Commercial leases and short-term residential rentals are generally subject to sales tax, and it is the tenant’s responsibility to pay it, but the landlord’s responsibility to collect and remit the tax to the Florida Department of Revenue. Other than writing the check to the landlord for the rent, including the sales tax, the tenant often forgets about the sales tax issues. However, there are areas where the tenant could still be responsible directly to the Department of Revenue, as well as areas for planning when negotiating the lease terms.
What if the landlord fails to pay the Department of Revenue?
Sales taxes are what are commonly referred to as “trust fund taxes,” meaning the person collecting the tax (here, the landlord) is holding those funds in trust for the state. Those monies are the state’s property at the time of collection, and if the landlord fails to pay it to the state, the state can then seek the taxes, penalties, and interest not only from the landlord-entity, but from its owners, officers, and employees who were responsible for paying (or failing to pay) the tax. Depending on the circumstances, criminal sanctions may also be sought.
But what does this mean to the tenant? If the tenant paid the tax to the landlord, but cannot prove he did so, then he may be liable to the state for the tax, interest, and penalty due. It is therefore important that each tenant maintain adequate records to prove payment of the tax.
What payments are taxable?
Sales tax for the lease of real property applies to all payments or other consideration given by the tenant for the right to use the property. This includes any payments made by the tenant that benefits the landlord, such as:
- payment of ad valorem property taxes;
- common area maintenance charges;
- utility charges paid to the landlord (unless the landlord paid sales tax to the utility company and such charges were separately stated on the invoice); and,
- insurance premiums for insurance which provides protection for the landlord.
In some cases, whether the payment is treated as additional rent subject to the tax will depend on the terms of the lease and the manner in which items are invoiced, which allows some planning opportunities. For example, insurance premiums for coverage for the tenant’s own protection should not be subject to tax, even if the coverage provides protection to the landlord. However, if any part of the premium provides protection to the landlord and is separately stated or itemized, that part of the premium is subject to sales tax as additional rent.
Are subleases taxable?
When the tenant subleases any portion of the leased property, he becomes a landlord and is obligated to collect and remit sales tax on the sublease.
It does not eliminate the tenant’s obligation to pay sales tax on the master lease, but the tenant may take a credit against the taxes remitted on the sublease for a pro rata share of the taxes paid on the master lease. The credit is based on the rental rate for the primary lease, not the sublease, and the proration is generally to be done on a square footage basis, but the Department of Revenue may approve other basis if appropriate to the situation.
As an example, assume tenant leases 200 square feet for $400 in a county where the sales tax is 6%, he is required to pay tax of $24 ($400 x 6%). Tenant then subleases 100 square feet of the space (i.e., half of the space) for $300 and collects $18 in tax ($300 x 6%). Tenant may take a credit of $12, determined as follows: half of the total square footage x $400 rental payment for the master lease x 6% tax rate. The tenant remits a total of $6 in sales tax to the state ($18 sales tax collected – $12 credit).
Proceed with Caution
The rules applicable to sales tax on leases are detailed and present many potential pitfalls that could result in unplanned liabilities for landlords and tenants. With careful review and planning, both parties can ensure compliance and potentially garner tax savings. If you have any questions or concerns about this issue, please feel free to contact me at firstname.lastname@example.org.