1 SUMMARY QUESTION: Does the Receivables Loan evidenced by the Receivable Agreement and Receivable Note constitute a Wholesale Warehouse Mortgage Agreement that is exempt from documentary stamp tax? Additionally, will the collateral assignment of the Notes and Mortgages pursuant to the Agreement and Loan be exempt from intangible tax. ANSWER - Based on Facts Below: The Loan evidenced by the Receivables Agreement and Receivable Notes qualifies as a wholesale warehouse mortgage agreement and is exempt from tax. The assignment of the Notes and Mortgages does not create a new or additional mortgage and therefore is exempt from the nonrecurring intangible tax. ********************************************************** Apr 12, 2001 Re: Technical Assistance Advisement No. 01M-002 Documentary Stamp Tax and Intangible Tax Warehouse Mortgage Sections , , F.S.; Rule 12B-4.054(4), F.A.C. XXX (hereinafter Borrower) XXX (hereinafter Lender) 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. Facts as Presented by Petitioner On XXX, the Borrower entered into a loan transaction with the Lender, who also acted as an agent for one or more colenders. The Borrower is a developer of a timeshare vacation resort ("Resort"). The Borrower sells fee simple timeshare
2 intervals in the Resort to consumer purchasers. When consumer purchasers choose to finance the timeshare purchase, the Borrower accepts a purchase money note (the "Notes") secured by a purchase money mortgage (the "Mortgages") in favor of the Borrower. All required documentary stamp tax is paid based on the full principal amount of each note made by the consumer purchaser. The Borrower entered into a Receivables Loan and Security Agreement ("Receivables Agreement") with the Lender. The Receivables Agreement provides for advances from the Lender to Borrower from time to time evidenced by a Receivables Promissory Note(s) to various co-lenders, in the maximum aggregate principal amount of $XX. The Receivables Agreement and the Receivables Note and other documents executed by the Borrower in connection with the Receivables Loan were executed and delivered to the Lender outside the State of Florida. The Receivables Loan is not secured by any mortgage on Florida real property. The Lender has no offices in the State of Florida. The Receivables Loan is secured by the pledge and collateral assignment of the Notes and Mortgages by the Borrower to the Lender. Upon completion of each interval sale in which the Borrower receives a Note and Mortgage from the consumer purchaser, the Borrower records in the XXX County public records a collateral assignment of the Note and Mortgage to the Lender. Subject to other lending limitations under the agreement, the Borrower may borrow from the Lender advances of up to XXX of the principal amount outstanding under the eligible Notes securing the borrowed amounts. In the event the percentage is at any time exceeded, or in the event eligible Notes and Mortgages pledged to the Lender become ineligible, the Borrower is required to either pay down the excess outstanding loan balance or provide eligible replacement Notes and Mortgages. Request for Advisement A request for a ruling is being made that the Receivables Loan evidenced by the Receivables Agreement and the Receivables Note constitutes a Wholesale Warehouse Mortgage Agreement that
3 is exempt from Florida's documentary stamp tax under s , F.S. Secondly, you seek a ruling that the pledge and collateral assignment of the Notes and Mortgages pursuant to the Receivables Agreement and the Receivables Loan evidenced by the Receivables Agreement and Receivables Note are exempt from Florida's intangible tax imposed under s , F.S. Provisions of Law Section , F.S., for documentary stamp tax purposes, provides: There shall be exempt from all excise taxes imposed by this chapter all promissory notes, nonnegotiable notes, and other written obligations to pay money bearing date subsequent to July 1, 1955, hereinafter referred to as "principal obligations," when the maker thereof shall pledge or deposit with the payee or holder thereof pursuant to any agreement commonly known as a wholesale warehouse mortgage agreement, as collateral security for the payment thereof, any collateral obligation or obligations, as hereinafter defined, provided all excise taxes imposed by this chapter upon or in respect to such collateral obligation or obligations shall have been paid. If the indebtedness evidenced by any such principal obligation shall be in excess of the indebtedness evidenced by such collateral obligation or obligations, the exemption provided by this section shall not apply to the amount of such excess indebtedness; and, in such event, the excise taxes imposed by this chapter shall apply and be paid only in respect to such excess of indebtedness of such principal obligation. The term "collateral obligation" as used in this section means any note, bond, or other written obligation to pay money secured by mortgage, deed of trust, or other lien upon real or personal property. The pledging of a specific collateral obligation to secure a specific principal obligation, if required under the terms of the agreement, shall not invalidate the exemption provided by this section. The temporary removal of the document or
4 documents representing one or more collateral obligations for a reasonable commercial purpose, for the period not exceeding 60 days, shall not invalidate the exemption provided by this section. Rule 12B-4.054(3), F.A.C., also provides: All promissory notes, non-negotiable notes and other written obligations to pay money given pursuant to a wholesale warehouse mortgage agreement as provided under s , F.S., shall be exempt from tax. Section (1), F.S., which imposes the norecurring intangible tax, states: A one-time nonrecurring tax of 2 mills is hereby imposed on each dollar of the just valuation of all notes, bonds, and other obligations for payment of money which are secured by mortgage, deed of trust, or other lien upon real property situated in this state. This tax shall be assessed and collected as provided by this chapter. Position of the Department For purposes of s , F.S., collateral obligations are notes, bonds, or other written obligations to pay money which are secured by a mortgage. In this case, the consumer Notes are secured by a mortgage; thus, the Notes qualify as collateral obligations pursuant to s , F.S. The Notes are pledged to the Lender under the Receivables Agreement as security for the payment of the Borrower's payment obligations under the Receivables Agreement and the Receivables Note to the Lender. Per your correspondence, all documentary stamp taxes and intangible taxes have been paid with respect to all consumer Notes and Mortgages when each such Mortgage is presented for recording to the Clerk of the Circuit Court. Since the loan evidenced by the Receivables Agreement and the Receivables Note qualifies as a wholesale warehouse mortgage agreement under s , F.S., it is not subject to the Florida documentary stamp tax.
5 The Receivables Agreement and the transaction evidenced thereby do not create a new or additional mortgage on any real property. Instead, the primary collateral for the repayment of all amounts due to the Borrower pursuant to the Receivables Agreement and the Receivables Note are the Notes and Mortgages being assigned by the Borrower for the repayment of its obligation under the Receivables Note. Therefore, the Receivables Agreement, the Receivables Note, and the transactions contemplated therein are not subject to the nonrecurring intangible tax under s , F.S., because they are not secured by a lien on Florida real property. This response constitutes a Technical Assistance Advisement under s , 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 , 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 backup documents are public records under Chapter 119, F.S., and are subject to disclosure to the public under the conditions of s , 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. Sincerely, Celestine Grantham Senior Tax Specialist Technical Assistance and Dispute Resolution
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