[Adopted 12-8-1987 by Ord. No. 386, approved 12-8-1987[1]]
[1]
Editor's Note: This ordinance repealed former Art. I,
Realty Transfer Tax, adopted 2-6-1957 by Ord. No. 212, approved 2-6-1957.
This Article I shall be known as the "Realty Transfer Tax Ordinance of the Borough of West Conshohocken."
A realty transfer tax for general revenue purposes is hereby
imposed upon the transfer of real estate or interest in real estate
situated with the Borough of West Conshohocken, 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 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 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 § 105-2 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 or 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.
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 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 this Borough, 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 meets any of the following:
[Amended 8-12-2014 by Ord. No. 2014-02; approved 8-12-2014]
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.
Ninety percent or more of the ownership interest in the corporation
or association is held by 35 or fewer persons, and the corporation
or association owns, as 90% or more of the fair market value of its
assets, a direct or indirect interest in a real estate company. An
indirect ownership interest is an interest in a corporation or association,
90% or more of the ownership interest which is held by 35 or fewer
persons whose purpose is the ownership of a real estate company.
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
a possessory interest in real estate in which the lessee has equity.
The making, executing, delivering, accepting or presenting
for recording of a document.
In the case of any bona fide sale of real estate at arm's
length for actual monetary worth, the amount of the actual consideration
therefor, paid or to be paid, including liens or other encumbrances
thereon existing before the transfer and not removed thereby, whether
or not the underlying indebtedness is assumed, and ground rents, or
a commensurate part thereof where such liens or other encumbrances
and ground rents also encumber or are charged against other real estate,
provided that, where such documents shall set forth a nominal consideration,
the "value" thereof shall be determined from the price set forth in
or actual consideration for the contract of sale;
In the case of a gift, sale by execution upon a judgment or
upon the foreclosure of a mortgage by a judicial officer, transactions
without consideration or for consideration less than the actual monetary
worth of the real estate, a taxable lease, an occupancy agreement,
a leasehold or possessory interest, any exchange of properties or
the real estate of an acquired company, the actual monetary worth
of the real estate determined by adjusting the assessed value of the
real estate for local real estate tax purposes for the common-level
ratio 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 principal 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 and 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 Recorder/other designee whereon
the date of the 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.,[1] 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 governing body 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 governing
body; provided, however, that the governing body 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 rates,
the total of which shall not exceed the maximum rate permitted under
the Local Tax Enabling Act.
[1]
Editor's Note: Pursuant to P.L. 197, No. 32, enacted 7-2-2008,
sections of the Local Tax Enabling Act formerly codified in 53 P.S.
§ 6901 et seq. have been revised and renumbered. See now
53 P.S. § 6924.101 et seq.
D.
Any realty transfer tax, or a portion thereof, imposed by the Borough
of West Conshohocken which is not paid by the date the tax is due
shall bear interest at a rate as prescribed for interest imposed upon
delinquent commonwealth taxes as provided in Section 806 of the Act
of April 9, 1929 (P.L. 343, No. 176)(72 P.S. § 806), as
amended, known as "The Fiscal Code" and shall accordingly be collected.
[Amended 2-13-2007 by Ord. No. 07-03; approved 2-13-2007]
E.
This provision is subject to and authorized by Article XI-D of the
Tax Reform Code of 1971, known as the "Realty Transfer Tax" and other
provisions authorizing the Department of Revenue and the Commonwealth
of Pennsylvania to determine, collect and enforce the tax, interest
and penalties.
[Added 2-13-2007 by Ord. No. 07-03; approved 2-13-2007]
The United States, the commonwealth or any of their instrumentalities,
agencies or political subdivisions shall be exempt from payment or
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 § 105-4 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 fine adjustments, provided
that said reconveyance is made within one year from the date of condemnation.
(2)
A document which the governing body 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 or division in kind for no or nominal actual consideration
of property passed by testate or intestate succession and held by
cotenants; however, if any of the parties 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 representation
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 and 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 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 subsection.
(12)
A transfer made pursuant to the statutory merger or consolidation
of a corporation or statutory division of 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.
(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 the grantee
shall directly use such real estate for the primary purpose of manufacturing,
fabricating, compounding, processing, publishing, research and development,
transportation, energy conversion, energy production, pollution control,
warehousing or agriculture; and the agency or authority has the full
ownership interest in the real estate transferred.
(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. 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 § 105-6, 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.
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 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 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 paid and have priority out of
the proceeds or 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, 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 governing body based on a redetermination of
the amount of tax due by the Commonwealth of Pennsylvania of the Pennsylvania
realty transfer tax, without compensation from the governing body.
B.
In order to ascertain the amount of taxes due when the property is
located in more than one political subdivision, the Recorder shall
not accept for recording such a deed unless it is accompanied by a
statement of value showing what taxes are due each municipality.
C.
On or before the 10th of each month, the Recorder shall pay over
to the governing body 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 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 section shall not apply to any excludable real
estate transfers which are exempt from taxation based on family relationship.
Other documents presented for the affixation of stamps shall be accompanied
by a certified copy of the document and statement of value executed
by a responsible person connected with the transaction showing such
connection and setting forth the true, full and complete value thereof
or the reason, if any, why such document is not subject to tax under
this 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.
The tax imposed by this article shall become a lien upon the
lands, tenements or hereditaments, or any interest therein, lying
or being situated, wholly or in part, within the boundaries of the
governing body, which lands, tenements, hereditaments or interest
therein are described in or conveyed by or transferred by the deed
which is the subject of the tax imposed, assessed and levied by this
article, said lien to begin at the time when the tax under this article
is due and payable and continue until discharged by payment, or in
accordance with the law, and the Solicitor is authorized to file a
municipal or tax claim in the Court of Common Pleas of Montgomery
County, in accordance with the provisions of the Municipal Claims
and Liens Act of 1923, 53 P.S. § 7101 et seq., its supplements
and amendments.
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 designee of the governing body 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.
