[1]
Editor's Note: Former Part 2, Realty Transfer Tax, adopted
by Ord. 86-8, 1/14/1987, was repealed by Ord. 2007-5, 7/11/2007.
[Ord. 2007-4, 7/11/2007]
This Part shall be known as the "Realty Transfer Tax Ordinance
of the Township of Kingston."
[Ord. 2007-4, 7/11/2007]
A realty transfer tax for general revenue purposes is hereby
imposed upon the transfer of real estate or interest in real estate
situated within the Township of Kingston, 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. Furthermore, this Part is enacted under authority of the Local
Tax Reform Act of December 13, 1988, P.L. 1121, No. 145, as amended,
and by the authority of Act 40 of 2005, pursuant to Article XI-D of
the Tax Revenue Code of 1971.
[Ord. 2007-4, 7/11/2007]
As used in this Part, 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.
The Board of Supervisors of the Township of Kingston, Luzerne
County, Pennsylvania.
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 of 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
or releases 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 this Part.
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 businesses 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
related by whole blood.
Every natural person, association, or corporation. 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 interest
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 an 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 activity traded on an established
market.
Any interest in real estate which endures for a period of time,
the termination of which is not fixed or ascertained by a specific
number of years, including, without limitation, an estate in fee simple,
life estate, or perpetual leasehold; or
Any interest in real estate enduring for a fixed period of years
but which, either by reason of the length of the term or the grant
of a right to extend the term by renewal or otherwise, consists of
a group of rights approximating those of an estate in fee simple,
life estate or perpetual leasehold, including, without limitation,
a leasehold interest or possessory interest under a lease or occupancy
agreement for a term of 35 years or more or a leasehold interest or
possessory interest in real estate in which the lessee has equity.
The Township of Kingston, Luzerne County, Pennsylvania.
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 for
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.
[Ord. 2007-4, 7/11/2007]
1.
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 hereof, a tax
at the rate of 1% of the value of the real estate represented by such
document, which tax shall be payable at the earlier of the time the
document is presented for recording or within 30 days of acceptance
of such document or within 30 days of becoming an acquired company.
2.
The payment of the tax imposed herein shall be evidenced by the affixing
of an official stamp or writing by the Recorder of Deeds whereon the
date of the payment of the tax, amount of the tax and the signature
of the collecting agent shall be set forth.
3.
It is the intent of this Part that the entire burden of the tax imposed
on a person or transfer shall not exceed the limitations imposed by
the laws of the Commonwealth of Pennsylvania; so that if any other
political subdivision or school district shall have imposed or hereafter
shall impose such tax on the same person or transfer, then the tax
levied by the Township of Kingston under the authority of the laws
of the Commonwealth of Pennsylvania 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 Kingston; provided, however,
that the Township of Kingston and any other political subdivision
which impose such tax on the same person or transfer may agree that,
instead of limiting their respective rates to 1/2 of the rate herein
provided, they will impose respectively different rates, the total
of which shall not exceed the maximum rate permitted by law.
4.
If, for any reason, the tax is not paid when due, interest at the
rate in effect at the time the tax is due shall be added and collected,
as provided in § 212 hereof.
[Ord. 2007-4, 7/11/2007]
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 Part. The exemption of such governmental bodies
shall not, however, relieve any other party to a transaction from
liability for the tax.
[Ord. 2007-4, 7/11/2007]
1.
The tax imposed by this Part 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 by the owner of record at the time of condemnation, which
reconveyance may include property line adjustments, provided that
said reconveyance is made with one year from the date of condemnation.
B.
A document which the Township of Kingston is prohibited from taxing
under the Constitution or statutes of the United States.
C.
The 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's sale or Tax Claim
Bureau sale.
D.
A transfer, for no 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 or 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.
F.
A transfer between husband and wife, between persons who were previously
husband and wife who have since been divorced, provided that 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 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 Part. Where the document by which title is acquired by
a grantee or statement of value fails to set forth that the property
acquired by the grantee is from or 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 Department reasonably determines that the primary
intent for such merger, consolidation of division is avoidance of
the tax imposed by this Part.
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 conversion, 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 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 a tax-exempt status pursuant
to Section 501(c)(3) of the Internal Revenue Code of 1954 [68A Stat.
3, 26 U.S.C. § 501(c)(3)] and which has as its primary purpose
preservation of land for historic, recreational, scenic, agricultural
or open space opportunities.
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.
Lease for the production or extraction of coal, oil, natural gas
or minerals and assignments thereof.
2.
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 Part.
[Ord. 2007-4, 7/11/2007]
Except as otherwise provided in § 206, 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 purpose
of this Part, corporations and associations are entities separate
from their members, partners, stockholders or shareholders.
[Ord. 2007-4, 7/11/2007]
1.
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 or transferring, directly or indirectly,
90% or more of the total ownership interest in the company within
a period of three years.
2.
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 family farm corporation
under this Part.
3.
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.
[Ord. 2007-4, 7/11/2007]
1.
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.
2.
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 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.
3.
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.
4.
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.
5.
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.
[Ord. 2007-4, 7/11/2007]
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.
[Ord. 2007-4, 7/11/2007]
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.
[Ord. 2007-4, 7/11/2007]
1.
The tax imposed hereunder 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, the Township
of Kingston, 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.
Pursuant to the applicable laws of the Commonwealth of Pennsylvania,
the Recorder of Deeds of Luzerne County, Pennsylvania, shall be the
primary collection agent for the local realty transfer tax due to
the Township of Kingston, hereunder.
3.
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.
4.
On or before the 10th of each month, the Recorder of Deeds of Luzerne
County, Pennsylvania, shall pay over to the Township of Kingston all
local realty transfer taxes collected hereunder, less 2% for use of
the county, together with a report containing the information as is
required by the Commonwealth of Pennsylvania in reporting collection
of the Pennsylvania realty transfer tax. The two-percent commission
shall be paid to the county.
5.
Any tax imposed hereunder 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, as amended,
for tax claims.
6.
Upon a redetermination of the amount of realty transfer tax due by
the Commonwealth of Pennsylvania, the Recorder of Deeds of Luzerne
County, Pennsylvania, shall re-record the deed or record the additional
realty transfer tax form only when both the State and local amounts
and re-recording or recording fee have been tendered.
[Ord. 2007-4, 7/11/2007]
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 it shall be accompanied
by a statement of value executed by a responsible person in connection
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 Part. 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 recording shall be accompanied
by a certified copy of the document and a statement of value executed
by a responsible person in connection with the transaction showing
such connection and setting forth the true, full and complete value
thereof of the reason, if any, why such document is not subject to
tax under this Part.
[Ord. 2007-4, 7/11/2007]
1.
If any part of any underpayment of tax imposed by this Part is due
to fraud, there shall be added to the tax an amount equal to 50% of
the underpayment.
2.
In the case of failure to record a declaration required under this
Part at the time of the presentation of the document for recording,
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 50% in the aggregate.
[Ord. 2007-4, 7/11/2007]
The tax imposed by this Part shall become a lien upon the lands,
tenements or hereditaments, or any interest therein, lying or being
situated, wholly or in part, within the boundaries of the Township
of Kingston, 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 Part.
The lien is to begin at the time when the tax under this Part is due
and payable and continue until discharge by payment or in accordance
with the law. The Solicitor is authorized hereby to file a municipal
or tax claim in the Court of Common Pleas of Luzerne County in accordance
with the provisions of the Municipal Claims and Tax Liens Act, 53
P.S. § 7101 et seq., its supplements and amendments.
All taxes imposed by this Part, together with interest and penalties
prescribed herein, shall be recoverable as other debts of like character
are recovered in accordance with the laws of the Commonwealth of Pennsylvania.
