[Ord. 680, 1/19/1989, § 1]
This Part shall be known as the "Realty Transfer Tax Ordinance
of the Borough of Elizabethtown, Lancaster County, Pennsylvania."
[Ord. 680, 1/19/1989, § 2]
This Realty Transfer Tax is levied under authority of Article
XI-D, entitled "Local Real Estate Transfer Tax," of the Pennsylvania
Real Estate Transfer Tax Act, which is a new Article added by Act
77-1986 (Act of July 2, 1986, No. 77, P.L._____) to the Pennsylvania
Real Estate Transfer Tax Act, Act 14-1981, (Act of May 5, 1981, No.
14, P.L. 36) as amended. The Pennsylvania Real Estate Transfer Tax
is codified at 72 P.S. § 8101-C et seq., and Article XI-D
is codified at 72 P.S. § 8101-D et seq. This Realty Transfer
Tax is also levied under authority of "The Local Tax Enabling Act,"
Act of December 31, 1965, P.L. 1257, as amended.
[Ord. 680, 1/19/1989, § 3]
The following words when used in this Part shall have the meanings
ascribed to them in this § 103, except where the context
clearly indicates a different meaning:
A partnership, limited partnership, or any other form of
unincorporated enterprise owned or conducted by two or more persons.
The Borough of Elizabethtown, Lancaster County, Pennsylvania.
The Recorder of Deeds of Lancaster County, Pennsylvania,
is hereby appointed collector of the tax levied by this Part.
A corporation, joint-stock association, business trust or
banking institution, which is organized under the laws of the Commonwealth
of Pennsylvania, the United States, or any other state, territory,
foreign country or dependency.
Any deed, instrument or writing which conveys, transfers,
demises, vests, confirms or evidences any transfer or demise of title
to real estate within the Borough, 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 § 109
of this Part.
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: (1) recreational
activities such as, but not limited to, hunting, fishing, camping,
skiing, show competition or racing; (2) 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; (3) fur farming;
(4) stockyard and slaughterhouse operations, or (5) 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 or 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, or entity
of any kind. 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, 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 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
of 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 making, executing, delivering, accepting, or presenting
for recording of a document.
An 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 if fee simple,
life estate, or perpetual leasehold; or
An interest in real estate enduring for a fixed period of years
by which, either by reason of the length of the term of 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,
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 a rental
charge to the new lessee is fixed of if a method for calculating the
rental charge is established.
In the case of any bona fide sale of real estate at arm's length
for actual consideration therefor, paid or to be paid, including liens
or other encumbrances thereof 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 the document 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, and 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 within the Borough determined by adjusting the
assessed value of the real estate for local real estate tax purposes
for the common level ration of assessed values to market values of
the taxing Borough in which the Borough is located as established
by the State Tax Equalization Board, or a commensurate part of the
assessment where the assessment includes other real estate;
In the case of an easement or other interest in real estate
the value of which is not determinable under clause one or two, the
actual monetary worth of such interest.
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. The singular shall include
the plural and the masculine shall include the feminine and neuter.
[Ord. 680, 1/19/1989, § 4]
A tax is hereby levied and imposed, for general Borough purposes,
on every real estate transaction, at the rate of 1% of the value of
the real estate represented by the document involved in the real estate
transaction.
A.
The tax shall be payable at the earlier of the time the document
if presented for recording, within 30 days of acceptance of such document
or within 30 days of becoming an acquired company.
B.
If the real estate is located partially within and partially outside
the Borough, the tax shall be calculated on the value of the portion
within the Borough.
C.
The tax imposed hereunder shall be due and payable to the collector,
as a joint and several liability, by 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, In the case of an acquired company, the company shall
also have liability for payment of the tax. All such persons shall
also be liable for any penalties imposed under this Part.
D.
It is the intent of this Part that the entire burden of the tax imposed
on a real estate transaction by the Borough and other political subdivisions
shall not exceed the limitation prescribed in § 8 of the
Local Tax Enabling Act, 53 P.S. § 6908, so that if any other
political subdivision imposes a tax on real estate transactions taxed
under this Part, the provisions of said § 8 shall apply.
[Ord. 680, 1/19/1989, § 5]
The payment of the tax imposed hereunder shall be evidenced
by the collector affixing on the document an official stamp or writing
setting forth the date of payment of the tax and amount of tax paid.
[Ord. 680, 1/19/1989, § 6]
The United States, the Commonwealth of Pennsylvania, or any
of their instrumentalities, agencies or political subdivisions shall
be exempt from payment of the tax imposed by this Part. The exception
of such governmental bodies shall not, however, relieve any other
party to a real estate transaction from liability for the tax.
[Ord. 680, 1/19/1989, § 7; as amended by Ord. 829,
11/15/2001]
The tax imposed by this Part shall not be based upon:
A.
A transfer to the Commonwealth of Pennsylvania, or to any or its
instrumentalities, agencies or political subdivisions, by gift, dedication
or deed in lieu of condemnation or deed of confirmation in connection
with condemnation proceedings, or a reconveyance by the condemning
body of the property condemned to the owner of record at the time
of condemnation which reconveyance may include property line adjustments
provided said reconveyance is made within one year from the date of
condemnation.
B.
A document which the Borough is prohibited from taxing under the
Constitution or statutes of the United States.
C.
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 shale or tax claim
bureau sale.
D.
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.
E.
A transfer of division of 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 take shares greater in value
than their undivided interest, tax is due on the excess.
F.
A transfer between husband and wife, between persons who were previously
husband and wife who 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
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.
G.
A transfer for no or nominal actual consideration or property passing
by testate or intestate succession from a personal representative
of a descendant to the descendants; devisee or heir.
H.
A transfer for no or nominal actual consideration of 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 collector is presented with a copy of the trust instrument
that clearly identifies the grantor and all possible beneficiaries.
I.
A transfer for no or nominal actual consideration from a trustee
to a beneficiary of an ordinary trust.
J.
A transfer for no or nominal actual consideration from trustee to
successor trustee.
K.
A transfer:
(1)
For no or nominal consideration between principal and agent
or straw party; or,
(2)
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 Part.
Where the document by which title is acquired by a grantee or statement
of value fails to set forth that the property of the grantee in his
individual capacity if the grantee claims an exemption from taxation
under this clause.
L.
A transfer made pursuant to the statutory merger or consolidation
of a corporation of statutory division of a nonprofit corporation,
except where the Borough reasonably determines that the primary intent
for such merger, consolidation of division is avoidance of the tax
imposed by this Part.
M.
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.
N.
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.
O.
A transfer from a nonprofit industrial development agency or authority
to a grantee purchasing directly from it, but only if:
(1)
The grantee shall directly use such real estate for the primary
purpose of manufacturing, fabricating, compounding, processing, publishing,
research and development, transportation, energy conservation, energy
conservation, energy production, pollution control, warehousing or
agriculture; and,
(2)
The agency or authority has the full ownership interest in the
real estate transferred.
P.
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.
Q.
Any transfer between religious organizations or other bodies or person
holding title for a religious organization if such real estate is
not being or has not been used by such transferor for commercial purposes.
R.
A transfer to a conservancy which possesses tax exempt status pursuant
to § 501(c)(3) of the Internal Revenue Code of 1954, and
which has as its primary purpose preservation of land for historic,
recreational, scenic, agricultural or open space opportunities.
S.
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.
T.
A transfer between members of the same family of an ownership interest
in a real estate company or family farm corporation.
U.
A transaction wherein the tax due in $1 or less.
V.
Leases for the production or extraction or coal, oil, natural gas
or minerals and assignments thereof.
|
In order to exercise any exclusion provided in this § 107,
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 Part.
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[Ord. 680, 1/19/1989, § 8]
Except as otherwise provided in § 107, documents which
make, confirm or evidence any transfer of 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 Part, corporations and associations are entities separate
from their members, partners, stockholders or shareholders.
[Ord. 680, 1/19/1989, § 9]
1.
A real estate company is an acquired company upon a change in the
ownership interest in the company, however effected, if the change:
2.
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 there are devoted to the business of agriculture,
it fails to meet the minimum requirements of a family farm corporation
under this Part.
3.
Within 30 days after becoming an acquired company, the company shall
present a declaration of acquisition to the collector for recording
and for the affixation of the official stamp or writing evidencing
payment of the tax. Such declaration shall set forth the value of
real estate holdings of the acquired company in the Borough.
[Ord. 680, 1/19/1989, § 10]
1.
Where there is a transfer of a residential property to 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.
2.
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.
3.
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.
4.
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.
5.
If the tax due upon the transfer is greater than the credit given
under this § 110, the difference shall be paid. If the credit
allowed is greater than the amount of tax due, no refund or carryover
credit shall be allowed.
[Ord. 680, 1/19/1989, § 11]
Every document lodged with or presented to the collector 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 Part. The provisions of this § 111
shall not apply to any excludable real estate transfers which are
exempt from taxation based on family relationship, provided the relationship
is specified in the deed, instrument or writing. Documents which are
not to be recorded shall be presented to the collector and 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 Part. Evidence of such payment shall be affixed to
the original document and the certified copy. The certified copy and
statement of value shall be filed with the collector.
[Ord. 680, 1/19/1989, § 12]
1.
It shall be unlawful for any person to:
A.
Make, execute, deliver, accept or present for recording or cause
to be made, executed, delivered, accepted or presented for recording
any document without the full amount of tax thereon being duly paid;
B.
Fail to record a declaration of acquisition, as required by this
Part;
C.
Fraudulently affix to any document any forged evidence of payment;
or
D.
Fail, neglect or refuse to comply with or violate other provisions
of this part or any rules and regulations promulgated by the Borough
under this part, or any rules and regulations of the Pennsylvania
Department of Revenue to the extent applicable to the tax levied hereunder.
2.
Any person violating any of the provisions of this § 112
shall be guilty of a summary offense.
3.
A person who makes a false statement of value or declaration of acquisition,
when he does not believe the statement or declaration to be true,
is guilty of a misdemeanor of the second degree.
[Ord. 680, 1/19/1989, § 13]
1.
If any tax owing under the terms of this Part shall not be paid when
due, 10% of the amount of the tax shall be added and collected as
an initial penalty for nonpayment or underpayment of the tax.
2.
In addition, if any tax owing under the terms of this Part shall
not be paid when due, a penalty shall accrue on the amount of the
unpaid tax at the rate of 1% per month of fractional part of a month,
on the amount of the unpaid tax, from the due date until an amount
of the tax is paid in full.
3.
In addition, in the case of failure of any acquired company to record
a declaration of acquisition, as required by this Part, unless it
is shown to the satisfaction of the Township that such failure is
due to reasonable cause, a penalty shall accrue on the amount of the
unpaid tax at the rate of 5% per month or fractional part of the month,
on the amount of the unpaid tax, from the due date until the amount
of the tax is paid in full. This penalty shall be in addition to all
other penalties, but shall not in the aggregate exceed 50% of the
amount of unpaid taxes.
4.
In addition, if any part of any underpayment of tax id due to fraud,
there shall be added to the tax an amount equal to 50% of the underpayment.
5.
In addition, if the Borough files suit in order to collect the amount
of any tax not paid when due under this part, at the discretion of
the court, any person liable for payment of the tax shall also be
liable for reasonable attorneys' fees incurred by the Borough in prosecution
of the suit.
6.
No document upon which tax is imposed by this part 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 of
any county of this Commonwealth, unless the tax imposed hereunder
shall have been paid in full and evidence of payment shall have been
affixed thereto by the collector.
[Ord. 680, 1/19/1989, § 14]
The tax imposed by this Part shall become a lien upon the lands,
tenements, or hereditaments, or any interest therein, lying being
situated, wholly or in part within the boundaries of the Borough,
which land, 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 Part, said lien to
begin at the time when the tax under this Part is due and payable,
and continue until discharge 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 Lancaster 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.
[Ord. 680, 1/19/1989, § 15]
The tax imposed under this Part 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 monies 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.
[Ord. 680, 1/19/1989, § 16]
1.
In order to determine whether the proper amount of tax has been paid,
without limiting any other rights of the Borough, the Borough shall
have the right to review all documents or records relating to any
real estate transaction or any related transactions, and to take such
other steps as the Borough shall deem necessary or appropriate, including
a review or audit of any documents or records of any party to a real
estate transaction to determine the fair market value of the real
estate or any other relevant matter as determined by the Borough.
Upon request of the Borough, and at such place and time as specified
by the Borough, any party shall make available to the Borough any
documents or records requested by the Borough.
2.
In the event any tax is not paid when due, the Borough may enforce
payment of the tax, together with all penalties, by suit in assumpsit
or any other appropriate means.
[Ord. 680, 1/19/1989, § 17]
1.
As provided in 10 P.S. § 11011-6, the Recorder of Deeds
shall be the collection agent for this tax, without compensation for
the Borough.
2.
In order to ascertain the amount of taxes due when the property is
located in more than one political subdivision, the collector shall
not accept for recording any document unless it is accompanied by
a statement of value showing what taxes are due each municipality.
3.
On or before the tenth day of each month, the collector shall pay
over to the Borough all taxes collected under this Part, less 2% for
use of the county, and shall also provide a report containing the
information required by the Commonwealth of Pennsylvania in reporting
collections of the Pennsylvania Realty Transfer Tax. The 2% commission
shall be paid to the county.
4.
In accordance with Act 77-1986, any Recorder of Deeds who shall record
any document upon which tax is imposed under this Part without payment
of tax as required under this part, as is indicated in the document
or accompanying statement of value shall, upon summary conviction,
be sentenced to pay a fine of not more than $500 and costs of prosecution.
[Ord. 680, 1/19/1989, § 19]
The Borough may promulgate and enforce reasonable rules and
regulations for the interpretation, collection and enforcement of
the tax.
[Ord. 680, 1/19/1989, § 20]
1.
To the extent this Part imposes a tax on a real estate transaction
which is subject to the Commonwealth of Pennsylvania Realty Transfer
Tax imposed by Act 77-1986, and to the extent not inconsistent herewith
or with rules or regulations adopted by the Borough, this Part shall
be interpreted in the same manner as Act 77-1986 and in accordance
with regulations promulgated thereunder.
2.
The provisions of this Part, so far as they are the same as those
of ordinances in force immediately prior to adoption of this part,
are intended as a continuation of such ordinances, and not as new
enactments.
3.
This Part shall impose a tax on all transactions which the Borough
is permitted to tax under Act 77-1986 to the fullest extent permissible.
4.
In the event this Part is declared invalid, the prior ordinance or
ordinances of the Borough levying a realty transfer tax shall remain
in full force and effect, and shall not be affected in any way by
adoption of this Part.
5.
The provisions of this Part shall not affect any suit or prosecution
pending or to be instituted to enforce any right or penalty or to
punish any offense, under the authority of any ordinance in force
prior to adoption of this Part.
6.
Subject to the provisions in this § 120, this Part shall
supersede, replace and repeal ordinances levying a realty transfer
tax in force immediately prior to adoption of this Part.
[Ord. 680, 1/19/1989, § 21]
This Part shall become effective immediately, or on the date
permitted by law, and shall continue in force hereafter without annual
reenactment.
