[Adopted 4-21-1987 by Ord. No. 417]
This article shall be known as the "Realty Transfer
Tax Ordinance of the Township of South Whitehall."
[Amended 5-16-2007 by Ord. No. 859]
A realty transfer tax for general revenue purposes
is hereby imposed upon the transfer of real estate or interest in
real estate situated within South 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, 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.
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 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 subsection prescribing and imposing a fine or imprisonment,
or both, the term "person," as applied to associations, shall include
the responsible members of 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 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:
Derives 60% or more of is annual gross receipts
from the ownership or disposition of real estate.
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.
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 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 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 principal 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 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 1/2 of 1% of the value of the real
estate represented by such document, which tax shall be payable to
the Township Secretary, or his/her designee, 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.
[Amended 12-15-2010 by Ord. No. 930]
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 Lehigh 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.
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 South Whitehall under the authority of the Act shall,
during the time such duplication of the 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 the Township of South
Whitehall; provided, however, that South Whitehall Township 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 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."
D.
Any tax imposed under Subsection A 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 5-16-2007 by Ord. No. 859]
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 § 328-45 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 find adjustments provided said reconveyance
is made within one year from the date of condemnation.
(2)
A document which the Township of South Whitehall 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 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.
(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 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)
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 beneficiaries,
whether or not 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)
A transfer: (a) for no or nominal actual consideration
between principal and agent or straw party; or (b) 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.
(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 reasonable determines the
primary intent for such merger, consolidation 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 non profit 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 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 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 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 possess a
tax exempt status pursuant to § 501(c)(3) of the Internal
Revenue Code of 1954 [68A Stat. 3, 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 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 has 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 § 328-49, above, 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
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 dissolution, it ceases to be a 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 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 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 of tax due, no refund
or carry over 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 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.
[Amended 5-16-2007 by Ord. No. 859]
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 the Township of South Whitehall based on a redetermination
of the amount of tax due by the Commonwealth of Pennsylvania or Pennsylvania
realty transfer tax, without compensation from the Township of South
Whitehall, 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 the Township of South Whitehall all local realty
transfer taxes collected, less sums reasonable 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 rerecord
the deed or record the additional realty transfer tax form only when
both the state and local amounts and rerecording or recording fee
has been tendered.
E.
The tax imposed under § 328-47A, 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, South 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.
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 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.
[Amended 5-16-2007 by Ord. No. 859]
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 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.
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 the Township of South Whitehall, 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 has
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 and like character are recovered.
The Secretary of the Township of South Whitehall
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 2-7-1989 by Ord. No. 449]
Any person violating any of the provisions of
this article or of any regulation or requirement promulgated pursuant
hereto and authorized hereby shall, in addition to other penalties
provided by law, upon conviction thereof, be sentenced to pay a fine
not to exceed $600 plus costs and, in default of payment of said fine
and costs, to imprisonment for a term not to exceed 30 days. Each
day that a violation of this article continues shall constitute a
separate offense.
