Is a deed from a corporation to its revocable chapter 736 trust exempt from Florida documentary stamp tax?

Plain-English summary

This ruling was withdrawn effective December 17, 2021. The Department expressly says taxpayers should not rely on it.

The historical 2018 ruling concluded that a deed transferring mortgaged Florida property from a corporation to a revocable trust was not exempt from documentary stamp tax, even though the corporation was the trust's sole income and principal beneficiary.

The Department reasoned that the trust was created under chapter 736, not the Florida Land Trust Act in section 689.071. It therefore concluded that the trust-conveyance exemptions in Rule 12B-4.013(28), which were based on section 201.02(4), did not apply.

Because the Department later withdrew the TAA without replacing its text here with a new operative conclusion, this page does not state the current tax treatment.

What this means for you

Property owners and trustees

Do not use the historical conclusion to structure a current transfer. Obtain current advice before recording a deed to a trust.

Closing professionals

The source itself contains the withdrawal notice. Current documentary-stamp treatment must be verified independently for the trust type, mortgage, beneficial ownership, and consideration.

Accountants and tax professionals

The original distinction between chapter 736 trusts and section 689.071 land trusts is historically useful, but the Department's withdrawal eliminates this TAA as reliance guidance.

Common questions

Q: What did the original TAA conclude?
A: It said the deed was not exempt because the chapter 736 trust was not a section 689.071 land trust.

Q: Can taxpayers rely on that conclusion now?
A: No. The Department withdrew the TAA effective December 17, 2021.

Q: Why was the original exemption denied?
A: The Department concluded that the cited trust-conveyance rule applied only to trusts created under chapter 689, not the chapter 736 trust described.

Q: What is the current answer?
A: This withdrawn source does not provide one. Current law and Department guidance must be checked for the specific transfer.

Citations and references

• Fla. Stat. §§ 201.02(1)(a), 201.02(4), 689.071, 736.0102(3), 120.536(1), and 213.22
• Fla. Admin. Code r. 12B-4.013(28)

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 18B4-003

Original ruling text

Effective December 17, 2021, the Department withdraws TAA 18B4-003.
Taxpayers are advised not to rely on this TAA for guidance.
QUESTION: IS A DEED THAT TRANSFERS FLORIDA REAL PROPERTY FROM A
CORPORATION TO A TRUST FORMED UNDER CHAPTER 736, F.S., WHERE THE
CORPORATION IS THE SOLE BENEFICIARY OF THE TRUST, SUBJECT TO
DOCUMENTARY STAMP TAX.
ANSWER: SINCE THE SUBJECT TRUST IS NOT CREATED UNDER S. 689.071, F.S.,
THEN S. 201.02(4), F.S., DOES NOT APPLY. THEREFORE, THE DEED IN QUESTION IS
NOT EXEMPT FROM TAX.
December 7, 2018

XXXX
XXXX
XXXX
Re: Technical Assistance Advisement No. 18B4-003
Documentary Stamp Tax
Chapter 201, Florida Statutes (F.S.)
Dear XXX:
This is in response to your request dated September 20, 2018, for a Technical Assistance
Advisement (TAA) pursuant to s. 213.22, F.S., and Rule Chapter 12-11, Florida Administrative
Code (F.A.C.), concerning the imposition of documentary stamp tax on a deed that transfers
encumbered Florida real property to a trust created under Chapter 736, F.S. An examination of
your letter has established that you have complied with the statutory and regulatory
requirements for issuance of a TAA. Therefore, the Department is hereby granting your request
for a TAA.
FACTS AS PRESENTED BY PRACTITIONER
XXXX (“Taxpayer”), owns Florida real property (the “Property”) that is encumbered by a
mortgage.

XXXX XXXX
December 7, 2018
Florida Department of Revenue
Page 2

Taxpayer has formed a trust (the “Trust”) pursuant to Chapter 736, F.S., and Taxpayer is the
sole income and principal beneficiary of the Trust. Furthermore, the Trust is revocable by the
Taxpayer.
Taxpayer intends to execute a deed (the “Deed”) that transfers the Property to the Trust for
various business reasons.
REQUESTED RULING
You state that based on numerous conversations with Department representatives, and your
interpretation of Rules 12B-4.013(28)(a), and 12B-4.013(28)(i), F.A.C., that the Deed would not
be subject to the documentary stamp tax imposed by s. 201.02(1)(a), F.S.
You request the Department’s determination as to the applicability of documentary stamp tax
on the Deed that transfers the encumbered Property to the Trust.
LAW AND DISCUSSION
Section 201.02(1)(a), F.S., imposes documentary stamp tax on deeds, instruments, or writings
whereby any lands, tenements, or other real property, or any interest therein, shall be granted,
assigned, transferred, or otherwise transferred to, or vested in, the purchaser or any other
person by his or her direction. In all counties (except Miami-Dade), the rate of tax is $0.70 per
$100.00 of consideration or portion thereof, for the property interest transferred. For purposes
of this section, consideration includes, but is not limited to, the money paid or agreed to be
paid; the discharge of an obligation; and the amount of any mortgage, purchase money
mortgage lien, or other encumbrance, whether or not the underlying indebtedness is assumed.
Section 201.02(4), F.S., provides that the tax imposed by subsection (1) shall also be payable
upon documents which convey or transfer, pursuant to s. 689.071, F.S., any beneficial interest
in lands, tenements, or other real property, or any interest therein, even though such interest
may be designated as personal property, notwithstanding the provisions of s. 689.071(6), F.S.
The tax shall be paid upon execution of any such document.
Section 689.071(2)(c), F.S., provides:
“‘Land Trust’ means any express written agreement or arrangement by which a use,
confidence, or trust is declared of any land, or of any charge upon land, under which the
title to real property, including, but not limited to, a leasehold or mortgagee interest, is
vested in a trustee by a recorded instrument that confers on the trustee the power and
authority prescribed in s. 689.073(1), F.S., and under which the trustee has no duties
other than the following:

XXXX XXXX
December 7, 2018
Florida Department of Revenue
Page 3

1. The duty to convey, sell, lease, mortgage, or deal with the trust property, or
   to exercise such other powers concerning the trust property as may be provided
   in the recorded instrument, in each case as directed by the beneficiaries or by
   the holder of the power of direction;
2. The duty to sell or dispose of the trust property at the termination of the
   trust;
3. The duty to perform ministerial and administrative functions delegated to
   the trustee in the trust agreement or by the beneficiaries or the holder of the
   power of direction; or
4. The duties required of a trustee under Chapter 721, F.S., if the trust is a
   timeshare estate trust complying with s. 721.08(2)(c)4., F.S., or a vacation club
   trust complying with s. 721.53(1)(e), F.S.”
   Section 736.0102(3), F.S., provides:
   “This code does not apply to any land trust under s. 689.071, F.S. (emphasis added),
   except to the extent provided in ss. 689.071(7), 721.08(2)(c)4., or 721.53(1)(e), F.S. A
   trust governed at its creation by this chapter is not a land trust (emphasis added)
   regardless of any amendment or modification of the trust, any change in the assets held
   in the trust, or any continuing trust resulting from the distribution or retention in further
   trust of assets from the trust.”
   Rule 12B-4.013(28), F.A.C., provides:
   “Trusts Pursuant to Chapter 689, F.S. (emphasis added): 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.”
   Rule 12B-4.013(28)(a), F.A.C., provides that 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.
   Rule 12B-4.013(28)(i), F.A.C., provides that 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.

XXXX XXXX
December 7, 2018
Florida Department of Revenue
Page 4

Section 120.536(1), F.S., provides in part that an agency may adopt only rules that implement
or interpret the specific powers and duties granted by the enabling statute.
DEPARTMENT’S POSITION
Florida’s documentary stamp tax is an excise tax payable on documents that transfer an
interest in Florida real property. The tax is based on the consideration exchanged for the
property transferred, and consideration includes any mortgages encumbering the property
when it is transferred.
Section 201.02(4), F.S., imposes tax on a document that transfers any beneficial interest in
Florida real property to a trust created under s. 689.071, F.S. If there is no transfer of beneficial
interest, then no tax would be due, regardless of any encumbrances on the property. Chapter
201, F.S., does not speak to trusts formed under Chapter 736.
Rules 12B-4.013(28), 12B-4.013(28)(a), and 12B-4.013(28)(i), F.A.C., were promulgated based
on s. 201.02(4), F.S. Pursuant to s. 120.536(1), F.S., these rules do not exist without the statute.
Since the Trust is created under Chapter 736, the tax exemptions provided for under Rule 12B4.013(28), F.A.C., do not apply, and the Deed transferring the Property to the Trust would not
be exempt from documentary stamp tax.
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.
You are further advised that this response, your request, and related documents are public
records under Chapter 119, F.S., which are subject to disclosure to the public under the
conditions of s. 213.22, F.S. Your name, address, and any other details, which might lead to
identification of the taxpayer, must be deleted before disclosure.
In an effort to protect the confidentiality of such information, we request you provide the
undersigned with an edited copy of your request for Technical Assistance Advisement, backup
material, and response within fifteen days of the date of this advisement.
Sincerely,

XXXX XXXX
December 7, 2018
Florida Department of Revenue
Page 5

Roger L. Beasley
Tax Law Specialist
Technical Assistance and Dispute Resolution
(850) 717-6488
Record ID: 118624