[Ord. 421, 6/4/2007]
This Part 3 shall be known as the "Realty Transfer Tax Ordinance"
of the Borough of New Oxford.
[Ord. 421, 6/4/2007]
The Borough of New Oxford adopts the provisions of Article XI-D
of the Tax Reform Code of 1971[1] and imposes a realty transfer tax as authorized under
that Article, subject to rate limitations therein. The tax imposed
under this Part shall be at the rate of 1%.
[1]
Editor's Note: See 72 P.S. § 8101 et seq.
[Ord. 421, 6/4/2007]
The tax authorized under this Part and all applicable interest
and penalties shall be administered, collected and enforced under
the Act of December 31, 1965 (P.L. 1257, No. 511, as amended), known
as "The Local Tax Enabling Act;"[1] provided that if the correct amount of the tax is not
paid by the last date prescribed for timely payment, the Borough of
New Oxford, pursuant to Section 1102-D of the Tax Reform Code of 1971
(72 P.S. § 8102-D), authorizes and directs the Department
of Revenue of the Commonwealth of Pennsylvania to determine, collect
and enforce the tax, interest and penalties.
[1]
Editor's Note: See 53 P.S. § 6901 et seq.
[Ord. 421, 6/4/2007]
As used in this Part 3, 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.
The Borough of New Oxford, Adams County, Pennsylvania.
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, or foreign country,
or dependency.
The Department of Revenue of this commonwealth.
Any deed, instrument or writing which conveys, transfers,
devises, vests, confirms or evidences any transfer or devise 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 Section 1102-C5 of the
Tax Reform Code of 1971.
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 include the leasing to members of
the same family of property which is directly and principally used
for agricultural purposes. 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.
A partnership of which at least 75% of its assets are devoted
to the business of agriculture and at least 75% of the interests in
the partnership are continuously owned by members of the same family.
The business of agriculture shall include the leasing to members of
the same family of property which is directly and principally used
for agricultural purposes. 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 trust, other than a business trust, intended as a will
substitute by the settlor, which becomes effective during the lifetime
of the settlor, but from which trust distributions cannot be made
to any beneficiaries other than the settlor prior to the death of
the settlor.
Any individual, such individual's brothers and sisters,
the brothers and sisters of such individual's parents and grandparents,
the ancestors and lineal descendents of any of the foregoing, a spouse
of any of the foregoing and the estate of any of the foregoing. Individuals
related by half blood or legal adoption shall be treated as if they
were related by whole blood.
Any trust, other than a business trust or a living trust,
which takes effect during the lifetime of the settlor and for which
the trustees of the trust take title to property primarily for the
purpose of protecting, managing or conserving it until distribution
to the named beneficiaries of the trust. An ordinary trust does not
include a trust that has an objective to carry on business and divide
gains, nor does it either expressly or impliedly have any of the following
features: the treatment of beneficiaries as associates, the treatment
of the interests in the trust as personal property, the free transferability
of beneficial interests in the trust, centralized management by the
trustee or the beneficiaries, or continuity of life.
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.
Any lands, tenements or hereditaments within this commonwealth,
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.
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 of assessed values to market values of the taxing district 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.
[Ord. 421, 6/4/2007]
Any tax imposed under § 302 that is not paid by the
date the tax is due shall bear interest as prescribed for interest
on delinquent municipal claims under the Act of May 16, 1923 (P.L.
207, No. 153), 72 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), 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.
[Ord. 421, 6/4/2007]
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 Part. The exemption of such governmental bodies
shall not, however, relieve any other party to a transaction from
liability for the tax.
[Ord. 421, 6/4/2007]
1.
The tax imposed by this Part 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 that
said reconveyance is made within one year from the date of condemnation.
B.
A document which the commonwealth is prohibited from taxing under
the Constitution or statutes of the United States.
C.
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.
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 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 brother
or sister or the 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 that are entitled to receive the property
or proceeds from the sale of the property under the trust, whether
or not such beneficiaries are contingent or specifically named. A
trust clause which identifies the contingent beneficiaries by reference
to the heirs of the trust settlor as determined by the laws of the
intestate succession shall not disqualify a transfer from the exclusion
provided by this clause. 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, to a trustee
of a living trust from the settlor of the living trust. No such exemption
shall be granted unless the Recorder of Deeds is presented with a
copy of the living trust instrument.
J.
A transfer, for no or nominal actual consideration, from a trustee
of an ordinary trust to a specifically named beneficiary that is entitled
to receive the property under the recorded trust instrument or to
a contingent beneficiary where the transfer of the same property would
be exempt if the transfer was made by the grantor of the property
into the trust to that beneficiary. However, any transfer of real
estate from a living trust during the senior's lifetime shall
be considered, for the purposes of this Part, as if such transfer
were made directly from the settlor to the grantee.
K.
A transfer, for no or nominal actual consideration, from a trustee
of a living trust after the death of the settlor of the trust or from
a trustee of a trust created pursuant to the will of a decedent to
a beneficiary to whom the property is devised or bequeathed.
L.
A transfer, for no or nominal actual consideration, from the trustee
of a living trust to the settlor of the living trust if such property
was originally conveyed to the trustee by the settlor.
M.
A transfer, for no or nominal actual consideration, from trustee
to successor trustee.
N.
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 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 clause.
O.
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.
P.
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.
Q.
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.
R.
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.
S.
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.
T.
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.
U.
A transfer to a conservancy which possesses a tax-exempt status pursuant
to Section 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; or a transfer from such a conservancy
to the United States, the commonwealth or to any of their instrumentalities,
agencies or political subdivisions; or any transfer from such a conservancy
where the real estate is encumbered by a perpetual agricultural conservation
easement as defined by the Act of June 30, 1981 (P.L. 128, No. 43),
known as the "Agricultural Area Security Law," and such conservancy
has owned the real estate for at least two years immediately prior
to the transfer.
V.
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.
W.
A transfer of real estate devoted to the business of agriculture
to a family farm partnership by a member of the same family, which
family directly owns at least 75% of the interest in the partnership.
X.
A transfer between members of the same family of an ownership interest
in a real estate company, family farm corporation or family farm partnership
which owns real estate.
Y.
A transaction wherein the tax due is $1 or less.
Z.
Leases for the production or extraction of coal, oil, natural gas
or minerals and assignments thereof.
2.
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 Part.
[Ord. 421, 6/4/2007]
Except as otherwise provided in § 307, documents which
make, confirm or evidence any transfer or devise 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. 421, 6/4/2007]
1.
A real estate company is an acquired company upon a change in the
ownership interest in the company, however effected, if the change:
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 minimum requirements of a family farm corporation
under this Part.
3.
A family farm partnership is an acquired company when, because of
voluntary or involuntary dissolution, it ceases to be a family farm
partnership or when, because of transfer of partnership interests
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 partnership under this Part.
4.
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.
[Ord. 421, 6/4/2007]
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 the
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 devised by the
grantor, a credit for the amount of tax paid at the time of the devise
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 tax paid at the time of the sale shall be given the grantor toward
the tax due upon the deed.
5.
If the tax due upon the transfer is greater than the credit given
under this Part, the difference shall be paid. If the credit allowed
is greater than the amount of tax due, no refund or carry-over credit
shall be allowed.
[Ord. 421, 6/4/2007]
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.
[Ord. 421, 6/4/2007]
The tax imposed under this Part 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. The Sheriff or other
officer conducting the sale shall pay the tax imposed under this Part
out of the first moneys paid to the Sheriff or officer in connection
therewith. If the proceeds of the sale are insufficient to pay the
entire tax imposed under this Part, the purchaser shall be liable
for the remaining tax.
[Ord. 421, 6/4/2007]
1.
As provided in 16 P.S. § 11011-6, as amended, the Recorder
of Deeds shall be the collection agent for the local realty transfer
tax, including any amount payable to the Borough based upon a redetermination
of the amount of tax due by the Commonwealth of Pennsylvania, without
compensation from the Borough.
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 10th 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 Recorder shall pay the
2% withheld to the county.
4.
Upon a redetermination of the amount of realty transfer tax due by
the Commonwealth of Pennsylvania, the deed shall be rerecorded or
the additional realty transfer tax form shall be recorded, at the
option of the Recorder, but the Recorder shall rerecord the deed or
record the additional realty transfer tax form only when both state
and local amounts payable, and a fee to cover the costs of rerecording
or recording, have been tendered.
[Ord. 421, 6/4/2007]
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 Part. 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. 421, 6/4/2007]
1.
If any part of any underpayment of tax imposed under this Part is
due to fraud, an amount equal to 50% of the underpayment shall be
added to the tax.
2.
In the case of failure to record a declaration required under this
Part on the date prescribed therefor, unless it is shown that such
failure is due to reasonable cause, 5% of the amount of such tax shall
be added to the tax if the failure is for not more than one month,
with an additional 5% for each additional month or fraction thereof
during which the failure continues, not exceeding 50% in the aggregate.
[Ord. 421, 6/4/2007]
1.
Any tax that the Department of Revenue determines to be due to the
Borough and which remains unpaid after demand for the same, and all
penalties and interest thereon, shall be a lien in favor of the Borough
upon the property, both real and personal, of the person, but only
after the lien has been entered and docketed of record by the Prothonotary
of Adams County.
2.
The Borough hereby authorizes the Department to file all liens in
favor of the Borough with the Prothonotary of Adams County.
[Ord. 421, 6/4/2007]
The Recorder of Deeds of Adams County is charged with enforcement
and collection of tax and is empowered to promulgate and enforce reasonable
regulations for enforcement and collection of the tax. In addition,
the Department is authorized to determine, collect and enforce the
tax, interest and penalties in the case of unpaid taxes. 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 Part.
[Ord. 421, 6/4/2007]
Notwithstanding the provisions of any other laws, an officer
of the Borough of New Oxford imposing a local real estate transfer
tax or an authorized representative of the officer may divulge to
the Department of Revenue information concerning the administration
or collection of the local real estate transfer tax authorized by
Article XI-D of the Tax Reform Code of 1971.
[Ord. 421, 6/4/2007]
Resolution 2/4/1980B, as revised by Ordinance No. 384, 6/7/1999,
is hereby repealed. The repealed ordinance or parts thereof remain
in effect for documents that became subject to tax prior to the effective
date of this Part. All other ordinances and parts of ordinances inconsistent
herewith are hereby repealed.
[Ord. 421, 6/4/2007]
The provisions of this Part shall become effective on and be
applicable to any document made, executed, delivered, accepted or
presented for recording on or after June 5, 2007.
