[Adopted 9-18-1995 by Ord. No. 646 (Ch. XXV, Part 3, of the
1974 Code of Ordinances)]
This article shall be known as the "Realty Transfer Tax Ordinance
of Girard Borough."
The Borough of Girard adopts the provisions of Article XI-D
of the Tax Reform Code of 1971[3] 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%.
[1]
Editor's Note: This ordinance provided an effective date of
12-31-2007. In addition, this ordinance also provided as follows:
[2]
"(a) As of the effective date of this ordinance, the following
ordinances are amended, to wit: Girard Borough Ord. No. 646, enacted
September 18, 1995.
(b) The repealed ordinances enumerated in Subsection (a) remain
effective for documents that became subject to tax prior to the effective
date of this ordinance."
[3]
Editor's Note: See 72 P.S. § 7101 et seq.
As used in this article, the words and phrases defined in 72
P.S. § 8101-C shall have the meanings ascribed to them in
said section.
A.
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, 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.
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 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.,[1] 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 Girard Borough under the authority of that
Act shall, during the time such duplication of the tax exists, except
as hereinafter otherwise provided, be 1/2 of the rate, and such one-half
rate shall become effective without any action on the part of Girard
Borough; provided, however, that Girard Borough 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.
[1]
Editor's Note: Pursuant to P.L. 197, No. 32, enacted 7-2-2008,
sections of the Local Tax Enabling Act formerly codified in 53 P.S.
§ 6901 et seq. have been revised and renumbered. See now
53 P.S. § 6924.101 et seq.
D.
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.
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 § 377-15 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 line adjustments, provided said
reconveyance is made within one year from the date of condemnation.
(2)
A document which Girard Borough 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 or 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 brother
or sister or the 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 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 subsection. 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.[1]
(9)
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.[2]
(10)
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.[3]
(11)
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.[4]
(13)
A transfer for no or nominal actual consideration from trustee
to successor trustee.
(14)
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)
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)
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)
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)
A transfer from a nonprofit industrial development agency or
authority to a grantee purchasing directly from it, but only if 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 the
agency or authority has the full ownership interest in the real estate
transferred.
(19)
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)
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)
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," and such conservancy has owned the real estate
for at least two years immediately prior to the transfer.[6]
(22)
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.
(25)
A transaction wherein the tax due is $1 or less.
(26)
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 § 377-17, 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:[1]
(1)
Does
not affect the continuity of the company; and
(2)
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. For the purposes of this Subsection A(2), a transfer occurs within a period of three years of another transfer or transfers if, during the period:
B.
A family farm business is an acquired company when, because of voluntary
or involuntary dissolution, it ceases to be a family farm business
or when, because of the issuance or transfer of stock in the corporation
or transfer of interests in the association 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 business
under this article.[2]
C.
The conveyance
of assets held by one family farm business to another family farm
business shall not be considered a transfer of assets under this article
if the same individuals hold at least 50% of the ownership interest
in each family farm business.[3]
D.
Within 30 days after becoming an acquired company, the company shall
present a declaration of acquisition with the recorder of each county
in which it holds real estate for the affixation of documentary stamps
and recording. Such declaration shall set forth the value of real
estate holdings of the acquired company in such county. A copy of
the Pennsylvania realty transfer tax declaration of acquisition may
be submitted for this purpose.
A.
Where there is a transfer of a residential property by a licensed
real estate broker, which property was transferred to him within the
preceding year as consideration for the purchase of other residential
property, a credit for the amount of the tax paid at the time of the
transfer to him shall be given to him toward the amount of the tax
due upon the transfer.
B.
Where there is a transfer by a builder of residential property which
was transferred to the builder within the preceding year as consideration
for the purchase of new, previously unoccupied residential property,
a credit for the amount of the tax paid at the time of the transfer
to the builder shall be given to the builder toward the amount of
the tax due upon the transfer.
C.
Where there is a transfer of real estate which is leased by the grantor,
a credit for the amount of tax paid at the time of the lease shall
be given the grantor toward the tax due upon the transfer.
D.
Where there is a conveyance by deed of real estate which was previously
sold under a land contract by the grantor, a credit for the amount
of tax paid at the time of the sale shall be given the grantor toward
the tax due upon the deed.
E.
If the tax due upon the transfer is greater than the credit given
under this section, the difference shall be paid. If the credit allowed
is greater than the amount 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 moneys paid to him
in connection therewith. If the proceeds of the sale are insufficient
to pay the entire tax herein imposed, the purchaser shall be liable
for the remaining tax.
A.
As provided in 16 P.S. § 11011-6, as amended by the 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 Girard Borough based on a redetermination of
the amount of tax due by the Commonwealth of Pennsylvania of the Pennsylvania
realty transfer tax, without compensation from Girard Borough.
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 Girard Borough all local realty transfer taxes collected, less
2% for use of the county, together with a report containing the information
as is required by the Commonwealth of Pennsylvania in reporting collections
of the Pennsylvania realty transfer tax. The two-percent commission
shall be paid to the county.
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 a rerecording or recording fee have
been tendered.
E.
If additional realty transfer tax is determined to be due to the
commonwealth, the Recorder of Deeds for Erie County shall collect
a like amount for the Borough of Girard, but without interest and
penalty; if a refund is determined to be due by the commonwealth,
the Recorder of Deeds for Erie County shall refund a like amount,
without interest, and charge said refund to the Borough of Girard
on the monthly report for the month in which the refund is made.
Every document lodged 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 a responsible person connected
with the transaction showing such connection and setting forth the
true, full and complete value thereof or the reason, if any, why such
document is not subject to tax under this article. A copy of the Pennsylvania
realty transfer tax statement of value may be submitted for this purpose.
The provisions of this section shall not apply to any excludable real
estate transfers which are exempt from taxation based on family relationship.
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 50%
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 50% in
the aggregate.
The tax imposed by this article 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 Girard
Borough, which lands, tenements, hereditaments or interests 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 Erie 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.
A.
All taxes imposed by this article, together with interest and penalties
prescribed herein, shall be recoverable as other debts of like character
are recovered.
B.
The tax imposed under § 377-13 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,"[1] provided that if the correct amount of the tax is not
paid by the last date prescribed for timely payment, Girard Borough,
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.
[Added 1-21-2008 by Ord. No. 699]
[1]
Editor's Note: See 53 P.S. § 6924.101 et seq.
The Council of Girard Borough is charged with enforcement and
collection of tax and is empowered to promulgate and enforce reasonable
regulations for enforcement and collection of the tax. The regulations
which have been promulgated by the Pennsylvania Department of Revenue
under 72 P.S. § 8101-C et seq. are incorporated into and
made a part of this article.
[Added 1-21-2008 by Ord. No. 699]
Any tax imposed under § 377-13 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.
