[Adopted 4-14-2004 by Ord. No. 04-02 (Ch. 24, Part 8, of
the 1994 Code)]
This article shall be known as the "Spring Garden Township Realty
Transfer Tax Ordinance."
This realty transfer tax is levied under authority of Article
XI-D, entitled the "Local Real Estate Transfer Tax," of the Pennsylvania
Real Estate Transfer Tax Act, a new article added by Act 77 of 1986
(Act of July 2, 1986, P.L. 318, No. 77) to the Pennsylvania Realty
Transfer Tax Act, Act 14 of 1981 (Act of May 5, 1981, P.L. 86, No.
14), as amended. The Pennsylvania Realty Transfer Tax Act is codified
at 72 P.S. § 1801-C et seq., and Article XI-D is codified
at 72 P.S. § 1801-D et seq.
A.
The singular shall include the plural, and the masculine shall include
the feminine and neuter.
B.
ASSOCIATION
COLLECTOR
CORPORATION
DOCUMENT
FAMILY FARM CORPORATION
(1)
(2)
(3)
(4)
(5)
MEMBERS OF THE SAME FAMILY
MUNICIPALITY
PERSON
REAL ESTATE
(1)
(2)
(3)
REAL ESTATE COMPANY
(1)
(2)
REAL ESTATE TRANSACTION
TITLE TO REAL ESTATE
(1)
(2)
VALUE
(1)
(2)
(3)
(4)
The following words, when used in this article, shall have the meanings
ascribed to them in this section, except where the context clearly
indicates a different meaning:
A partnership, limited partnership or any other form of unincorporated
enterprise owned or conducted by two or more persons.
The Recorder of Deeds of York County, Pennsylvania, is hereby
appointed collector of the tax levied by this article.
A corporation, joint-stock association, business trust or
banking institution which is organized under the laws of the Commonwealth
of Pennsylvania, 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 within the municipality, 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 § 284-62 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 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 of 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.
The Township of Spring Garden.
Every natural person, association, corporation or entity
of any kind. 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
and, as applied to corporations, the officers thereof.
Any lands, tenements or hereditaments, 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 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.
The making, executing, delivering, accepting or presenting
for recording of a document.
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 30 years or more or a leasehold interest or
possessory interest in real estate in which the lessee has equity.
In determining the term of lease, it shall be presumed that a right
or option to renew or extend lease will be exercised if the rental
charge to the lessee is fixed or if a method for calculating the rental
charge is established.
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 the document 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, value shall be the actual
monetary worth of the real estate within the municipality, determined
by adjusting the assessed value of the real estate or local real estate
tax purposes for the common level ratio of assessed values to market
values of the taxing district in which the municipality is located
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.
A tax is hereby levied and imposed, for general municipal purposes,
on every real estate transaction at the rate of 1% of the value of
the real estate represented by the document involved in the real estate
transaction.
A.
The tax shall be payable at the earliest of the time the document
is presented for recording, within 30 days of acceptance of the document
or within 30 days of becoming an acquired company.
B.
If the real estate is located partially within and partially outside
the municipality, the tax shall be calculated on the value of the
portion within the municipality.
C.
The tax imposed hereunder shall be due and payable to the collector,
as a joint and several liability, by 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. In the case of an acquired company, the company shall
also have liability for payment of the tax. All such persons shall
also be liable for any penalties imposed under this article.
D.
It is the intent of this article that the entire burden of the tax
imposed on a real estate transaction by the municipality and other
political subdivisions shall not exceed the limitations prescribed
in § 8 of the Local Tax Enabling Act, 53 P.S. § 6908,
so that if any other political subdivision imposes a tax on real estate
transactions taxed under this article, the provisions of said § 8
shall apply.[1]
[1]
Editor's Note: See now 53 P.S. § 6924.311. (53 P.S. §§
6901 to 6909 were renumbered as 53 P.S. §§ 6924.101 to 6924.312
by 2008, July 2, P.L. 197, No. 32.)
The payment of the tax imposed hereunder shall be evidenced
by the collector affixing on the document an official stamp or writing
setting forth the date of payment of the tax and amount of tax paid.
The United States, the Commonwealth of Pennsylvania 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 real estate transaction from liability for the tax.
A.
The tax imposed by this article shall not be imposed upon:
(1)
A transfer to the Commonwealth of Pennsylvania 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 that
said reconveyance is made within one year from the date of condemnation.
(2)
A document which the municipality 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 a 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
covenants; however, if any of the parties take shares greater in value
than their undivided interest, tax is due on the excess.
(6)
A transfer between husband and wife; between persons who were previously
husband and wife who have since been divorced, provided 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 and 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)
A transfer for no or nominal actual consideration of property passing
by testate or intestate succession from a personal representative
of a descendent 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, whether or not such beneficiaries are
contingent or specifically named. No such exemption shall be granted
unless the collector 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 municipality reasonably determines that the primary
intent for such merger, consolidation or division is avoidance of
the tax imposed by this article.
(13)
A transfer from a corporation or association 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 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.
(15)
A transfer from a nonprofit industrial development agency or
authority to a grantee purchasing directly from it, but only if:
(a)
The grantee shall directly use such real estate for the primary
purpose of manufacturing, fabricating, compounding, processing, publishing,
research and development, transportation, energy conservation, 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 a bona fide holder of a mortgage,
unless the holder assigns the bid to another person.
(17)
Any transfer between religious organizations or other bodies
or persons holding title for a religious organization if such real
estate is not being or has not been used by such transferor for commercial
purposes.
(18)
A transfer to a conservancy which possesses tax-exempt status
pursuant to § 501(c)(3) of the Internal Revenue Code of
1954, and which has as its primary purpose preservation of land for
historic, recreational, scenic, agricultural or open space opportunities,
or a transfer from such conservancy to the United States, the commonwealth
or to any of their instrumentalities, agencies or political subdivisions.
(19)
A transfer of real estate devoted to the business of agriculture
to a family farm corporation by a member of the same family which
directly owns at least 75% of each class of the stock thereof.
(20)
A transfer between members of the same family of an ownership
interest in a real estate company or family farm corporation.
(21)
A transaction wherein the tax due is $1 or less.
(22)
Leases for the production or extraction of coal, oil, natural
gas or minerals and assignments thereof.
B.
In order to exercise any exclusion provided in this section, the
true, full and complete value of the transfer shall be shown on the
statement of value. 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 § 284-60, 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:
B.
With respect to real estate acquired after February 16, 1986, a family
farm corporation is an acquired company when, because of voluntary
or involuntary dissolution, it ceases to be a family farm corporation
or when, because of issuance or transfer of stock or because of acquisition
or transfer of assets, 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 to the collector for recording
and for the affixation of the official stamp or writing evidencing
payment of the tax. Such declaration shall set forth the value of
real estate holdings of the acquired company in the municipality.
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 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.
Every document lodged with or presented to the collector for
recording shall set forth therein and as 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. The provisions of this section
shall not apply to any excludable real estate transfers which are
exempt from taxation based on family relationship, provided that the
relationship is specified in the deed, instrument or writing. Documents
which are not to be recorded shall be presented to the collector and
shall be accompanied by a certified copy of the document and 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. Evidence of payment shall be affixed to
the original document and the certified copy. The certified copy and
statement of value shall be filed with the collector.
A.
It shall be unlawful for any person to:
(1)
Make, execute, deliver, accept or present for recording or cause
to be made, executed, delivered, accepted or presented for recording
any document without the full amount of tax thereon being duly paid.
(2)
Fail to record a declaration of acquisition, as required by this
article.
(3)
Fraudulently affix to any document any forged evidence of payment.
(4)
Fail, neglect or refuse to comply with or violate other provisions
of this article or any rules and regulations promulgated by the municipality
under this article or any rules and regulations of the Pennsylvania
Department of Revenue to the extent applicable to the tax levied hereunder.
B.
Any person violating any of the provisions of this section shall
be guilty of a summary offense.
C.
Any person who makes a false statement of value or declaration of
acquisition when he does not believe the statement or declaration
to be true is guilty of a misdemeanor of the second degree.
A.
If any tax owing under the terms of this article shall not be paid
when due, 10% of the amount of the tax shall be added and collected
as initial penalty for nonpayment or underpayment of the tax.
B.
In addition, if any tax owing under the terms of this article shall
not be paid when due, a penalty shall accrue on the amount of the
unpaid tax at the rate of 1% per month or fractional part of a month,
from the due date until the amount of the tax is paid in full.
C.
In addition, in the case of failure of any acquired company to record
a declaration of acquisition, as required by this article, unless
it is shown to the satisfaction of the municipality that such failure
is due to reasonable cause, a penalty shall accrue on the amount of
the unpaid tax at the rate of 5% per month or fractional part of a
month, from the due date until the amount of the tax is paid in full.
This penalty shall be in addition to all other penalties but shall
not in the aggregate exceed 50% of the amount of the unpaid tax.
D.
In addition, if any part of any underpayment of the tax is due to
fraud, there shall be added to the tax an amount equal to 50% of the
underpayment.
E.
In addition, if the municipality must file suit in order to collect
the amount of any tax not paid when due under this article, at the
discretion of the court, any person liable for payment of the tax
shall also be liable for reasonable costs, expenses, and attorneys'
fees incurred by the municipality in prosecution of the suit.
F.
No document upon which tax is imposed by this article shall at any
time be made the basis of any action or other legal proceeding, nor
shall proof thereof be offered or received in evidence in any court
of this commonwealth or recorded in the office of any recorder of
deeds of any county of this commonwealth, unless the tax imposed hereunder
shall have been paid in full and evidence of payment shall have been
affixed thereto by the collector.
The tax imposed by this article, together with all penalties,
shall be a lien against the real estate to which the document relates
and, in the case of as acquired company, the real estate owned by
the acquired company. The lien shall date from the time when the tax
is due and payable and shall continue until discharged by payment
in full of the tax, together with all penalties and interest. In order
to enforce the lien, the municipality may proceed under the Municipal
Claims and Liens Act of 1923, 53 P.S. § 7101 et seq., or
in any other appropriate manner.
The tax imposed under this article 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, and the Sheriff
or other officer conducting 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 sufficient to pay the entire tax herein imposed,
the purchaser shall be liable for the remaining tax.
A.
In order to determine whether the proper amount of tax has been paid,
without limiting any other rights of the municipality, the municipality
shall have the right to review all documents or records relating to
any real estate transaction or any related transactions and to take
such other steps as the municipality shall deem necessary or appropriate,
including a review or audit of any documents or records of any party
to a real estate transaction, to determine the fair market value of
the real estate or any other relevant matter as determined by the
municipality. Upon request of the municipality, and at such place
and time as specified by the municipality, any party shall make available
to the municipality any such documents or records requested by the
municipality.
B.
In the event that any tax is not paid when due, the municipality
may enforce payment of the tax, together with all penalties and interest,
by civil suit or any other appropriate means.
A.
As provided in 16 P.S. § 11011-6, the Recorder of Deeds
shall be the collection agent for this tax, without compensation from
the municipality.
B.
In order to ascertain the amount of taxes due when the property is
located in more than one political subdivision, the collector shall
not accept for recording any document unless it is accompanied by
a statement of value showing what taxes are due each political subdivision.
C.
On or before the 10th day of each month, the collector shall pay
over to the municipality all taxes collected under this article, less
2% for use of the county, and shall also provide a report containing
the information 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.
In accordance with Act 77 of 1986, any recorder of deeds who shall
record any document upon which is imposed a tax under this article
without payment of the tax as required under this article, as is indicated
in the document or accompanying statement of value, shall, upon summary
conviction, be sentenced to pay a fine of $50 and costs of prosecution.
The municipality may promulgate and enforce reasonable rules
and regulations for the interpretation, collection and enforcement
of the tax.
A.
To the extent this article imposes a tax on a real estate transaction
with is subject to the Commonwealth of Pennsylvania realty transfer
tax imposed by Act 77 of 1986,[1] and to the extent not inconsistent herewith or with rules
or regulations adopted by the municipality, this article shall be
interpreted in the same manner as Act 77 of 1986 and in accordance
with regulations promulgated thereunder.
[1]
Editor's Note: See 72 P.S. § 8101-D et seq.
B.
The provisions of this article, so far as they are the same as those
of ordinances in force immediately prior to adoption of this article,
are intended as a continuation of such ordinances and not as new enactments.
C.
This article is intended to supplement the realty transfer tax in
effect prior to adoption of this article by imposing a tax on real
estate transactions not covered by prior ordinances and now taxable
under Act 77 of 1986. This article shall impose a tax on all transactions
taxable under ordinances levying a realty transfer tax in force immediately
prior to adoption of this article and also on all transactions which
the municipality is permitted to tax under Act 77 of 1986 to the fullest
extent permissible.
D.
To the extent that the provisions of this article tax real estate
transactions taxable under ordinances levying a realty transfer tax
in force immediately prior to adoption of this article, this article
shall supersede said prior ordinances.
E.
In the event that this article is declared invalid, the prior ordinance
or ordinances of the municipality levying a realty transfer tax shall
remain in full force and effect and shall not be affected in any way
by adoption of this article.
F.
The provisions of this article shall not affect any act done or liability
incurred, nor shall they affect any suit or prosecution pending or
to be instituted to enforce any right or penalty or to punish any
offense, under the authority of any ordinance in force prior to adoption
of this article.
