FLORIDA INTANGIBLE TAX RULE PROMULGATION PROCESS

The intangible tax has been imposed since 1931, but its impact has been more profound in the past 10 years due primarily to the run-up in the stock market.

The most common intangibles are shares of stock in a corporation, bonds and shares in mutual funds. There are certain intangible assets that are exempt, such as cash, I.R.A. accounts or other qualified retirement accounts, certain bonds issued by the U.S. government or by Florida or a municipality of Florida and promissory notes that are secured by mortgages. The tax was at that time 2 mils or 2/10's of 1% of the fair market value of the total intangibles, less an exemption equal to roughly $40,000 worth of intangibles owned by a married couple.

Due to certain Constitutional restrictions on the ability of Florida to tax intangibles of non-residents, some taxpayers had been transferring their intangible assets to partnerships or short-term trusts which have their situs outside the State of Florida. Because Florida has no jurisdiction to tax those non-Florida entities, many individuals have been able to significantly reduce, if not eliminate, their annual intangible tax obligation, since the early 1990's.

This widespread use caused Florida to attempt to tighten the loop holes by developing additional intangible tax rules. Before the new rules were promulgated, an individual could set up a trust in another state which would last as short as one week, naming a friend or relative as trustee. The individual would transfer all of his or her intangible assets to this irrevocable trust near the end of the calendar year and after the beginning of the following year, the intangible assets would then be returned to the Grantor. The transfer to the trust was not a gift and there were no adverse income tax consequences to the creator of the trust, despite the assets being titled in the name of the trust on January 1st. These type trusts are generally known as "Flint Trusts." This arrangement was within the letter of the law and despite this author receiving favorable Technical Assistance Advisement rulings ("TAA rulings") for 91 of 91 Flint Trusts requesting TAA rulings, the tax planning technique was felt to be abusive by the Florida Department of Revenue ("FLDOR").

As the use of this planning technique proliferated, the FLDOR was inundated with requests for TAA rulings asking whether this trust or that partnership would be exempt from the tax. The individuals assigned the task of reviewing these trusts were so backlogged, the FLDOR ceased issuing TAA rulings in the middle of December of 1996 and announced it would promulgate rules to do away with the need for individualized TAA rulings in specific cases and create "safe harbors." These safe harbors were to set forth allowable provisions and actions of those individuals in charge of the entity which if met would allow the entity to be deemed exempt.

On August 23, 1997, the FLDOR began the series of hearings on the new rules. All the hearings were held in Tallahassee and the FLDOR listened to certain professionals who felt their attendance was necessary. Following each of the five hearings, which were held August 23, 1997, October 14, 1997, October 30, 1997, December 1, 1997 and February 26, 1998, there was a comment period where interested practitioners could provide written comments on the content of the hearings and the various drafts of the rules. After the final hearing, the FLDOR issued the new rules which had an effective date of June 2, 1998.

While the Florida Department of Revenue had a vested interest in protecting the revenue of the State, they also finally recognized their limitations and that the new rules they were creating could not modify the existing Florida Statutes and Constitution.

In all but the final draft of the rules, as they relate to trusts, the FLDOR exceeded their authority by drafting new rules which were not supported by the exiting statutes or the over 100 TAA rulings the FLDOR had issued and would have meant, if not changed, that Flint type trusts would not meet the "safe harbors." Finally, after reviewing the written and oral comments on the various drafts of the new rules, submitted by only a handful of attorneys and CPAs, including those of this author, the FLDOR, in it's fourth and final revision, modified the rules to allow for safe harbors that tracked the statutes close enough that challenging the new rules was not the necessity it was previously. These new rules outlined the types of provisions which were allowable within trusts and basically mirrored the provisions of the then existing short term trusts, with only minor modifications.

The new safe harbor rules still allow a trust to function as a temporary holding vehicle, but the rules have become far more complicated and imply that a trust must exist for a minimum length of time to be valid. If the trust lasts for less than a reasonable period of time, it may be deemed to be an illusory trust and its existence will be ignored. The important question really becomes how long a period of time does the creator need to give up control of the assets to not make the trust illusory.

There were a number of other changes made to the rules governing trusts that relate to how much power the creator of a trust can retain. There can no longer be any Florida trustees. (However, this provision has now been changed by statute to allow a Florida trustee, if other than the Grantor.) The Grantor cannot have unrestricted access to the principal of the trust, i.e. the power to revoke the trust. On the other hand a provision which the short term trusts have become known for, a requirement in the trust that the then existing assets of the trust be distributed back to the creator after a reasonable period of time, does not create a taxability problem.

One of the other areas of concern for the FLDOR and for the lawyers who advise their clients on regular business matters was the formation of partnerships outside the State of Florida and whether they would be negatively impacted by the new promulgated rules. When an individual holds an interest in a partnership located outside the State of Florida, regardless of the fact that the partnership may hold a considerable amount of securities, the partnership interest is not considered an intangible for purposes of Florida intangible tax.

A number of individuals were creating out of state partnerships but were retaining the management and control of the partnerships within the State of Florida. These abusive situations were also dealt with in the new regulations and now there are far more comprehensive tests to determine where the actual control of the partnership lies.

While the new regulations caused a number of months of uncertainty for those taxpayers with significant intangible assets who were utilizing the various avoidance techniques, the end result was favorable to the intangible tax avoidance environment. It is now less involved for a Florida taxpayer to create a non-Florida entity to legally reduce their intangible tax obligation without any negative tax consequences. The new rules are not clear or perfectly drafted and unless the practitioner has listened to the tapes of the hearings, reviewed the various drafts of the rules and the written comments to the rules they may be mislead by the rules.

For more information please write us at: info@flinttrust.com
Flint is a registered trademark of Charles M. Kelly, Jr., P.A.