[Ord. #67-011, § 1; 1958 Code § 25.53;
Ord. #92-014, § I, A]
This section shall be known as the "Real Property Transfer Tax
Regulations of the City of Albany". It is adopted pursuant to authority
contained in Part 6.7 (commencing with Section 11901) of Division
2 of the State Revenue and Tax Code and pursuant to Albany's powers
as a Charter City.
[Ord. #67-011, § 2; Ord. #74-03, § 1;
1958 Code § 25.54; Ord. #87-013, § 1; Ord. #92-014,
§ I, B; Ord. #94-08, § 1;[1] Res. #02-60, § 1[2]; amended 11-3-2020 by Ord. No. 2020-09[3]]
There is hereby imposed a tax levied at the rate of 150/100
of 1% of the value of consideration, effective January 1, 2021, on
the following:
a.
All transfers by deeds, instruments, writings, or any other document
by which any lands, tenements, or other interest in real property
are sold, assigned, conveyed, transferred, exchanged or title otherwise
changed within the City of Albany; or
b.
Any transaction or change in title whereby the form of title to real
property is granted, assigned, changed, transferred or otherwise conveyed
to or vested in a person(s), purchaser(s), or transferee(s) in a different
percentage of ownership on title that had been set forth on the prior
deed or document evidencing title.
c.
Any transaction or transfer of greater than 5% interest, ownership,
or control of stock or shares in a corporation, interest in partnerships,
or interest in other legal entities that is transferred or conveyed
through the purchase or transfer of corporate stock, partnerships
interest, shares or interest in limited liability companies, or ownership
interest in other legal entities. Such purchase or transfer of such
stock, shares, or other interest shall be considered and shall constitute,
for the purposes of imposing a tax, a change of ownership of property
owned by the corporation, limited liability company, partnership or
other legal entity.
[1]
Editor's Note: This subsection shall become effective 30 days on or after its final passage and adoption, except as follows: Any transaction in which escrow was opened on or before August 1, 1994 and the escrow closed by October 31, 1994 shall be taxed at the rate of 64/100 of 1% of the value of consideration. Any transaction in which an escrow has not been opened but for which documents were entered into on or before August 1, 1994 in which the transaction was finalized and deeds transferred on or before October 31, 1994 shall likewise be taxed in the same manner as escrow is referred hereto for. All other transactions which are subject to this tax shall be taxed at the rate as set forth in Section 4-5.2 as amended by this subsection.
[2]
Editor's Note: Resolution 02-60 was approved by the electorate
as Measure H at the election of November 5, 2002.
[3]
Editor's Note: This ordinance was approved by a majority of
the qualified voters at an election held 11-3-2020.
[Ord. #67-011, § 3; 1958 Code § 25.55;
Ord. #87-013, § 2; Ord. #92-014, § I, C]
Any persons who make a transfer which is subject to tax imposed
under this section, and any persons to whom such transfer is made,
shall be jointly and severally liable for payment of tax imposed under
this section; provided, however, that the United States, State of
California, any City, County, City and County, district or any other
political subdivision of the State of California shall be exempt from
any liability for the tax imposed herein.
[Ord. #67-011, § 4; 1958 Code § 25.56;
Ord. #87-013, § 3; Res. #92-014, § I, D]
As used in this section:
Shall mean real properties defined by and under the laws
of the State of California.
Is defined and shall mean any and/or all of the following:
Value of consideration shall mean the total consideration, valued
in money of the United States, paid or delivered, or contracted to
be paid or delivered in return for the transfer of real property,
including the amount of any indebtedness existing immediately prior
to the transfer which is secured by a lien, deed of trust or other
encumbrance on the property conveyed and which continues to be secured
by such lien, deed of trust or encumbrances after the transfer, and
also including the amount of any indebtedness which is secured by
a lien, deed of trust or encumbrance given or placed upon the property
in connection with the transfer to secure the payment of the purchase
price or any part thereof which remains unpaid at the time of transfer.
Value of the consideration also includes the amount of any special
assessment levied or imposed upon the property by a public body, district
or agency, where the special assessment is a lien or encumbrance on
the property and the purchaser or transferee agrees to pay such special
assessment or takes the property subject to the lien of such special
assessment.
Value of the consideration also includes and may involve money
or anything of value, including: love, affection, gift, forbearance
of a debt or obligation, or exchange of property or rights to something
of value. If the "value of the consideration" cannot be definitely
determined, or is left open to be fixed by future contingencies, "value
of the consideration" shall be deemed to mean the fair market value
of the property at the time of transfer.
[Ord. #67-011, § 5; 1958 Code § 25.57;
Ord. #87-013, § 4; Ord. #92-014, § I, E]
Any transfer made solely to secure a debt; provided, however,
that nothing herein contained shall be deemed to exclude the amount
of any such indebtedness from being included in the "value of consideration",
pursuant to this section in connection with transfers which are not
made solely to secure a debt.
[Ord. #67-011, § 6; 1958 Code § 25.58;
Ord. #92-014, § I, F]
Any tax imposed pursuant to this section shall not apply to
the making, delivering or filing of conveyances to make effective
any plan or organization or adjustment whereby a mere change in identity,
forum or place of organization is effective, and if:
a.
Confirmed under the Federal Bankruptcy Act, as amended;
b.
1.
Approved in an equity receivership proceeding in a court involving
a railroad corporation, as defined in subdivision (m) of Section 205
of Title 11 of the United States Code, as amended; or
2.
Approved in an equity receivership proceeding in a court involving
a corporation, as defined in subdivision (3) Section 506 of Title
11 of the United States Code, as amended;
c.
Whereby a mere change in identity, form or place or organization
is effected.
d.
Such conveyance occurs within five (5) years from the date of such
confirmation, approval or change.
[Ord. #67-011, § 7; 1958 Code § 25.59;
Ord. #92-014, § I, G]
Any tax imposed pursuant to this section shall not apply to
the making or delivery of conveyances to make effective any order
of the Securities and Exchange Commission, as defined in subdivision
(a) of Section 1083 of the Internal Revenue Code of 1954; but only
if;
a.
The order of the Securities and Exchange Commission in obedience
to which such conveyance is made recites that such conveyance is necessary
or appropriate to effectuate the provisions of Section 79k of Title
15 of the United States Code, relating to the Public Utility Holding
Company Act of 1935;
b.
Such order specifies the property which is ordered to be conveyed;
c.
Such conveyance is made in obedience to such order.
[Ord. #92-014, § I, H]
a.
Any tax imposed pursuant to this section shall not apply with respect
to any deed, instrument or other writing which purports to transfer,
divide or allocate community, quasi community or quasi marital property
as is between spouses for the purposes of effecting a division of
community, quasi community or quasi marital property which is required
by a judgment decreeing a dissolution of the marriage or legal separation,
by a judgment of nullity, or by any other judgment or order rendered
pursuant to the Civil Code of the State of California or by written
agreement between the spouses, executed in contemplation of any such
judgment or order, whether or not the written agreement is incorporated
as part of any of those judgments or orders.
In order to qualify for the exemption provided in this section,
the deed, instrument, or other writing shall include a written recital,
signed by either spouse, stating that the deed, instrument, or other
writing is entitled to such exemption.
[Ord. #92-014, § I, I]
Any tax imposed pursuant to this chapter shall not apply with
respect to any deed, instrument, or other writing by which realty
is conveyed by the State of California, any political subdivision
thereof, or agency or instrumentality or either thereof, pursuant
to an agreement whereby the purchaser agrees to immediately reconvey
the realty to the exempt agency.
[Ord. #92-014, § I, J]
Any tax imposed pursuant to this section shall not apply with
any respect to any deed, instrument, or other writing to which realty
is conveyed by the State of California, any political subdivision
thereof, or agency or instrumentality or either thereof, conveys to
a nonprofit corporation realty the acquisition, construction, or improvement
of which was financed or refinanced by obligations issued by a nonprofit
organization on behalf of a government unit, within the meaning of
Section 1.103-l(b) of Title 26 of the Code of Federal Regulations
or as amended.
[Ord. #92-014, § I, K; Ord. #94-013, § 1]
Any tax imposed pursuant to this section shall not apply to
transfers, conveyances, leases, or subleases without consideration
(exclusive of the value of any lien or encumbrance remaining thereon)
which:
a.
Confirm or correct a deed previously recorded or filed.
b.
Effectuate a gift or consideration of "love and affection", so long
as one of the original owners remains on title.
c.
Partition property.
d.
Effectuate a will or intestate succession.
e.
Effectuate the right of survivorship of a joint tenant.
f.
Any transfer by an individual, transferring his/her property into
a trust so long as (1) the transferor is the present beneficiary of
the trust, or (2) the trust is revocable, or any transfer by a trustee
of such trust described in either clause (1) or (2) back to the original
owner (trustor).
g.
Any transfer from a legal entity (e.g., partnership, corporation,
or trust) to an individual(s) which results solely in a change in
the method of holding title to the real property and in which proportional
ownership interests of the transferors and transferees, whether represented
by stock, partnership interests, or otherwise, in each and every piece
of real property owned by the transferor entity, remain the same after
the transfer.
h.
Any transfer from an individual(s), legal entity, or trust to a legal
entity such as a partnership or a corporation in which shares or interests
are owned and which result solely in a change in the method of holding
title to the real property and in which proportional ownership interests
of the transferors and transferees, whether represented by stock,
partnership interests, or otherwise, and each and every piece of real
property owned by the transferor, remain the same after the transfer.
Additionally, each such transfer to the transferee legal entity shall
include a requirement that the legal documents of the transferee legal
entity contain a restriction prohibiting the sale of stock of that
entity or transfer of interests in that entity without prior notification
to the City of Albany so that the City of Albany is able to ascertain
whether subsequent shares of stock or interests in the entity are
being sold which would alter the proportionable ownership interest
and thereby create a taxable transfer under the other provisions of
this chapter. Said restriction shall be in a form and content approved
by the City of Albany.
[Ord. #92-014, § I, L]
The City Treasurer's office of the City of Albany (herein after
referred to as "Tax Collector") shall cause to have collected the
tax imposed under this section and shall otherwise administer this
section. The Tax Collector shall make such rules and regulations not
inconsistent with this section, as are deemed reasonably necessary
or desirable to administer this section. In the administration of
this section, the Tax Collector shall interpret its provisions consistent
with the provisions of this section.
[Ord. #92-014, § I, M]
The tax imposed under this section is due and payable at the
time the deed, instrument or writing effecting a transfer subject
to the tax is delivered, and is delinquent if unpaid at the time of
recordation thereof. In the event that the tax is not paid prior to
becoming delinquent, a delinquent penalty of ten (10%) percent of
the amount of the tax due shall accrue. An administrative charge of
fifty ($50.00) dollars on each property and a release of lien fee
in an amount equal to the amount charged by the Alameda County Recorders
Office or any agent thereof, shall be added to that amount owed for
each property approved for a tax lien by the City Council.
In the event a portion of the tax is unpaid prior to becoming
delinquent, the penalty shall only accrue as to the portion remaining
unpaid. An additional penalty of ten (10%) percent shall accrue if
the tax remains unpaid on the 90th day following the date of the original
delinquency. Interest shall accrue at the rate of one (1%) percent
per month, or fraction thereof, on the amount of tax, exclusive of
penalties, from the date the tax becomes delinquent to the date of
payment. Interest and penalties accrued shall become a part of the
tax.
[Ord. #92-014, § I, N]
The amount, penalty and interest imposed under the provisions
of this section is hereby assessed against the property upon the transfer
of which the tax is imposed, and if not paid when due, such tax shall
constitute an assessment against such property and shall be a lien
on the property for the amount thereof, which lien shall continue
until the amount thereof, including all penalties and interests are
paid or until it is discharged of record. Any person owing money to
the City under the provisions of this article shall be liable to an
action brought in the name of the City for recovery for such amount.
The Tax Collector or any designee shall file with the City Administrator
notice of the names of those persons against whom the City will file
liens. Upon receipt of such notice, the City Administrator or designee
shall present the list to the City Council, and the City Council shall
forthwith, by resolution, fix a time and place for public hearing
on such notice.
The Tax Collector or any designee shall cause a copy of such
resolution and notice to be served upon the transferor or transferee
of the property not less than five (5) days prior to the time fixed
for such hearing. Such service shall be by mailing a copy of such
resolution and notice to the transferee or transferor of the property
at his/her last known address. Service shall be deemed complete at
the time of deposit of the deposit in the United States mail. With
the confirmation of the report by the City Council, the delinquent
tax charges contained therein which remain unpaid by the transferor
or transferee shall constitute a special assessment against said property,
and shall be collected at such time as it is established by the County
Assessor for inclusion of the next property assessment.
The Tax Collector or designee, shall turn over to the County
Assessor for inclusion for the next property assessment the total
sum of unpaid delinquent charges consisting of delinquent transfer
charges, penalties and interest at the rate of ten (10%) percent per
annum from the date of recordation to the date of lien.
Thereafter, said assessment may be collected at the same time
and in the same manner as ordinary Municipal taxes are collected and
shall be subject to the same penalties and the same procedures of
sale as provided for delinquent, ordinary Municipal taxes. The assessment
liens previously imposed upon the property are paramount to all other
liens except for those of State, County, and Municipal taxes with
which it shall be upon parity. The lien shall continue until the assessment
and all interest and charges due and payable thereon are paid. All
taxes applicable to the levy, collection, and enforcement of the Municipal
taxes shall be applicable to said special assessments.
[Ord. #67-011, § 10; 1958 Code § 25.62;
Ord. #92-014, § I, O]
Whenever the amount of any tax, penalty or interest has been
overpaid, or paid more than once, or has been erroneously collected
or received by the City under this section, it may be refunded as
hereinafter provided in this section, provided a written claim therefor
stating under penalty of perjury the specific grounds under which
claim is founded is filed with the City Treasurer or designee or within
three (3) years of the date of payment. The claims shall be made on
forms furnished by the City Treasurer or designee. The City Treasurer
or designee may make such a refund if he/she is satisfied that the
claimant is entitled to the refund under the provisions of this section.
No refund shall be paid under the provisions of this section unless
the claimant establishes his/her right thereto by written records
showing entitlement thereto.
[Ord. #67-011, § 9; 1958 Code § 25.61;
Ord. #92-014, § I, P]
The County Recorder shall administer this section of the Code
and conformity with such procedural provisions of Part 6.7 of Division
2 of the Revenue and Taxation Code and other provisions of a County
ordinance adopted pursuant thereto, so long as neither the County
ordinance nor the Revenue and Taxation Code do not conflict with the
provisions of this section.
[Ord. #92-014, § I, Q]
The tax imposed by this Article shall be paid to the City by the persons referred to in this Article and in subsection 4-5.3. The City Treasurer, or designee, shall have the authority as part of any rules and regulations promulgated by him/her as provided for herein to require that the payment shall be accomplished by a declaration of the amount of tax due signed by the person paying the tax or by his/her agent. The declaration shall include a statement that the value of the consideration on which the tax due was computed includes all indebtedness secured by liens, deeds of trust, or other encumbrances remaining or placed on the property transferred at the time of transfer, and also includes all special assessments on the property which a purchaser or transferee agrees to pay or which remains a lien on the property at the time of transfer. The declaration shall identify the deed, instrument or writing effecting the transfer for which the tax is being paid. The City Treasurer, or designee may require delivery to him/her of a copy of such deed, instrument or writing whenever he/she deems such to be reasonably necessary to adequately identify such writing or to administer the provisions of this section. The City Treasurer, or designee may rely on the declaration as to the amount of the tax due provided he/she has no reason to believe that the full amount of the tax due is not shown on the declaration.
Whenever the City Treasurer, or designee has reason to believe
that the full amount of tax due is not shown on the declaration or
has not been paid, he/she may, by notice served upon any person liable
for the tax, require him to furnish a true copy of his records relevant
to the value of the consideration or fair market value of the property
transferred. Such notice may be served at any time within three (3)
years after recordation of the deed, instrument or writing which transfers
such property.
[Ord. #92-014, § I, R]
If on the basis of such information as the City Treasurer, or designee receives pursuant to subsection 4-5.16 and/or on the basis of such other relevant information that comes into his/her possession, he/she determines that the amount of tax due as set forth in the declaration, or as paid, is insufficient, he/she may recompute the tax due on the basis of such information.
If the required declaration is not submitted, the City Treasurer,
or designee may make an estimate of the value of the consideration
for the property conveyed and determine the amount of tax to be paid
on the basis on any information in his/her possession or that may
come into his/her possession.
One or more deficiency determinations may be made of the amount
due with respect to any transfer.
[Ord. #92-014, § I, S]
The City Treasurer, or designee shall give written notice to a person liable for payment of the tax imposed under this section of his/her determination made under subsection 4-5.17. Such notice shall be given within three (3) years after the recordation of the deed, instrument or writing effecting the transfer on which the tax deficiency determination was made.
[Ord. #92-014, § I, T]
Any notice required to be given by the City Treasurer, or designee
under this section may be served personally or by mail. If by mail,
service shall be made by depositing the notice in the United States
mail, in a sealed envelope with postage paid, addressed to the person
on whom it is to be served at his/her address as it appears in the
records of the City or as ascertained by the City Treasurer, or designee.
The service is complete at the time of the deposit of the notice in
the United States mail, without extension of time for any reason.
[Ord. #92-014, § I, U]
Any person against whom a determination is made under this section
or any person directly interested may petition the City Treasurer,
or designee for a redetermination within sixty (60) days after service
upon the person of notice thereof. If a petition for redetermination
is not filed in writing with the City Treasurer, or designee, City
Hall, 1000 San Pablo Avenue, Albany, California 94706, within the
sixty (60) day period, the determination becomes final at the expiration
of the period.
[Ord. #92-014, § I, V]
If a petition for redetermination is filed within the sixty
(60) day period, the City Treasurer, or designee shall reconsider
the determination and, if the person has so requested in his/her petition,
shall grant the person an oral hearing, and shall give him/her ten
(10) days notice of the time and place of hearing. The City Treasurer,
or designee may designate one or more deputies for the purpose of
conducting hearings and may continue a hearing from time to time as
may be necessary.
[Ord. #92-014, § I, W]
The City Treasurer, or designee may decrease or increase the
amount of the determination before it becomes final, but the amount
may be increased only if a claim for the increase is asserted by the
City Treasurer, or designee at or before the hearing.
[Ord. #92-014, § I, X]
The order or decision of the City Treasurer, or designee upon
a petition for redetermination becomes final thirty (30) days after
service upon the petitioner of notice thereof.
[Ord. #92-014, § I, Y]
The amount of any tax, penalty, and interest imposed under the
provisions of this section shall be deemed a debt to the City. Any
person owing money to the City under the provisions of this section
shall be liable to an action brought in the name of the City for the
recovery of such amount.
