[Adopted 1-8-1987 by Ord.
No. 566 (Ch. 24, Part 1, of the 1984 Code of Ordinances)]
This article is enacted pursuant to the authority of the Local
Tax Enabling Act, P.L. 1257, No. 511, December 31, 1965, 53 P.S. § 6901
et seq.,[1] and Act 77 of 1986, 72 P.S. 8101-C et seq., as amended,
supplemented, modified or reenacted by the General Assembly of Pennsylvania.
[1]
Editor's Note: See now 53 P.S. §§ 6924.101 to 6924.312.
This article shall be known as and cited as the "Lemoyne Real
Estate Transfer Tax Ordinance."
As used in this article, the following terms shall have the
meanings indicated, unless a different meaning clearly appears from
the context:
A partnership, a limited partnership, or any other form of
unincorporated enterprise, owned or conducted by two or more persons
other than a private trust or a decedent's estate.
Lemoyne Borough, Cumberland County, Pennsylvania.
The Recorder of Deeds of Cumberland 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.
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 trusts, 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 § 488-46 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 and lineal descendants of any of the foregoing, a spouse
of any of the foregoing and the estate of any of the foregoing. Individuals
related by the half blood or legal adoption shall be treated as if
they were related by the whole blood.
Every natural person, association, or corporation. Whenever
used in a 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 the 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;
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,
determination which is not fixed or ascertained by a specific number
of years, including, without limitation, an estate in fee simple,
life estate or perpetual leaseholder; 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 leaseholder 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 and 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 which such liens or other encumbrances
and ground rents also encumber are charged against other real estate;
provided, that where such documents 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 official, transactions
without consideration or for consideration less than the actual monetary
worth of the real estate, a taxable lease, an occupancy agreement,
a leasehold of 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 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.
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 pay
for and in respect to the transaction or any part thereof, or for
or in respect of the vellum parchment or paper upon which such document
is written or printed, a Borough tax at the rate of 1% of the value
of the real estate situate in the Borough, which Borough 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. This tax is imposed for general
revenue purposes.
The United States, the commonwealth or any of their instrumentalities,
agencies, or political subdivision 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 § 488-43 shall not be imposed upon:
(1)
A transfer to the commonwealth or 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.
(2)
A document which the commonwealth is prohibited from taxing under
the Constitution or Statutes of the United States.
(3)
A conveyance to a municipality, township, school district or county
pursuant to acquisition by the municipality, township, school district
or county of a tax delinquent property at sheriff'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)
The 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
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 a 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 decedents 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 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. If the grantee claims an exemption from taxation under this § 488-45A(11). Where the document by which title is acquired by a grantee or the 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.
(12)
A transfer made pursuant to the statutory merger or consolidation
of a corporation or statutory division of a nonprofit corporation,
except where the Recorder of Deeds 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 portion 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 conversion, energy
production, pollution control, warehousing or agriculture; and
(b)
The agency or authority has 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 Section 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 excluded by § 488-45, 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 section, corporations and associations are entities separate from their members, partners, stockholders and shareholders.
A real estate company is an acquired company upon a change in
the ownership interest in the company, however effected, if the change:
A.
Does not affect the continuity of the company; and
B.
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.
C.
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 act.
D.
Within 30 days after becoming an acquired company, the company shall
present a declaration of acquisition with the Recorder of Deeds of
Cumberland County 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.
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 demised by the
grantor, a credit for the amount of tax paid at the time of the demise
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 due tax upon the transfer is greater that the credit given
under this section, the difference shall be paid. If the credit allowed
is greater than the amount of the 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 if 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, 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.
The payment of the tax imposed by this article, shall be evidenced
by the affixing of a documentary stamp or stamps to every document
by the person making, executing, delivering or presenting for recording
such document. Such stamps shall be affixed in such manner that their
removal will require the continued application of steam or water,
and the person using or affixing such stamps shall write or stamp
or cause to be written or stamped thereon the initials of his name
and the date upon which such stamps are affixed or used so that such
stamps may not again be used.
B.
The use of documentary license meter impressions or similar indication
of payment in lieu of stamps as required by this article is permitted.
C.
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, not
shall proof thereof be offered or received in evidence in any court
of this commonwealth, or recorded in the Office of the Recorder of
Deeds of Cumberland County, unless a documentary stamp or stamps as
provided in this article, affixed thereto.
Every document lodged with or presented to the Recorder of Deeds
of Cumberland County for recording, shall set forth therein and as
a part of such document the true, full and complete value, 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 or the reason, if any, why
such document is not subject to tax under this article. The provisions
of this subsection shall not apply to any excludable real estate transfer
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 statement of value or 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
for not 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.
Any person who shall violate any provision of this article shall,
upon conviction before a Magisterial District Judge or other appropriate
court, be sentenced to pay a fine of not more than $300 for each violation
and costs or to imprisonment for a term not to exceed 30 days.
All taxes imposed by this article, together with additions,
may be recovered in any manner allowed by law.
The tax imposed by this article, shall become a lien upon the
lands, tenements, or hereditaments, or any interest therein, lying,
being, and situate wholly or in part, within the boundaries of the
Borough of Lemoyne, which by the documents which is the subject of
this tax imposed and assessed by this article, said lien to begin
at the time when the tax is due and payable and continue until discharged
by payment or in accordance with the law. The solicitor is authorized
to file appropriate documents regarding said lien.
The transferee of an interest subject to the tax imposed by
this article remains liable for any unpaid tax imposed by this article.
