Under Florida's 1996 intangible tax, did an irrevocable trust create liability for its out-of-state trustee, grantor, or Florida custodians?

Plain-English summary

Florida found no 1996 intangible-tax liability for the out-of-state trustee, the grantor, or the nondiscretionary Florida service providers.

The irrevocable trust designated an out-of-state trustee who could make discretionary distributions of income or principal for the grantor's benefit. The grantor and trustee held only limited powers of appointment. The trust could employ Florida investment counsel, custodians, and brokers, but those providers could not have discretionary control or management over the trust property.

The Department said the trustee's out-of-state domicile prevented Florida trust situs on the stated facts. The grantor lacked the rights required for a taxable beneficial interest, and the Florida providers' nondiscretionary roles did not amount to management or control.

What this means for you

• The ruling tied trust situs to trustee domicile.
• Discretionary distributions did not give the grantor the cited taxable combination of rights.
• Florida custodial or investment activity did not create liability without discretionary authority.

Common questions

Q: Was the trustee liable for Florida intangible tax?
A: No.

Q: Was the grantor liable?
A: No, because the ruling found no taxable beneficial interest.

Q: Were Florida custodians or brokers liable?
A: No, because they had no discretionary management or control.

Citations and references

• Fla. Stat. § 199.032 — annual intangible tax
• Fla. Stat. § 199.023(7) — taxable beneficial interest
• Fla. Stat. § 199.052(1), (5) — management, control, and trust situs
• Fla. Stat. § 199.175 — taxable situs
• Fla. Admin. Code r. 12A-2.002(1)(c) — beneficial-interest definition
• Fla. Admin. Code r. 12C-2.006(3) — trust situs
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 96C2-034

Original ruling text

Apr 01, 1996

Re: Technical Assistance Advisement No. 96(C)2-034
Florida Intangible Tax - Trust
XXX Grantor
XXX (the "Trustees")
XXX Trust

Dear :

Your letter requesting a Technical Assistance Advisement
has been referred to this office for response. The specific
scenario for which advice has been requested is summarized
below.

Statement of Fact

On XXX, the Grantor established an irrevocable trust
designating an out-of-state resident as Trustee. The Trustee
will pay or apply for the benefit of the Grantor, part or all of
the Trust income or principal which the Trustee considers
advisable. The Grantor and Trustee possess limited powers of
appointment. The Trust may never have a Trustee with Florida
domicile, although the Trustee of the Trust may employ
investment counsel, custodians and brokers in Florida and grant
such persons any type of authority over the account. However,
the counsel, custodians, and brokers may not have a
discretionary control or management over any intangible personal
property in its custody.

Requested Advisement

You request that we affirm the following:

1. Based on the fact that as of January 1, the out-ofstate Trustee has responsibility for management and
   control of the Trust, the Trustee will not be liable
   for intangible tax.
2. Since the Grantor will not possess a taxable

beneficial interest in the Trust on January 1, the
Grantor will also not be liable for the tax.

3. Since the investment counsel, custodian, or brokers
   will not possess discretionary authority to manage or
   control the property on January 1 of each year, it
   will not be required to return the property or pay
   tax.

Provision of the Law

Section 199.032, F.S., imposes an annual tax of 2 mills on
all intangible property that is owned, managed or controlled by
a person domiciled or having a taxable situs in Florida. (See
ss. 199.052 and 199.175, F.S.)

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

Section 199.052(1), F.S., also provides that management or
control does not include any ministerial function or processing
activity. A trust will have a taxable situs in Florida if the
Trustee is domiciled in this State. (See s. 199.052(5), F.S.,
and Rule 12C-2.006(3), F.A.C.)

Conclusion

Based on the provisions of the statutes and the provisions
of the Trust, neither the Trustee, Grantor nor custodian are
liable for the Florida Intangible Personal Property 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 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,

Celestine Grantham
Senior Tax Specialist
Tax Policy and Dispute Resolution
Office of General Counsel

CG/mh