UPDATE (07/13/2010):  Florida Department of Revenue issues Tax Information Publication (TIP) #10A01-11, clarifying the definitions of a “non-resident”, what constitutes a “day” in Florida, and the $300.00 maximum tax for fractional ownership programs.

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Prior Analysis (An overview of general principles of Florida law concerning residency):

The Bottom Line on the Newly Enacted Sales and Use Tax Legislation Allowing Non-Residents To Return Aircraft To Florida Within 6 Months of Purchase For Fewer Than 21 Days During That Period:

This analysis below considers the legal definition of a Florida “resident” as it applies to FL Stat Sec. 212.08(7)(ggg).  The Department of Revenue must issue further guidance as to what is a “resident” of Florida if we are to win back the business and trust of aircraft owners concerned about being taxed on their new planes just for touching down.  I learned from my conversations with FL DOR attorneys, however, that they are aware of the need for further guidance and are developing an “official” definition of the term “resident” for these purposes.  For the moment, I am advised that they will in all likelihood adopt the definition of “resident” from Title XXIII, Chapter 320.01 of the Florida Statutes (Motor Vehicle Licenses), which provides:

(35)  “Resident” means a person who has his or her principal place of domicile in this state for a period of more than 6 consecutive months, who has registered to vote in this state, who has made a sworn statement showing that he or she resides in and maintains a place of abode in that county which he or she recognizes and intends to maintain as his or her permanent home pursuant to s. 222.17 or who has filed for homestead tax exemption on property in this state.

(36)  “Nonresident” means a person who is not a resident.

FL Stat 222.17 permits one to file sworn statements that one either is or is not “domiciled” in Florida, in summary:

FL Stat 222.17(1) – Allows filing a sworn statement that you intend to consider your Florida “place of abode” as your permanent home.

FL Stat 222.17(2) – Allows people who maintain residences both inside and outside of Florida establish Florida as their “domicile” by filing a sworn statement that you intend to permanently make Florida your “predominant and principal home”.

FL Stat 222.17(3) – Sets forth the requirements for the statement, including that you are a “bona fide resident” of Florida, and your place of abode.

FL Stat 222.17(4) – Permits one to file a sworn statement affirmatively “disclaiming” Florida as one’s permanent home, even if you maintain a “place of abode” in Florida.  This can reasonably be interpreted as applying to people who own a second or vacation home here.  This section sets forth what must be in the statement, and allows you to state “other and further facts” that support your disclaimer as a Florida permanent resident.  Such “other and further facts” should include references to commonly-accepted indicia of where one’s permanent home, described below in the analysis of “traditional” definitions of residency.

FL Stat 222.17(5) – Requires that the statement be “signed under oath before an official authorized to take affidavits”, such as a Florida notary.

FL Stat 222.17(6) – Provides that the Department of Legal Affairs shall create an acceptable form for these purposes.

FL Stat 222.17(7) – “Nothing herein shall be construed to repeal or abrogate other existing methods of proving and evidencing domicile except as herein specifically provided”, meaning that evidence of one’s status as a Florida domiciliary is not controlled exclusively by these sworn statements.

Thus, while we wait for the official word one should not consider these definitions as a legal “safe harbor”, it appears that an individual will not be considered a Florida resident for purposes of the sales and use tax exemption where he or she:

(1)  Has never maintained one’s “principal place of domicile” (as defined in FL Stat Sec. 320.01(35), above) or who may have maintained one’s principal place of domicile in Florida at one time but never for more than 6 consecutive months;

(2)  Is not registered to vote in Florida;

(3)  Has not established one’s domicile and permanent home in Florida by declaration according to FL Stat 222.17, set forth above;

(4)  Has not declared a Florida abode a homestead.

In an excess of caution, one may also invoke the opportunity to file a statement that one is domiciled elsewhere, according to FL Stat 222.17(4), above.

Corporations and Limited Liability Companies As “Residents” Within The Meaning of the Aircraft Sales and Use Tax Exemption

There are two issues to consider in evaluating whether an entity that owns an aircraft would be considered a “resident” of Florida for purposes of the subject sales and use tax exemptions.  The first issue is whether / how the entity itself would be considered a “resident” of Florida.  The second issue is whether, even if the entity itself is not a resident, the owner would nevertheless be liable for sales or use tax if its owners, officers or directors are Florida residents.

Again from my discussions with Department of Legal Affairs attorneys, Florida is presently using the statutory definitions of “foreign” corporations and limited liability companies to define whether an entity is a “resident” for purposes of the exemption.  These definitions provide simply that a “foreign” entity – corporation (FL Stat 607.01401 (12))  or LLC (FL Stat 608.402(12))Ari Good of Good Attorneys At Law serves as a tax attorney, tax lawyer , aviation attorney, aviation lawyer and counselor to a worldwide clientele requiring tax advice and tax news related in income tax, employment tax, excise tax, sales tax, use tax, personal property tax, aviation tax laws, aircraft depreciation and other tax matters.Ari Good of Good Attorneys At Law serves as a tax attorney, tax lawyer , aviation attorney, aviation lawyer and counselor to a worldwide clientele requiring tax advice and tax news related in income tax, employment tax, excise tax, sales tax, use tax, personal property tax, aviation tax laws, aircraft depreciation and other tax matters. – is one organized under the laws of states other than Florida.  One attorney

Ari Good of Good Attorneys At Law serves as a tax attorney, tax lawyer , aviation attorney, aviation lawyer and counselor to a worldwide clientele requiring tax advice and tax news related in income tax, employment tax, excise tax, sales tax, use tax, personal property tax, aviation tax laws, aircraft depreciation and other tax matters.

Ari Good of Good Attorneys At Law serves as a tax attorney, tax lawyer , aviation attorney, aviation lawyer and counselor to a worldwide clientele requiring tax advice and tax news related in income tax, employment tax, excise tax, sales tax, use tax, personal property tax, aviation tax laws, aircraft depreciation and other tax matters.
‘s opinion on the matter was that it was unnecessary to “look through” the entity to determine whether or not its owners, officers or directors were Florida residents, since if this were the case the aircraft would probably be in Florida for greater than the allowable 20 day period.

This approach begs the question of why an owner’s residence would ever matter, if it is presumed that a Florida resident would keep the plane here for more than 20 days.  It would nevertheless support the case that an entity is a non-resident if its members, officers and directors are non-residents, as set forth above.  Proper tax planning provides intuitively that a non-resident would form an entity to own the plane in a state other than Florida.

Caution is in order, however, in that the Department could consider an entity to be a “resident” of Florida using traditional principles of “nexus”.  It is possible to argue, for example, that an entity loses its status as a foreign resident if it affirmatively avails itself on an ongoing or permanent basis of legal protections available to Florida businesses.  Qualifying the owner as a reseller / leasing company, for example, serves as its own exemption from the requirement to pay sales or use tax on the purchase price on an aircraft, but could be reasonably viewed as interpreted as establishing some sort of Florida residency within the spirit of the exemption.  The Department attorneys did not consider doing business in Florida an “all or nothing” proposition, however, suggesting that merely having an office here would probably not disqualify it as a “non-resident”.

Based on the best available guidance, it appears that an aircraft-owning entity will probably not be considered to be a Florida resident if:

(1)  The entity is organized under the laws of another state;
(2)  The entity maintains no permanent offices in Florida, or, if it does maintain an office here, it is in the nature of a “branch” office and not the company’s principal place of business;
(3)  The entity has not registered to do business in Florida, except perhaps as required by law for the purposes of maintaining a branch office.  It appears unlikely that merely having a registered agent in Florida would render the entity a “resident”.

Other Common Law and Statutory Definitions of Florida Residency

An aircraft owner may also consider other, long-standing definitions of “residency” in evaluating the degree of one’s connection to Florida.  This has traditionally been a question of both common and statutory law.  For individuals, Florida courts have held that a Florida resident “manifests an intent to make Florida one’s place of domicile or permanent abode”.  The Florida Statutes in turn define a permanent residence as “that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning.”  (FL Stat §196.012)

Evidence of intent to be a Florida resident includes:

• Whether or not you have claimed homestead protection on a Florida primary residence
• The address on your drivers’ license
• Where you are registered to vote
• Where your children, if any, attend school
• Whether you keep or maintain real or personal property in Florida
• Where your bank accounts are located
• Place of residence on documents that require you to specify the same, including Social Security Administration or Medicare documents, passports, contracts, deeds, leases, credit cards
• Place of employment
• To what IRS service center do you send your federal income tax returns (Florida residents file their taxes with the Atlanta service center)
• Whether you have sold or abandoned property in a state outside of Florida
• Where you are a member of civic, religious or social organizations
• Whether or not you have any history of having declared domiciliary status in Florida, or filed Florida sales or use, employment or other tax returns.

What Part Does Physical Presence Play In Residency?

One’s mere physical presence is not by itself determinative of whether or not you are a Florida resident, however, one should look to the standards courts have applied in different contexts in evaluating the importance of this factor.  One must be present in Florida for a continuous six (6) month period in order to get a divorce here.  In state tuition at the University of Florida requires that you demonstrate “legal ties” to the State of Florida for the twelve (12) months prior to starting classes.  Under federal income tax law, one is considered to be a resident of the state in which he or she is present for 183 days or greater during the tax year (just over 6 months).

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