[Adopted 1-17-2007 by Ord. No. 190-2007]
A.
Pursuant to the authority contained in the Local Tax
Enabling Act, Act of December 31, 1965, P.L. 1257, a tax for the purpose
of providing revenue for general Township purposes is hereby levied,
assessed and imposed upon the transfer of real property or an interest
in real property within the limits of East Whiteland Township, regardless
of where the instruments making the transfers are made, executed or
delivered or where the actual settlements on the transfer take place,
at the rate of 1/2 of 1% of the amount of the value of said real property
or interest therein, as herein defined.
B.
This article shall be known and may be cited as the
"East Whiteland Township Realty Transfer Tax Ordinance."
The following words, when used in this article,
shall have the meanings ascribed to them in this article:
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.
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 the Commonwealth
of Pennsylvania, the United States or any other state, territory or
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 but does not include wills, mortgages, deeds of trusts 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. A document shall also include a declaration of acquisition required to be presented for recording pursuant to § 180-29B hereof.
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; and manufacturing or processing
operations of any kind. 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.
Any individual, such individual's brothers and sisters, the
brothers and sisters of such individual's parents and grandparents,
the ancestors and lineal decedents 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.
Any lands, tenements or hereditaments within
the Commonwealth of Pennsylvania, 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.
Real property.
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.
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.
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; provided, however, 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 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 therefore, 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 and in respect of the vellum parchment
or paper upon which such document is written or printed, a tax payable
to the Township of East Whiteland, Chester County, Pennsylvania, 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 of Pennsylvania
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.
The tax imposed by this article shall not be
imposed upon the following transactions:
A.
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.
B.
A document which the commonwealth 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 sale 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 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 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 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 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.
G.
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.
H.
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.
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 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.
L.
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.
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 or 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 or 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 conversion,
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 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.
R.
A transfer to a conservancy which possesses a tax-exempt
status pursuant to § 501(c) 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.
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 is $1 or less.
V.
Leases for the production or extraction of coal, oil,
natural gas or minerals and assignments thereof. 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.
A.
Except as excluded in § 180-28 hereof, 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.
B.
Within 30 days after becoming an acquired company,
the company shall present for recording a declaration of acquisition
with the Recorder of Deeds of Chester County for the purpose of noting
thereon or the affixation thereto of such documentary stamps or other
evidence of the payment of this tax as required by law. Such declaration
shall set forth the value of the real estate holdings of the acquired
company in Chester County.
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 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 the 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.
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 cost of the sale and of the writ upon which the sale is made, and
the sheriff or other officer conducting such 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.
Where real estate or an interest in real estate
lying partly within the boundaries of East Whiteland Township and
partly without said boundaries is transferred, the tax herein imposed
shall be calculated upon such portion of the value as shall be represented
by the portion of the real estate or interest therein lying within
the boundaries of the Township as determined by the realty transfer
tax statement of value filed with the Recorder of Deeds or, if no
such filing is required, by affidavit of the transferor or as separately
stated in the document of transfer; provided, however, such value
shall in no event be less than the highest assessed valuation for
local tax purposes placed upon the real estate or the interest in
the real estate in the assessment of the property within the Township.
Every document lodged with or presented to the
Recorder of Deeds of Chester County for recording shall set forth
therein and as a part of such document the true, full and complete
value thereof. When the full, complete and actual consideration for
the transfer which is subject to the tax is not set forth in the document,
the person liable for the tax shall, contemporaneously with the filing
of the document, file with the Recorder of Deeds a realty transfer
tax statement of value identical to that promulgated by the Department
of Revenue of the Commonwealth of Pennsylvania or, in the instance
of an acquired company, a realty transfer tax declaration of acquisition
identical to that promulgated by the Department of Revenue of the
Commonwealth of Pennsylvania. The provisions of this section shall
not apply to any excludable real estate transfers which are exempt
from taxation based on family relationship.
The tax imposed hereby, including any amount payable to the Township based on a redetermination of the amount of tax due by the Commonwealth of Pennsylvania pursuant to § 180-36 hereof, shall be collected by the Recorder of Deeds of Chester County who shall act as agent for the Township in the collection of the transfer tax as provided in 16 P.S. § 11011-6, as amended. The tax thus collected shall be payable by the Recorder to the Treasurer of East Whiteland Township at least monthly or at such other intervals as the Township and the Recorder of Deeds shall mutually determine.
The payment of the tax imposed by this article
when received by the Recorder of Deeds shall be evidenced by the affixing
of a documentary stamp or stamps or other evidence of payment as approved
by the Pennsylvania Department of Revenue.
In the event that a determination or redetermination
of transfer tax due is made by the Pennsylvania Department of Revenue
pursuant to § 1111-C of Act 1986-77, 72 P.S. § 8111-C,
such determination or redetermination shall be deemed to have been
also made by the Township, and there shall be due and owing to the
Township, as additional transfer tax, the amount determined or redetermined
by the Department to be due the Commonwealth of Pennsylvania. Upon
a redetermination of the amount of realty transfer tax due by the
Commonwealth of Pennsylvania, the Recorder shall rerecord the document
only when the transfer tax imposed by this article has been paid.
The Secretary of East Whiteland Township is
hereby charged with the enforcement of the provisions of this article
and is hereby authorized and empowered to prescribe, adopt and enforce
rules and regulations relating to the registration and notation of
transactions, the collection of transfer taxes, interest and penalties
due hereunder, the prosecution of violations hereunder, and any other
matter pertaining to the administration and enforcement of the provisions
of this article; provided, however, that the regulations which have
been promulgated by the Pennsylvania Department of Revenue under 72
P.S. § 8101-C et seq., as the same are from time to time
amended, are incorporated into and made a part of this article and
shall be deemed to have been adopted by the Township Secretary.
A.
Any tax imposed under this article that is not paid
by the date the tax is due shall bear interest as prescribed for interest
on delinquent municipal claims under the Act of May 16, 1923 (P.L.
207, No. 153) (53 P.S. § 7101 et seq.) as amended, known
as the "Municipal Claims and Tax Liens Act." The interest rate shall
be the lesser of the interest rate 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", or the maximum interest rate permitted under the Municipal
Claims and Tax Liens Act for tax claims. Where suit is brought for
the recovery of any such tax, the person liable therefor shall, in
addition, be liable for the cost of collection and the interest and
penalties herein imposed.
B.
The transfer tax when due and unpaid, together with
all interest, shall be a lien in favor of the Township on the real
estate or interest in the real estate which is described in the document
on which the tax is imposed and upon any other property, both real
and personal, of the person failing to pay the tax due, after said
lien has been entered and docketed of record by the Prothonotary of
Chester County in accordance with the Municipal Claims and Tax Liens
Law.
C.
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.
D.
The tax imposed by this article and all applicable
interest and penalties shall be collected, administered and enforced
in accordance with the Local Tax Enabling Act; provided that if the
correct amount of the tax is not paid when due, the Township pursuant
to Section 1102-D of the Tax Reform Code of 1971, (72 P.S. § 8102-D)
authorizes and directs the Commonwealth of Pennsylvania Department
of Revenue to determine, collect and enforce the tax, interest and
penalties.
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
the tax thereon being duly paid; or
(2)
Fail, neglect or refuse to comply with or violate
the provisions of this article or the rules and regulations prescribed,
adopted and promulgated by the Secretary under the provisions of this
article.
B.
If any person violates any of the provisions of this
article, the Township shall have the right to initiate a civil enforcement
proceeding before a district justice and to seek a fine not to exceed
$600 per violation, together with the cost of prosecution, and reasonable
attorney fees.
