[Adopted 6-8-1987 by Ord. No. 1588]
This article shall be known as the "Realty Transfer
Tax Ordinance of Whitehall Township."
A realty transfer tax for general revenue purposes
is hereby imposed upon the transfer of real estate or interest in
real estate situated within Whitehall 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, 73 P.S. § 101-D
et seq.
As used in this article, the following terms
shall have the meanings indicated:
A partnership, limited partnership or any 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 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.
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.
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 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 subsection 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 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 meets any of the following:
[Amended 4-14-2014 by Ord. No. 2966]
Is primarily engaged in the business of holding,
selling or leasing real estate, in which 90% or more of the ownership
interest 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.
Ninety percent or more of the ownership interest
in the corporation or association is held by 35 or fewer persons,
and the corporation or association owns, as 90% or more of the fair
market value of its assets, a direct or indirect interest in a real
estate company. An indirect ownership interest is an interest in a
corporation or association, of which 90% or more of the ownership
interest is held by 35 or fewer persons whose purpose is the ownership
of a real estate company.
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.
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 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 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 money 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 local real estate tax purpose 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 person existing before the transfer and not
removed thereby or between the grantor, the agent or principal of
the grantor of a related corporation, associations or partnership
and the grantee existing before or effective with the transfer.
[Amended 12-11-2006 by Ord. No. 2660]
A.
Whitehall Township adopts the provisions of Article
XI-D of the Tax Reform Code of 1971[1] and imposes a realty transfer tax as authorized under
that Article subject to the rate limitations therein. The tax imposed
under this section shall be at the rate of 1.00% of the value of the
real estate represented in a document to be executed, delivered, accepted
or presented for recording in such a manner as is expressed in this
section.
[1]
Editor's Note: See 72 P.S. § 8101-D
et seq.
B.
The tax imposed under Subsection A 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"[2]), provided that if the correct amount of the tax is not
paid by the last date prescribed for timely payment, Whitehall Township,
pursuant to Section 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.
[2]
Editor's Note: See 53 P.S. § 6901
et seq.
C.
Any tax imposed under Subsection A that is not paid by the date the tax is due shall bear an interest as prescribed for interest on the 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 such claims.
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.
The tax imposed by this section 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 condemnation, which
reconveyance may include property fine adjustments, provided said
reconveyance is made within one year from the date of condemnation.
(2)
A document which Whitehall Township is prohibited
from taxing under the Constitution or 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 sheriff 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 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)
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 final decree of 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 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 devises 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 exception 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)
Principal and agent or straw party.
(b)
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)
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)
A transfer from a corporation or association
or 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)
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 or the grantee
of 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.
(b)
The agency or authority has the full ownership
interest in the real estate transferred.
(16)
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)
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 pursuant to § 501(c)(3) of the Internal Revenue
Code of 1954 [68 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)
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.
(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.
B.
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 in § 24-21, 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.
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 that are devoted to
the business of agriculture, 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 recordings. 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 or residential
property which was transferred to the builder within the preceding
year as consideration for the purchase of a 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 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 of tax due, no refund
or carryover credit shall be allowed.
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.
The tax herein imposed 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 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 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.
A.
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 Whitehall Township based on a redetermination
of the amount of tax due by the Commonwealth of Pennsylvania or the
Pennsylvania Realty Transfer Tax, without compensation from Whitehall
Township, except as hereinafter set forth.
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 such a deed unless it is accompanied
by a statement of value showing what taxes are due each municipality.
C.
On or before the tenth of each month, the recorder
shall pay over to Whitehall Township all local realty transfer taxes
collected, less sums reasonably retained 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 commission to be paid to the county shall be in
such sum or sums as the Township shall deem acceptable in writing.
D.
Upon a redetermination of the amount of realty transfer
tax due by the Commonwealth of Pennsylvania, the recorder shall re-record
the deed or record the additional realty transfer tax form only when
both the State and local amount and a re-recording or recording fee
has been tendered.
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 an attorney at
law, or by affidavit executed by a party to the transaction showing
such person's connection to the transaction 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.
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 20% of the underpayment.
B.
In the case of the 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 the failure is
for not more than one month, with an additional 5% for each additional
month or fraction thereof during which such failure continues, not
exceeding 20% in the aggregate.
C.
All taxes imposed by this article not paid when due
shall bear interest from the date of transfer at the rate of 1% per
month until paid.
The tax imposed by this article shall become
a lien upon the lands, tenements or hereditaments, or any interest
therein, lying, being situated, wholly or in part within the boundaries
of Whitehall Township, which lands, tenements, 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 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 Lehigh County,
in accordance with the provisions of the Municipal Claims and Liens
Act of 1923, 53 P.S. § 7101 et seq., its supplements and
amendments.
It shall be unlawful for any person to:
A.
Make use of any rubber stamp to denote payment of
any tax imposed by this article, unless authorized by the Secretary,
as required by this article.
B.
Fraudulently cut, tear, deface or remove the stamp
denoting payment of the tax from the deed.
C.
Fraudulently affix to any deed any stamp which not
been authorized by the Secretary.
D.
Knowingly or willfully prepare, keep, sell, offer
for sale, have or possess any counterfeited rubber stamp.
E.
Make a fraudulent statement as to the true, full,
complete and actual value of any transfer as herein defined.
All taxes imposed by this article, together
with interest and penalties prescribed herein, shall be recoverable
as other debts of like character are recovered.
The Treasurer of Whitehall Township is charged
with enforcement and collection of tax, is empowered to promulgate
and enforce reasonable regulations for enforcement and collection
of the tax and may designate any Township employee or official to
fulfill the obligations set forth in this section.
[Amended 8-8-2005 by Ord. No. 2578]
Any person violating any of the provisions of
this article or of any regulation or requirement promulgated pursuant
hereto and authorized hereby, in addition to other penalties provided
by law, upon conviction thereof, shall be sentenced to a fine not
to exceed $1,000 plus costs and, in default of payment of said fine
and costs, to a term of imprisonment not to exceed 30 days. Further,
he shall be required to pay the amount of the tax together with all
interest and penalties thereon which should have been paid in the
transfer or transfers involved and, upon default of the payment of
the same for a period of 10 days, shall be subject to imprisonment
for not more than 30 days.
