Application of Documentary Stamp Tax
In Kuro, Inc. v. State Department of Revenue, 713 So. 2d 1021 (Fla. 2d DCA 1998) the Second District held that the documentary stamp tax did not apply to a transfer of property from two sole stockholders to their corporation. 713 So. 2d at 1022.
The Second District considered the Florida Department of Revenue (DOR) rules on transfers to corporations and the 1990 amendment to section 201.02(1), but held that the shareholders had rebutted the presumption that the stock issued to them was consideration valued as equal to the fair market value of the condominiums transferred. Id.
In Muben-Lamar, L.P. v. Department of Revenue, 763 So. 2d 1209 (Fla. 1st DCA 2000), the First District Court of Appeal held that the issuing of partnership interests for real property was consideration and thus a transaction subject to the documentary stamp tax.
In Muben-Lamar, however, the partnership was made up of three partners, only two of whom owned the property prior to transferring it to the partnership as a capital contribution. Id. at 1210.
The third partner, who owned one percent of the partnership, contributed a promissory note as a capital contribution. Id.
Thus, while the majority of the First District certified conflict with Kuro, Judge Lawrence specially concurred in result only, arguing that the decision in Muben-Lamar did not conflict with Kuro. Judge Lawrence distinguished the facts in Muben-Lamar from those in Kuro because of the "various and diverse interests" in the partnership, "each partner contributing property in which the other previously had no interest." Muben-Lamar, 763 So. 2d at 1210 (Lawrence, J., specially concurring).
The Court granted review in Muben-Lamar on the basis of its conflict with Kuro, but the Court subsequently dismissed review. Muben-Lamar, L.P. v. Fla. Dep't of Revenue, 789 So. 2d 337 (Fla. 2001).