Florida Senate - 2011 SENATOR AMENDMENT
Bill No. CS for SB 1384
Barcode 191582
LEGISLATIVE ACTION
Senate . House
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Senator Altman moved the following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 61 - 214
4 and insert:
5 (c) “Insider” means:
6 1. Any person included within the meaning of insider as
7 used in s. 726.102(7); or
8 2. A manager of, a managing member of, or a person who
9 controls a transferor that is a limited liability company, or a
10 relative as defined in s. 726.102(11) of any such persons.
11 (d)(a) “Involuntary transfer” means a transfer of a
12 business, assets of a business, or stock of goods of a business
13 made without the consent of the transferor, including, but not
14 limited to, a transfer:
15 1. That occurs due to the foreclosure of a security
16 interest issued to a person who is not an insider as defined in
17 s. 726.102;
18 2. That results from an eminent domain or condemnation
19 action;
20 3. Pursuant to chapter 61, chapter 702, or the United
21 States Bankruptcy Code;
22 4. To a financial institution, as defined in s. 655.005, if
23 the transfer is made to satisfy the transferor’s debt to the
24 financial institution; or
25 5. To a third party to the extent that the proceeds are
26 used to satisfy the transferor’s indebtedness to a financial
27 institution as defined in s. 655.005. If the third party
28 receives assets worth more than the indebtedness, the transfer
29 of the excess may not be deemed an involuntary transfer.
30 (e) “Stock of goods” means the inventory of a business held
31 for sale to customers in the ordinary course of business.
32 (f) “Tax” means any tax, interest, penalty, surcharge, or
33 fee administered by the department pursuant to chapter 443 or
34 any of the chapters specified in s. 213.05, excluding chapter
35 220, the corporate income tax code.
36 (g)(b) “Transfer” means every mode, direct or indirect,
37 with or without consideration, of disposing of or parting with a
38 business, assets of the business, or stock of goods of the
39 business, and includes, but is not limited to, assigning,
40 conveying, demising, gifting, granting, or selling, other than
41 to customers in the ordinary course of business, to a transferee
42 or to a group of transferees who are acting in concert. A
43 business is considered transferred when there is a transfer of
44 more than 50 percent of:
45 1. The business;
46 2. The assets of the business; or
47 3. The stock of goods of the business.
48 (2) A taxpayer engaged in a business who is liable for any
49 tax arising from the operation of that business, interest,
50 penalty, surcharge, or fee administered by the department
51 pursuant to chapter 443 or described in s. 72.011(1), excluding
52 corporate income tax, and who quits the a business without the
53 benefit of a purchaser, successor, or assignee, or without
54 transferring the business, assets of the business, or stock of
55 goods of a business to a transferee, must file a final return
56 for the business and make full payment of all taxes arising from
57 the operation of that business within 15 days after quitting the
58 business. A taxpayer who fails to file a final return and make
59 payment may not engage in any business in this state until the
60 final return has been filed and all taxes, interest, or
61 penalties due have been paid. The Department of Legal Affairs
62 may seek an injunction at the request of the department to
63 prevent further business activity of a taxpayer who fails to
64 file a final return and make payment of the taxes associated
65 with the operation of the business until such taxes tax,
66 interest, or penalties are paid. A temporary injunction
67 enjoining further business activity shall may be granted by a
68 circuit court if the department has provided at least 20 days’
69 prior written notice to the taxpayer without notice.
70 (3) A taxpayer who is liable for taxes with respect to a
71 business, interest, or penalties levied under chapter 443 or any
72 of the chapters specified in s. 213.05, excluding corporate
73 income tax, who transfers the taxpayer’s business, assets of the
74 business, or stock of goods of the business, must file a final
75 return and make full payment within 15 days after the date of
76 transfer.
77 (4)(a) A transferee, or a group of transferees acting in
78 concert, of more than 50 percent of a business, assets of a
79 business, or stock of goods of a business is liable for any
80 unpaid tax, interest, or penalties owed by the transferor
81 arising from the operation of that business unless:
82 1.a. The transferor provides a receipt or certificate of
83 compliance from the department to the transferee showing that
84 the transferor has not received a notice of audit and the
85 transferor has filed all required tax returns and has paid all
86 tax arising is not liable for taxes, interest, or penalties from
87 the operation of the business identified on the returns filed;
88 and
89 b. There were no insiders in common between the transferor
90 and the transferee at the time of the transfer; or
91 2. The department finds that the transferor is not liable
92 for taxes, interest, or penalties after an audit of the
93 transferor’s books and records. The audit may be requested by
94 the transferee or the transferor and, if not done pursuant to
95 the certified audit program under s. 213.285, must be completed
96 by the department within 90 days after the records are made
97 available to the department. The department may charge a fee for
98 the cost of the audit if it has not issued a notice of intent to
99 audit by the time the request for the audit is received.
100 (b) A transferee may withhold a portion of the
101 consideration for a business, assets of the business, or stock
102 of goods of the business to pay the tax taxes, interest, or
103 penalties owed to the state by the transferor taxpayer arising
104 from the operation of the business. The transferee shall pay the
105 withheld consideration to the state within 30 days after the
106 date of the transfer. If the consideration withheld is less than
107 the transferor’s liability, the transferor remains liable for
108 the deficiency.
109 (c) A transferee who acquires the business or stock of
110 goods and fails to pay the taxes, interest, or penalties due may
111 not engage in any business in the state until the taxes,
112 interest, or penalties are paid. The Department of Legal Affairs
113 may seek an injunction at the request of the department to
114 prevent further business activity of a transferee who is liable
115 for unpaid tax of a transferor and who fails to pay or cause to
116 be paid the transferee’s maximum liability for such tax due
117 until such maximum liability for the tax is, interest, or
118 penalties are paid. A temporary injunction enjoining further
119 business activity shall may be granted by a circuit court if:
120 without notice.
121 1. The assessment against the transferee is final and
122 either:
123 a. The time for filing a contest under s. 72.011 has
124 expired; or
125 b. Any contest filed pursuant to s. 72.011 resulted in a
126 final and nonappealable judgment sustaining any part of the
127 assessment; and
128 2. The department has provided at least 20 days’ prior
129 written notice to the transferee of its intention to seek an
130 injunction.
131 (5) The transferee, or transferees acting in concert, of
132 more than 50 percent of a business, assets of the business, or
133 stock of goods of a business who are liable for any tax pursuant
134 to this section shall be are jointly and severally liable with
135 the transferor for the payment of the tax taxes, interest, or
136 penalties owed to the state from the operation of the business
137 by the transferor up to the transferee’s or transferees’ maximum
138 liability for such tax due.
139 (6) The maximum liability of a transferee pursuant to this
140 section is equal to the fair market value of the business,
141 assets of the business, or stock of goods of the business
142 property transferred to the transferee or the total purchase
143 price paid by the transferee for the business, assets of the
144 business, or stock of goods of the business, whichever is
145 greater.
146 (a) The fair market value must be determined net of any
147 liens or liabilities, with the exception of liens or liabilities
148 owed to insiders.
149 (b) The total purchase price must be determined net of
150 liens and liabilities against the assets, with the exception of:
151 1. Liens or liabilities owed to insiders.
152 2. Liens or liabilities assumed by the transferee that are
153 not liens or liabilities owed to insiders.
154 (7) After notice by the department of transferee liability
155 under this section, the transferee has 60 days within which to
156 file an action as provided in chapter 72.
157 (8) This section does not impose liability on a transferee
158 of a business, assets of a business, or stock of goods of a
159 business when:
160 (a) The transfer is pursuant to an involuntary transfer; or
161 (b) The transferee is not an insider and the asset
162 transferred consists solely of a one- to four-family residential
163 real property and furnishings and fixtures therein; real
164 property that has not been improved with any building; or owner
165 occupied commercial real property; and in each case is not
166 accompanied by a transfer of other assets of the business.
167
168 ================= T I T L E A M E N D M E N T ================
169 And the title is amended as follows:
170 Delete line 28
171 and insert:
172 of transferees; exempting certain transfers of real
173 property from provisions imposing liability on a
174 transferee for tax liabilities of a transferor;
175 amending s. 213.053, F.S.; authorizing