Grenadier, Steven R, Kao, Chihwa, Richard J. Pasaran, M. Tom Doan, "undated". John M. Quigley, Quigley, John M. E P Davis, Lee, Garry J.
87-93 Macleay Street & 10-12 Hughes Street, Potts Point, NSW 2011
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Even most tax professionals are surprised to find out that sales tax is imposed on commercial rents when the lessor and lessee are commonly owned. The most surpising fact is that unlike the Federal income tax realm, Florida considers disregarded entities as seperate legal entities for Florida Sales and Use Tax purposes.
This has the effect of blindsiding many businesses, surprisingly some of which are wholly owned and operated in Florida. However, the most common victim surprised by this tax scheme is the business that migrates into Florida from other states that do not impose a sales tax on commercial rentals. These out of state companies simply recreate the same corporate structure and rental agreements as they had been using in other states with dire tax consequences.
Even if no rental agreements are put into place and rents are never paid, if the operating entity pays the mortgage, insurance, or taxes for the real estate entity, then Florida takes the position that these amounts are the equivalent to rent and impose the sales tax on the payments made by the operating entity on behalf of the real estate entity.
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This too catches many, many companies off guard because when competent counsel does only a cursory reading of the relevant statutes — they could easily assume that if no rental agreements are in place and nothing is labeled "rent," then no sales tax would be due. The Florida Department of Revenue has been very successfully imposing sales taxes on the indirect payment of rent when the obligations of the real estate entity are paid directly by the operating entity. I cannot tell you the number of times our firm has received a phone call from a company that has just been through a Florida Tax Audit and they want help dealing with a very substantial tax assessment specifically due to sales taxes on intercompany rental situations.
Florida trains even the greenest of auditors to look for signs of intercompany rental transactions and it is very rare that issue will escape detection. It is really disheartening because the entire tax amount on purely intercompany transactions could have been avoided with a little planning and advice from a trained Florida tax advisor.
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