FLORIDA’S FIRST DCA AFFIRMS SUMMARY JUDGMENT IN FAVOR OF BANK OF AMERICA FOR OVERPAYMENT OF STAMP AND INTANGIBLE TAXES

Florida’s First DCA recently affirmed summary judgment in favor of Bank of America (“BOA”) and against Florida’s Department of Revenue (“Department”) requiring the latter to refund in excess of $5 million to BOA based on overpayment of stamp and intangible taxes on loans BOA refinanced, and which both the trial and appellate courts found were exempt from those taxes. Fla. Dep't of Rev. v. Bank of Am., N.A., 50 Fla. L. Weekly D2435 (Fla. 1st DCA November 12, 2025).

By way of history, between 2016 and 2018 BOA refinanced thousands of home loans in Florida. i For each refinanced loan, BOA was required to pay a stamp tax on the note and an intangible tax on the mortgage, but only on those amounts, called “new money,” that exceeded the original loan amount. The stamp tax exemption, codified at § 201.09, Fla. Stat., applied as long as the loan was a “renewal” of the old loan and the intangible-tax exemption, codified at § 199.145(4)(b), applied as long as the loan was a refinance of the old loan with the same lender. ii

Despite the stated exemption, the Department insisted BOA pay stamp and intangible taxes on the total amount of the loan “over and above the amount of ‘new money’ it lent.” BOA paid the additional tax amounts under protest and then sought a refund from the Department by filing a refund claim. The Department conducted an audit of roughly ten percent of the 9800 loans affected and concluded neither of the exemptions applied because all the loans were “wholly new loans and not renewals or refinances.” iii

BOA sued the Department seeking a refund of $3,272.523.50 in overpaid stamp taxes and $1,868,301.83 in overpaid intangible taxes. iv The parties filed competing summary judgment motions agreeing that there were no factual disputes, only legal questions for the court to determine. v The trial court ruled in favor of BOA finding most of the refinanced loans qualified as renewals and refinances. The Department appealed.

On appeal the First DCA agreed with the trial court and BOA finding BOA’s summary judgment evidence conclusively established the refinanced loans “were linked to the prior home loans” because they were given by the same bank to “identical borrowers.” vi The Court rejected the Department’s argument that because the old loans were satisfied a new loan was created explaining that the old loans were not satisfied, but “extended and rolled into new mortgage-backed loans.” vii

The Court also rejected the Department’s procedural argument that BOA’s failure to attach a copy of the original note to the renewal loans with a “proper notation,” was a statutory violation which nullified the exemption. viii The Court reasoned the notes did not have any of the requisite notations because BOA had paid the tax on the mortgage and it was only the mortgage which contained the required notation rendering the requirement inapplicable. ix

Lastly, the Court rejected the Department’s arguments directed to the “veracity and sufficiency” of BOA’s evidence finding the Department waived any such arguments when the parties’ stipulated that only legal questions remained for the court to determine. x

i Fla. Dep't of Rev., at *3. Future references to this case are to this citation unless indicated otherwise.

ii Fla. Dep't of Rev., at *2-3.

iii Fla. Dep't of Rev., at *4.

iv Fla. Dep't of Rev., at *3-4.

v Fla. Dep't of Rev., at *4. Future references to this case are to this citation unless indicated otherwise.

vi Fla. Dep't of Rev., at *8.

vii Fla. Dep't of Rev., at *9.

viii Fla. Dep't of Rev., at *10-11.

ix Fla. Dep't of Rev., at *11-12.

x Fla. Dep't of Rev., at *12.