[Adopted 2-9-1987 by Ord. No. 87-3]
A.
Short title. This Article shall be known as the "Realty
Transfer Tax Ordinance of Hempfield Township."
B.
Authority. A realty transfer tax for general revenue
purposes is hereby imposed upon the transfer of real estate or interest
in real estate situated within Hempfield Township, regardless of where
the documents making the transfer are made, executed or delivered
or where the actual settlements on such transfer took place, as authorized
by Article XI-D, Local Real Estate Transfer Tax, 72 P.S. § 8101-D,
et seq.
As used in this article, the following terms
shall have the meanings indicated:
A partnership, limited partnership or any other form of unincorporated
enterprise owned or conducted by two or more persons, other than a
private trust or decedent's estate.
A corporation, joint-stock association, business trust or
banking institution which is organized under the laws of this commonwealth,
the United States or any other state, territory, foreign country or
dependency.
Any deed, instrument or writing which conveys, transfers, demises, vests, confirms or evidences any transfer or demise of title to real estate, but does not include wills, mortgages, deeds of trust or other instruments of like character given as security for a debt and deeds of release thereof to the debtor; land contracts whereby the legal title does not pass to the grantee until the total consideration specified in the contract has been paid, or any cancellation thereof, unless the consideration is payable over a period of time exceeding 30 years; or instruments which solely grant, vest or confirm a public utility easement. "Document" shall also include a declaration of acquisition required to be presented for recording under § 79-31D of this article.
A corporation of which at least 75% of its assets are devoted
to the business of agriculture and at least 75% of each class of stock
of the corporation is continuously owned by members of the same family.
The business of agriculture shall not be deemed to include:
Recreational activities, such as but not limited
to hunting, fishing, camping, skiing, show competition or racing;
The raising, breeding or training of game animals
or game birds, fish, cats, dogs or pets or animals intended for use
in sporting or recreational activities;
Fur farming;
Stockyard and slaughterhouse operations; or
Manufacturing or processing operations of any
kind.
Any individual, such individual's brothers and sisters, the
brothers and sisters of such individual's parents and grandparents,
the ancestors and lineal descendants of any of the foregoing, a spouse
of any of the foregoing and the estate of any of the foregoing. Individuals
related by the half blood or legal adoption shall be treated as if
they were related by the whole blood.
Every natural person, association or corporation. Whenever
used in any clause prescribing and imposing a fine or imprisonment,
or both, the term "person," as applied to associations, shall include
the responsible members or general partners thereof and, as applied
to corporations, the officers thereof.
All lands, tenements or hereditaments within
this Township of Hempfield, including, without limitation, buildings,
structures, fixtures, mines, minerals, oil, gas, quarries, spaces
with or without upper or lower boundaries, trees and other improvements,
immovables or interests which by custom, usage or law pass with a
conveyance of land, but excluding permanently attached machinery and
equipment in an industrial plant.
A condominium unit.
A tenant stockholder's interest in a cooperative
housing corporation, trust or association under a proprietary lease
or occupancy agreement.
A corporation or association which is primarily engaged in
the business of holding, selling or leasing real estate, 90% or more
of the ownership interest in which is held by 35 or fewer persons
and which:
Services 60% or more of its annual gross receipts
from the ownership or disposition of the real estate; or
Holds real estate, the value of which comprises
90% or more of the value of its entire tangible asset holdings, exclusive
of tangible assets which are freely transferable and actively traded
on an established market.
Any interest in real estate which endures for
a period of time, the termination of which is not fixed or ascertained
by a specific number of years, including, without limitation, an estate
in fee simple, life estate or perpetual leasehold; or
Any interest in real estate enduring for a fixed
period of years but which, either by reason of the length of the term
or the grant of a right to extend the term by renewal or otherwise,
consists of a group of rights approximating those of an estate in
fee simple, life estate or perpetual leasehold, including, without
limitation, a leasehold interest or possessory interest under a lease
or occupancy agreement for a term of 30 years or more or a leasehold
interest or possessory interest in real estate in which the lessee
has equity.
The Township of Hempfield, Westmoreland County, Pennsylvania.
The making, executing, delivering, accepting or presenting
for recording of a document.
In the case of any bona fide sale of real estate
at arm's length for actual monetary worth, the amount of the actual
consideration therefor, paid or to be paid, including liens or other
encumbrances thereon existing before the transfer and not removed
thereby, whether or not the underlying indebtedness is assumed, and
ground rents, or a commensurate part thereof, where such liens or
other encumbrances and ground rents also encumber or are charged against
the real estate, provided that, where such documents shall set forth
a nominal consideration, the "value" thereof shall be determined from
the price set forth in or actual consideration for the contract of
sale;
In the case of a gift, sale by execution upon
a judgment or upon the foreclosure of a mortgage by a judicial officer,
transactions without consideration or for consideration less than
the actual monetary worth of the real estate, a taxable lease, an
occupancy agreement, a leasehold or possessory interest, any exchange
of properties or the real estate of an acquired company, the actual
monetary worth of the real estate determined by adjusting the assessed
value of the real estate for the local real estate tax purposes for
the common-level ratio factor developed by the Pennsylvania Department
of Revenue for Pennsylvania realty transfer tax base calculations;
The actual consideration for or actual monetary
worth of any executory agreement for the construction of buildings,
structures or other permanent improvements to real estate between
the grantor and other persons, existing before the transfer and not
removed thereby, or between the grantor, the agent or the principle
of the grantor of a related corporation, association or partnership
and the grantee, existing before or effective with the transfer.
A.
Every person who makes, executes, delivers, accepts
or presents for recording any document, or in whose behalf any document
is made, executed, delivered, accepted or presented for recording,
shall be subject to pay, for and in respect to the transaction or
any part thereof, a tax at the rate of 1% of the value of the real
estate represented by such document, which tax shall be payable at
the earlier of the time the document is presented for recording or
within 30 days of the acceptance of such document or within 30 days
of becoming an acquired company.
B.
The payment of the tax imposed herein shall be evidenced
by the affixing of an official stamp or writing by the Recorder of
Deeds of Westmoreland County, Pennsylvania, whereon the date of the
payment of the tax, the amount of the tax and the signature of the
collecting agent shall be set forth.
C.
It is the intent of this article that the entire burden
of the tax imposed herein on a person or transfer shall not exceed
the limitations prescribed in the Local Tax Enabling Act, Act of December
31, 1965, P.L. 1257, 53 P.S. § 6901 et seq., so that, if
any other political subdivision shall impose or hereafter shall impose
such tax on the same person or transfer, then the tax levied by the
Township of Hempfield under the authority of that Act shall, during
such time that duplication of the tax exists, except as hereinafter
otherwise provided, be 1/2 of the rate, and such one-half rate shall
become effective without any action on the part of the Township of
Hempfield; provided, however, that the Township of Hempfield and any
other political subdivision which imposes such tax on the same person
or transfer may agree that, instead of limiting their respective rates
to 1/2 the rate herein provided, they will impose respectively different
rates, a total of which shall not exceed the maximum rate permitted
under the Local Tax Enabling Act.
D.
If, for any reason, the tax is not paid when due,
interest at the rate in effect at the time the tax is due shall be
added and collected.
A.
Exempt parties. The United States, the commonwealth
or any of their instrumentalities, agencies or political subdivisions
shall be exempt from payment of the tax imposed by this article. The
exemption of such governmental bodies shall not, however, release
any other party to a transaction from liability for the tax.
B.
Excluded transactions. The tax imposed by § 79-30A shall not be imposed upon:
(1)
A transfer to the commonwealth or to any of its instrumentalities,
agencies or political subdivisions by gift, dedication or deed in
lieu of condemnation or deed of confirmation in connection with condemnation
proceedings, or a reconveyance by the condemning body of the property
condemned to the owner of record at the time of the condemnation,
which reconveyance may include property fine adjustments, provided
that reconveyances are made within one year from the date of condemnation.
(2)
A document which the Township of Hempfield is prohibited
from taxing under the Constitution or the statutes of the United States.
(3)
A conveyance to a municipality, township, school district
or county pursuant to acquisition by the municipality, township, school
district or county of a tax-delinquent property at a sheriff's sale
or Tax Claim Bureau sale.
(4)
A transfer, for no or nominal actual consideration,
which corrects or confirms a transfer previously recorded but which
does not extend or limit existing record legal title or interest.
(5)
A transfer of division in kind for no or nominal actual
consideration of property passed by testate or intestate succession
and held by cotenants; however, if any of the parties takes shares
greater in value than their undivided interest, tax is due on the
excess.
(6)
A transfer between husband and wife, between persons
who were previously husband and wife who have since been divorced,
provided that the property or interest therein subject to such transfer
was acquired by the husband and wife or husband or wife prior to the
granting of the final decree in divorce, between parent and child
or the spouse of such child, between brother or sister or the spouse
of a brother or sister and brother or sister or the spouse of a brother
or sister and between a grandparent and grandchild or the spouse of
such grandchild, except that a subsequent transfer by the grantee
within one year shall be subject to tax as if the grantor were making
such transfer.
(7)
A transfer, for no or nominal actual consideration,
of property passing by testate or intestate succession from a personal
representative of a decedent to the decedent's devisee or heir.
(8)
A transfer, for no or nominal actual consideration,
to a trustee of an ordinary trust where the transfer of the same property
would be exempt if the transfer was made directly from the grantor
to all of the possible beneficiaries, whether or not such beneficiaries
are contingent or specifically named. No such exemption shall be granted
unless the Recorder of Deeds is presented with a copy of the trust
instrument that clearly identifies the grantor and all possible beneficiaries.
(9)
A transfer for no or nominal actual consideration
from a trustee to a beneficiary of an ordinary trust.
(10)
A transfer for no or nominal actual consideration
from trustee to successor trustee.
(11)
A transfer, for no or nominal actual consideration,
between principal and agent or straw party, or from or to an agent
or straw party where, if the agent or straw party were his principal,
no tax would be imposed under this article. Where the document by
which title was acquired by a grantee or a statement of value fails
to set forth that the property was acquired by the grantee from or
for the benefit of his principal, there is a rebuttable presumption
that the property is the property of the grantee in his individual
capacity if the grantee claims an exemption from taxation under this
clause.
(12)
A transfer made pursuant to the statutory merger
or consolidation of a corporation or statutory division of a nonprofit
corporation, except where the Hempfield Township Board of Supervisors
reasonably determines that the primary intent for such merger, consolidation
or division is avoidance of the tax imposed by this article.
(13)
A transfer from a corporation or association
of real estate held of record in the name of the corporation or association
where the grantee owns stock of the corporation or an interest in
the association in the same proportion as his interest in or ownership
of the real estate being conveyed and where the stock of the corporation
or the interest in the association has been held by the grantee for
more than two years.
(14)
A transfer from a nonprofit industrial development
agency or authority to a grantee of property conveyed by the grantee
to that agency or authority as security for a debt of the grantee,
or a transfer to a nonprofit industrial development agency or authority.
(15)
A transfer from a nonprofit industrial development
agency or authority to a grantee purchasing directly from it, but
only if:
(a)
The grantee shall directly use such real estate
for the primary purpose of manufacturing, fabricating, compounding,
processing, publishing, research and development, transportation,
energy conversion, energy production, pollution control, warehousing
or agriculture; and
(b)
The agency or authority has the full ownership
interest in the real estate transferred.
(16)
A transfer by the mortgagor to the holder of
a bona fide mortgage in default in lieu of a foreclosure, or a transfer
pursuant to a judicial sale in which the successful bidder is the
bona fide holder of a mortgage unless the holder assigns the bid to
another person.
(17)
Any transfer between religious organizations
or other bodies or persons holding title for a religious organization
if such real estate is not being or has not been used by such transferor
for commercial purposes.
(18)
A transfer to a conservancy which possesses
a tax-exempt status pursuant to Section 501(c)(3) of the Internal
Revenue Code of 1954 [68A Stat. 3, 26 U.S.C. § 501(c)(3)]
and which has as its primary purpose the preservation of land for
historic, recreational, scenic, agricultural or open space opportunities.
(19)
A transfer of real estate devoted to the business
of agriculture to a family farm corporation by a member of the same
family, which directly owns at least 75% of each class of stock thereof.
(20)
A transfer between members of the same family
of an ownership interest in a real estate company or family farm corporation.
(21)
A transaction wherein the tax due is $1 or less.
(22)
Leases for the production or extraction of coal,
oil, natural gas or minerals and assignments thereof.
C.
In order to exercise any exclusion provided in this
section, the true, full and complete value of the transfer shall be
shown on the statement of value. A copy of the Pennsylvania realty
transfer tax statement of value may be submitted for this purpose.
For leases of coal, oil, natural gas or minerals, the statement of
value may be limited to an explanation of the reason that such document
is not subject to tax under this article.
D.
Documents relating to associations or corporations and members, partners, stockholders or shareholders thereof. Except as otherwise provided in § 79-31B, documents which make, confirm or evidence any transfer or demise of title to real estate between associations or corporations and the members, partners, shareholders or stockholders thereof are fully taxable. For the purposes of this article, corporations and associations are entities separate from their members, partners, stockholders or shareholders.
E.
Acquired company.
(1)
A real estate company is an "acquired company" upon
a change in the ownership interest in the company, however effected,
if the change does not affect the continuity of the company and, of
itself or together with prior changes, has the effect of transferring,
directly or indirectly, 90% or more of the total ownership interest
in the company within a period of three years.
(2)
With respect to the real estate acquired after February
16, 1986, a family farm corporation is an "acquired company" when,
because of voluntary or involuntary dissolution, it ceases to be a
family farm corporation or when, because of the issuance or transfer
of stock or because of the acquisition or transfer of assets that
are devoted to the business of agriculture, it fails to meet the minimum
requirements of a family farm corporation under this article.
(3)
Within 30 days after becoming an acquired company,
the company shall present a declaration of acquisition with the Recorder
of each county in which it holds real estate for the affixation of
documentary stamps and recording. Such declaration shall set forth
the value of real estate holdings of the acquired company in such
county. A copy of the Pennsylvania Realty Transfer Tax Declaration
of Acquisition may be submitted for this purpose.
A.
Credits against tax.
(1)
Where there is a transfer of a residential property
by a licensed real estate broker, which property was transferred to
him within the preceding year as consideration for the purchase of
other residential property, a credit for the amount of the tax paid
at the time of the transfer to him shall be given to him toward the
amount of tax due upon the transfer.
(2)
Where there is a transfer by a builder of residential
property which was transferred to the builder within the preceding
year as consideration for the purchase of new, previously unoccupied
residential property, a credit for the amount of the tax paid at the
time of the transfer to the builder shall be given to the builder
toward the amount of the tax due upon the transfer.
(3)
Where there is a transfer of real estate which is
leased by the grantor, a credit for the amount of the tax paid at
the time of the lease shall be given to the grantor toward the tax
due upon the transfer.
(4)
Where there is a conveyance by deed of real estate
which was previously sold under a land contract by the grantor, a
credit for the amount of tax paid at the time of the sale shall be
given the grantor toward the tax due upon the deed.
(5)
If the tax due upon the transfer is greater than the
credit given under this section, the difference shall be paid. If
the credit allowed is greater than the amount of tax due, no refund
or carry-over credit shall be allowed.
B.
Extension of lease. In determining the term of a lease,
it shall be presumed that a right of option to renew or extend a lease
will be exercised if the rental charge to the lessee is fixed or if
a method for calculating the rental charge is established.
C.
Review.
(1)
If any person shall fail to pay any tax imposed by
this article for which he or she is liable, the Township is hereby
authorized and empowered to make a determination of additional tax
and interest due by such person based upon any information within
its possession or that shall come into its possession. All such determinations
shall be made within three years after the date of recording of the
document.
(2)
Promptly after the date of such determination, the
Township shall send, by registered mail, a copy thereof to the person
to whom it was made. Within 90 days of date upon which the copy of
such determination was mailed, such person may file with the Township
a petition for redetermination of such taxes. Every petition for redetermination
shall state specifically the reasons which the petitioner believes
entitle him to such redetermination, and it shall be supported by
affirmation that it is not made for the purpose of delay and that
the facts set forth therein are true. It shall be the duty of the
Township, within six months of the date of the filing of any petition
for redetermination, to dispose of the petition. Notice of the action
upon any petition for redetermination shall be given to the petitioner
promptly after the date of the redetermination of the Township.
D.
Refunds.
(1)
Whenever the amount due upon determination, redetermination
or review is less than the amount paid to the Township on account
thereof, the Township shall enter a credit in the amount of such difference
to the account of the person who paid the tax.
(2)
Where there has been no determination of unpaid tax,
the Township shall have the power, and its duties shall be, to hear
and decide any application for refund and, upon the allowance of such
application, to enter a credit in the amount of the overpayment to
the account of the person who paid the tax. Such application must
be filed within two years after the date of payment.
The tax herein imposed shall be fully paid and
have priority out of the proceeds of any judicial sale of real estate
for any other obligation, claim, lien, judgment, estate or costs of
the sale and of the writ upon which the sale is made, except the state
realty transfer tax, and the sheriff or other officer conducting said
sale shall pay the tax herein imposed out of the first moneys paid
to him in connection therewith. If the proceeds of the sale are insufficient
to pay the entire tax herein imposed, the purchaser shall be liable
for the remaining tax.
A.
Duties of Recorder of Deeds.
(1)
As provided in 16 P.S. § 11011-6, as amended
by Act of July 7, 1983, P.L. 40, No. 21, the Recorder of Deeds shall
be the collection agent for the local realty transfer tax, including
any amount payable to the Township of Hempfield based upon a redetermination
of the amount of tax due by the Commonwealth of Pennsylvania realty
transfer tax without compensation from the Township of Hempfield.
(2)
In order to ascertain the amount of the taxes due
when the property is located in more than one political subdivision,
the Recorder of Deeds shall not accept for recording such a deed unless
it is accompanied by a statement of value showing what taxes are due
each municipality.
(3)
On or before the 10th of each month, the Recorder
shall pay over to the Township of Hempfield all local transfer taxes
collected, less 2% for the use of the county, together with a report
containing the information as is required by the Commonwealth of Pennsylvania
in reporting collections of the Pennsylvania realty transfer tax.
The two-percent commission shall be paid to the county.
(4)
Upon a redetermination of the amount of realty transfer
tax due by the Commonwealth of Pennsylvania, the Recorder shall rerecord
the deed or record the additional realty transfer tax form only when
both the state and local amounts and a rerecording or recording fee
has been tendered.
B.
Statement of value. Every document lodged with or
presented to the Recorder of Deeds for recording shall set forth therein
and as a part of such document the true, full and complete value thereof
or shall be accompanied by a statement of value executed by a responsible
person connected with the transaction, showing such connection and
setting forth the true, full and complete value thereof or the reason,
if any, why such document is not subject to tax under this article.
A copy of the Pennsylvania realty transfer tax statement of value
may be submitted for this purpose. The provisions of this subsection
shall not apply to any excludable real estate transfers which are
exempt from taxation based on family relationship. Other documents
presented for the affixation of stamps shall be accompanied by a certified
copy of the document and statement of value executed by a responsible
person connected with the transaction, showing such connection and
setting forth the true, full and complete value thereof or the reason,
if any, why such document is not subject to tax under this article.
A.
Civil penalties.
(1)
If any part of any underpayment of tax imposed by
this article is due to fraud, there shall be added to the tax an amount
equal to 50% of the underpayment.
(2)
In the case of failure to record a declaration required
under this article on the date prescribed therefor, unless it is shown
that such failure is due to reasonable cause, there shall be added
to the tax 5% of the amount of such tax if failure is for not more
than one month, with an additional 5% for each month or fraction thereof
during which such failure continues, not exceeding 50% in the aggregate.
B.
Lien. The tax imposed by this article shall become
a lien upon the lands, tenements or hereditaments, or any interest
therein, lying or being situated, wholly or in part, within the boundaries
of the Township of Hempfield, which lands, tenements or hereditaments,
or interest therein, are described in or conveyed by or transferred
by the deed which is the subject of the tax imposed, assessed and
levied by this article, said lien to begin at the time when the tax
under this article is due and payable and to continue until discharge
by payment or in accordance with the law, and the Solicitor is authorized
to file a municipal or tax claim in the Court of Common Pleas of Westmoreland
County in accordance with the provisions of the Municipal Claims and
Lien Act of 1923, 53 P.S. § 7101, et seq., its supplements
and amendments.
C.
Enforcement. All taxes imposed by this article, together
with interest and penalties prescribed herein, shall be recoverable
as other debts of like character are recovered.
D.
Regulations. The Secretary of the Township is charged
with the enforcement and collection of the tax and is empowered to
promulgate and enforce reasonable regulations for the enforcement
and collection of the tax. The regulations which have been promulgated
by the Pennsylvania Department of Revenue under 72 P.S. § 8101-C
et seq. are incorporated into and made a part of this article.
Nothing contained in this article shall be construed
to empower the Township to levy and collect the tax hereby imposed
on real estate transaction not within the taxing power of the Township
under the Constitution of the United States and the laws of the Commonwealth
of Pennsylvania.
Should any section, subsection, sentence, clause
or phrase of this article be declared invalid by a court of competent
jurisdiction, such decision shall not affect the validity of the Article
in its entirety or of any part thereof other than that declared to
be invalid.
This Article is enacted under the authority
of the Local Real Estate Transfer Act, 72 P.S. § 8101-D,
et seq., and administered, collected and enforced under the Local
Tax Enabling Act, 53 P.S. § 6901 et seq., and the tax hereby
imposed shall continue in force on a calendar or fiscal-year basis,
as the case may be, without annual reenactment unless the rate of
the tax is subsequently changed.
This Article shall be effective five days after
the enactment of this article.
