[Adopted 1-5-1987 by Ord. No. 110 (Ch. 24, Part 1, of the
2002 Code of Ordinances)]
This article shall be known as the "Realty Transfer Tax Ordinance
of the Township of East Lampeter."
This realty transfer tax is levied under the authority of the
Tax Reform Code of 1971, as amended, March 4, P.L. 6, No. 2, 72 P.S.
§ 7101 et seq., and Article XI-D, entitled "Local Real Estate
Transfer Tax," of the Pennsylvania Real Estate Transfer Tax Act, which
is a new article added by Act 77-1986 (Act of July 2, 1986, No. 77,
P.L. 318) to the Pennsylvania Real Estate Transfer Tax Act, Act 14-1981
(Act of May 5, 1981, No. 14, P.L. 36), as amended, and the Local Tax
Enabling act, approved December 31, 1965, P.L. 1257, No. 511, 53 P.S.
§ 6901 et seq.[1] The Pennsylvania Real Estate Transfer Tax Act is codified
at 72 P.S. § 8101-C et seq., and Article XI-D is codified
at 72 P.S. § 8101-D.
[1]
Editor's Note: See now 53 P.S. § 6924.101 et seq.
[Amended 6-3-2002 by Ord. No. 232]
As otherwise stated, the following words shall, for purposes
of this article, have the meaning herein indicated. Words in the present
tense include the future tense. Words in the singular include the
plural and words in the plural include the singular.
A partnership, limited partnership, or any other form of
unincorporated enterprise owned or conducted by two or more persons.
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 Township, 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 § 300-25
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; or
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 or lineal descendants of any of the foregoing, a spouse
of any of the foregoing, and the estate of any of the foregoing. Individuals
related by the half-blood or legal adoption shall be treated as if
they were related by the whole-blood.
Every natural person, association, or corporation 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 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 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.
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 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 Township of East Lampeter.
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 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 determined by adjusting the assessed
value of the real estate for local real estate tax purposes for the
common level ratio of assessed values to market values of the taxing
district in which the Township 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 Township 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 earlier 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 Township, the tax shall be calculated on the value of the portion
within the Township.
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 Township and other political
subdivisions shall not exceed the limitations prescribed in Section
8 of the Local Tax Enabling Act, 53 P.S. § 6908,[1] so that if any other political subdivision imposes a tax
on real estate transactions taxed under this article, the provisions
of said Section 8 shall apply.
[1]
Editor's Note: See now 53 P.S. § 6924.311.
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 transaction from liability for the tax.
The tax imposed by § 301-20 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 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.
B.
A document which the Township is prohibited from taxing under the
Constitution or statutes of the United States.
C.
A conveyance to a Township, school district or county pursuant to
acquisition by the Township, school district or county of a tax delinquent
property at sheriff sale or tax claim bureau sale.
D.
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.
E.
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.
F.
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 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 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 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 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 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.
L.
A transfer made pursuant to the statutory merger or consolidation
of a corporation or statutory division of a nonprofit corporation,
except where the Township reasonably determines that the primary intent
for such merger, consolidation or division is avoidance of the tax
imposed by this article.
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 conservation, 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 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.
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 tax exempt status pursuant
to Section 501(c)(3) of the Internal Revenue Code of 1954[1] and which has as its primary purpose preservation of land
for historic, recreational, scenic, agricultural or open space opportunities.
[1]
Editor's Note: See 26 U.S.C. § 501(c)(3).
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.
Leases for the production or 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 article.
Except as otherwise provided with respect to excluded transactions,
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
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.
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 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.
Every document lodged with or presented to the Collector 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 subsection shall not apply to any excludable
real estate transfers which are exempt from taxation based on family
relationship, provided 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;
or
(4)
Fail, neglect or refuse to comply with or violate other provisions
of this article or any rules and regulations promulgated by the Township
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.
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.
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 an 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
on the amount of the unpaid tax, 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 Township that such failure
is due to reasonable cause, a penalty shall accrue at the rate of
5% 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.
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 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 Township files suit in order to collect the amount
of any tax not paid when due under this article in the discretion
of the court, any person liable for payment of the tax shall also
be liable for reasonable attorneys' fees incurred by the Township
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 shall be a lien against the
real estate to which the document relates and, in the case of an 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. In order to enforce the lien, the Township 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 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, the Recorder of Deeds
for the County of Lancaster ("Recorder") shall be the collection agent
for this tax, including any amount payable to the Township 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 Township.
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 any document unless it is accompanied by
a statement of value showing what taxes are due each political subdivision.
C.
On or before the tenth of each month, the Recorder shall pay over
to the Township 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.
D.
In accordance with Act 77-1986, any Recorder of Deeds who shall record
any document upon which tax is imposed under this article without
payment of 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.
A.
In order to determine whether the proper amount of tax has been paid,
without limiting any other rights of the Township, the Township 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 Township 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 Township.
Upon request of the Township, and at such place and time as specified
by the Township, any party shall make available to the Township any
documents or records requested by the Township.
B.
In the event any tax is not paid when due, the Township may enforce
payment of the tax, together with all penalties, by suit in assumpsit
or any other appropriate means.
The Treasurer of this Township is hereby charged with enforcement
and collection of tax hereunder and is empowered to promulgate and
enforce reasonable regulations incident thereto.
A.
To the extent this article 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 Township, this article
shall be interpreted in the same manner as Act 77-1986 and in accordance
with regulations promulgated thereunder.
B.
The provisions of this article, so far as they are the same as those
of ordinances in force immediately prior to the 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 77-1986. This article shall impose a tax on all transactions
which the Township is permitted to tax under Act 77-1986 to the fullest
extent permissible.
D.
In the event this article is declared invalid, the prior ordinance
or ordinances of the Township 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.
In no event shall this article be deemed to repeal the existing
Realty Transfer Tax Ordinance or Ordinances of the Township. It is
hereby declared as the intent of the Board of Supervisors of the Township
that the existing ordinance or ordinances of the Township shall remain
in full force and effect pursuant to Article XI-D, entitled "Local
Real Estate Transfer Tax," of the Pennsylvania Real Estate Transfer
Tax Act, which is a new article added by Act 77-1986 (Act of July
2, 1986, No. 77) to the Pennsylvania Real Estate Transfer Tax Act,
Act 14-1981 (Act of May 5, 1981, No. 14, P.L. 36), as amended, and
that all transactions taxed under said existing ordinance or ordinances
shall continue to be taxable despite the provisions of this article.
