Did beneficiaries or trustees owe Florida's historical intangible tax when appointment powers were limited and every trustee was outside Florida?

Subject

Property Subject to Tax - Beneficial Interest - Taxable Situs - Trustee

Plain-English summary

Neither the beneficiaries nor trustees were liable for Florida intangible tax, and no trust returns were required. A beneficiary's appointment power was limited and could not benefit the beneficiary, the beneficiary's estate, or estate creditors. The beneficiary also lacked revocation and corpus-invasion powers.

No trustee had Florida taxable situs. The individual trustee could not be a Florida resident, the corporate trustee could not be qualified or doing business in Florida, and the trust required removal if either became taxable in Florida.

What this means for you

The historical result required both sides of the analysis: no taxable beneficial interest and no Florida trustee situs.

Common questions

Was any power of appointment enough to create tax? No. The ruling distinguished the trust's limited power from an unlimited appointment power.

Could a beneficiary invade corpus or revoke the trust? No.

Why did the trustees have no filing duty? Neither trustee was resident, commercially domiciled, qualified, or doing business in Florida as described.

Citations and references

• Fla. Stat. §§ 199.023(7), 199.052(5), 199.175, and 213.22
• Fla. Admin. Code r. 12C-2.002(1)(c)

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 94C2-003

Original ruling text

Feb 11, 1994

Re: Technical Assistance Advisement 94(C)2-003
Intangible Tax; Trust
The following named trusts are collectively hereafter
referred to as the "Trust."
XXX

Dear :

This office has received your request for a Technical
Assistance Advisement for each of the trusts listed above. An
examination of each trust document has shown each trust contains
similar provisions governing the duties of the trustees and the
rights of the beneficiaries. Therefore, this response will
apply to each of the trusts individually and collectively.

Discussion of Trust Provisions

Under the provisions of the Trust the beneficiary is
granted a limited power of appoint over the assets of the trust.
This limitation states that the beneficiary/grantor may not
appoint to or for the benefit of the grantor, or the grantor's
estate, or the creditors of the grantor's estate, any asset or
income of the trust. The Trust further provides that the
individual trustee may not be a resident of Florida and that the
corporate trustee may not be qualified to do or be doing
business in Florida. If either of the trustees becomes taxable
in Florida the Trust requires that the trustee be removed.

Provisions of Law

Section 199.023(7), F.S., and Rule 12C-2.002(1)(c), F.A.C.,
state that a taxable beneficial interest in trust is the current
right to income coupled with either a right to revoke the trust,
or the right to invade the corpus of the trust or an unlimited
power of appointment of future beneficiaries.

Section 199.052(5), F.S., places primary responsibility for

payment of the intangible tax on the Florida trustee. To have a
taxable situs in Florida the provisions of s. 199.175, F.S.,
must be met. The trustee must be a Florida resident or legally
commercially domiciled in Florida to have a taxable situs in
Florida.

Discussion of Law

Based upon the provisions of the Trust the beneficiary has
a limited power of appointment over the assets of the Trust,
does not have a power to invade the corpus of the Trust, nor the
power to revoke the Trust. Therefore, the beneficiary of the
Trust does not have a taxable beneficial interest in the Trust.

The individual trustee may not be a resident of Florida and
the corporate trustee may not be doing or be qualified to do
business in Florida. Therefore, no trustee has a taxable situs
in Florida.

In summary neither the beneficiary nor the trustee is
liable for the intangible tax in Florida and no returns are
required to be filed for the Trust.

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 and your request
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 by the Department
before disclosure. In an effort to protect the confidentiality
of such information, we request you notify the undersigned in

writing within 15 days of any deletions you wish made to the
request or the response.

Sincerely,

J.V. Parramore, Jr.
Tax Law Specialist
Technical Assistance

JVP/mh