[Adopted 4-12-1988 by Ord. No. 103]
The following words when used in this article
shall have the meanings ascribed to them in this section:
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, or foreign country
or dependency.
Any deed, instrument, or writing which conveys, transfers, devises, vests, confirms or evidences any transfer or devise of title to real estate, but does not include wills, mortgages, deeds of trust or other instruments of like character given as security for a debt and deeds of release thereof to the debtor, land contracts whereby the legal title does not pass to the grantee until the total consideration specified in the contract has been paid or any cancellation thereof unless the consideration is payable over a period of time exceeding 30 years or instruments which solely grant, vest or confirm a public utility easement. "Document" shall also include a declaration of acquisition required to be presented for recording under § 195-32 of this article.
A corporation of which at least 75% of its assets are devoted
to the business of agriculture, and at least 75% of each class of
stock of the corporation is continuously owned by members of the same
family. The business of agriculture shall include the leasing to members
of the same family of property which is directly and principally used
for agricultural purposes. The business of agriculture shall not be
deemed to include:[1]
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.
A partnership of which at least 75% of its assets are devoted
to the business of agriculture and at least 75% of the interests in
the partnership are continuously owned by members of the same family.
The business of agriculture shall include the leasing to members of
the same family of property which is directly and principally used
for agricultural purposes. The business of agriculture shall not be
deemed to include:[2]
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 trust, other than a business trust, intended as a will
substitute by the settlor which becomes effective during the lifetime
of the settlor, but from which trust distributions cannot be made
to any beneficiaries other than the settlor prior to the death of
the settlor.[3]
Any trust, other than a business trust or a living trust,
which takes effect during the lifetime of the settlor and for which
the trustees of the trust take title to property primarily for the
purpose of protecting, managing or conserving it until distribution
to the named beneficiaries of the trust. An ordinary trust does not
include a trust that has an objective to carry on business and divide
gains, nor does it either expressly or impliedly have any of the following
features: the treatment of beneficiaries as associates, the treatment
of the interests in the trust as personal property, the free transferability
of beneficial interests in the trust, centralized management by the
trustee or the beneficiaries, or continuity of life.[4]
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, as applied to
corporations, the officers thereof.
Any lands, tenements or hereditaments within
this commonwealth, 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 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 insurance 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
of 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 which 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" therefor shall be determined
from the price set forth in or actual consideration for 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 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 of assessed values to market values of the taxing
district as established by the State Tax Equalization Board, or a
commensurate part of the assessment where the assessment includes
other real estate.
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 or a related corporation, association or partnership and
the grantee existing before or effective with the transfer.
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, or for or in respect of the vellum parchment
or paper upon which such document is written or printed, a local tax
at the rate of 1% of the value of the real estate represented by such
document, which local tax shall be payable at the earlier of the time
the document is presented for recording or within 30 days of becoming
an acquired company. Such tax shall be imposed upon the transfer of
real property or an interest in real property within the limits of
the Township of Maidencreek regardless of where the instruments making
the transfers are made, executed or delivered or where the actual
settlements on the transfer take place.
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 § 195-28 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.[1]
(2)Â
A document which the commonwealth 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 of property, passed by testate or intestate succession
and held by co-tenants; 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 brother or sister or the spouse of a brother
or sister, and between 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 that are entitled to receive
the property or proceeds from the sale of the property under the trust,
whether or not such beneficiaries are contingent or specifically named.
A trust clause which identifies the contingent beneficiaries by reference
to the heirs of the trust settlor as determined by the laws of the
intestate succession shall not disqualify a transfer from the exclusion
provided by this clause. 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.[2]
(9)Â
A
transfer for no or nominal actual consideration to a trustee of a
living trust from the settlor of the living trust. No such exemption
shall be granted unless the recorder of deeds is presented with a
copy of the living trust instrument.[3]
(10)Â
A transfer for no or nominal actual consideration
from a trustee of an ordinary trust to a specifically named beneficiary
that is entitled to receive the property under the recorded trust
instrument or to a contingent beneficiary where the transfer of the
same property would be exempt if the transfer was made by the grantor
of the property into the trust to that beneficiary. However, any transfer
of real estate from a living trust during the settlor's lifetime shall
be considered, for the purposes of this article, as if such transfer
were made directly from the settlor to the grantee.[4]
(11)Â
A transfer for no or nominal actual consideration from a trustee
of a living trust after the death of the settlor of the trust or from
a trustee of a trust created pursuant to the will of a decedent to
a beneficiary to whom the property is devised or bequeathed.[5]
(13)Â
A transfer for no or nominal actual consideration
from trustee to successor trustee.
(14)Â
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.
(15)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.
(16)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 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.
(17)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.
(18)Â
A transfer from a nonprofit industrial development
agency or authority to a grantee purchasing directly from it, but
only if:
(a)Â
The grantee shall directly use such real estate
for the primary purpose of manufacturing, fabricating, compounding,
processing, publishing, research and development, transportation,
energy conversion, energy production, pollution control, warehousing
or agriculture; and
(b)Â
The agency or authority has the full ownership
interest in the real estate transferred.
(19)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.
(20)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.
(21)Â
A transfer to a conservancy which possesses
a tax-exempt status pursuant to § 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; or a transfer from
such a conservancy to the United States, the commonwealth or to any
of their instrumentalities, agencies or political subdivisions; or
any transfer from such a conservancy where the real estate is encumbered
by a perpetual agricultural conservation easement as defined by the
act of June 30, 1981 (P.L. 128, No. 43), known as the "Agricultural
Area Security Law,"[7] and such conservancy has owned the real estate for at
least two years immediately prior to the transfer.[8]
(22)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 the stock
thereof.
(23)Â
A transfer of real estate devoted to the business of agriculture
to a family farm partnership by a member of the same family, which
family directly owns at least 75% of the interests in the partnership.[9]
(25)Â
A transaction wherein the tax due is $1 or less.
(26)Â
Leases for the production or extraction of coal,
oil, natural gas or minerals and assignments thereof.
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. 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 § 195-29, documents which make, confirm or evidence any transfer or devise 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.Â
A real estate company is an acquired company upon
a change in the ownership interest in the company, however effected,
if the change:
B.Â
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.Â
A family
farm partnership is an acquired company when, because of voluntary
or involuntary dissolution, it ceases to be a family farm partnership
or when, because of transfer of partnership interests 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 partnership under this article.[1]
D.Â
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.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
devised by the grantor, a credit for the amount of tax paid at the
time of the devise shall be given the grantor toward the tax due upon
the transfer.
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 the sale shall be
given the grantor toward the tax due upon the deed.
E.Â
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 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.
A.Â
If any person shall fail to pay any tax imposed by
this article for which he is liable, the Secretary of the Township
is hereby authorized and empowered to make a determination of additional
tax and interest due by such person based upon any information within
his or her possession or that shall come into his or her possession.
All of such determinations shall be made within three years after
the date of the recording of the document.
B.Â
Promptly after the date of such determination, the
Secretary shall send a copy thereof to the person against whom it
was made. Within 90 days after the date upon which the copy of any
such determination was mailed, such person may file with the Secretary
a petition for redetermination of such taxes. Every petition for redetermination
shall state specifically the reasons which the petitioner believes
entitle him to such redetermination, and it shall be supported by
affirmation that it is not made for the purpose of delay and that
the facts set forth therein are true. It shall be the duty of the
Board of Township Supervisors, within six months after the date of
filing any petition for redetermination, to dispose of the petition.
Notice of the action taken upon any petition for redetermination shall
be given to the petitioner promptly after the date of redetermination
by the Secretary.
A.Â
Whenever the amount due upon determination, redetermination
or review is less than the amount paid to the Township on account
thereof, the Township shall enter a credit in the amount of such difference
to the account of the person who paid the tax.
B.Â
Where there has been no determination of unpaid tax
the Township shall have the power, and its duty shall be, to hear
and decide any application for refund and, upon the allowance of such
application, to enter a credit in the amount of the overpayment to
the account of the person who paid the tax. Such application must
be filed within two years after the date of payment.
Where land lying partly within the boundaries
of the Township and partly without said boundaries are transferred,
the tax herein imposed shall be calculated upon such portion of the
value as shall be represented by the portion of such lands lying within
the boundaries of the Township of Maidencreek, Berks County, Pennsylvania,
such apportionment of value to be evidenced by the affidavit or certificate
of value hereinafter provided for; but shall in no event be less than
the highest assessed valuation for local tax purposes placed upon
the same in the assessment of property within the Township of Maidencreek,
Berks County, Pennsylvania.
Every document or instrument effecting a transfer
of title to real property or interest therein, located in said Township,
shall set forth as part of said document or instrument the full, complete
and actual consideration for the transfer of real property described
therein, or shall be accompanied by a certificate of any attorney
at law or an affidavit executed by a responsible person connected
with the transaction showing such connection and setting forth the
true, full, complete and actual value thereof, and if the privilege
of making such transfer is not taxable hereunder, the facts by reason
of which such nontaxability exists.
The payment of the tax imposed by this article
shall be evidenced by a stamp impressed upon or affixed to every instrument
or document of conveyance, and the Secretary of the Township, or her
or his agent, using such stamp shall indelibly write thereon his name,
the amount of the tax paid, and the date of payment.
The Secretary of the Township or her or his
agent, for the time the tax is due and payable, is hereby charged
with the enforcement of the provisions of this article, and is hereby
authorized and empowered to prescribe, adopt and enforce rules and
regulations relating to the registration and notation of such transactions
and the payment and receipt of such taxes and any other matter pertaining
to the administration and enforcement of the provisions of this article.
The Secretary of the Township shall prescribe,
prepare and furnish the stamp of metal or rubber which shall clearly
show that the tax assessed under this article has been paid.
The Recorder of Deeds of Berks County, or any
of his deputies, shall be the agent of the Secretary of the Township
for the collection of the tax herein imposed by virtue of this article
at the time any document, as hereinbefore defined, is presented for
recording in the Office of the Recorder of Deeds in and for Berks
County, and said Recorder of Deeds shall receive a commission of 1%
upon the amount of tax collected by him, or any of his deputies, by
virtue of this article, which said commission shall be deducted before
remitting once every three months to the Secretary of the Township
his statement of taxes collected under and by virtue of this article.
[Added 7-26-2007 by Ord. No. 210]
The real estate transfer tax imposed by Ordinance
No. 103 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, however, that, if the correct amount
of the tax is not paid by the last date prescribed for timely payment,
the 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.
All taxes imposed by this article which are
not paid when due shall bear interest at the rate of 1/2 of 1% per
month until paid. The tax when due and unpaid shall become a lien
on the real property or interest in real property which is described
in the document or instrument of conveyance on which this tax is imposed,
and shall be collected as other debts of like character are collected.
The Solicitor of the Township is authorized to file a municipal or
tax claim in the Court of Common Pleas of Berks County for the collection
of any unpaid tax under this article.
Any person who shall fail, neglect or refuse
to comply with any of the terms or provisions of this article or of
any regulation or requirement pursuant hereto and authorized hereby,
shall, in addition to other penalties provided by law, be liable to
a penalty not exceeding $300 for each offense and further shall be
required to pay the amount of the tax, together with interest as hereinbefore
provided, and upon default for 10 days in the payment of same shall
be subject to 30 days imprisonment.
