[Ord. 1988-7, 8/23/1988, § 1]
This Part shall be known as the "Burnham Borough Realty Transfer
Tax Ordinance of 1988."
[Ord. 1988-7, 8/23/1988, § 2]
A realty transfer tax for general revenue purposes is hereby
levied and imposed upon the transfer of real estate or interest in
real estate situated within the Borough of Burnham, 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, the Local Real Estate Transfer Tax, 72 P.S. § 8101-D
et seq., as amended, and the Local Tax Enabling Act, 53 P.S. § 6901
et seq., as amended.
[Ord. 1988-7, 8/23/1988, § 3]
ASSOCIATION
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.
BOROUGH
The Borough of Burnham situate in Mifflin County, Pennsylvania.
BOROUGH COUNCIL
The Borough Council of the Borough of Burnham, as elected
from time to time.
CORPORATION
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.
DOCUMENT
Any deed, instrument or writing which conveys, transfers,
demises, vests, confirms or evidences any transfer or demise of title
to real estate, but does not include wills, mortgages, deeds of trust
or other instruments of like character given as security for a debt
and deeds of release thereof to the debtor, land contracts where 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 § 108 of this
Part.
FAMILY FARM CORPORATION
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:
A.
Recreation activities such as, but not limited to, hunting,
fishing, camping, skiing, show competition or racing.
B.
The raising, breeding or training of game animals or game birds,
fish, cats, dogs or pets or animals intended for use in sporting or
recreation activities.
D.
Stockyard and slaughterhouse operations.
E.
Manufacturing or processing operations of any kind.
MEMBERS OF THE SAME FAMILY
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.
PERSON
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, and as applied
to corporations, the officers thereof.
REAL ESTATE
A.
All lands, tenements or hereditaments within the Borough of
Burnham 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 may by custom, usage or law pass with a conveyance
of land, but excluding permanently attached machinery and equipment
in an industrial plant.
C.
A tenant-stockholder's interest in a cooperative housing
corporation, trust or association under a proprietary lease or occupancy
agreement.
REAL ESTATE COMPANY
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:
A.
Derives 60% or more of its annual gross receipts from the ownership
or disposition of real estate;
B.
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.
RECORDER
The Recorder of Deeds of Mifflin County (as elected from
time to time).
TITLE TO REAL ESTATE
A.
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,
B.
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.
TRANSACTION
The making, executing, delivering, accepting, or presenting
for recording of a document.
VALUE
A.
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 exiting before the transfer and not removed thereby, whether
or not the underlying indebtedness is assumed, and ground rents or
a commensurate part thereof where such liens or other encumbrances
and ground rents also encumber or are charged against other real estate;
provided, that where such documents shall set forth a nominal consideration,
the "value" thereof shall be determined from the price set forth in
or actual consideration for the contract of sale.
B.
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 the 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,
from time to time, for Pennsylvania realty transfer tax base calculations.
C.
In the case of an easement or other interest in real estate the value of which is not determinable under Subsection
A or
B, the actual monetary worth of such interest.
D.
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 person 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.
[Ord. 1988-7, 8/23/1988, § 4]
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 thereof, or
for or in respect of the vellum parchment or paper upon which such
document is written or printed, 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 whereon the date of
the payment of the tax, amount of the tax, and the signature of the
collection agent shall be set forth. The use of documentary license
meter impressions or similar indication of payment in lieu of stamps
as required hereby may be permitted in the discretion of the Borough.
3. It is the intent of this Part 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., as amended, so that if any other
political subdivision shall impose or hereafter shall impose such
tax on the same person or transfer, then the tax levied by the Borough
Council, and through it the 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 1/2 rate
shall become effective without any action on the part of the Borough
Council, and through it the Borough; provided, however, that the Borough
Council, and through it the Borough, 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 under the "Local
Tax Enabling Act."
4. If for any reason the tax is not paid by the date it is due, the
tax imposed and due shall bear interest as prescribed for interest
on delinquent municipal claims under the Act of May 16, 1923, P.L.
207, No. 153, as amended (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, as amended (72 P.S. § 806,
as amended), known as the “Fiscal Code,” or the maximum
interest rate permitted under the Municipal Claims and Tax Liens Act
for tax claims.
[Amended by Ord. 2008-2, 1/21/2008]
[Ord. 1988-7, 8/23/1988, § 5]
The United State, 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. 1988-7, 8/23/1988, § 6]
The tax imposed by § 104 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 or record at the time of condemnation, which
reconveyance is made within one year from the date of condemnation.
2. A document which the Borough Council and through it the 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.
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 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 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 a trustee
to successor trustee.
11. A transfer (i) for no or nominal actual consideration between principal
and agent or straw party; or (ii) from or to an agent or straw party
where, if the agent or straw party where 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
was acquired by the grantee from, or for the benefit of, his principal,
there is a rebuttable presumption that the property is the property
of the grantee in his individual capacity if the grantee claims an
exemption from taxation under this subsection.
12. A transfer made pursuant to the statutory merger or consolidation
of a corporation or statutory division of a nonprofit corporation,
except where the Department reasonably determines that the primary
intent for such merger, consolidation or division is avoidance of
the tax imposed by this Part.
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 a 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: (i) 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 (ii) the agency or authority has the
full ownership interest in the real estate transferred.
16. A transfer by a mortgagor to the holder of a bona fide mortgage in
default in lieu of a foreclosure or a transfer pursuant to a judicial
sale in which the successful bidder is the bona fide holder of a mortgage,
unless the holder assigns the bid to another person.
17. Any transfer between religious organizations or other bodies or persons
holding title for religious organizations if such real estate is not
being or has not been used by such transferor for commercial purposes.
18. A transfer to a conservancy which possess a tax exempt status pursuant
to § 501(c)(3) of the Internal Revenue Code of 1954 [68A
Stat. 3, 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.
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 where the tax due is $1 or less.
22. Leases for the production of extraction of coal, oil, natural gas
or minerals and assignments thereof.
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.
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[Ord. 1988-7, 8/23/1988, § 7]
Except as otherwise provided in § 106, 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 Part, corporations and associations are entities separate
from their members, partners, stockholders or shareholders.
[Ord. 1988-7, 8/12/1988, § 8]
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 of 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 requirements of a 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 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. 1988-7, 8/12/1988, § 9]
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 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 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 the tax paid at the time of the sale shall be given the grantor
toward the tax due, no refund or carryover credit shall be allowed.
[Ord. 1988-7, 8/12/1988, § 10]
In determining the term of 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 the rental charge to
the lessee is fixed or if a method for calculating the rental charge
is established.
[Ord. 1988-7, 8/12/1988, § 11]
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 reality
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.
[Ord. 1988-7, 8/23/1988, § 12]
1. As provided in 16 P.S. § 11011-6, as amended by Act of
July 7, 1983 (P.L. 40, No. 21), the Recorder shall be the collection
agent for the local realty transfer tax, including any amount payable
to the 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 the Borough, the foregoing to the contrary
notwithstanding, the Borough may elect not to be bound by the determination
or redetermination of value used by the Commonwealth of Pennsylvania
for collection of realty transfer tax, in which event the Borough
shall have determination or redetermination of value established by
use of appropriate collection proceedings.
2. 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.
3. On or before the tenth of each month, the Recorder shall pay over
to the 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 2% commission shall be
paid to the County.
4. 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 has
been tendered.
[Ord. 1988-7, 8/23/1988, § 13]
Every document lodged with or presented to the recorder of deeds
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 Part. 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 Part.
[Ord. 1988-7, 8/23/1988, § 14]
1. It shall be unlawful for any person to:
A. 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.
B. Fail to record a declaration of acquisition, as required by this
Part.
C. Fraudulently affix to any document any forged evidence of payment.
D. Fail, neglect or refuse to comply with or violate other provisions
of this Part or any rules and regulations promulgated by the Borough
under this Part, or any rules and regulations of the Pennsylvania
Department of Revenue to the extent applicable to the tax levied hereunder.
2. Any person violating any of the provisions of this Section shall
be guilty of a summary offense.
3. A 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.
[Ord. 1988-7, 8/23/1988, § 15]
1. If any tax owing under the terms of this Part shall not be paid when
due, 10% of the amount of the tax shall be added and collected as
an initial penalty for nonpayment or underpayment of the tax.
2. In addition, if any tax owing under the terms of this Part 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,
on the amount of the unpaid tax, from the due date until the amount
of the tax is paid in full.
3. In addition, in the case of failure of any acquired company to record
a declaration of acquisition, as required by this Part, unless it
is shown to the satisfaction of the Borough 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, on
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.
4. In addition, if any part of any underpayment of tax is due to fraud,
there shall be added to the tax an amount equal to 50% of the underpayment.
5. In addition, if the Borough files suit in order to collect the amount
of any tax not paid when due under this Part, at the discretion of
the court, any person liable for payment of the tax shall also be
liable for reasonable attorney's fees incurred by the Borough
in prosecution of the suit.
6. No document upon which tax is imposed by this Part 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.
[Ord. 1988-7, 8/23/1988, § 16]
The tax imposed by this Part shall become a lien upon the land,
tenements, or hereditaments, or any interest therein, lying, being
situated, wholly or in part within the boundaries of the Borough,
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 said lien to
begin at the time when the tax under this Part is due and payable,
and continue until discharged by payment, or in accordance with the
law, and the Solicitor of the Borough is authorized to file a municipal
or tax claim in the Court of Common Pleas of Mifflin 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.
[Ord. 1988-7, 8/23/1988, § 17]
1. In order to determine whether the proper amount of tax has been paid,
without limiting any other rights of the Borough, the Borough shall
have the right to review all documents or records relating to any
real estate transaction to determine the fair market value of the
real estate or any other relevant matter as determined by the Borough.
Upon request of the Borough, and at such place and time as specified
by the Borough, any party shall make available to the Borough any
documents or records requested by the Borough.
2. All taxes imposed by this Part, together with interest and penalties
prescribed herein, shall be recoverable by the Borough as other debts
of like character are recovered (including, but not limited to, action
in assumpsit or civil action).
[Ord. 1988-7, 8/23/1988, § 18]
The Recorder 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 or will be promulgated by the Pennsylvania Department of Revenue
under 72 P.S. § 8101-C et seq., as amended, are incorporated
into and made a part of this Part, where applicable.
[Ord. 1988-7, 8/23/1988, § 19]
1. To the extent this Part imposes a tax on a real estate transaction
which is subject to the Commonwealth of Pennsylvania realty transfer
tax imposed by Act 77-1986, and to the extent not inconsistent herewith
or with rules or regulations adopted by the Borough, this Part shall
be interpreted in the same manner as Act 77-1986 and in accordance
with regulations promulgated thereunder.
2. The provisions of this Part, so far as they are the same as those
of the ordinance or ordinances in force immediately prior to adoption
of this Part, are intended as a continuation of such ordinance or
ordinances, and not as new enactments.