The reasons for the use of the Land Trust no longer exist, and the Parent plans to further simplify its organizational structure by dissolving the Land Trust pursuant to one of the two alternatives presented below. The documents titled Loan Reaffirmation and Modification Agreement for each of the proposed alternatives have been provided with the request. Requested Ruling A ruling is requested whether the planned dissolution of the Land Trust will incur documentary stamp tax under Alternative 1 and/or Alternative 2. 1. Alternative 1: Convey the Property from the Trust by Trustee s deed to the Taxpayer/Current Beneficiary of the Land Trust. After the conveyance, the Trust will be dissolved. As part of the dissolution, the terms of the Loan will not be modified, and the Taxpayer/Current Beneficiary will sign an affirmation with respect to the Loan. The Parent s controlling shareholders will execute affirmations of their respective guaranties. It is your position that no additional documentary stamp tax is due under Alternative 1, even though the Trustee is the borrower under the Loan secured by the Mortgage. The Prior Beneficiaries of the Land Trust were always treated as the true borrowers under the Loan, and because there is no specific definition of the term obligor under the statute, the signing of the loan affirmation by the Taxpayer/Current Beneficiary meets the parameters of an exempt renewal under s. 201.09(1), F.S. 2. Alternative 2: Merge the Taxpayer/Current Beneficiary into the Trustee (and convert the Trustee to an LLC), thereby merging the legal and beneficial title in the Property in the Trustee and terminating the Land Trust. The transfer by operation of law of the title in the Property will be reflected in a Trustee s deed (executed and given after the transfer by operation of law) or by the recording of the applicable merger documents. As part of the
Page 4 merger, the terms of the loan will not be modified, and the LLC will sign an affirmation with respect to the Loan. It is your position that no additional documentary stamp tax is due under Alternative 2, since the Trustee signed the original note on the Loan on behalf of the Trust, and the resulting entity after the conversion (the LLC) will sign the affirmation of the Loan and the amendment of the Mortgage, so there will be no change in obligor. Law and Discussion Section 201.08(1), F.S., imposes the documentary stamp tax at the rate of $.35 per $100 or fraction thereof based on the indebtedness or obligation evidenced by promissory notes and other written obligations to pay money which are made, executed, delivered, sold, transferred, or assigned in Florida, or secured by a Florida mortgage, including renewals. Per s. 201.08(5), F.S., a renewal includes modifications of an original document which change the terms of the indebtedness evidenced by the original document by adding one or more obligors, increasing the principal balance, or changing the interest rate, maturity date, or payment terms. Section 201.09(1), F.S., allows a promissory note evidencing a term obligation to be renewed for the unpaid principal balance without incurring additional tax, provided it is not executed by any person other than the original obligor, and the original promissory note is attached with the proper notation that tax was paid pursuant to s. 201.133, F.S. Rule 12B-4.053, F.A.C., titled Taxable Documents, states in part: (1) Signature Required: Tax is on "Promise to Pay" and each renewal thereof and to be a note or obligation" it must be signed by the maker or obligor to be taxable. (Lee v. Quincy State Bank, 127 Fla. 765, 173 So. 909 (1937)) The terms maker, obligor, or debtor are sometimes used synonymously within the statutes governing documentary stamp tax and the Uniform Commercial Code in connection with both secured and unsecured obligations. Using this rationale, the plain meaning of obligor means one who is obligated to pay back money borrowed. Department s Position Alternative #1 The proposed restructuring presented in Alternative #1, where the Taxpayer/Current Beneficiary would sign the Loan Reaffirmation and Modification Agreement (the Modification Agreement ) after the property has been transferred from the Trust would result in a change in obligor. The Modification Agreement constitutes a renewal under s. 201.08(5), F.S., The original obligor/borrower under the Loan and Mortgage was the Trust, who also held title to the Property. Under the proposed restructuring, the Trust will be dissolved after the property is conveyed to the Taxpayer/Current Beneficiary. The Taxpayer/Current Beneficiary would then sign the Modification Agreement as borrower. The Land Trust agreement does not govern who is liable under the Loan and Mortgage even though the Trustee acted on behalf of the Trust for the benefit of the Beneficiaries at the
Page 5 time the Trust became obligated under the Loan and Mortgage. Therefore, the Department does not accept the position that the Beneficiaries were the true obligors under the Loan and Mortgage. The dissolution of the Trust after the transfer of the property does not result in a merger of the Trustee into the Taxpayer/Current Beneficiary. Simply put, the original obligor/borrower will not be the same party as the obligor/borrower under Agreement #1. The modifications to the Mortgage are spelled out in the Modification Agreement on Page 4 (6)(a), and are modifications to the original Loan and Mortgage. Since the Modification Agreement will be signed by a party different from the party to the original Loan and Mortgage, it constitutes a taxable renewal with documentary stamp tax due on the entire outstanding principal balance of the Mortgage, since the provisions of s. 201.09, F.S., are not met. Department s Position - Alternative #2 Section 608.438(2), F.S., allows for a limited liability company to merge with or into one or more other business entities, which by definition includes a corporation formed or organized in this state. The title to all real estate and other property, or any interest therein, owned by the limited liability company and other business entity that is a party to the merger, is vested in the surviving entity without reversion or impairment. Section 608.4383(3), F.S., provides that when a merger becomes effective the "surviving entity shall thereafter be responsible and liable for all the liabilities and obligations of each limited liability company and other business entity that is a party to the merger, including liabilities arising out of the rights of dissenters with respect to such merger under applicable law." The obligations of an entity merging under s. 608.438, F.S., become by operation of law the obligations of the surviving entity. The conversion provisions are identical in that respect. The proposed merger of the Taxpayer/Beneficiary into the Trustee merges the legal and beneficial title in the Property which terminates the Land Trust pursuant to the Merger Doctrine. As a consequence, the Trustee ceases to exist in such a capacity, but remains a legal entity in its corporate form. In this form, the corporation will then convert to an LLC. The property of the corporation will transfer to the LLC as the surviving entity by operation of law, with the LLC becoming owner of the assets and liabilities as a result of the conversion. Therefore, no documentary stamp would be due under s. 201.08(1), F.S., on the Loan Reaffirmation and Modification Agreement proposed under Alternative #2 upon its signature by the LLC. As the surviving entity under the conversion, since the LLC becomes the owner of the assets and liabilities in the converting entity, there is no resultant change of obligors. This presumes all of the other requirements of s. 201.09, F.S., are met. This response constitutes a Technical Assistance Advisement under s. 213.22, F.S., which is binding on the Department only under the facts and circumstances described in the request for this advice as specified in s. 213.22, F.S. Our response is predicated on those facts and the specific situation summarized above. You are advised that subsequent statutory or administrative rule changes or judicial interpretations of the statutes or rules upon which this advice is based may subject similar future transactions to a different treatment than expressed in this response.
Page 6 You are further advised that this response, your request and related backup documents are public records under Chapter 119, F.S., and are subject to disclosure to the public under the conditions of s. 213.22, F.S. Confidential information must be deleted before public disclosure. In an effort to protect confidentiality, we request you provide the undersigned with an edited copy of your request for Technical Assistance Advisement, the backup material and this response, deleting names, addresses and any other details which might lead to identification of the taxpayer. Your response should be received by the Department within 15 days of the date of this letter. If you have any further questions with regard to this matter and wish to discuss them, you may contact me directly at (850) 922-4844. Sincerely, Joy B. Eldred, CPA Tax Law Specialist Technical Assistance and Dispute Resolution JBE/mh Record ID: 44370