[Adopted 10-13-1988 by Ord. No. 88-4]
This article shall be known as the "Realty Transfer
Tax Ordinance of the Borough of Jim Thorpe."
A realty transfer tax for general revenue purpose
is hereby imposed upon the transfer of real estate or interest in
real estate situated within the Borough of Jim Thorpe, regardless
of where the documents making the transfer are made, executed or delivered,
or where the actual settlements on such transfer took place as authorized
by Article XI-D, "Local Real Estate Transfer Tax," 72 P.S. § 8101-D
et seq.
As used in this article, the following terms
shall have the meanings indicated:
A partnership, limited partnership, or any other form of
unincorporated enterprise owned or conducted by two or more persons
other than a private trust or decedent's estate.
A corporation, joint-stock association, business trust, or
banking institution which is organized under the laws of this commonwealth,
the United States, or any other state, territory, foreign county or
dependency.
Any deed, instrument or writing which conveys, transfers, demises, vests, confirms or evidences any transfer or demise of title to real estate, but does not include wills, mortgages, deeds of trust or other instruments or 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 § 396-40 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 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:[1]
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;
Manufacturing or processing operation 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:[2]
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.
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.[3]
Any individual, such individual's brothers and sisters, the
brother 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.
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.[4]
Every natural person, association, or corporation, Whenever
used in any clause prescribing and imposing a fine or imprisonment,
or both, the term "person" as applied to associations, shall include
the responsible members or general partners thereof, and as applied
to corporations, the officers thereof.
All lands, tenements or hereditaments within
the Borough of Jim Thorpe, including without limitation buildings,
structures, fixtures, mines, minerals, oil, gas, quarries, spaces
with or without upper or lower boundaries, trees, and other improvements,
immovables or interests which by custom, usage or law pass with a
conveyance or land, but excluding permanently attached machinery and
equipment in an industrial plant.
A condominium unit.
A tenant-stockholder's interest in a cooperative
housing corporation, trust or association under a proprietary lease
or occupancy agreement.
A corporation or association which is primarily engaged in
the business of holding, selling or leasing real estate, 90% or more
of the ownership interest in which is held by 35 or fewer persons
which:
Derives 60% or more of its annual gross receipts
from the ownership or disposition 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
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 leaseholder possessory interest, any exchange
of properties, or the real estate of an acquired company, the actual
monetary worth of the real estate determined by adjusting the assessed
value of the real estate for local real estate tax purposes for the
common level ratio factor developed by the Pennsylvania Department
of Revenue for Pennsylvania realty transfer tax base calculations;
The actual consideration for or actual monetary
worth of any executory agreement for the construction of buildings,
structures or other permanent improvements to real estate between
the grantor and other persons existing before the transfer and not
removed thereby or between the grantor, the agent or principle of
the grantor of a related corporation, association or partnership and
the grantee existing before or effective with the transfer.
A.
Every person who makes, executes, delivers, accepts
or presents for recording any document or in whose behalf any document
is made, executed, delivered, accepted or presented for recording,
shall be subject to pay for an in respect to the transaction or any
part thereof, a tax at the rate of 1% of the value of the real estate
represented by such document, which tax shall be payable at the earlier
of the time the document is presented for recording or within 30 days
of acceptance of such document or within 30 days of becoming an acquired
company.
B.
The payment of the tax imposed herein shall be evidenced
by the affixing of an official stamp or writing by the Carbon County
Recorder of Deeds or his designated agent whereon the date of payment
of the tax, amount of the tax and the signature of the collecting
agent shall be set forth.
C.
It is the intent of this article that the entire burden
of the tax imposed herein on a person or transfer shall not exceed
the limitations prescribed in the Local Tax Enabling Act, Act of December
31, 1965, P.L. 1257, 53 P.S. § 6901 et seq., so that if
any other political subdivision shall impose or hereafter shall impose
such tax on the same person or transfer, then the tax levied by the
Borough of Jim Thorpe under the authority of that Act shall during
the time such duplication of the tax exists, except as hereinafter
otherwise provided, be 1/2 of the rate and such 1/2 rate shall become
effective without any action on the part of The Borough of Jim Thorpe;
provided, however, that the Borough of Jim Thorpe and any other political
subdivision which impose such tax on the same person or transfer may
agree that, instead of limiting their respective rates to 1/2 of the
rate herein provided, they will impose respectively different rate,
the total of which shall not exceed the maximum rate permitted under
the Local Tax Enabling Act.
D.
If for any reason the tax is not paid when due, interest
at the rate in effect at the time the tax is due, shall be added and
collected.
The United States, the commonwealth, or any
of their instrumentalities, agencies or political subdivisions shall
be exempt from payment of the tax imposed by this article. The exemption
of such governmental bodies shall not, however, relieve any other
party to a transaction from liability for the tax.
A.
The tax imposed by § 396-42 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 the 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 Borough of Jim Thorpe 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 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 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 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 devises 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 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.[1]
(9)
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.[2]
(10)
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 settlor's lifetime shall
be considered for the purposes of this article as if such transfer
were made directly from the settlor to the grantee.[3]
(11)
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.[4]
(13)
A transfer for no or nominal actual consideration
from a trustee to a successor trustee.
(14)
A transfer for no or nominal actual consideration
between principal and agent or straw party; or from or to an agent
or straw party where, if the agent or straw party were his principal;
no tax would be imposed under this article. Where the document by
which title is acquired by a grantee or statement of value fails to
set forth that the property was acquired by the grantee from or for
the benefit of, his principal, there is a rebuttable presumption that
the property is the property of the grantee in his individual capacity
if the grantee claims an exemption from taxation under this clause.
(15)
A transfer made pursuant to the statutory merger
or consolidation of a corporation or statutory division of a nonprofit
corporation, except where the department reasonably determines that
the primary intent for such merger, consolidation or division is avoidance
of the tax imposed by this article.
(16)
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.
(17)
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.
(18)
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.
(19)
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.
(20)
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.
(21)
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.[6]
(22)
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.
(25)
A transaction wherein the tax due is $1 or less.
(26)
Leases for the production or extraction of coal,
oil, natural gas or minerals and assignments thereof.
B.
In order to exercise any exclusion provided in this
section, the true, full and complete value of the transfer shall be
shown on the statement of value. A copy of the Pennsylvania Realty
Transfer Tax Statement of Value may be submitted for this purpose.
For leases of coal, oil, natural gas or minerals, the statement of
value may be limited to an explanation of the reason such document
is not subject to tax under this article.
Except as otherwise provided in § 396-44, 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 purpose 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 does not affect the continuity of the company; and of
itself or together with prior changes has the effect of transferring,
directly or indirectly, 90% or more of the total ownership interest
in the company within a period of three years.
B.
With respect to real estate acquired after February
16, 1986, a family farm corporation is an acquired company when, because
of voluntary or involuntary dissolution, it ceases to be a family
farm corporation or when, because of issuance or transfer of stock
or because of acquisition or transfer of assets that are devoted to
the business of agriculture it fails to meet the minimum requirements
of a family farm corporation under this article.
C.
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 article.[1]
D.
Within 30 days after becoming an acquired company,
the company shall present a declaration of acquisition with the recorder
of each country in which it holds real estate for the affixation of
documentary stamps and recording. Such declaration shall set forth
the value of real estate holdings of the acquired company in such
county. A copy of the Pennsylvania Realty Transfer Tax Declaration
of Acquisition may be submitted for this purpose.
A.
Where there is a transfer of a residential property
by a licensed real estate broker which property was transferred to
him within the preceding year as consideration for the purchase of
other residential property, a credit for the amount of the tax paid
at the time of the transfer to him shall be given to him toward the
amount of the tax due upon the transfer.
B.
Where there is a transfer by a builder of residential
property which was transferred to the builder within the preceding
years as consideration for the purchase of new, previously unoccupied
residential property, a credit for the amount of the tax paid at the
time of the transfer to the builder shall be given to the builder
toward the amount of the tax due upon the transfer.
C.
Where there is a transfer of real estate which is
leased by the grantor, a credit for the amount of tax paid at the
time of the lease shall be given the grantor toward the tax due upon
the transfer.
D.
Where there is a conveyance by deed of real estate
which was previously sold under a land contract by the grantor, a
credit for the amount of tax paid at the time of the sale shall be
given the grantor toward the tax due upon the deed.
E.
If the tax due upon the transfer is greater than the
credit given under this section, the differences shall be paid. If
the credit allowed is greater than the amount or tax due, no refund
or carryover credit shall be allowed.
In determining the term of the 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, judgement, estate
or costs of the sale and of the writ upon which the sale is made except
the state realty transfer tax, and the sheriff, or other officer,
conducting said sale, shall pay the tax herein imposed out of the
first moneys paid to him in connection therewith. If the proceeds
of the sale are insufficient to pay the entire tax herein imposed,
the purchaser shall be liable for the remaining tax.
A.
As provided in 16 P.S. § 11011-6, as amended
by Act of July 7, 1983 (P.L. 40, No. 21), the recorder of deeds shall
be the collection agent for the local realty transfer tax, including
any amount payable to the Borough of Jim Thorpe based on a redetermination
of the amount of tax due by the Commonwealth of Pennsylvania realty
transfer tax, without compensation from the Borough of Jim Thorpe.
B.
In order to as certain the amount of taxes due when
the property is located in more than one political subdivision, the
recorder shall not accept for recording such a deed unless it is accompanied
by a statement of value showing what taxes are due each municipality.
C.
On or before the 10th day of each month, the recorder
shall pay over to the Borough of Jim Thorpe 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 two-percent commission shall be paid to the county.
D.
Upon a redetermination of the amount of realty transfer
tax due by the Commonwealth of Pennsylvania, the recorder shall rerecord
the deed or record the additional realty transfer tax form only when
both the state and local amounts and a rerecording or recording fee
has been tendered.
Every document lodged with or presented to the
recorder of deeds for recording shall set forth therein and as a part
of such document the true, full and complete value thereof, or shall
be accompanied by a statement of value executed by a responsible person
connected with the transaction showing such connection and setting
forth the true, full and complete value thereof or the reason, if
any, why such document is not subject to tax under this article. A
copy of the Pennsylvania Realty Transfer Tax statement of Value may
be submitted for this purpose. The provisions of this subjection shall
not apply to any excludible real estate transfers which are exempt
from taxation based on family relationship. Other documents presented
for the affixation of stamps shall be accompanied by a certified copy
of the document and statement of value executed by a responsible person
connected with the transaction showing such connection and setting
forth the true, full and complete value thereof or the reason, if
any, why such document is not subject to tax under this article.
A.
If any part of any underpayment of tax imposed by
this article is due to fraud, there shall be added to the tax an amount
equal to 50% of the underpayment.
B.
In the case of failure to record a declaration required
under this article on the date prescribed therefor, unless it is shown
that such failure is due to reasonable cause, there shall be added
to the tax 5% of the amount of such tax if the failure is 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.
Liens shall be governed by the provisions of
72 P.S. § 8110-D.
All taxes imposed by this article, together
with interest and penalties prescribed herein, shall be recoverable
as other debts of like character are recovered.
The Secretary of the Borough of Jim Thorpe is
charged with the enforcement and collection of tax and is empowered
to promulgate and enforce reasonable regulations for enforcement and
collection of the tax. The regulations which have been promulgated
by the Pennsylvania Department of Revenue under 72 P.S. § 8101-C
et seq. are incorporated into and made a part of this article.
