Opinion
No. 91-2697.
December 18, 1992. Opinion Denying Reconsideration and Certification May 28, 1993.
Appeal from the Circuit Court, Lake County, Jerry T. Lockett, J.
Robert A. Butterworth, Atty. Gen., James McAuley and Lealand McCharen, Asst. Attys. Gen., Tallahassee, for appellant.
Fred A. Morrison of McLin, Burnsed, Morrison, Johnson Robuck, P.A., Leesburg, for appellee.
The Department of Revenue (DOR) appeals the final order of summary judgment entered in favor of Citizens National Bank of Leesburg (bank). We affirm.
DOR is an executive agency charged with the responsibility and authority to administer and collect documentary stamp taxes. As part of its duties DOR is authorized to conduct examinations of taxpayers' records and make tax assessments based upon these examinations. In this case DOR issued a deficiency assessment to the bank based upon such an examination, concluding that the bank had failed to pay the correct amount of documentary stamp tax on several loans made by the bank to certain of its customers during the period of time between September of 1985 and August of 1988. The bank protested the assessment; however, DOR formally rejected the protest and upheld the deficiency assessment. The bank then instituted this action challenging the assessment. Upon review of the parties' separate motions for summary judgment, the trial court entered final summary judgment in favor of the bank, concluding that DOR's deficiency assessment was improper. This appeal followed.
Documentary stamp tax is an excise tax on the promise to pay and the tax is measured by the amount financed. The tax is on the document itself and not on the transaction contemplated by the document and, thus, the liability to pay the documentary stamp tax, as well as the amount of the tax, must be solely determined by the form and the face of the instrument and not by proof of extrinsic facts. Choctawhatchee Electric Cooperative, Inc. v. Green, 132 So.2d 556 (Fla. 1961); Barnett Bank of South Florida v. State Department of Revenue, 571 So.2d 527 (Fla. 3d DCA 1990); State Department of Revenue v. McCoy Motel, Inc., 302 So.2d 440 (Fla. 1st DCA 1974).
The parties stipulate that the following summary sets forth an accurate example of the transactions which precipitated the deficiency assessment:
The bank originally loaned the Allens an amount which is not specified in the record and secured this loan with a mortgage. This loan agreement provides that future advances could be made by the bank to the Allens. The Allens signed a promissory note and the proper documentary stamp was affixed. Subsequently, in January of 1988, the Allens entered into an agreement with the bank to obtain a future advance of $7,500. This agreement was executed on a document entitled "Mortgage Modification and Future Advance Agreement". The agreement states that with the advance of $7,500 the Allens' loan obligation to the bank totaled $61,149.77. The bank affixed documentary stamps in the amount of $7,500 to this modification agreement. The advance was secured by the same real estate as in the original loan agreement and subject to the original mortgage.
In auditing the January 1988 transaction DOR concluded that the transaction was a "renewal" of the original loan obligation and that, therefore, documentary stamp tax was due on the full amount of the outstanding loan; that is, the original loan as well as the future advance ($61,149.77). DOR assessed the bank a penalty because the bank only paid documentary stamp tax on the sum advanced ($7,500). The trial court ruled that DOR erred in characterizing the transaction as a renewal, determining that the transaction was instead a future advance and, therefore, the bank properly paid documentary stamp tax on only the amount of the advance. See § 201.08, Fla. Stat. (1987) (if a promissory note secures a future advance then documentary stamp tax is paid only on the amount of the advance). See also 53 Fla. Jur.2d Taxation § 29:120 (1983). We agree with the trial court that this transaction constitutes a future advance.
Rule 12B-4.052 of the Florida Administrative Code defines the term "renewal note" as a written agreement which alters or modifies the contract or obligation of an original promissory note, mortgage, trust deed, security agreement or other evidence of indebtedness such as extending, continuing, replacing or assuming the terms of the original contract or obligation. Rule 12B-4.053(24) states that examples of renewal notes include but are not limited to notes where the unpaid balance is increased, an additional obligor is added, or the original note is assumed by another person.
The Attorney General has issued two opinions in which the definition of a renewal note is discussed. Opinion number 58-342 defines a renewal note as a continuation of an old obligation or the reestablishment of a particular contract for another period of time. The opinion states that renewal notes are those made and delivered in lieu of existing notes based upon the same consideration and for the purpose of extending the time for payment. Opinion number 61-168 states that the term renewal as applied to a note means the reestablishment of the particular contract for another period of time given when the prior or original note becomes due, a change of parties is required, or an increase in security is requested. The opinion states that there is no renewal if the obligation is the same. See 1961 Op.Att'y.Gen. Fla. 061-168 (October 17, 1961); 1958 Op.Atty.Gen. Fla. 058-342 (December 29, 1958). See also 53 Fla.Jur.2d Taxation §§ 29:120, 29:121, 29:122 (1983).
Here, the loan documents reveal that although the transactions at issue enlarged the extent of the borrowers' indebtedness to the bank, the original loan obligations were not altered or replaced. Instead, new loan obligations were created. The purpose of the loan transactions was not to extend the time for payment of the original loans, but instead, to extend additional funds. The "form and face of the instrument" at issue herein supports the conclusion that the future advance provisions of the instrument are independent of its provisions modifying the payment terms of the original loan agreement. Thus, the trial court properly concluded that these transactions were future advances. See Department of Revenue v. Lincoln Pointe Associates, Ltd., 544 So.2d 291 (Fla. 1st DCA 1989).
AFFIRMED.
GOSHORN, C.J., and W. SHARP, J., concur.
ON MOTION FOR REHEARING OR ALTERNATIVELY FOR CERTIFICATION
Appellant, Department of Revenue (DOR), seeks rehearing or, alternatively, certification of the opinion issued in this cause on December 18, 1992. As grounds for the motion, DOR submits that we overlooked controlling points of law and facts; specifically, reiterating its position that the loan documents constitute renewal notes. Further, DOR also argues that our decision is in direct conflict with Department of Revenue v. Miami National Bank, 374 So.2d 1 (Fla. 1979). We have carefully considered these arguments and conclude that they lack merit.
The controlling and original loan agreement included a mortgage and note. The mortgage included a future advance clause that set an upper limit on the total indebtedness of $64,000, and an outside time limit for future advances of 20 years. Section 201.08(2) of the Florida Statutes (1987) states that when there is both a mortgage and a note the tax shall be paid on the mortgage at the time of recordation and a notation shall be made on the note that the tax has been paid. The statute provides, "at the time and so often as any future advance is made, the tax shall be paid on all sums then advanced regardless of where such advance is made." Pursuant to this statute the documentary stamp tax was paid on the mortgage based on the amount of the original indebtedness and on one previous future advance.
A copy of the note incorporated in the original mortgage was attached to appellant's initial brief, but was apparently not included in the record evidence before the trial court.
On January 12, 1988 a future advance of $7,500 was obtained by the mortgagor as evidenced by the questioned future advance document. The "form and face" of the future agreement clearly set out that the amount to be loaned was the $7,500 which was to be added to the then existing unpaid balance, which made a total outstanding sum of $61,149.77. The cumulative total of the debt was below the $64,000 limit and well within the 20 year time limit. The original mortgage had never been terminated or made void by a complete payment of any existing debt it secured.
DOR's arguments skirt the future advance basis of this court's decision. So long as future advances are made during the existence of a viable "open-end" type mortgage and any incorporated note, the tax on the document setting out the future advance should be measured by the amount of the future advance and not on any existing sums on which the tax has been previously paid. DOR argues that having the payments on the existing note modified and merged in with the payments on the future advance portion of the debt takes the document out of the coverage of section 201.08(2). However, such an interpretation would defeat the intention of section 201.08(2) which is to just tax the future advance and not the original amounts loaned. Further, without the allowable future advance increase in the loan there is no enlargement in the amount of the original obligation and, therefore, the document in question should not be interpreted to be a renewal note "subject in full to taxation." Department of Revenue v. Miami National Bank, 374 So.2d 1 (Fla. 1979).
Once more, the questioned document in this case represents a future advance of $7,500 that is properly taxable as set out in section 201.08(2). See Department of Revenue v. Lincoln Pointe Associates, Ltd., 544 So.2d 291 (Fla. 1st DCA 1989). See also 53 Fla.Jur.2d Taxation § 29:122 (1983).
Accordingly, appellant's motion is denied.
GOSHORN, C.J., and W. SHARP, J., concur.