Judges: BILL McCOLLUM, Attorney General.
Filed Date: 3/23/2007
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Desguin:
As Property Appraiser for Charlotte County you have asked for my opinion on substantially the following question:
May property owned by a limited liability company qualify for a homestead exemption?
You state that an individual who resides in Charlotte County has applied for the homestead exemption on property that is owned by a limited liability company. According to your letter, the applicant states that "the LLC was formed to meet the Federal Tax Guidelines for performing a 1031 reverse to exchange and that he is the sole owner and never engaged in any business practices." It appears that the applicant is referring to
"No gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment."
While the applicant may be the sole owner of the limited liability company, title to the property is in the name of the limited liability company. Article
"Every person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner, shall be exempt from taxation thereon, except assessments for special benefits, up to the assessed valuation of five thousand dollars, upon establishment of right thereto in the manner prescribed by law. The real estate may be held by legal or equitable title, by the entireties, jointly, in common, as a condominium, or indirectly by stock ownership or membership representing the owners or members proprietary interest in a corporation owning a fee or a leasehold initially in excess of ninety-eight years."
The Legislature has implemented this constitutional provision with the enactment of section
"Every person who, on January 1, has the legal title or beneficial title in equity to real property in this state and who resides thereon and in good faith makes the same his or her permanent residence, or the permanent residence of another or others legally or naturally dependent upon such person, is entitled to an exemption from all taxation, except for assessments for special benefits, up to the assessed valuation of $5,000 on the residence and contiguous real property, as defined in s. 6, Art. VII of the State Constitution. . . . However, no such exemption of more than $5,000 is allowed to any one person or on any one dwelling house, except that an exemption up to the assessed valuation of $5,000 may be allowed on each apartment or mobile home occupied by a tenant-stockholder or member of a cooperative corporation and on each condominium parcel occupied by its owner. . . ."1
Section
"(1) Vendees in possession of real estate under bona fide contracts to purchase . . .; persons residing on real estate by virtue of dower or other estates therein limited in time . . .; and lessees owning the leasehold interest in a bona fide lease having an original term of 98 years or more . . ., for the purpose of homestead exemptions from ad valorem taxes and no other purpose, shall be deemed to have legal or beneficial and equitable title to said property. In addition, a tenant-stockholder or member of a cooperative apartment corporation who is entitled solely by reason of ownership of stock or membership in the corporation to occupy for dwelling purposes an apartment in a building owned by the corporation, for the purpose of homestead exemption from ad valorem taxes and for no other purpose, is deemed to have beneficial title in equity to said apartment and a proportionate share of the land on which the building is situated.
(2) A person who otherwise qualifies by the required residence for the homestead tax exemption provided in s.
Neither section
In Prewitt Management Corporation v. Nikolits2 the Fourth District Court of Appeal considered whether a corporate entity of a type not enumerated under sections
PMC argued that the Legislature did not have the constitutional authority to legislate an exclusive list of qualifying entities because the constitutional provision itself is broader than the concomitant legislation, stating that the equitable title language in Article
The court rejected the argument that sections
In reaching such a conclusion, the court relied on several Attorney General Opinions as well as a Florida Department of Revenue Advisory Opinion.6 More recently, this office in an opinion addressed to your office considered the issue of a limited liability corporation. In Attorney General Opinion 04-45, this office concluded that the general partners of a foreign limited liability partnership are not entitled to claim a homestead exemption on residential property owned by the partnership. This office noted that exemptions are to be strictly construed against the taxpayer.7 In addition, the statute's express mention of which beneficial owners may claim homestead inferred that those not specified in the statute were intended to be excluded.8
Thus, in light of the limitations in sections
While Attorney General Opinion 04-45 involved a foreign limited liability partnership with one of the partners residing in Florida, the conclusions reached in that opinion appear equally applicable to your instant inquiry.10 As noted above, the company which held title to the property under consideration by the court in Prewitt ManagementCorporation v. Nikolits, supra, was owned by one individual who resided on the property. However, since the company was not among those listed in sections
Accordingly, I am of the opinion that property owned by a limited liability company does not qualify for a homestead exemption.
Sincerely,
Bill McCollum Attorney General
BM/tjw
"As used in subsection (1), the term ``cooperative corporation' means a corporation, whether for profit or not for profit, organized for the purpose of owning, maintaining, and operating an apartment building or apartment buildings or a mobile home park to be occupied by its stockholders or members; and the term ``tenant-stockholder or member' means an individual who is entitled, solely by reason of his or her ownership of stock or membership in a cooperative corporation, as evidenced in the official records of the office of the clerk of the circuit court of the county in which the apartment building is located, to occupy for dwelling purposes an apartment in a building owned by such corporation or to occupy for dwelling purposes a mobile home which is on or a part of a cooperative unit. A corporation leasing land for a term of 98 years or more for the purpose of maintaining and operating a cooperative thereon shall be deemed the owner for purposes of this exemption."
"This history of the constitutional and statutory provisions pertinent to the instant inquiry seems to establish that the Legislature has placed its interpretation on the terms of s. 6 of Art. VII of the 1968 Revised Constitution and the constitutional definition of ``real property' and ``legal and beneficial title in equity' thereto as used in s. 6(a), Art. VII of the 1968 Revised Constitution. The language employed in . . . ss.
And see Department of Revenue Advisory Opinion 95-007, concluding that there was no legal authority to determine that property owned by an S corporation is entitled to a homestead exemption because it is not one of the exclusive list contained in s.
William Joseph Manda, Bankrupt v. Don C. Sinclair, Trustee ( 1960 )
State Dept. of Revenue v. Anderson ( 1981 )
Regal Kitchens, Inc. v. Florida Dept. of Revenue ( 1994 )
Prewitt Management Corp. v. Nikolits ( 2001 )
Crescent Miami Center, LLC v. DEPT. OF REVENUE, STATE ( 2003 )