Florida Register Volume 39, Number 078, April 22, 2013, Pages 2063-2083

• Jurisdiction: Florida
• Library: Florida Register
• Published date: 22 April 2013
• Year: 2013

Florida Administrative Register Volume 39, Number 78, April 22, 2013

Section I - Notices of Development of Proposed Rules and Negotiated Rulemaking 2063

Section I

Notices of Development of Proposed Rules

and Negotiated Rulemaking

DEPARTMENT OF HEALTH

Board of Medicine

RULE NOS.: RULE TITLES:

64B8-45.001 General Requirements

64B8-45.002 Continuing Education Approval

64B8-45.005 Performance of Pro Bono Services

PURPOSE AND EFFECT: The Board proposes the rule

amendments to remove auditing of licensee continuing

education requirements, add continuing education credit for

preceptor, and increase credits for pro bono services.

SUBJECT AREA TO BE ADDRESSED: Continuing

education auditing and credit hours

RULEMAKING AUTHORITY: 456.013(7), (8), (9); 468.507

FS.

LAW IMPLEMENTED: 456.013(7), (8), (9); 468.514;

468.515 FS.

IF REQUESTED IN WRITING AND NOT DEEMED

UNNECESSARY BY THE AGENCY HEAD, A RULE

DEVELOPMENT WORKSHOP WILL BE NOTICED IN

THE NEXT AVAILABLE FLORIDA ADMINISTRATIVE

REGISTER.

THE PERSON TO BE CONTACTED REGARDING THE

PROPOSED RULE DEVELOPMENT AND A COPY OF

THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Allen

Hall, Executive Director, Department of Health, 4052 Bald

Cypress Way Bin #C05, Tallahassee, Florida 32399-0797

THE PRELIMINARY TEXT OF THE PROPOSED RULE

DEVELOPMENT IS AVAILABLE AT NO CHARGE FROM

THE CONTACT PERSON LISTED ABOVE.

Section II

Proposed Rules

DEPARTMENT OF REVENUE

Miscellaneous Tax

RULE NOS.: RULE TITLES:

12B-4.013 Conveyances Subject to Tax

12B-4.014 Conveyances Not Subject to Tax

12B-4.054 Exempt Transactions

PURPOSE AND EFFECT: The Supreme Court of the United

States concluded that 11 U.S.C. Section 1146(a) affords a

stamp-tax exemption only to transfers made pursuant to a

Chapter 11 bankruptcy plan that has been confirmed under 11

U.S.C. Section 1129 (Florida Department of Revenue v.

Piccadilly Cafeterias, Inc., 554 U.S. 33 (2008)).

The purpose of the proposed amendments to Rule Chapter

12B-4, F.A.C. (Documentary Stamp Tax), is to clarify the

application of documentary stamp tax to the issuance, transfer,

or exchange of a security, or the making or delivery of an

instrument of transfer pursuant to Section 1146(a) under a

bankruptcy plan confirmed under 11 U.S.C. Section 1129.

SUMMARY: The proposed amendments to Rule 12B-4.013,

F.A.C. (Conveyances Subject to Tax), and Rule 12B-4.014,

F.A.C. (Conveyances Not Subject to Tax), clarify that a

document that transfers Florida real property pursuant to a

bankruptcy plan under 11 U.S.C. Section 1129 after the

bankruptcy plan has been confirmed is not subject to

documentary stamp tax and that transfers prior to confirmation

of the plan are subject to tax.

The proposed amendments to Rule 12B-4.054, F.A.C. (Exempt

Transactions), clarify that a promissory note or other written

obligation to pay money, bond, mortgage, trust deed, security

agreement, or other evidence of indebtedness filed or recorded

in Florida issued pursuant to a bankruptcy plan under 11

U.S.C. Section 1129 after the plan has been confirmed is not

subject to documentary stamp tax.

SUMMARY OF STATEMENT OF ESTIMATED

REGULATORY COSTS AND LEGISLATIVE

RATIFICATION:

The Agency has determined that this will not have an adverse

impact on small business or likely increase directly or

indirectly regulatory costs in excess of $200,000 in the

aggregate within one year after the implementation of the rule.

A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not

expected to require legislative ratification based on the

statement of estimated regulatory costs or if no SERC is

required, the information expressly relied upon and described

herein: 1) no requirement for the Statement of Economic

Regulatory Costs (SERC) was triggered under Section

120.541(1), F.S.; and 2) based on past experiences with

activities for providing clarification of the taxability of

documents transferring an interest in real property prior to and

after confirmation of bankruptcy, the adverse impact or

regulatory cost, if any, do not exceed nor would exceed any

one of the economic analysis criteria in a SERC, as set forth in

Section 120.541(2)(a), F.S.

Any person who wishes to provide information regarding a

statement of estimated regulatory costs, or provide a proposal

for a lower cost regulatory alternative must do so in writing

within 21 days of this notice.

RULEMAKING AUTHORITY: 201.11, 213.06(1) FS.

LAW IMPLEMENTED: 201.01, 201.02, 201.08, 201.09,

201.10, 201.11, 201.21, 201.22, 201.23, 201.24, 517.32 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF

THIS NOTICE, A HEARING WILL BE HELD AT THE

DATE, TIME AND PLACE SHOWN BELOW (IF NOT

REQUESTED, THIS HEARING WILL NOT BE HELD):

Florida Administrative Register Volume 39, Number 78, April 22, 2013

2064 Section II - Proposed Rules

DATE AND TIME: May 21, 2013, 10:00 a.m.

PLACE: 2450 Shumard Oak Boulevard, Building One, Room

1220, Tallahassee, Florida

Pursuant to the provisions of the Americans with Disabilities

Act, any person requiring special accommodations to

participate in this workshop/meeting is asked to advise the

agency at least 48 hours before the workshop/meeting by

contacting: Tammy Miller at (850)617-8347. If you are hearing

or speech impaired, please contact the agency using the Florida

Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770

(Voice).

THE PERSON TO BE CONTACTED REGARDING THE

PROPOSED RULE IS: Tim Phillips, Revenue Program

Administrator, Technical Assistance and Dispute Resolution,

Department of Revenue, P.O. Box 7443, Tallahassee, Florida

32314-7443, telephone (850)717-7224

THE FULL TEXT OF THE PROPOSED RULE IS:

12B-4.013 Conveyances Subject to Tax.

(1) through (18) No change.

(19) Transfer in Bankruptcy: Sale of real property by

trustees, debtors, or receivers in federal bankruptcy

proceedings is subject to tax unless the transfer is made

pursuant to a plan confirmed under Section 1129 of the

Bankruptcy Code, is a precondition or is essential to the

confirmation of the plan, or is necessary to consummate or

implement a confirmed plan. The debtor must be a party to the

transfer. If the bankruptcy court does not ultimately confirm

the plan under 11 U.S.C. Section 1129, the transfer would not

be exempt pursuant to 11 U.S.C. Section 1146(c), and would

be subject to tax. (1932 Op. Att’y. Gen. Fla. 1931 Biennial

Report, Page 1039 (Sept. 14, 1932)) (11 U.S.C. Section

1146(c); In re Jacoby-Bender, Inc., 758 F.2d 840 (2d Cir.

1985); In re Smoss Enterprises Corp., 54 Bankr. 950 (E.D.N.Y.

1985)).

Cross Reference – subsections 12B-4.014(15), 12B-4.054(30),

F.A .C .

(20) through (29) renumbered (19) through (28) No

change.

Rulemaking Authority 201.11, 213.06(1) FS. Law Implemented

201.01, 201.02 FS. History–Revised 8-18-73, Formerly 12A-4.13,

Amended 12-11-74, 2-21-77, 5-23-77, 12-26-77, 7-3-79, 9-16-79,

11-29-79, 3-27-80, 12-23-80, 12-30-82, Formerly 12B-4.13,

Amended 12-5-89, 6-4-90, 2-13-91, 2-16-93, 10-18-94, 12-30-97,

7-28-98, 1-4-01, 5-4-03, 4-5-07,_________.

12B-4.014 Conveyances Not Subject to Tax.

(1) through (14) No change.

(15) Confirmed Transfer in Bankruptcy Plan: A document

that transfers an interest in Florida Sale of real property by

trustees, debtors or receivers in federal bankruptcy proceedings

is subject to tax unless the transfer is made pursuant to a

Chapter 11 plan that was confirmed under Section s. 1129 of

the Bankruptcy Code, (Title 11 U.S.C.) prior to the date of is a

precondition or essential to the confirmation of the plan, or is

necessary to consummate or implement a confirmed plan and

the debtor is a party to the transfer is not taxable. A document

that transfers Florida real property prior to confirmation of the

bankruptcy plan is subject to tax. If the bankruptcy court does

not ultimately confirm the plan under 11 U.S.C. § 1129, the

transfer would not be exempt pursuant to 11 U.S.C. § 1146(c),

and would be subject to tax. (11 U.S.C. Section §1146(a)(c);

Florida Department of Revenue v. Piccadilly Cafeterias, Inc.,

554 U.S. 33 (2008)). In re Jacoby-Bender, Inc., 758 F.2d 840

(2d Cir. 1985); In re Smoss Enterprises Corp., 54 Bankr. 950

(E.D.N.Y. 1985)).

Rulemaking Authority 201.11, 213.06(1) FS. Law Implemented

201.01, 201.02 FS. History–Revised 8-18-73, Formerly 12A-4.14,

Amended 2-21-77, 12-26-77, 12-23-80, Formerly 12B-4.14,

Amended 12-5-89, 6-4-90, 2-13-91, 2-16-93, 10-18-94, 12-30-97,

1-4-01, 4-14-09,_________.

12B-4.054 Exempt Transactions.

(1) through (29) No change.

(30) Confirmed Bankruptcy Plan: A Under 11 U.S.C.

1146(c), the issuance, transfer, or exchange of a promissory

note, bond or other written obligation to pay for the payment of

money, bond, or the making, delivery or recordation of a

mortgage, trust deed, security agreement or other evidence of

indebtedness filed or recorded in Florida issued, is exempt

from the documentary stamp tax if it is done pursuant to a

Chapter 11 plan which was confirmed by the federal

bankruptcy court under 11 U.S.C. Section 1129 of the

Bankruptcy Code (Title 11 U.S.C.), prior to the date of the

issuance is not taxable, is a precondition or essential to the

confirmation of the plan, or is necessary to consummate or

implement a confirmed plan and the debtor is a party to the

transaction. If the bankruptcy court does not ultimately confirm

the plan under 11 U.S.C. 1129, the transfer would not be

exempt pursuant to 11 U.S.C. 1146(c), and would be subject to

tax. (In re Baldwin League of Independent Schools, 110 Bankr.

125 (S.D.N.Y. 1990)). However, the bankruptcy exemption

under (11 U.S.C. Section 1146(a)(c); Florida Department of

Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33 (2008)).

does not apply to a mortgage or trust deed given to a

third-party lender by a non-debtor purchaser of real property

from a seller in bankruptcy, even if the sale is pursuant to a

confirmed plan. (In re Eastmet Corporation, 907 F. 2d 1487

(4th Cir. 1990))

Cross Reference – subsections 12B-4.013(22) and

12B-4.014(15), F.A.C.

Rulemaking Authority 201.11, 213.06(1) FS. Law Implemented

201.01, 201.08, 201.09, 201.10, 201.11, 201.21, 201.22, 201.23,

201.24, 517.32 FS. History–Revised 8-18-73, Formerly 12A-4.54,

Amended 2-21-77, 11-29-79, 3-5-80, 4-11-80, 7-27-80, 12-23-80,

2-12-81, Formerly 12B-4.54, Amended 3-30-81, 12-3-81, 12-29-86,

12-5-89, 2-13-91, 10-18-94, 12-30-97, 7-28-98, 1-4-01,

5-4-03,_________ .