[Adopted 1-5-1987 by Ord.
No. 521 (Ch. 90, Part 2, Art. III, of the 1972 Code)]
This article shall be known as the "Realty Transfer Tax Ordinance."
A realty transfer tax for general revenue purposes is hereby
imposed upon the transfer of real estate or interest in real estate
situated within the Borough of Souderton, 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, Local Real Estate Transfer Tax, 72 P.S. § 8101-D
et seq.
As used in this article, the following terms shall have the
meanings indicated:
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.
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.
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 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 § 567-23 of this article.
The Borough Council of the Borough of Souderton.
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 or 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 and lineal descendants of any of the foregoing; a spouse
of any of the foregoing; and the estate of any of the foregoing or
a spouse of any of the foregoing. Individuals related by half blood
or legal adoption shall be treated as if they were related by whole
blood.
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.
All lands, tenements or hereditaments within the Borough of
Souderton, 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 or 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 extent 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.
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, 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 factor developed by the Pennsylvania Department of Revenue for
Pennsylvania realty transfer tax base calculations:
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 principle of the grantor of a
related corporation, association or partnership and the grantee existing
before or effective with the transfer.
A.
Every person who makes, executes, delivers, accepts or presents for
recording any document or in whose behalf any document is made, executed,
delivered, accepted or presented for recording shall be subject to
pay for and in respect to the transaction or any part thereof a tax
at the rate of 1% of the value of the real estate represented by such
document, which tax shall be payable at the earlier of the time the
document is presented for recording or within 30 days of acceptance
of such document or within 30 days of becoming an acquired company.
B.
The payment of the tax imposed herein shall be evidenced by the affixing
of an official stamp or writing by the Recorder of Deeds whereon the
date of the payment of the tax, amount of the tax and the signature
of the collecting agent shall be set forth.
C.
It is the intent of this article that the entire burden of the tax
imposed herein on a person or transfer shall not exceed the limitations
prescribed in the Local Tax Enabling Act, Act of December 31, 1965,
P.L. 1257, 53 P.S. § 6901 et seq., [1]so that if any other political subdivision shall impose
or hereafter shall impose such tax on the same person or transfer,
then the tax levied by the Borough of Souderton 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 of Souderton; provided, however, that the Borough of
Souderton and any other political subdivision which imposes such tax
on the same person or transfer may agree that, instead of limiting
their respective rates to 1/2 of the rate herein provided, they will
impose respectively different rates, the total of which shall not
exceed the maximum rate permitted under the Local Tax Enabling Act.
[1]
Editor's Note: Pursuant to P.L. 197, No. 32, enacted 7-2-2008,
sections of the Local Tax Enabling Act formerly codified in 53 P.S.
§ 6901 et seq. have been revised and renumbered. See now
53 P.S. § 6924.101 et seq.
D.
If for any reason the tax is not paid when due, interest at the rate
in effect at the time the tax is due shall be added and collected.
The United States, the commonwealth or any of their instrumentalities,
agencies or political subdivisions shall be exempt from payment of
the tax imposed by this article. The exemption of such governmental
bodies shall not, however, relieve any other party to a transaction
from liability for the tax.
A.
The tax imposed by § 567-25 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 reconveyance by the condemning body of the property
condemned to the owner of record at the time of condemnation, which
reconveyance may include property fine adjustments, provided that
said reconveyance is made within one year from the date of condemnation.
(2)
A document which the Borough of Souderton 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'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 of 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 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 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 Recorder of Deeds 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 for no or nominal actual consideration between principal
and agent or straw party; or from or to an agent or straw party where,
if the agent or straw party were his principal, no tax would be imposed
under this article. Where the document by which title is acquired
by a grantee or statement of value fails to set forth that the property
was acquired by the grantee from or for the benefit of his principal,
there is a rebuttable presumption that the property is the property
of the grantee in his individual capacity if the grantee claims an
exemption from taxation under this subsection.
(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 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 the
grantee shall directly use such real estate for the primary purpose
of manufacturing, fabricating, compounding, processing, publishing,
research and development, transportation, energy conversion, energy
production, pollution control, warehousing or agriculture; and the
agency or authority has the full ownership interest in the real estate
transferred.
(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 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 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. A copy of the Pennsylvania realty transfer tax
statement of value may be submitted for this purpose. For leases of
coal, oil, natural gas or minerals, the statement of value may be
limited to an explanation of the reason such document is not subject
to tax under this article.
Except as otherwise provided in § 567-27, 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 entitles 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 that are devoted to the business of agriculture,
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.
In determining the term of a lease, it shall be presumed that
a right or option to renew or extend a lease will be exercised if
the rental charge to the lessee is fixed or if a method for calculating
the rental charge is established.
The tax herein imposed shall be fully paid and have priority
out of the proceeds of any judicial sale of real estate before any
other obligation, claim, lien, judgment, estate or costs of the sale
and of the writ upon which the sale is made, except the state realty
transfer tax, and the sheriff or other officer conducting said sale
shall pay the tax herein imposed out of the first moneys paid to him
in connection therewith. If the proceeds of the sale are insufficient
to pay the entire tax herein imposed, the purchaser shall be liable
for the remaining tax.
A.
As provided in 16 P.S. § 11011-6, as amended by Act of
July 7, 1983 (P.L. 40, No. 21), the Recorder of Deeds shall be the
collection agent for the local realty transfer tax, including any
amount payable to the Borough of Souderton.
B.
In order to ascertain the amount of taxes due when the property is
located in more than one political subdivision, the Recorder shall
not accept for recording such a deed unless it is accompanied by a
statement of value showing what taxes are due each municipality.
C.
On or before the 10th of each month, the Recorder shall pay over
to the Borough of Souderton 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.
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.
Every document lodged with or presented to the Recorder of Deeds
for recording, shall set forth therein and as a part of such document
the true, full and complete value thereof or shall be accompanied
by a statement of value executed by a responsible person connected
with the transaction showing such connection and setting forth the
true, full and complete value thereof or the reason, if any, why such
document is not subject to tax under this article. A copy of the Pennsylvania
realty transfer tax statement of value may be submitted for this purpose.
The provisions of this section shall not apply to any excludable real
estate transfers which are exempt from taxation based on family relationship.
Other documents presented for the affixation of stamps shall be accompanied
by a certified copy of the document and statement of value executed
by a responsible person connected with the transaction showing such
connection and setting forth the true, full and complete value thereof
or the reason, if any, why such document is not subject to tax under
this article.
A.
If any part of any underpayment of tax imposed by this article is
due to fraud, there shall be added to the tax an amount equal to 50%
of the underpayment.
B.
In the case of failure to record a declaration required under this
article on the date prescribed therefor, unless it is shown that such
failure is due to reasonable cause, there shall be added to the tax
5% of the amount of such tax if the failure is not for more than one
month, with an additional 5% for each additional month or fraction
thereof during which such failure continues, not exceeding 50% in
the aggregate.
The tax imposed by this article shall become a lien upon the
lands, tenements or hereditaments or any interest therein lying, being
situated, wholly or in part within the boundaries of the Borough of
Souderton, 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 article,
said lien to begin at the time when the tax under this article is
due and payable and continue until discharge by payment or in accordance
with the law, and the solicitor is authorized to file a municipal
or tax claim in the Court of Common Pleas of Montgomery 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.
All taxes imposed by this article, together with interest and
penalties prescribed herein, shall be recoverable as other debts of
like character are recovered.
The regulations which have been promulgated by the Pennsylvania
Department of Revenue under 72 P.S. § 8101-C et seq. are
incorporated into and made a part of this article.
