[RPPTL LandTen] Sales/Tourist Tax
Here is a doozy.
A local DOR office is saying if the lease has the Early Termination Addendum
a/k/a Liquidated Damages Addendum (and that would be in the FAR/BAR lease
and the Blue Moon-Florida Apartment Lease used by hundreds if not thousands
of apartment communities in Florida and is provided for in law) the landlord
must pay sales/tourist tax as it is not a "bona fide lease".
Does anyone have a contact high up in the DOR? This could easily render a
million or more current leases in effect taxable as seasonals if they take
this position.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: http://www.evict.com/ www.evict.com
Email: mailto:harry@evict.com harry@evict.com
https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
Visit us on Facebook
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This is unbelievable. I will forward this to the Commercial Real Estate Committee for distribution on their listserv as well. Thanks Harry.
Brenda
Regards,
Brenda B. Ezell, B.C.S.
[cid:image002.png@01D56249.0ADEB5C0]
[cid:image003.jpg@01D56249.0ADEB5C0]
3560 Cardinal Point Drive, Suite 202
Jacksonville, FL 32257
904.432.3200 (o)
904-432-3201 (f)
www.ezellfirmpa.comhttp://www.ezellfirmpa.com/
CONFIDENTIALITY NOTICE: This e-mail and any files transmitted with it are confidential and may contain information which is legally privileged or otherwise exempt from disclosure. They are intended solely for the use of the individual or entity to whom this e-mail is addressed. If you are not one of the named recipients or otherwise have reason to believe that you have received this message in error, please immediately notify the sender and delete this message immediately from your computer. Any other use, retention, dissemination, forwarding, printing, or copying of this e-mail is strictly prohibited.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, September 3, 2019 10:56 AM
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org; landtenCL@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Sales/Tourist Tax
Here is a doozy.
A local DOR office is saying if the lease has the Early Termination Addendum a/k/a Liquidated Damages Addendum (and that would be in the FAR/BAR lease and the Blue Moon-Florida Apartment Lease used by hundreds if not thousands of apartment communities in Florida and is provided for in law) the landlord must pay sales/tourist tax as it is not a "bona fide lease".
Does anyone have a contact high up in the DOR? This could easily render a million or more current leases in effect taxable as seasonals if they take this position.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
[cid:image004.png@01D56249.0ADEB5C0]https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
Visit us on Facebook
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.
Likely just one agent's misinterpretation.
David Weisman
Partner
Board Certified Real Estate Lawyer
Greenspoon Marder LLP
200 E. Broward Blvd., Suite 1800
Fort Lauderdale, FL 33301
Phone 954-491-1120 Ext. 1015
Direct Phone 954-343-6941
David.Weisman@gmlaw.commailto:David.Weisman@gmlaw.com
www.GMlaw.comhttp://www.gmlaw.com/
[gm-horizontal-bw_nolaw2 (2)]
From: landtencl-bounces@lists.flabarrpptl.org landtencl-bounces@lists.flabarrpptl.org On Behalf Of Brenda Ezell
Sent: Tuesday, September 3, 2019 11:17 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org; RPPTL Landlord Tennant Committee landtencl@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTenCL] [RPPTL LandTen] Sales/Tourist Tax
This is unbelievable. I will forward this to the Commercial Real Estate Committee for distribution on their listserv as well. Thanks Harry.
Brenda
Regards,
Brenda B. Ezell, B.C.S.
[cid:image002.png@01D56249.5352AF00]
[cid:image003.jpg@01D56249.535917A0]
3560 Cardinal Point Drive, Suite 202
Jacksonville, FL 32257
904.432.3200 (o)
904-432-3201 (f)
www.ezellfirmpa.com [ezellfirmpa.com]https://urldefense.com/v3/__http:/www.ezellfirmpa.com/__;!vMT899AqH_k!3_L7UKplxQSqvxRislLuszZ0klv2HX_XccrZO7uWlnVf5VXNyXg3bmMZN6mq5jwF1WQ$
CONFIDENTIALITY NOTICE: This e-mail and any files transmitted with it are confidential and may contain information which is legally privileged or otherwise exempt from disclosure. They are intended solely for the use of the individual or entity to whom this e-mail is addressed. If you are not one of the named recipients or otherwise have reason to believe that you have received this message in error, please immediately notify the sender and delete this message immediately from your computer. Any other use, retention, dissemination, forwarding, printing, or copying of this e-mail is strictly prohibited.
From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, September 3, 2019 10:56 AM
To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>; landtenCL@lists.flabarrpptl.orgmailto:landtenCL@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Sales/Tourist Tax
Here is a doozy.
A local DOR office is saying if the lease has the Early Termination Addendum a/k/a Liquidated Damages Addendum (and that would be in the FAR/BAR lease and the Blue Moon-Florida Apartment Lease used by hundreds if not thousands of apartment communities in Florida and is provided for in law) the landlord must pay sales/tourist tax as it is not a "bona fide lease".
Does anyone have a contact high up in the DOR? This could easily render a million or more current leases in effect taxable as seasonals if they take this position.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com [evict.com]https://urldefense.com/v3/__http:/www.evict.com/__;!vMT899AqH_k!3_L7UKplxQSqvxRislLuszZ0klv2HX_XccrZO7uWlnVf5VXNyXg3bmMZN6mqbQavFyg$
Email: harry@evict.commailto:harry@evict.com
[cid:image006.png@01D56249.5352AF00][facebook.com]https://urldefense.com/v3/__https:/www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870__;!vMT899AqH_k!3_L7UKplxQSqvxRislLuszZ0klv2HX_XccrZO7uWlnVf5VXNyXg3bmMZN6mqG3lLhyM$
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GREENSPOON MARDER LLP LEGAL NOTICE
The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail.
Unless specifically indicated otherwise, any discussion of tax issues contained in this e-mail, including any attachments, is not, and is not intended to be, "written advice" as defined in Section 10.37 of Treasury Department Circular 230.
A portion of our practice involves the collection of debt and any information you provide will be used for that purpose if we are attempting to collect a debt from you.
If anyone wishes to get involved, their email in Lee County is
touristtax@leeclerk.org , attention Kathi.
I just spoke with "Kathi" at the local DOR office who stood firm on this. I
explained that hundreds if not thousands of apartment communities use the
Early Termination/Liquidated Damages Addendum as part of what is called the
Blue Moon/Florida Apartment Association Lease, AND, it is an addendum to the
FAR/BAR lease as provided for (and written by me and a couple other people)
way back when. Possibly around 2005.
We helped draft this law and push it through after the massive class actions
spawned by Yates v. Equity Residential in 2003.
If the powers that be are to take this position, it would impact hundreds if
not thousands of apartment communities and possibly tens or hundreds of
thousands of landlords using the FAR/BAR lease.
Let's hope this is a local agent's misinterpretation.
I must say that I always wondered about this as it is pretty clear that it
does conflict with the DOR definition of "bonafide lease" if it indeed can
be terminated. This termination comes with a penalty though if they pick
Option #1.
We really need a contact high up in the DOR.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: http://www.evict.com/ www.evict.com
Email: mailto:harry@evict.com harry@evict.com
https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
Visit us on Facebook
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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Tuesday, September 03, 2019 11:19 AM
To: RPPTL Landlord Tennant Committee; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Sales/Tourist Tax
Likely just one agent's misinterpretation.
David Weisman
Partner
Board Certified Real Estate Lawyer
Greenspoon Marder LLP
200 E. Broward Blvd., Suite 1800
Fort Lauderdale, FL 33301
Phone 954-491-1120 Ext. 1015
Direct Phone 954-343-6941
mailto:David.Weisman@gmlaw.com David.Weisman@gmlaw.com
http://www.gmlaw.com/ www.GMlaw.com
gm-horizontal-bw_nolaw2 (2)
From: landtencl-bounces@lists.flabarrpptl.org
landtencl-bounces@lists.flabarrpptl.org On Behalf Of Brenda Ezell
Sent: Tuesday, September 3, 2019 11:17 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org; RPPTL
Landlord Tennant Committee landtencl@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTenCL] [RPPTL LandTen] Sales/Tourist Tax
This is unbelievable. I will forward this to the Commercial Real Estate
Committee for distribution on their listserv as well. Thanks Harry.
Brenda
Regards,
Brenda B. Ezell, B.C.S.
3560 Cardinal Point Drive, Suite 202
Jacksonville, FL 32257
904.432.3200 (o)
904-432-3201 (f)
<https://urldefense.com/v3/http:/www.ezellfirmpa.com/;!vMT899AqH_k!3_L7U
KplxQSqvxRislLuszZ0klv2HX_XccrZO7uWlnVf5VXNyXg3bmMZN6mq5jwF1WQ$>
www.ezellfirmpa.com [ezellfirmpa.com]
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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, September 3, 2019 10:56 AM
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org;
landtenCL@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Sales/Tourist Tax
Here is a doozy.
A local DOR office is saying if the lease has the Early Termination Addendum
a/k/a Liquidated Damages Addendum (and that would be in the FAR/BAR lease
and the Blue Moon-Florida Apartment Lease used by hundreds if not thousands
of apartment communities in Florida and is provided for in law) the landlord
must pay sales/tourist tax as it is not a "bona fide lease".
Does anyone have a contact high up in the DOR? This could easily render a
million or more current leases in effect taxable as seasonals if they take
this position.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:
<https://urldefense.com/v3/http:/www.evict.com/;!vMT899AqH_k!3_L7UKplxQS
qvxRislLuszZ0klv2HX_XccrZO7uWlnVf5VXNyXg3bmMZN6mqbQavFyg$> www.evict.com
[evict.com]
Email: mailto:harry@evict.com harry@evict.com
<https://urldefense.com/v3/https:/www.facebook.com/pages/Heist-Weisse-Wolk
-PA/343965575625870;!vMT899AqH_k!3_L7UKplxQSqvxRislLuszZ0klv2HX_XccrZO7uWl
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Visit us on Facebook
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The information contained in this transmission may be attorney/client
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intended recipient, you are hereby notified that any dissemination,
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have received this communication in error, please notify us immediately by
reply e-mail.
Unless specifically indicated otherwise, any discussion of tax issues
contained in this e-mail, including any attachments, is not, and is not
intended to be, "written advice" as defined in Section 10.37 of Treasury
Department Circular 230.
A portion of our practice involves the collection of debt and any
information you provide will be used for that purpose if we are attempting
to collect a debt from you.
She is interpreting g (4). I believe It can be rebutted by affidavit as set forth in h(2)
(g) A "bona fide written lease" for periods longer than six months for continuous residence by the individual or entity leasing the transient accommodations to which the written lease applies will not be constituted when:
-
The lease contains a provision that would entitle the lessor of the leased transient accommodations to lease the accommodations back from the lessee during the lease period for the purpose of leasing the same accommodations to other lessees;
-
The lease contains a provision that would entitle the lessor of the leased transient accommodations to sublease, subrent, sublet, or license the accommodations to other persons for periods of six months or less;
-
The lease does not provide the lessee with the right to occupy the transient accommodations for the entire duration of the lease period;
-
The lease contains a provision that allows the lessee to cancel the lease, without penalty, at any time when the lessee has had no significant changes in circumstances; or
-
The lease contains a provision that would allow the lessee to avoid full payment of the stated amount of the rental charge or room rate.
(h)1. The Department will presume that the parties to the lease did not in fact intend to enter into a bona fide written lease for a period of more than six months for continuous residence when:
a. The leased transient accommodations are leased more than two times in a calendar year with each lease issued during that calendar year containing statements indicating that the lease period is for longer than six months; and
b. No lessee leased the transient accommodations for more than six months.
- This presumption can be rebutted by documentary evidence (i.e., notarized statements, eviction documents, etc.) that provides, for each lease terminated prior to its stated termination date, that:
a. A significant change in circumstances of the lessee existed; or
b. The lessor evicted the lessee for cause.
*sent via mobile phone
Jordan Marcus Brill, Esq.
6421 Congress Ave., Suite 120
Boca Raton, FL 33487
(561)859-0679
jordan@glachmanbrill.com
www.glachmanbrill.com
The information contained in this email message is intended for review and use of the senders intended recipient and no other. Any recipient or reader of this email that is not an intended recipient or reader is hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited; any wrongful dissemination or receipt shall not constitute a waiver of any privilege held by the sender or any intended recipient or client of the sender. If you have received this communication in error, please immediately notify us via email directed to jordan@glachmanbrill.com and by telephone to 561-859-0679, and destroy the original message and all copies thereof and related communications thereto. Thank you.
On Sep 3, 2019 12:06 PM, Harry Heist harry@evict.com wrote:
If anyone wishes to get involved, their email in Lee County is touristtax@leeclerk.orgmailto:touristtax@leeclerk.org , attention Kathi.
I just spoke with “Kathi” at the local DOR office who stood firm on this. I explained that hundreds if not thousands of apartment communities use the Early Termination/Liquidated Damages Addendum as part of what is called the Blue Moon/Florida Apartment Association Lease, AND, it is an addendum to the FAR/BAR lease as provided for (and written by me and a couple other people) way back when. Possibly around 2005.
We helped draft this law and push it through after the massive class actions spawned by Yates v. Equity Residential in 2003.
If the powers that be are to take this position, it would impact hundreds if not thousands of apartment communities and possibly tens or hundreds of thousands of landlords using the FAR/BAR lease.
Let’s hope this is a local agent’s misinterpretation.
I must say that I always wondered about this as it is pretty clear that it does conflict with the DOR definition of “bonafide lease” if it indeed can be terminated. This termination comes with a penalty though if they pick Option #1.
We really need a contact high up in the DOR.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
[cid:image004.png@01D5624F.59432A10]https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
Visit us on Facebook
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Tuesday, September 03, 2019 11:19 AM
To: RPPTL Landlord Tennant Committee; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Sales/Tourist Tax
Likely just one agent’s misinterpretation.
David Weisman
Partner
Board Certified Real Estate Lawyer
Greenspoon Marder LLP
200 E. Broward Blvd., Suite 1800
Fort Lauderdale, FL 33301
Phone 954-491-1120 Ext. 1015
Direct Phone 954-343-6941
David.Weisman@gmlaw.commailto:David.Weisman@gmlaw.com
www.GMlaw.comhttp://www.gmlaw.com/
[gm-horizontal-bw_nolaw2 (2)]
From: landtencl-bounces@lists.flabarrpptl.org landtencl-bounces@lists.flabarrpptl.org On Behalf Of Brenda Ezell
Sent: Tuesday, September 3, 2019 11:17 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org; RPPTL Landlord Tennant Committee landtencl@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTenCL] [RPPTL LandTen] Sales/Tourist Tax
This is unbelievable. I will forward this to the Commercial Real Estate Committee for distribution on their listserv as well. Thanks Harry.
Brenda
Regards,
Brenda B. Ezell, B.C.S.
[cid:image007.png@01D5624F.59432A10]
[cid:image008.jpg@01D5624F.59432A10]
3560 Cardinal Point Drive, Suite 202
Jacksonville, FL 32257
904.432.3200 (o)
904-432-3201 (f)
www.ezellfirmpa.com [ezellfirmpa.com]https://urldefense.com/v3/__http:/www.ezellfirmpa.com/__;!vMT899AqH_k!3_L7UKplxQSqvxRislLuszZ0klv2HX_XccrZO7uWlnVf5VXNyXg3bmMZN6mq5jwF1WQ$
CONFIDENTIALITY NOTICE: This e-mail and any files transmitted with it are confidential and may contain information which is legally privileged or otherwise exempt from disclosure. They are intended solely for the use of the individual or entity to whom this e-mail is addressed. If you are not one of the named recipients or otherwise have reason to believe that you have received this message in error, please immediately notify the sender and delete this message immediately from your computer. Any other use, retention, dissemination, forwarding, printing, or copying of this e-mail is strictly prohibited.
From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, September 3, 2019 10:56 AM
To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>; landtenCL@lists.flabarrpptl.orgmailto:landtenCL@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Sales/Tourist Tax
Here is a doozy.
A local DOR office is saying if the lease has the Early Termination Addendum a/k/a Liquidated Damages Addendum (and that would be in the FAR/BAR lease and the Blue Moon-Florida Apartment Lease used by hundreds if not thousands of apartment communities in Florida and is provided for in law) the landlord must pay sales/tourist tax as it is not a “bona fide lease”.
Does anyone have a contact high up in the DOR? This could easily render a million or more current leases in effect taxable as seasonals if they take this position.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com [evict.com]https://urldefense.com/v3/__http:/www.evict.com/__;!vMT899AqH_k!3_L7UKplxQSqvxRislLuszZ0klv2HX_XccrZO7uWlnVf5VXNyXg3bmMZN6mqbQavFyg$
Email: harry@evict.commailto:harry@evict.com
[cid:image009.png@01D5624F.59432A10][facebook.com]https://urldefense.com/v3/__https:/www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870__;!vMT899AqH_k!3_L7UKplxQSqvxRislLuszZ0klv2HX_XccrZO7uWlnVf5VXNyXg3bmMZN6mqG3lLhyM$
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The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail.
Unless specifically indicated otherwise, any discussion of tax issues contained in this e-mail, including any attachments, is not, and is not intended to be, "written advice" as defined in Section 10.37 of Treasury Department Circular 230.
A portion of our practice involves the collection of debt and any information you provide will be used for that purpose if we are attempting to collect a debt from you.
Thank you Jordan.
I sent your info to them and hope they will clear this up.
I will report back. I am hoping it is indeed a local agent misunderstanding
and not something ridiculous from the top down.
On a side note. Many apartment managers do not realize that garage, car
port, on site storage is taxable UNLESS buried into the rent and NOT
separated out. While this is NOT in writing, the Florida Apartment
Association hired a former high level person from the DOR as a consultant
and this is what they stated years back. They reviewed and approved, not in
writing, the attached, which as you can see, does not have any money listed
out. Their position was if they do not see it, they will not tax it. This
was after the DOR hit a load of apartment communities for a LOT of back
taxes and penalties. If you work for any apartment communities, make sure
they do not separate it out in the lease or even advertise it as an extra
charge amenity. Build it into the rent.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: http://www.evict.com/ www.evict.com
Email: mailto:harry@evict.com harry@evict.com
https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
Visit us on Facebook
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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jordan M Brill
Sent: Tuesday, September 03, 2019 12:24 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Sales/Tourist Tax
She is interpreting g (4). I believe It can be rebutted by affidavit as set
forth in h(2)
(g) A "bona fide written lease" for periods longer than six months for
continuous residence by the individual or entity leasing the transient
accommodations to which the written lease applies will not be constituted
when:
-
The lease contains a provision that would entitle the lessor of the
leased transient accommodations to lease the accommodations back from the
lessee during the lease period for the purpose of leasing the same
accommodations to other lessees; -
The lease contains a provision that would entitle the lessor of the
leased transient accommodations to sublease, subrent, sublet, or license the
accommodations to other persons for periods of six months or less; -
The lease does not provide the lessee with the right to occupy the
transient accommodations for the entire duration of the lease period; -
The lease contains a provision that allows the lessee to cancel the
lease, without penalty, at any time when the lessee has had no significant
changes in circumstances; or -
The lease contains a provision that would allow the lessee to avoid full
payment of the stated amount of the rental charge or room rate.
(h)1. The Department will presume that the parties to the lease did not in
fact intend to enter into a bona fide written lease for a period of more
than six months for continuous residence when:
a. The leased transient accommodations are leased more than two times in a
calendar year with each lease issued during that calendar year containing
statements indicating that the lease period is for longer than six months;
and
b. No lessee leased the transient accommodations for more than six months.
- This presumption can be rebutted by documentary evidence (i.e., notarized
statements, eviction documents, etc.) that provides, for each lease
terminated prior to its stated termination date, that:
a. A significant change in circumstances of the lessee existed; or
b. The lessor evicted the lessee for cause.
*sent via mobile phone
Jordan Marcus Brill, Esq.
6421 Congress Ave., Suite 120
Boca Raton, FL 33487
(561)859-0679
jordan@glachmanbrill.com
www.glachmanbrill.com
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On Sep 3, 2019 12:06 PM, Harry Heist harry@evict.com wrote:
If anyone wishes to get involved, their email in Lee County is
touristtax@leeclerk.org , attention Kathi.
I just spoke with "Kathi" at the local DOR office who stood firm on this. I
explained that hundreds if not thousands of apartment communities use the
Early Termination/Liquidated Damages Addendum as part of what is called the
Blue Moon/Florida Apartment Association Lease, AND, it is an addendum to the
FAR/BAR lease as provided for (and written by me and a couple other people)
way back when. Possibly around 2005.
We helped draft this law and push it through after the massive class actions
spawned by Yates v. Equity Residential in 2003.
If the powers that be are to take this position, it would impact hundreds if
not thousands of apartment communities and possibly tens or hundreds of
thousands of landlords using the FAR/BAR lease.
Let's hope this is a local agent's misinterpretation.
I must say that I always wondered about this as it is pretty clear that it
does conflict with the DOR definition of "bonafide lease" if it indeed can
be terminated. This termination comes with a penalty though if they pick
Option #1.
We really need a contact high up in the DOR.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Tuesday, September 03, 2019 11:19 AM
To: RPPTL Landlord Tennant Committee; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Sales/Tourist Tax
Likely just one agent's misinterpretation.
David Weisman
Partner
Board Certified Real Estate Lawyer
Greenspoon Marder LLP
200 E. Broward Blvd., Suite 1800
Fort Lauderdale, FL 33301
Phone 954-491-1120 Ext. 1015
Direct Phone 954-343-6941
mailto:David.Weisman@gmlaw.com David.Weisman@gmlaw.com
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From: landtencl-bounces@lists.flabarrpptl.org
landtencl-bounces@lists.flabarrpptl.org On Behalf Of Brenda Ezell
Sent: Tuesday, September 3, 2019 11:17 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org; RPPTL
Landlord Tennant Committee landtencl@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTenCL] [RPPTL LandTen] Sales/Tourist Tax
This is unbelievable. I will forward this to the Commercial Real Estate
Committee for distribution on their listserv as well. Thanks Harry.
Brenda
Regards,
Brenda B. Ezell, B.C.S.
3560 Cardinal Point Drive, Suite 202
Jacksonville, FL 32257
904.432.3200 (o)
904-432-3201 (f)
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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, September 3, 2019 10:56 AM
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org;
landtenCL@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Sales/Tourist Tax
Here is a doozy.
A local DOR office is saying if the lease has the Early Termination Addendum
a/k/a Liquidated Damages Addendum (and that would be in the FAR/BAR lease
and the Blue Moon-Florida Apartment Lease used by hundreds if not thousands
of apartment communities in Florida and is provided for in law) the landlord
must pay sales/tourist tax as it is not a "bona fide lease".
Does anyone have a contact high up in the DOR? This could easily render a
million or more current leases in effect taxable as seasonals if they take
this position.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
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Unless specifically indicated otherwise, any discussion of tax issues
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See below.
Harry
Mr. Heist,
The Lee County Clerk of Court, Tourist Development Tax Office follows the
guidelines set forth by the Florida Department of Revenue. Our office
requested a Letter of Technical Advice ("LTA") in 2016 regarding this issue
of an early termination clause documented on a bona fide long term lease and
received a response from a Senior Attorney in their Technical Assistance &
Dispute Resolution Department. It was determined at that time that a bona
fide written lease must contain various criteria, see rule
12A-1.061(17)(d)-(e) F.A.C. If a lease contains a provision that allows for
the lease to avoid fully paying the lease period, the lease is not
considered to be a bona fide lease, despite the lease being for a continuous
period of more than six months, see rule 12A-1.061(17)(g)5., F.A.C.
Accordingly, the lease is subject to sales tax and tourist development tax.
You may want to consider contacting the Florida Department of Revenue and
request your own LTA however if you want an official binding statement from
DOR, you can file a written request for Technical Assistance Advisement
("TAA").
If our office can assist you further, please contact me.
Thank you,
Joan M. Dehler
Senior Tourist Tax Auditor & Collections Supervisor
Inspector General Department
Lee County Clerk of Court
PO Box 2469, Ft Myers, FL 33902
' (239) 533-5493
7 (239) 485-5489
Report Fraud, Waste, Abuse, & Financial Mismanagement:
Anonymous Tips: http://www.leeclerk.org/ www.LeeClerk.org | Hotline:
(239) 337-7799
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: http://www.evict.com/ www.evict.com
Email: mailto:harry@evict.com harry@evict.com
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If they are making an erroneous interpretation of the administrative code, you will need a good tax attorney. I recommend https://www.floridasalestax.com/
Best,
Jordan
Jordan Marcus Brill, Esq.
Glachman & Brill, P.A.
6421 Congress Ave., Suite 120
Boca Raton, FL 33487
(561)859-0679
jordan@glachmanbrill.commailto:jordan@glachmanbrill.com
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From: landten-bounces@lists.flabarrpptl.org On Behalf Of Harry Heist
Sent: Friday, September 6, 2019 10:00 AM
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Sales/Tourist Tax
See below.
Harry
Mr. Heist,
The Lee County Clerk of Court, Tourist Development Tax Office follows the guidelines set forth by the Florida Department of Revenue. Our office requested a Letter of Technical Advice ("LTA") in 2016 regarding this issue of an early termination clause documented on a bona fide long term lease and received a response from a Senior Attorney in their Technical Assistance & Dispute Resolution Department. It was determined at that time that a bona fide written lease must contain various criteria, see rule 12A-1.061(17)(d)-(e) F.A.C. If a lease contains a provision that allows for the lease to avoid fully paying the lease period, the lease is not considered to be a bona fide lease, despite the lease being for a continuous period of more than six months, see rule 12A-1.061(17)(g)5., F.A.C. Accordingly, the lease is subject to sales tax and tourist development tax.
You may want to consider contacting the Florida Department of Revenue and request your own LTA however if you want an official binding statement from DOR, you can file a written request for Technical Assistance Advisement ("TAA").
If our office can assist you further, please contact me.
Thank you,
Joan M. Dehler
Senior Tourist Tax Auditor & Collections Supervisor
Inspector General Department
Lee County Clerk of Court
PO Box 2469, Ft Myers, FL 33902
' (239) 533-5493
7 (239) 485-5489
- JDehler@leeclerk.orgmailto:JDehler@leeclerk.org
Report Fraud, Waste, Abuse, & Financial Mismanagement:
Anonymous Tips: www.LeeClerk.orghttp://www.leeclerk.org/ | Hotline: (239) 337-7799
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
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Please see below resolving the local DOR office misunderstanding of the
statute.
Harry Heist
Good morning,
Clerk's legal counsel has provided an opinion for guidance in determining
whether a bona fide long term written lease should be considered a taxable
event or not. In part:
"... Despite what the Department of Revenue may have previously indicated,
it is my opinion that the inclusion of an early termination or liquidated
damages clause does not automatically make the lease a taxable event. If the
early termination / liquidated damages clause has a zero or de minimis
amount, that is certainly a red flag which would heavily favor finding a
taxable event. However, the ultimate issue is the intent of the parties to
enter into a lease for six months or more, and that is what our office
should be endeavoring to ascertain."
Please contact me with any questions.
Thank you,
Joan M. Dehler
Senior Tourist Tax Auditor & Collections Supervisor
Inspector General Department
Lee County Clerk of Court
PO Box 2469, Ft Myers, FL 33902
' (239) 533-5493
7 (239) 485-5489
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: http://www.evict.com/ www.evict.com
Email: mailto:harry@evict.com harry@evict.com
https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
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From: Harry Heist [mailto:harry@evict.com]
Sent: Friday, September 06, 2019 10:00 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: RE: [RPPTL LandTen] Sales/Tourist Tax
See below.
Harry
Mr. Heist,
The Lee County Clerk of Court, Tourist Development Tax Office follows the
guidelines set forth by the Florida Department of Revenue. Our office
requested a Letter of Technical Advice ("LTA") in 2016 regarding this issue
of an early termination clause documented on a bona fide long term lease and
received a response from a Senior Attorney in their Technical Assistance &
Dispute Resolution Department. It was determined at that time that a bona
fide written lease must contain various criteria, see rule
12A-1.061(17)(d)-(e) F.A.C. If a lease contains a provision that allows for
the lease to avoid fully paying the lease period, the lease is not
considered to be a bona fide lease, despite the lease being for a continuous
period of more than six months, see rule 12A-1.061(17)(g)5., F.A.C.
Accordingly, the lease is subject to sales tax and tourist development tax.
You may want to consider contacting the Florida Department of Revenue and
request your own LTA however if you want an official binding statement from
DOR, you can file a written request for Technical Assistance Advisement
("TAA").
If our office can assist you further, please contact me.
Thank you,
Joan M. Dehler
Senior Tourist Tax Auditor & Collections Supervisor
Inspector General Department
Lee County Clerk of Court
PO Box 2469, Ft Myers, FL 33902
' (239) 533-5493
7 (239) 485-5489
Report Fraud, Waste, Abuse, & Financial Mismanagement:
Anonymous Tips: http://www.leeclerk.org/ www.LeeClerk.org | Hotline:
(239) 337-7799
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: http://www.evict.com/ www.evict.com
Email: mailto:harry@evict.com harry@evict.com
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