[RPPTL LandTen] Real Doozy Transient/Nontransient issue

[Greg Hass]

Harry, I’m a bit confused by the case summary and what the ultimate holding was.

For what it’s worth, here’s what the Florida Department of Revenue has to say on their website as to sales tax exemptions for leases.  If there’s case law providing an additional exemption as your client apparently wants to believe, than it would appear that for some reason the DOR has not acquiesced to it in their public policy statements.

http://dor.myflorida.com/dor/forms/2009/gt800034.pdf


What is Exempt?

Certain leases and rentals are exempt from sales tax. The owner or owner’s representative must keep documentation to support the exempt transaction. These transactions are exempt:

• Rental charges or room rates paid by a person who has a signed, bona fide written lease for a continuous residence longer than six months. If there is no written lease, and a person has continuously resided at any one location for a period longer than six months and has paid the tax on the rental charges or room rates due at that location for the first six months, additional charges for continuous residence at that location are tax-exempt.

• Rental charges or room rates paid by a full-time student enrolled in an institution offering postsecondary education. A written statement from an official of the student’s institution, documenting that the student attends the institution full time, is proof of the student’s full-time enrollment.

• Rental charges or room rates paid by military personnel who are on active duty and are present in the community under official orders. The military personnel must provide a copy of:

• The official orders supporting the active duty status of the military personnel and making it necessary to occupy the accommodation.


• Rental of accommodations in a migrant labor camp.


Greg Hass, Senior Counsel

Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org

The Voice for Real Estate® in Florida

[cid:image001.jpg at 01C8B0EE.0B556530]

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Monday, December 12, 2011 3:02 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Real Doozy Transient/Nontransient issue

Apartment community rents primarily with 1 year leases decides to do some short term rentals 6 months or less.

Do they have to pay sales/tourist tax?

We had a question come in where the party, apartment community,  that has primarily long term rentals and always will, feels that this case cited below means they do not.

If this is true, then sale tax in a situation like this would need to depend upon the "intention of the parties" .  Now there is some case law that states that for the purposes of evictions, a person can’t rent out motel rooms to transients and then just kick them out using 509 but this is a little different.

Here we are talking sales/tourist tax, not eviction.

Here are 2 examples which would be true if the interpretation below is correct.

Example #1: On vacation for 5 months, have house in NJ, rent apartment I an apartment community for 5 month vacation -- No sales tax

Example #2: Sold house and moved from NJ, looking to buy a house, rent an apartment in Florida for 5 months - Sales/Tourist tax due

H

See below:

This court reversed and remanded, Hale v. Department of Revenue, 808 So.2d 237 (Fla. 1st DCA 2002), holding that section 212.03(7)(a) provided a separate exemption from tax where the apartments constitute the “permanent or principal place of residence” of the tenants and that it was not necessary to have leases in excess of six months as required by section 212.03(4) to be entitled to the exemption provided by section 212.03(7)(a)."

The court relied in the following:212.03 (7) (a)Full-time students enrolled in an institution offering postsecondary education and military personnel currently on active duty who reside in the facilities described in subsection (1) shall be exempt from the tax imposed by this section. The department shall be empowered to determine what shall be deemed acceptable proof of full-time enrollment. The exemption contained in this subsection shall apply irrespective of any other provisions of this section. The tax levied by this section shall not apply to or be imposed upon or collected on the basis of rentals to any person who resides in any building or group of buildings intended primarily for lease or rent to persons as their permanent or principal place of residence.

LAW OFFICES OF
HEIST, WEISSE, DAVIS & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com<http://www.evict.com/>
Email: harry at evict.com<mailto:harry at evict.com>
THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.





-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/mailman/private/landten/attachments/20111213/ebc5a26e/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 3508 bytes
Desc: image001.jpg
URL: <http://mailman.fsr.com/mailman/private/landten/attachments/20111213/ebc5a26e/attachment-0001.jpg>