[Adopted 12-22-1986 by Ord. No. 1986-12]
This article shall be known as the "Realty Transfer Tax Ordinance of
the Township of Lancaster."
This realty transfer tax is levied under the authority of the Tax Reform
Code of 1971, as amended, March 4, P.L. 6, No. 2, 72 P.S. § 7101
et seq., and Article XI-D, entitled "Local Real Estate Transfer Tax," of the
Pennsylvania Real Estate Transfer Tax Act which is a new article added by
Act 77-1986 (Act of July 2, 1986, No. 77, P.L. ____) to the Pennsylvania Real
Estate Transfer Tax Act, Act 14-1981 (Act of May 5, 1981, No. 14, P.L. 36)
as amended, and the Local Tax Enabling Act, approved December 31, 1965, P.L.
1257, No. 511, 53 P.S. § 6901 et seq. The Pennsylvania Real Estate
Transfer Tax Act is codified at 72 P.S. § 8101-C et seq. and Article
XI-D is codified at 72 P.S. § 8101-D.
As otherwise stated, the following words shall, for purposes of this
article, have the meaning herein indicated. Words in the present tense include
future tense. Words in the singular include the plural and words in the plural
include the singular.
ASSOCIATION
A partnership, limited partnership, or any other form of unincorporated
enterprise owned or conducted by two or more persons.
COLLECTOR
A corporation, joint-stock association, business trust, or banking
institution which is organized under the laws of the Commonwealth of Pennsylvania,
the United States, or any other state, territory, foreign country or dependency.
DOCUMENT
Any deed, instrument or writing which conveys, transfers, demises, vests, confirms or evidences any transfer or demise of title to real estate within the township, but does not include wills, mortgages, deeds of trust or other instruments or 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 §
247-11 of this article.
FAMILY FARM CORPORATION
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:
A.
Recreational activities such as, but not limited to, hunting, fishing,
camping, skiing, show competition or racing;
B.
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;
D.
Stockyard and slaughterhouse operations; or
E.
Manufacturing or processing operations of any kind.
MEMBERS OF THE SAME FAMILY
Any individual, such individual's brothers and sisters, the
brothers and sisters of such individual's parents and grandparents, the
ancestors or 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.
PERSON
Every natural person, association, or corporation or entity of any
kind. 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.
REAL ESTATE
A.
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.
C.
A tenant-stockholder's interest in a cooperative housing corporation,
trust or association under a proprietary lease or occupancy agreement.
REAL ESTATE COMPANY
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:
A.
Derives 60% or more of its annual gross receipts from the ownership
or disposition of real estate; or
B.
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.
TITLE TO REAL ESTATE
A.
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
B.
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.
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.
TRANSACTION
The making, executing, delivering, accepting, or presenting for recording
of a document.
VALUE
A.
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 for the contract of sale;
B.
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, value
shall be 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 of assessed values to market values of the taxing district
in which the township is located as established by the State Tax Equalization
Board, or a commensurate part of the assessment where the assessment includes
other real estate;
C.
In the case of an easement or other interest in real estate the value of which is not determinable under Subsection
A or
B, the actual monetary worth of such interest; or
D.
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 principal of the grantor of a related corporation, association or partnership
and the grantee existing before or effective with the transfer.
A tax is hereby levied and imposed, for general township purposes, on
every real estate transaction, at the rate of 1% of the value of the real
estate represented by the document involved in the real estate transaction.
A. The tax shall be payable at the earlier of the time the
document is presented for recording, within 30 days of acceptance of the document,
or within 30 days of becoming an acquired company.
B. If the real estate is located partially within and partially
outside the township, the tax shall be calculated on the value of the portion
within the township.
C. The tax imposed hereunder shall be due and payable to
the collector, as a joint and several liability, by 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. In the case of an acquired company, the company shall also
have liability for payment of the tax. All such persons shall also be liable
for any penalties imposed under this article.
D. It is the intent of this article that the entire burden
of the tax imposed on a real estate transaction by the township and other
political subdivisions shall not exceed the limitations prescribed in Section
8 of the Local Tax Enabling Act, 53 P.S. § 6908, so that if any
other political subdivision imposes a tax on real estate transactions taxed
under this article, the provisions of said Section 8 shall apply.
The payment of the tax imposed hereunder shall be evidence by the collector
affixing on the document an official stamp or writing setting forth the date
of payment of the tax and amount of tax paid.
The United States, the Commonwealth of Pennsylvania, or any of their
instrumentalities, agencies or political subdivisions shall be exempt from
payment or 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.
The tax imposed by §
247-6 shall not be imposed upon:
A. 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.
B. A document which the township is prohibited from taxing
under the Constitution or statutes of the United States.
C. A conveyance to a township, school district or county
pursuant to acquisition by the township, school district or county of a tax
delinquent property at sheriff sale or tax claim bureau sale.
D. 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.
E. 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 take shares greater in value
than their undivided interest, tax is due on the excess.
F. 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.
G. 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.
H. 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.
I. A transfer for no or nominal actual consideration from
a trustee to a beneficiary of an ordinary trust.
J. A transfer for no or nominal actual consideration from
trustee to successor trustee.
K. 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 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 subsection.
L. A transfer made pursuant to the statutory merger or consolidation
of a corporation or statutory division of a nonprofit corporation, except
where the township reasonably determines that the primary intent for such
merger, consolidation or division is avoidance of the tax imposed by this
article.
M. 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.
N. 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.
O. A transfer from a nonprofit industrial development agency
or authority to a grantee purchasing directly from it, but only if:
(1) 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
(2) The agency or authority has the full ownership interest
in the real estate transferred.
P. 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.
Q. 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.
R. A transfer to a conservancy which possesses tax exempt
status pursuant to Section 501(c)(3) of the Internal Revenue Code of 1954
and which has as its primary purpose preservation of land for historic, recreational,
scenic, agricultural or open space opportunities.
S. 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 the stock thereof.
T. A transfer between members of the same family of an ownership
interest in a real estate company or family farm corporation.
U. A transaction wherein the tax due is $1 or less.
V. Leases for the production or extraction of coal, oil,
natural gas or minerals, and assignments thereof. 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.
Except as otherwise provided with respect to excluded transactions,
documents which make, confirm or evidence any transfer or demise of title
to real estate between associations or corporations and the members, partners,
shareholder 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.
A. 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.
B. With respect to 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 issuance or transfer of stock or because of acquisition or transfer
of assets it fails to meet the minimum requirements of a family farm corporation
under this article.
C. 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. 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. 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. Where there is a transfer of real estate which is leased
by the grantor, a credit for the amount of tax paid at the time of the lease
shall be given the grantor toward the tax due upon the transfer.
D. 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.
E. 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 or tax due, no refund or carryover credit
shall be allowed.
Every document lodged with or presented to the collector 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 section shall not apply to any excludable
real estate transfers which are exempt from taxation based on family relationship
provided the relationship is specified in the deed, instrument or writing.
Documents which are not to be recorded shall be presented to the collector
and shall be accompanied by a certified copy of the document and 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. Evidence of payment shall be affixed to the original document and
the certified copy. The certified copy and statement of value shall be filed
with the collector.
A. It shall be unlawful for any person to:
(1) Make, execute, deliver, accept, or present for recording
or cause to be made, executed, delivered, accepted or presented for recording
any document without the full amount of tax thereon being duly paid;
(2) Fail to record a declaration of acquisition, as required
by this article;
(3) Fraudulently affix to any document, any forged evidence
of payment; or
(4) Fail, neglect or refuse to comply with or violate other
provisions of, this article or any rules and regulations promulgated by the
township under this article or any rules and regulations of the Pennsylvania
Department of Revenue to the extent applicable to the tax levied hereunder.
B. Any person violating any of the provisions of this §
247-14 shall be guilty of a summary offense.
C. A person who makes a false statement of value or declaration
of acquisition, when he does not believe the statement or declaration to be
true, is guilty of a misdemeanor of the second degree.
A. If any tax owing under the terms of this article shall
not be paid when due, 10% of the amount of the tax shall be added and collected
as an initial penalty for nonpayment or underpayment of the tax.
B. In addition, if any tax owing under the terms of this
article shall not be paid when due, a penalty shall accrue on the amount of
the unpaid tax at the rate of 1% per month or fractional part of a month,
on the amount of the unpaid tax, from the due date until the amount of the
tax is paid in full.
C. In addition, in the case of failure of any acquired company
to record a declaration of acquisition, as required by this article, unless
it is shown to the satisfaction of the township that such failure is due to
reasonable cause, a penalty shall accrue at the rate of 5% per month or fractional
part of a month, on the amount of the unpaid tax, from the due date until
the amount of the tax is paid in full. This penalty shall be in addition to
all other penalties, but shall not in the aggregate exceed 50% of the amount
of the unpaid tax.
D. In addition, if any part of any underpayment of tax is
due to fraud, there shall be added to the tax an amount equal to 50% of the
underpayment.
E. In addition, if the township files suit in order to collect
the amount of any tax not paid when due under this article in the discretion
of the court, any person liable for payment of the tax shall also be liable
for reasonable attorneys' fees incurred by the township in prosecution
of the suit.
F. No document upon which tax is imposed by this article
shall at any time be made the basis of any action or other legal proceeding,
nor shall proof thereof be offered or received in evidence in any court of
this commonwealth, or recorded in the office of any Recorder of Deeds of any
county of this commonwealth, unless the tax imposed hereunder shall have been
paid in full and evidence of payment shall have been affixed thereto by the
collector.
The tax imposed by this article shall be a lien against the real estate
to which the document relates and, in the case of an acquired company, the
real estate owned by the acquired company. The lien shall date from the time
when the tax is due and payable and shall continue until discharged by payment
in full of the tax, together with all penalties. In order to enforce the lien,
the township may proceed under the Municipal Claims and Liens Act of 1923,
53 P.S. § 7101 et seq., or in any other appropriate manner.
The tax imposed under this article shall be fully paid, and have priority
out of the proceeds or 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 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. As provided in 16 P.S. § 11011-6, the Recorder
of Deeds for the County of Lancaster ("Recorder") shall be the collection
agent for this tax, including any amount payable to the township based on
a redetermination of the amount of tax due by the Commonwealth of Pennsylvania
of the Pennsylvania realty transfer tax, without compensation from the township.
B. In order to ascertain the amount of taxes due when the
property is located in more than one political subdivision, the Recorder shall
not accept for recording any document unless it is accompanied by a statement
of value showing what taxes are due each political subdivision.
C. On or before the 10th of each month, the Recorder shall
pay over to the township all local realty transfer taxes collected, less 2%
for 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 2% commission shall be paid to the
county.
D. In accordance with Act 77-1986, any recorder of deeds
who shall record any document upon which tax is imposed under this article
without payment of tax as required under this article as is indicated in the
document or accompanying statement of value shall, upon summary conviction,
be sentenced to pay a fine of $50 and costs of prosecution.
A. In order to determine whether the proper amount of tax
has been paid, without limiting any other rights of the township, the township
shall have the right to review all documents or records relating to any real
estate transaction or any related transactions, and to take such other steps
as the township shall deem necessary or appropriate, including a review or
audit of any documents or records of any party to a real estate transaction
to determine the fair market value of the real estate or any other relevant
matter as determined by the township. Upon request of the township, and at
such place and time as specified by the township, any party shall make available
to the township any documents or records requested by the township.
B. In the event any tax is not paid when due, the township
may enforce payment of the tax, together with all penalties, by suit in assumpsit
or any other appropriate means.
The Treasurer of this township is hereby charged with enforcement and
collection of tax hereunder and is empowered to promulgate and enforce reasonable
regulations incident thereto.
A. To the extent this article imposes a tax on a real estate
transaction which is subject to the Commonwealth of Pennsylvania realty transfer
tax imposed by Act 77-1986, and to the extent not inconsistent herewith or
with rules or regulations adopted by the township, this article shall be interpreted
in the same manner as Act 77-1986 and in accordance with regulations promulgated
thereunder.
B. The provisions of this article so far as they are the
same as those of ordinances in force immediately prior to the adoption of
this article, are intended as a continuation of such ordinances, and not as
new enactments.
C. This article is intended to supplement the realty transfer
tax in effect prior to adoption of this article by imposing a tax on real
estate transactions not covered by prior ordinances and now taxable under
Act 77-1986. This article shall impose a tax on all transactions which the
township is permitted to tax under Act 77-1986 to the fullest extent permissible.
D. In the event this article is declared invalid, the prior
ordinance or ordinances of the township levying a realty transfer tax shall
remain in full force and effect, and shall not be affected in any way by adoption
of this article.
In no event shall this article be deemed to repeal the existing realty
transfer tax ordinance or ordinances of the township. It is hereby declared
as the intent of the Board of Supervisors of the township that the existing
ordinance or ordinances of the township shall remain in full force and effect
pursuant to Article XI-D entitled "Local Real Estate Transfer Tax," of the
Pennsylvania Real Estate Transfer Tax Act which is a new article added by
Act 77-1986 (Act of July 2, 1986, No. 77, P.L.___) to the Pennsylvania Real
Estate Transfer Tax Act, Act 14-1981 (Act of May 5, 1981, No. 14, P.L. 36)
as amended and that all transactions taxed under said existing ordinance or
ordinances shall continue to be taxable despite the provisions of this article.