Friday, October 12, 2012

Florida Supremes OK Homestead Exemption Tax Break For Non-Resident Alien Where Home Is Permanent Residence For U.S.-Born, Minor Kids

In Tallahassee, Florida, The Associated Press reports:

  • Foreigners and out-of-state residents may be able to get a break on [Florida] property taxes thanks to a potentially far-reaching ruling from the Florida Supreme Court. The court on Thursday unanimously said that a couple from Honduras who had been living in a Key Biscayne condominium with their children were eligible for a homestead exemption.

    Those in the U.S. on a temporary visa aren't normally eligible for the tax break, but all three children of David and Ana Andonie were born in Miami-Dade County and had never lived anywhere else.

    Justice Jorge Labarga, who wrote the opinion, said that a provision included in the state constitution back in 1968 trumped an existing law that requires a person seeking a homestead exemption to permanently reside in the home.(1)

    Labarga said the constitution made it clear that a home qualifies for the state's $25,000 homestead tax break if it is the permanent residence of either the owner or someone who is a dependent of the owner. "We think the court correctly laid out the entitlement," said Daniel A. Weiss, the lawyer for the couple.

    The case could have wide implications for the numbers of Central and South Americans who live in South Florida and out-of-state residents who have also purchased property in the state.

    The tax break -- which was initially sought on the $1 million home back in 2006 -- was opposed by the Miami-Dade property appraiser. The county's Value Adjustment Board overruled the appraiser's office and granted the exemption.

    The appraiser took the case to the courts, which have consistently sided with the couple.(2) The office of Attorney General Pam Bondi and the state Department of Revenue also supported the Andonie family.(3)

    Back in May, an assistant county attorney for Miami-Dade County had argued that under common law the children were residents of Honduras because that was the permanent residence of their parents. Therefore, an exemption should not have been allowed, she said.

    Justice Barbara Pariente at the time said the claim the children were residents of Honduras was "absolutely incredible." At the time of the initial dispute, the three children were minors. One is still a minor.

    The appraisers' office has denied the family's exemption for subsequent years -- and those cases are also now in the courts as well. Weiss said he anticipated the litigation would be dropped in the wake of the decision.

    Homeowners could get a $25,000 exemption in 2006. Now, they can get an additional $25,000 exemption on non-school taxes. Another benefit is a 3 percent cap on annual assessment increases for homesteads.
  • Because the plain language of article VII, section 6(a), of the Florida Constitution permits an owner of  Florida property to obtain the exemption based on the act of maintaining the permanent residence of his or her natural or legal dependents on the property—irrespective of the owner’s citizenship or place of residence, requirements that were removed from the Constitution—the additional “and who resides thereon” requirement imposed by section 196.031(1) substantively limits and narrows the class of property owners and taxpayers eligible for the ad valorem tax exemption under the plain language of the Florida Constitution.7

    Accordingly, we hold, consistent with the result reached by the Third District in Andonie, that the “and who resides thereon” criterion contained in section 196.031(1) is invalid and unenforceable as a legal element of entitlement8 for the ad valorem tax exemption as provided for under the plain language of article VII, section 6.9
(2) De La Mora v. Andonie, 51 So. 3d 517 (Fla. 3d DCA, 2010). In arriving at their conclusion that the Andonies were entitled to the homestead exemption tax break, Florid'a Third District Court of Appeal referred to Mr. Andonie's affidavit asserting that both he and his wife live on the premises along with their three kids, and for the three children, the property is their permanent residence. The court then made this observation:
  • There is no evidence contradicting the factual assertions made by David Andonie in his affidavit, nor is there any evidence in the record from which we can conclude the affidavit was made other than in good faith.

    Although one might wonder whether his assertions are congruent with the laws of nature, we apply in this court the constitution and laws of the State of Florida.

    Applying this law, whether of the statutory variety or an ordinary and customary usage standard, it cannot be gainsaid that these Honduran parents have adequately declared that whatever may become of their ability to remain in the United States in the future, they fully plan and intend for their U.S.-born children to "permanently resid[e]" in the United States.
(3) Interestingly, even the State of Florida, represented by the state attorney general's office and the state Department of Revenue, argued against the position of the Dade County Property Appraiser's office in support of the non-resident alien homeowners.

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