[Adopted 5-11-1987 by Ord. No. 412, approved
5-11-1987[1]]
[1]
Editor's Note: This ordinance also superseded
former Art. II, Realty Transfer Tax, adopted 3-12-1963 by Ord. No.
245, as amended.
The following words when used in this article
shall have the meanings ascribed to them in this section:
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 or foreign country
or dependency.
The Department of Revenue of this commonwealth.
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 § 110-18 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 descendents 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, estate, trust, 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
the Borough of Conway, including, without limitation, buildings, structures,
fixtures, mines, minerals, oil, gas, quarries, spaces with or without
upper or lower boundaries, trees and other improvements, immovables
or interests which, by custom, usage or law, pass with a conveyance
of land, but excluding permanently attached machinery and equipment
in an industrial plant.
A condominium unit.
A tenant stockholder's interest in a cooperative
housing corporation, trust or association under a proprietary lease
or occupancy agreement.
A corporation or association which is primarily engaged in
the business of holding, selling or leasing real estate, 90% or more
of the ownership interest in which is held by 35 or fewer persons
and which:
Derives 60% or more of its annual gross receipts
from the ownership or disposition of real estate; or
Holds real estate, the value of which comprises
90% or more of the value of its entire tangible asset holdings, exclusive
of tangible assets which are freely transferable and actively traded
on an established market.
The Recorder of Deeds of Beaver County.
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 thereof, 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.
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, or for or in respect of the vellum parchment
or paper upon which such document is written or printed, a tax at
the rate of 1/2 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.
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 § 110-14 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 a reconveyance by the condemning body of the property
condemned to the owner of record at the time of condemnation, which
reconveyance may include property line adjustments, provided that
said reconveyance is made within one year from the date of condemnation.
(2)
A document which the 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 a sheriffs 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 takes 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 the 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.
(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:
(a)
For no or nominal actual consideration between
principal and agent or straw party; or
(b)
From or to an agent or straw party where, if
the agent or straw party 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 clause.
(12)
A transfer made pursuant to the statutory merger
or consolidation of a corporation or statutory division of a nonprofit
corporation, except where the Borough of Conway reasonably determines
that the primary intent for such merger, consolidation or division
is avoidance of the tax imposed by this article.
(13)
A transfer from a corporation or association
of real estate held of record in the name of the corporation or association
where the grantee owns stock of the corporation or an interest in
the association in the same proportion as his interest in or ownership
of the real estate being conveyed and where the stock of the corporation
or the interest in the association has been held by the grantee for
more than two years.
(14)
A transfer from a nonprofit industrial development
agency or authority to a grantee of property conveyed by the grantee
to that agency or authority as security for a debt of the grantee
or a transfer to a nonprofit industrial development agency or authority.
(15)
A transfer from a nonprofit industrial development
agency or authority to a grantee purchasing directly from it, but
only if:
(a)
The grantee shall directly use such real estate
for the primary purpose of manufacturing, fabricating, compounding,
processing, publishing, research and development, transportation,
energy conversion, energy production, pollution control, warehousing
or agriculture; and
(b)
The agency or authority has the full ownership
interest in the real estate transferred.
(16)
A transfer by a mortgagor to the holder of a
bona fide mortgage in default in lieu of a foreclosure or a transfer
pursuant to a judicial sale in which the successful bidder is the
bona fide holder of a mortgage, unless the holder assigns the bid
to another person.
(17)
Any transfer between religious organizations
or other bodies or persons holding title for a religious organization
if such real estate is not being or has not been used by such transferor
for commercial purposes.
(18)
A transfer to a conservancy which possesses
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.
(19)
A transfer of real estate devoted to the business
of agriculture to a family farm corporation by a member of the same
family which directly owns at least 75% of each class of the stock
thereof.
(20)
A transfer between members of the same family
of an ownership interest in a real estate company or family farm corporation.
(21)
A transaction wherein the tax due is $1 or less.
(22)
Leases for the production or extraction of coal,
oil, natural gas or minerals and assignments thereof.
B.
In order to exercise any exclusion provided in this
section, the true, full and complete value of the transfer shall be
shown on the statement of value. For leases of coal, oil, natural
gas or minerals, the statement of value may be limited to an explanation
of the reason such document is not subject to tax under this article.
Except as otherwise provided in § 110-16, documents which make, confirm or evidence any transfer or demise of title to real estate between associations or corporations and the members, partners, shareholders or stockholders thereof are fully taxable. For the purposes of this article, corporations and associations are entities separate from their members, partners, stockholders or shareholders.
A.
A real estate company is an acquired company upon
a change in the ownership interest in the company, however effected,
if the change:
B.
With respect to real estate acquired after February
16, 1986, a family farm corporation is an acquired company when, because
of voluntary or involuntary dissolution, it ceases to be a family
farm corporation or when, because of the issuance or transfer of stock
or because of the 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 Deeds for real estate it holds located within the Borough of Conway
for the affixation of documentary stamps and recording. Such declaration
shall set forth the value of real estate holdings of the acquired
company in the Borough of Conway.
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 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 carry-over 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, 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, provided that the Borough
of Conway may prescribe such other method of cancellation as it may
deem expedient.
B.
The use of documentary license meter impressions or
similar indicia of payment in lieu of stamps as required by this article
may be permitted in the discretion of the Borough of Conway.
A.
The Borough of Conway shall prescribe, prepare and
furnish stamps to the Recorder of Deeds of Beaver County of such denominations
and quantities as may be necessary for the payment of the tax imposed
and assessed by this article.
B.
The Borough of Conway shall allow the county a commission
equal to 1% of the face value of the stamps sold. The Recorder of
Deeds shall pay the commission herein allowed to the general fund
of the county. The Borough of Conway shall pay the premium or premiums
on any bond or bonds required by law to be procured by the Recorder
of Deeds for the performance of his duties under this article.
C.
All moneys paid into the Borough of Conway during
the effective period of this article shall be credited to the general
fund for general revenue purposes.
No document upon which tax is imposed by this
article shall at any time be made the basis of any action or other
legal proceeding, nor shall proof thereof be offered or received in
evidence in any court of this commonwealth or recorded in the office
of any Recorder of Deeds unless a documentary stamp or stamps as provided
in this article have been affixed thereto.
A.
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. The provisions
of this subsection 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.
B.
The Recorder of Deeds who shall record any document
upon which tax is imposed by this article without the proper documentary
stamp or stamps affixed thereto as required by this article as is
indicated in such document or accompanying statement of value shall,
upon summary conviction, be sentenced to pay a fine of $50 and costs
of prosecution and, in default of payment thereof, undergo imprisonment
for not more than 30 days.
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 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.
C.
In the event that the tax is not paid when due, there
shall be added, in addition to the tax, interest at the rate of 6%
per annum on the unpaid balance, which interest shall accrue from
the date of delivery of the document.
A.
It shall be unlawful for any person to:
(1)
Accept or present for recording or cause to
be accepted or presented for recording any document without the full
amount of tax thereon being duly paid;
(2)
Make use of any documentary stamp to denote
payment of any tax imposed by this article without cancelling such
stamp as required by this article or as prescribed by the Borough
of Conway;
(3)
Fail, neglect or refuse to comply with or violate
the rules and regulations prescribed, adopted and promulgated by the
Department or the Borough of Conway under the provisions of this article;
(4)
Fraudulently cut, tear or remove from a document
any documentary stamp;
(5)
Fraudulently affix to any document upon which
tax is imposed by this article any documentary stamp which has been
cut, torn or removed from any other document upon which tax is imposed
by this article, or any documentary stamp of insufficient value, or
any forged or counterfeited stamp, or any impression of any forged
or counterfeited stamp, die, plate or other article;
(6)
Willfully remove or alter the cancellation marks
of any documentary stamp or restore any such documentary stamp with
intent to use or cause the same to be used after it has already been
used, or knowingly buy, sell, offer for sale or give away any such
altered or restored stamp to any person for use, or knowingly use
the same;
(7)
Knowingly or willfully prepare, keep, sell,
offer for sale or have in his possession any forged or counterfeited
documentary stamps; or
(8)
Make a false statement of value or declaration
of acquisition when the maker does not believe the statement or declaration
to be true.
A.
If any person shall fail to pay any tax imposed by
this article for which he is liable, the Department or the Borough
of Conway is hereby authorized and empowered to make a determination
of additional tax and interest due by such person based upon any information
within its possession or that shall come into its possession. All
of such determinations shall be made within three years after the
date of the recording of the document.
B.
Promptly after the date of such determination, the
Department or the Borough of Conway shall mail a copy thereof to the
person against whom it was made. Within 90 days after the date upon
which the copy of any such determination was mailed, such person may
file with the Department or the Borough of Conway a petition for redetermination
of such taxes. Every petition for redetermination shall state specifically
the reasons which the petitioner believes entitle him to such redetermination,
and it shall be supported by affirmation that it is not made for the
purpose of delay and that the facts set forth therein are true. It
shall be the duty of the Department or the Borough of Conway within
six months after the date of the filing of any petition for redetermination
to dispose of the petition. Notice of the action taken upon any petition
for redetermination shall be given to the petitioner promptly after
the date of redetermination by the Department or the Borough of Conway.
A.
Any tax determined to be due by the Borough of Conway
and remaining unpaid after demand for the same, and all penalties
and interest thereon, shall be a lien in favor of the Borough of Conway
upon the property, both real and personal, of such person, but only
after said lien has been entered and docketed of record by the prothonotary
of the county where such property is situated.
B.
At any time after it makes a determination of additional
tax, penalty or interest, the Borough of Conway may transmit to the
prothonotary of the county certified copies of all liens for such
taxes, penalties and interest, and it shall be the duty of each prothonotary
receiving the lien to enter and docket the same of record in his office,
which lien shall be indexed as judgments are now indexed. After the
Borough of Conway's determination becomes final, a writ of execution
may directly issue upon such lien without the issuance and prosecution
to judgment of a writ of scire facias, provided that, not less than
10 days before the issuance of any execution on the lien, notice shall
be sent by certified mail to the taxpayer at his last known post office
address. No prothonotary shall require as a condition precedent to
the entry of such liens the payment of any costs incident thereto.
C.
The lien imposed hereunder shall have priority from
the date of its recording as aforesaid and shall be fully paid and
satisfied out of the proceeds of any judicial sale of property subject
thereto before any other obligation, judgment, claim, lien or estate
to which said property may subsequently become subject, except costs
of the sale and of the writ upon which the sale was made and real
estate taxes and municipal claims against such property, but shall
be subordinate to mortgages and other liens existing and duly recorded
or entered of record prior to the recording of the tax lien. In the
case of a judicial sale of property subject to a lien imposed hereunder
upon a lien or claim over which the lien imposed hereunder has priority,
as aforesaid, such sale shall discharge the lien imposed hereunder
to the extent only that the proceeds are applied to its payment, and
such lien shall continue in full force and effect as to the balance
remaining unpaid.
D.
The lien imposed hereunder shall continue for five
years from the date of its entry of record and may be renewed and
continued in the manner now or hereafter provided for the renewal
of judgments.
A.
Whenever the amount due upon determination, redetermination
or review is less than the amount paid to the Borough of Conway on
account thereof, the Borough of Conway shall enter a credit in the
amount of such difference to the account of the person who paid the
tax.
B.
Where there has been no determination of unpaid tax,
the Borough of Conway shall have the power and its duty shall be to
hear and decide any application for refund and, upon the allowance
of such application, to enter a credit in the amount of the overpayment
to the account of the person who paid the tax. Such application must
be filed within two years after the date of payment.
The Solicitor of the Borough of Conway, upon
approval of the Council of the Borough of Conway, may sue for the
recovery of taxes, interest and penalties due and unpaid.
The Borough of Conway may from time to time
prescribe, adopt, promulgate and enforce rules and regulations relating
to any matter pertaining to the administration, interpretation and
enforcement of this article by a resolution of the Council of the
Borough of Conway.
This article shall be known and may be cited
as the "Real Estate Transfer Tax Ordinance" of the Borough of Conway.
