[Adopted 4-28-1987 by Ord. No. 87-2 (Ch. 24, Part 5, of the
1991 Code of Ordinances)]
This article shall be known as the "Fairview Township Realty
Transfer Tax Ordinance."
This realty transfer tax is levied under authority of 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) to the Pennsylvania Real Estate Transfer
Tax Act, Act 14-1981 (Act of May 5, 1981, No. 14, P.L. 36) as amended.
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 et seq.
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. The singular shall include
the plural, and the masculine shall include the feminine and neuter.
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 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 § 264-16 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, 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 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 Fairview.
The making, executing, delivery, 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 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 within the Township, 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 value 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 § 508 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 § 264-15 shall apply.
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
part 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 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 Township is prohibited from taxing under the
Constitution or statues 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's 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
co-tenants; 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 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, 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 where 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 Township 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 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 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.
(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 § 264-14, 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 Township.
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 deed.
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 sentenced 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 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 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 § 264-19 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 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 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 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, at 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, together with all penalties,
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 monies paid to him in connection therewith. If the
proceeds of the sale are insufficient to pay the entire tax herein
imposed, the purchaser shall be liable for the remaining tax.
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 or any documents or records or 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.
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 Township.
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 tenth day of each month, the collector shall pay
over to the Township 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 77-1986, 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 statements of value shall, upon summary
conviction, be sentenced to pay a fine of $50 and costs of prosecution.
The Township may promulgate and enforce reasonable rules and
regulations for the interpretation, collection, and enforcement of
the tax.
