[Adopted 4-6-1987 by Ord. No. 135 (Ch.
24, Part 2, of the 1983 Code of Ordinances)]
A.Â
A realty transfer tax for general revenue purposes
is hereby imposed upon the transfer of real estate or interest in
real estate situated within West Whiteland 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.
B.Â
This article shall be known and may be cited as the
"West Whiteland Township Realty Transfer Tax Ordinance."
As used in this article, the following terms
shall have the meanings indicated:
A real estate 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.
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 instrument 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 § 292-17 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 or 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.
Any lands, tenements or hereditaments within
this Township, 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, leasing real estate 90% or more
of the ownership interest in which is held by 35 or fewer persons
and which:
Derives 60% or more of its annual gross receipts
from the ownership or disposition of 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 thirty years or more or a leasehold
interest or possessory interest in real estate in which the lessee
has equity.
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
other 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 of the contract of
sale;
In the case of 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 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 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 of 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 principle of
the grantor of a related corporation, association or partnership and
the grantee existing before or effective with the transfer.
A.Â
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 acceptance of such document or within 30 days of becoming an acquired
company.
B.Â
The payment of the tax imposed herein shall be evidence
by the affixing of an official stamp or writing by the Recorder of
Deeds of Chester County whereon the date of the payment of the tax,
amount of the tax and the signature of the collecting agent shall
be set forth.
C.Â
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 thereafter
shall impose such tax on the same person or transfer then the tax
levied by the Township under the authority of that Act shall during
such time such duplication of tax exists, except as hereinafter otherwise
provided, be 1/2 of the rate and such 1/2 rate shall become effective
without any action on the part of Township; provided, however, that
the Township and any other political subdivision which impose such
tax on the same person or transfer may agree that, instead of limiting
their respective rates to 1/2 of the rate herein provided, they will
impose respectively different rates, the total of which shall not
exceed the maximum rate permitted under the Local Tax Enabling Act.[1]
[1]
Editor's Note: Former Subsection D, pertaining
to interest on late payment, which immediately followed this subsection,
was repealed 2-15-2007 by Ord. No. 343.
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, relieve any other
party to a transaction from liability for the tax.
A.Â
The tax imposed by § 292-14 shall not be imposed upon:
(1)Â
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 condemnation which
reconveyance may include property line adjustments provided said reconveyance
is made within one year from the date of condemnation.
(2)Â
A document which the Township is prohibited from taxing
under the constitution or statutes of the United States.
(3)Â
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 sheriff sale or
tax claim bureau sale.
(4)Â
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)Â
A transfer of division in kind for no or nominal actual
consideration or property passed by testate or intestate succession
and held by covenants; however, if any of the parties take shares
greater in value than their undivided interest, tax is due on the
excess.
(6)Â
A transfer between husband and wife, between persons
who were previously husband and wife who have since been divorced,
provided 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 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)Â
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)Â
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)Â
A transfer for no or nominal actual consideration
from a trustee to a beneficiary of an ordinary trust.
(10)Â
A transfer for no or nominal actual consideration
from trustee to successor trustee.
(11)Â
A transfer i) for no or nominal actual consideration
between principal and agent or straw party; or ii) 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.
(a)Â
Where the document by which title is acquired
by a grantee or 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)Â
A transfer made pursuant to the statutory merger
or consolidation of a corporation or statutory division of a nonprofit
corporation, except where the department reasonably determines that
the primary intent for such merger, consolidation or division is avoidance
of the tax imposed by this article.
(13)Â
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 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)Â
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)Â
A transfer from a nonprofit industrial development
agency or authority to a grantee purchasing directly from it, but
only if: i) the grantee shall directly use such real estate for the
primary purpose of manufacturing, fabricating, compounding, processing,
publishing, research and development, transportation, energy conservation,
energy production, pollution control, warehousing or agriculture;
and ii) the agency or authority has the full ownership interest in
the real estate transferred.
(16)Â
A transfer by a 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)Â
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)Â
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 preservation of land for historic,
recreational, scenic, agricultural or open space opportunities.
(19)Â
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)Â
A transfer between members of the same family
of an ownership interest in a real estate company or family farm corporation.
(21)Â
A transaction wherein the tax due is $1 or less.
(22)Â
Leases for the production or extraction of coal,
oil, natural gas or minerals and assignments thereof.
(23)Â
Or any other transaction excluded under the
Act of March 4, 1971 (P.L. 6, No. 2) (72 P.S. § 8102-C.3),
as amended.
[Added 2-15-2007 by Ord. No. 343]
B.Â
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 such document
is not subject to tax under this article.
A.Â
Except as otherwise provided in § 292-16 hereof, documents which make, confirm or evidence any transfer or demise of title to real estate between associations or corporations and their members, partners, shareholders or stockholders thereof are fully taxable. For the purpose of this article, corporations and associations are entities separate from their members, partners, stockholders or shareholders.
B.Â
Within 30 days after becoming an acquired company,
the company shall present for recording a declaration of acquisition
with the Recorder of Deeds of Chester County for the purpose of noting
thereon or the affixation thereto of such documentary stamps or evidence
of the payment of this tax as required by law. Such declaration shall
set forth the value of real estate holdings of the acquired company
in Chester County.
A.Â
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 the tax due upon the transfer.
B.Â
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.
C.Â
Where there is a transfer of real estate which is
demised by the grantor, a credit for the amount of tax paid at the
time of the demise shall be given the grantor toward the tax due upon
the transfer. In determining the term of a lease, it shall be presumed
that a right or 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.
D.Â
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 sale shall be given
the grantor toward the tax due upon the deed.
E.Â
If the tax due upon the transfer is greater that 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 carryover credit shall be allowed.
The tax herein shall be fully paid, and have
priority out of the proceeds of any judicial sale of real estate before
any other obligation, claim, lien, judgment, estate or costs of the
sale and of the writ upon which the sale is made, and the sheriff,
or other officer, conducting said sale shall pay the tax herein imposed
out of the first monies 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.
Where real estate or interest in real estate
lying partially within the boundaries of West Whiteland Township and
partly without said boundaries is transferred, the tax herein imposed
shall be calculated upon such portion of the value as shall be represented
by the portion of real estate or interest therein lying within the
boundaries of the Township as determined by the realty transfer tax
statement of value filed with the Recorder of Deeds or if no such
filing is required, by affidavit of the transferor, or as separately
stated in the document of transfer; provided, however, such value
shall in no event be less than the highest assessed valuation for
local tax purposes placed upon the real estate or the interest in
the real estate in the assessment of the property within the Township.
Every document lodged with or presented to the
Recorder of Deeds of Chester County for recording shall set forth
therein and as part of such document the true, full and complete value
thereof. When the full, complete and actual consideration which is
subject to the tax is not set forth in the document, the person liable
for the tax shall, contemporaneously with the filing of the document,
file with the Recorder of Deeds a "realty transfer tax statement of
value" identical to that promulgated by the Department of Revenue
of the Commonwealth of Pennsylvania or, in the instance of an acquired
company, a "realty transfer tax declaration of acquisition" identical
to that promulgated by the Department of Revenue of the Commonwealth
of Pennsylvania. The provisions of this section shall not apply to
any excludable real estate transfers which are exempt from taxation
based on family relationship.
The tax imposed hereby, including any amount payable to the Township based on a redetermination of the amount of tax due by the Commonwealth of Pennsylvania pursuant to § 292-14 hereof shall be collected by the Recorder of Deeds of Chester County who shall act as agent for the Township in the collection of the transfer tax as provided in 16 P.S. § 11011-6, as amended. The tax thus collected shall be payable by the Recorder to the Treasurer of West Whiteland Township at least monthly or at such other intervals as the Township and the Recorder of Deeds shall mutually determine.
The payment of the tax imposed by this article
when received by the Recorder of Deeds shall be evidenced by the affixing
of a documentary stamp or stamps or other evidence of payment as approved
by the Pennsylvania Department of Revenue.
A.Â
In the event a determination or redetermination of
transfer tax due is made by the Pennsylvania Department of Revenue
pursuant to Section 1111-C of Act 1986-77, 72 P.S. § 8111-C,
such determination or redetermination shall be deemed to have been
also made by the Secretary of West Whiteland Township, and there shall
be due and owing to the Township, as additional transfer tax, the
amount determined or redetermined by the Department to be due the
Commonwealth of Pennsylvania.
B.Â
Upon redetermination of the amount of realty transfer
tax due by the Commonwealth of Pennsylvania, the Recorder shall re-record
the document only when the transfer tax imposed by this article has
been paid.
[Amended 2-15-2007 by Ord. No. 343]
The Secretary of West Whiteland Township is
hereby authorized and empowered to prescribe, adopt and enforce rules
and regulations relating to the registration and notation of transactions,
the collection of transfer taxes, interest and penalties due hereunder;
the prosecution of violations hereunder; and any other matter pertaining
to administration and enforcement of the provisions of this article;
provided, however, that the regulations which have been promulgated
by the Pennsylvania Department of Revenue under 72 P.S. § 1101-C
et seq., as the same are from time to time amended, are incorporated
into and made part of this article and shall be deemed to have been
adopted by the Township Secretary.
A.Â
Any tax imposed under §§ 292-12 and 292-14 that is not paid by the date the tax is due shall bear interest as prescribed for interest on delinquent municipal claims under the Act of May 16, 1923 (P.L. 207, No. 153) (53 P.S. § 7101 et seq.), as amended, known as "The Municipal Claims and Tax Liens Act." The interest rate shall be the lesser of the interest rate imposed upon delinquent commonwealth taxes as provided in Section 806 of the Act of April 9, 1929 (P.L. 343, No. 176) (72 P.S. § 806), as amended, known as "The Fiscal Code," or the maximum interest rate permitted under the Municipal Claims and Tax Liens Act for tax claims.
[Amended 2-15-2007 by Ord. No. 343]
B.Â
The transfer tax when due and unpaid, together with
all interest and penalties thereon, shall be a lien in favor of the
Township on real estate or interest in the real estate which is described
in the document which the tax is imposed, and upon any other property,
both real and personal, of the person failing to pay the tax due,
after said lien has been entered and adopted of record by the Prothonotary
of Chester County accordance with the Municipal Claims and Tax Liens
Law.[1]
[Amended 2-15-2007 by Ord. No. 343]
[1]
Editor's Note: See 53 P.S. § 7101
et seq.
C.Â
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.
D.Â
The tax imposed by this article shall be collected
and enforced in accordance with the Local Tax Enabling Act.[2] The Township Solicitor is authorized to pursue any and
all remedies available by law for collection of the tax, and all such
remedies shall be cumulative and not exclusive.
[2]
Editor's Note: See 53 P.S. § 6901
et seq.
E.Â
The tax imposed under §§ 292-12 and 292-14 and all applicable interest and penalties shall be administered, collected and enforced under the Act of December 31, 1965 (P.L. 1257, No. 511), as amended, known as "The Local Tax Enabling Act," provided that, if the correct amount of the tax is not paid by the last date prescribed for timely payment, West Whiteland Township, pursuant to § 1102-D of the Tax Reform Code of 1971 (72 P.S. § 8102-D) authorizes and directs the Department of Revenue of the Commonwealth of Pennsylvania to determine, collect, and enforce the tax, interest, and penalties.
[Added 2-15-2007 by Ord. No. 343]
[Amended 6-10-1997 by Ord. No. 257]
A.Â
It shall be unlawful for any person to:
(1)Â
Accept or present for recording or cause to be accepted
or presented for recording any document, without the full amount of
the tax thereon being duly paid; or
(2)Â
Fail, neglect or refuse to comply with or violate
the provisions of this article or the rules or regulations prescribed,
adopted and promulgated by the Secretary under the provisions of this
article.
B.Â
Any person who violates or permits the violation of any of the provisions of this § 292-27 shall be subject to a fine in the amount of at least $25, but not to exceed $600, plus all court costs, including reasonable attorney fees incurred by the Township. Upon a finding of liability for committing said violation or permitting said violation, in a civil enforcement proceeding commenced by the Township, the defendant shall pay the fine plus costs and attorney fees. No judgment shall be imposed until the date of determination of a violation by a District Justice. If the defendant neither pays nor timely appeals the judgment, the Township may enforce the judgment pursuant to the applicable Rules of Civil Procedure.
This article and the tax herein levied shall
be effective five days after enactment as by law provided and shall
remain in effect until amended or repealed.
