Fla. Stat. § 738.401 — Florida Code / Title XLII / Chapter 738 / Section 738.401
738.401 Character of receipts from entity.
Status: in_force

(1) For purposes of this section, the term: (a) “Capital distribution” means an entity distribution of money which is a: 1. Return of capital; or 2. Distribution in total or partial liquidation of the entity. (b) “Entity”: 1. Means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or any other organization or arrangement in which a fiduciary owns or holds an interest, regardless of whether the entity is a taxpayer for federal income tax purposes; and 2. Does not include: a. A trust or estate to which s. 738.402 applies; b. A business or other activity to which s. 738.403 applies which is not conducted by an entity described in subparagraph 1.; c. An asset-backed security; or d. An instrument or arrangement to which s. 738.416 applies. (c) “Entity distribution” means a payment or transfer by an entity to a person in the person’s capacity as an owner or holder of an interest in the entity. (d) “Lookback period” means the accounting period and the preceding two accounting periods or, if less, the number of accounting periods, or portion of accounting periods, that the interest in the entity has been held by the fiduciary.

(2) In this section, an attribute or action of an entity includes an attribute or action of any other entity in which the initial entity owns or holds an interest, including an interest owned or held indirectly through another entity.

(3) Except as otherwise provided in paragraphs (4)(b)-(d), a fiduciary shall allocate to income: (a) Money received in an entity distribution; and (b) Tangible personal property of nominal value received from the entity.

(4) A fiduciary shall allocate the following to principal: (a) Property received in an entity distribution which is not: 1. Money; or 2. Tangible personal property of nominal value. (b) Money received in an entity distribution in an exchange for part or all of the fiduciary’s interest in the entity to the extent that the entity distribution reduces the fiduciary’s interest in the entity relative to the interest of other persons that own or hold interests in the entity. (c) Money received in an entity distribution that is a capital distribution, to the extent not allocated to income. (d) Money received in an entity distribution from an entity that is a regulated investment company or a real estate investment trust if the money received represents short-term or long-term capital gain realized within the entity.

(5) If a fiduciary elects, or continues an election made by its predecessor, to reinvest dividends in shares of stock of a distributing corporation or fund, whether evidenced by new certificates or entries on the books of the distributing entity, the new shares retain their character as income.

(6) Except as otherwise provided in subsections (10) and (11), money received in an entity distribution is a capital distribution: (a) To the extent that the entity, at or near the time of the entity distribution, indicates that such money is a capital distribution; or (b) To the extent that the total amount of money and property received by the fiduciary in the entity distribution or a series of related entity distributions is or will be greater than 20 percent of the fiduciary’s pro rata share of the entity’s gross assets, as shown by the entity’s year-end financial statements immediately preceding the initial receipt.

(7) In the case of a capital distribution, the amount received in an entity distribution allocated to principal must be reduced to the extent that the cumulative distributions from the entity to the fiduciary allocated to income do not exceed the greater of: (a) A cumulative annual return of 3 percent of the entity’s carrying value computed at the beginning of each accounting period, or portion of an accounting period, during the lookback period. If a fiduciary has exercised a power to adjust under s. 738.203 during the lookback period, the fiduciary, in determining the total income distributions from that entity, must take into account the extent to which the exercise of the power resulted in income to the fiduciary from that entity for that period. If the income of a fiduciary during the lookback period has been computed under ss. 738.301-738.310, the fiduciary, in determining the total income distributions from the entity for that period, must take into account the portion of the unitrust amount paid as a result of the ownership of the trust’s interest in the entity for that period; or (b) In the case of an entity treated as a partnership, subchapter S corporation, or disregarded entity under the Internal Revenue Code, the amount of income tax attributable to the fiduciary’s ownership share of the entity, based on its pro rata share of the taxable income of the entity that distributes the money, during the lookback period, calculated as if all of the tax was incurred by the fiduciary.

(8) If a fiduciary receives additional information about the application of this section to an entity distribution before the fiduciary has paid part of the entity distribution to a beneficiary, the fiduciary may consider the additional information before making the payment to the beneficiary and may change a decision to make the payment to the beneficiary.

(9) If a fiduciary receives additional information about the application of this section to an entity distribution after the fiduciary has paid part of the entity distribution to a beneficiary, the fiduciary is not required to change or recover the payment to the beneficiary but may consider that information in determining whether to exercise its other powers, including, but not limited to, the power to adjust under s. 738.203.

(10) The following applies to money or property received by a private trustee as a distribution from an investment entity described in this subsection: (a) The trustee shall first treat as income of the trust all of the money or property received from the investment entity in the current accounting period which would be considered income under this chapter if the trustee had directly held the trust’s pro rata share of the assets of the investment entity. For this purpose, all distributions received in the current accounting period must be aggregated. (b) The trustee shall next treat as income of the trust any additional money or property received in the current accounting period which would have been considered income in the prior two accounting periods under paragraph (a) if additional money or property had been received from the investment entity in any of those prior two accounting periods. The amount to be treated as income must be reduced by any distributions of money or property made by the investment entity to the trust during the current and the prior two accounting periods which were treated as income under this paragraph. (c) The remainder of the distribution, if any, is treated as principal. (d) As used in this subsection, the term: 1. “Investment entity” means an entity, other than a business activity conducted by the trustee described in s. 738.403 or an entity that is listed on a public stock exchange, which is treated as a partnership, subchapter S corporation, or disregarded entity under the Internal Revenue Code and which normally derives 50 percent or more of its annual cumulative net income from interest, dividends, annuities, royalties, rental activity, or other passive investments, including income from the sale or exchange of such passive investments. 2. “Private trustee” means a trustee who is a natural person, but is not an independent person as set forth in s. 738.102.

(11) A fiduciary shall allocate to principal any money and property the fiduciary receives in a distribution or series of related distributions from a public entity which are greater than 10 percent of the fair market value of the fiduciary’s interest in the public entity on the first day of the accounting period. The amount to be allocated to principal must be reduced to the extent that the cumulative distributions from the entity to the fiduciary allocated to income do not exceed a cumulative annual return of 3 percent of the fair market value of the interest in the entity at the beginning of each accounting period, or portion of an accounting period, during the lookback period. If a fiduciary has exercised a power to adjust under s. 738.203 during the lookback period, the fiduciary, in determining the total income distributions from that entity, must take into account the extent to which the exercise of that power resulted in income to the fiduciary from that entity for that period. If the income of the fiduciary during the lookback period has been computed under ss. 738.301-738.310, the fiduciary, in determining the total income distribution from that entity for that period, must take into account the portion of the unitrust amount paid as a result of the ownership of the trust’s interest in the entity for that period. As used in this subsection, the term “public entity” means an entity listed on a public stock exchange.

(12) This section must be applied before ss. 738.506 and 738.507 and does not modify or change any of the provisions of those sections.

History: s. 1, ch. 2002-42; s. 4, ch. 2003-43; s. 8, ch. 2005-85; s. 12, ch. 2012-49; s. 20, ch. 2024-216.