RULES AND REGULATIONS
Title 61--REVENUE
DEPARTMENT OF REVENUE
[61 PA. CODE CH. 91]
Realty Transfer Tax
[37 Pa.B. 6516]
[Saturday, December 15, 2007]The Department of Revenue (Department), under authority contained in section 1107-C of the Tax Reform Code of 1971 (TRC) (72 P. S. § 8107-C), amends Chapter 91 (relating to realty transfer tax) to read as set forth in Annex A.
Purpose of this Final-Form Rulemaking
The final-form rulemaking contains comprehensive amendments to Chapter 91 to address numerous legislative changes and to bring the regulatory provisions into conformity with Departmental policy.
Explanation of Regulatory Requirements
Section 91.101 (relating to definitions) is amended by updating and adding several definitions in accordance with various legislative changes and court decisions. A summary of the amendments is as follows:
The definition of ''association'' is amended to address a 1994 statutory amendment to 1 Pa.C.S. § 1991 (relating to definitions) and a 1997 statutory amendment to section 1101-C of the TRC (72 P. S. § 8101-C).
The definition of ''child'' is added to address an issue raised in Steidle v. Commonwealth, 717 A.2d 1084 (Pa. Cmwlth. 1998).
The definition of ''conservancy'' is added to address a 1989 statutory amendment to section 1102-C.3(18) of the TRC (72 P. S. § 8102-C.3(18)).
The definition of ''conversion'' is added in the final-form rulemaking for clarity.
The definition of ''corporation'' is added to address the 1994 statutory amendment in 15 Pa.C.S. § 8925 (relating to taxation of limited liability companies).
The definition of ''debt'' is added for use in this final-form regulation.
The definition of ''entity'' is added in this final-form rulemaking for clarity.
The definition of ''financing transaction'' is added for use in this final-form rulemaking.
The definition of ''living trust'' is added to address the 1997 statutory amendment to section 1101-C of the TRC; and for further clarification, examples are added in this final-form rulemaking.
The definition of ''ordinary trust'' is added to address the 1997 statutory amendment to section 1101-C of the TRC. Clarification language has been added in the final- rulemaking.
The definition of ''settlor'' is added for use in this final-form rulemaking.
The definition of ''testamentary trust'' is added for use in this final-form rulemaking.
The Department is proposing numerous revisions to improve the clarity of various regulatory provisions including §§ 91.132, 91.135, 91.155, 91.162, 91.166 and 91.202.
Section 91.113(b) (relating to imposition of tax on declarations of acquisition) is amended to address the family farm partnership language set forth in section 1102-C.5(b.1) of the TRC (72 P. S. § 8102-C.5 (b.1)).
A new § 91.115 (relating to publication of common level ratio factors) is added to codify the Department's existing practice of annually publishing applicable common level ratio factors for each fiscal year.
Section 91.132 (relating to bona fide sale transactions) is subdivided and amended by adding subsection (c) to address the court decision in Allebach v. Commonwealth, 546 Pa. 146, 683 A.2d 625 (1996). Three examples have been added to this section in the final rulemaking.
Section 91.136 (relating to appraisal) is subdivided and amended by adding paragraph (1) to incorporate the court decision in Kennedy Boulevard Associates I, Limited Partnership v. Tax Review Board of Philadelphia, 751 A.2d 719 (Pa. Cmwlth. 2000).
Additional guidance with regard to confirmatory deeds utilized in business mergers, consolidations and business form changes has been added to § 91.152 (relating to confirmatory deed). Clarifying language has been added to this section in this final-form rulemaking.
Section 91.153 (relating to principal and agent) is amended in this final-form rulemaking to add subsection (d).
Language clarifying the taxation regarding conveyances of real estate between entities and their owners is added to § 91.154 (relating to documents involving corporations, partnerships, limited partnerships and other associations).
Enhancements have been made to § 91.155 (relating to timber and crops) to include complete timber removal and products of the soil. In the final-form rulemaking, clarifying language has been added and the heading of the section has been corrected.
Section 91.156 (relating to trusts) is substantially revised to address the trust provisions in sections 1101-C and 1102-C of the TRC and the Pennsylvania Supreme Court holdings in Leigh v. Commonwealth, 541 Pa. 187, 661 A.2d 1374 (1995) and Holmes v. Commonwealth, 539 Pa. 477, 653 A.2d 615 (1995). In this final-form rulemaking, subsections (c) and (e) have been amended with clarification language for living trusts.
Since its original adoption in 1988, Table I set forth in § 91.165 (relating to reservations or conveyances of life estates) has remained unchanged. In this final-form rulemaking, as recommended by the Independent Regulatory Review Commission (IRRC), the Department is removing Table I from the regulations. The Department proposed in § 91.165(d) to update the life estate and remainder factors by published notice in the Pennsylvania Bulletin. In addition, an Example 4 to this section has been added in the final-form rulemaking.
Section 91.168 (relating to sale and leaseback transactions) has been amended in this final-form rulemaking with clarifying language.
A new § 91.170 (relating to rule in Baehr Bros. v. Commonwealth, 487 Pa. 233, 409 A.2d 326 (1979)) sets forth rules to determine whether a document is excludible or subject to tax. In the final-form rulemaking, the citation to this case law has been corrected. In addition, this section was redrafted for clarity in the final-form rulemaking. A new § 91.171 (relating to transfers by operation of law) describes when a transfer by operation of law is and is not subject to tax.
Numerous revisions to § 91.193 (relating to excluded transactions) to bring the section into conformity with statutory changes from 1989--1997 to section 1102-C.3 of the TRC, as well as to clarify areas that have been the subject of taxpayer inquiry and to reflect the United States Bankruptcy Court holding in Baltimore County v. Hechinger Liquidation Trust (In re Hechinger Inv. Co. of Del., Inc.), 335 F.3d 243 (3d Cir. Del. 2003). The Hechinger decision stands for the proposition that real estate transactions consummated prior to a Chapter 11 plan confirmation are not eligible to claim a Realty Transfer Tax exemption under 11 U.S.C. § 1146(c). A new subsection (c) is added to promulgate the Department's policy that the list of excluded transactions in subsection (b) does not apply to acquisitions of real estate companies. In the final rulemaking, clarification language has been added throughout this section, as well as updated citations to statutes in paragraph (12).
A new § 91.195 (relating to State-related universities and public charities) is added to explain the taxability of transfers involving State-related universities and public charities. In the final-form rulemaking, this section has been modified to recognize certain transactions with State-related universities as excluded transactions.
Section 91.211 (relating to family farm corporation) is amended and §§ 91.221--91.223 (relating to family farm partnership, acquired family farm partnership and declaration of acquisition) are added to address statutory changes in sections 1101-C, 1102-C and 1102-C.5(b.1) of the TRC regarding family farm partnerships. In this final-form rulemaking, the order of paragraphs (1) and (2) in § 91.221 has been reversed to mirror the order of the language in the statute, as well as the requirements in § 91.211. Finally, the language in § 91.211(a)(1) has been amended to mirror the corresponding language in § 91.221(a)(1), as requested by two commentators.
Affected Parties
Persons or entities transferring an interest in real property could be affected by the regulations.
Comment and Response Summary
Notice of proposed rulemaking was published at 35 Pa.B. 6096 (November 5, 2005). This proposal is being adopted with changes to read as set forth in Annex A.
The Department has prepared a comment and response document that is available to interested parties by contacting Mary R. Sprunk, Office of Chief Counsel, Department of Revenue, P. O. Box 281061, Harrisburg, PA 17128-1061.
In its evaluation of provisions, during the proposal stage, the Department received numerous comments from IRRC and various comments from the public. No comments were received from either the House Finance Committee or the Senate Finance Committee. The following is a summary of the Department's response to the key issues referenced in the comments:
For purposes of clarity, new definitions have been added to § 91.101 for ''conversion'' and ''entity.'' The Department added or revised numerous examples to illustrate substantive provisions of the regulation (see definition of ''living trust'' and §§ 91.152(b), 91.154, 91.165 and 91.170). To clarify the exclusion for documents that merely confirm the conversion of entities, the Department redrafted § 91.152(b). New provisions were added to § 91.153 to explain the tax treatment of IRC § 1031 regarding like-kind exchanges. Also, the Department reworded §§ 91.154 and 91.170 for clarity. To address the treatment of living trust transfers in which the property is transferred to the trust by someone other than the settlor, the Department amended § 91.156. At IRRC's suggestion, the table contained in § 91.165 has been removed in favor of language to provide future changes to life estate and remainder factors by published notices in the Pennsylvania Bulletin. In addition, the Department has amended § 91.195 to recognize certain State-related universities as exempt parties.
Fiscal Impact
The Department has determined that the amendments will have no significant fiscal impact on the Commonwealth. A relatively small revenue loss could result from the updating of the table concerning the reservations or conveyances of life estates in § 91.165. Conversely, a positive revenue gain may result from the change regarding the treatment of timber in § 91.155. However, there also might be some transactions that will be excluded that were not previously. Finally, the impact of the United States Bankruptcy Court holding of Baltimore County v. Hechinger Liquidation Trust (In re Hechinger Inv. Co. of Del., Inc.), results in a more strict standard than the Department was currently using; however, there is no reason to believe that any substantial revenue impact would result from this change.
Paperwork
The final-form rulemaking will not create additional paperwork for the public or the Commonwealth.
Effectiveness/Sunset Date
The amendments will become effective upon final-form publication in the Pennsylvania Bulletin. The regulations are scheduled for review within 5 years of final publication. No sunset date has been assigned.
Contact Person
The contact person for an explanation of the amendments is Mary R. Sprunk, Office of Chief Counsel, PA Department of Revenue, P. O. Box 281061, Harrisburg, PA 17128-1061.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 21, 2005, the Department submitted a copy of the notice of proposed rulemaking, published at 35 Pa.B. 6096 (November 5, 2005) to the IRRC, the Chairpersons of the House Committee on Finance and the Senate Committee on Finance for review and comment. In compliance with section 5(c) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received, as well as other documentation.
In preparing this final-form rulemaking, the Department has considered the comments received from IRRC and the public.
This final-form rulemaking was deemed approved by the Committees on October 31, 2007, and was deemed approved by IRRC on November 1, 2007, in accordance with section 5.1(e) of the Regulatory Review Act (71 P. S. § 745.5a(e)).
Findings
The Department of Revenue finds that:
(1) Public notice of intention to amend the regulations has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder in 1 Pa. Code §§ 7.1 and 7.2.
(2) The amendments are necessary and appropriate for the administration and enforcement of the authorizing statute.
Order
The Department, acting under the authorizing statute, orders that:
(a) The regulations of the Department, 61 Pa. Code Chapter 91, are amended by amending §§ 91.101, 91.113, 91.132, 91.135, 91.136, 91.152--91.156, 91.162, 91.165, 91.166, 91.168, 91.193, 91.202 and 91.211; and by adding §§ 91.115, 91.170, 91.171, 91.195 and 91.221--91.223 to read as set forth in Annex A, with ellipsis referring to the existing text of the regulations.
(b) The Secretary of the Department shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to form and legality as required by law.
(c) The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
THOMAS W. WOLF,
Secretary(Editor's Note: The proposal to amend §§ 91.153 and 91.168 was not included in the proposed rulemaking at 35 Pa.B. 6096.)
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 37 Pa.B. 6181 (November 17, 2007).)
Fiscal Note: Fiscal Note 15-429 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 61. REVENUE
PART I. DEPARTMENT OF REVENUE
Subpart B. GENERAL FUND REVENUES
ARTICLE IV. COUNTY COLLECTION
CHAPTER 91. REALTY TRANSFER TAX
Subchapter E. GENERAL § 91.101. Definitions.
The following words and terms, when used in this chapter, have the following meanings:
Association--
(i) An unincorporated enterprise owned or conducted by two or more persons, including, but not limited to, a partnership, limited partnership, limited liability partnership or restricted professional company that is deemed to be a limited partnership under 15 Pa.C.S. § 8997 (relating to taxation of restricted professional companies) or joint venture.
(ii) The term does not include an ordinary or living trust, limited liability company, decedent's estate, tenancy in common, tenancy by the entireties or joint tenancy.
Child--A son or daughter by either natural birth or adoption. The term does not include:
(i) A stepson or stepdaughter.
(ii) A son or daughter of an individual whose parental rights have been terminated.
Conservancy--An entity which possesses a tax exempt status under section 501(c)(3) of the Internal Revenue Code (26 U.S.C.A. § 501(c)(3)) and which has as its primary purpose, the preservation of land for historic, recreational, scenic, agricultural or open space opportunities.
Conversion--A change of an entity's:
(i) Form of organization.
(ii) Place of organization.
(iii) Name or identity.
Corporation--A corporation, joint-stock association, limited liability company, business trust or banking institution which is organized under the laws of the Commonwealth, the United States or any other state, territory or foreign country or dependency.
Debt--A legally enforceable obligation arising out of a genuine debtor-creditor relationship to pay a fixed or determinable sum of money at a future date.
Document--A deed, quitclaim deed, ground rent, lease, occupancy agreement, contract or other writing evidencing an interest in realty other than:
(i) A will.
(ii) A conventional mortgage or assignment, extension, release or satisfaction thereof.
(iii) A contract for a deed or agreement of sale for the sale of realty whereby the legal title does not pass to the grantee until the total consideration specified in the contract or agreement has been paid, and the consideration is payable over a period of time not exceeding 30 years.
(iv) An instrument which solely grants, vests or confirms a public utility easement.
Entity--An association or corporation.
Family farm realty--One of the following:
(i) Realty devoted to the business of agriculture which was transferred without tax to a family farm corporation by document accepted after July 1, 1986, or recorded after July 31, 1986, by a member of the same family which directly owns at least 75% of each class of the stock of that family farm corporation.
(ii) Realty which was transferred to a family farm corporation without tax after February 15, 1986, under a document accepted prior to July 2, 1986, and recorded prior to August 1, 1986, by a sole proprietor family member.
Financing transaction--An arrangement in which the following apply:
(i) Realty is transferred by the debtor solely for the purpose of serving as security for the payment of a debt.
(ii) No sale or gift is intended.
(iii) The debtor retains possession and beneficial ownership of the real estate transferred before default.
(iv) The transferee obtains title or ownership to the real estate only so far as is necessary to render the instrument of transfer effective as security for the debt.
(v) The transferee or the transferee's successor is obligated to return the transferred real estate at no or only nominal consideration to the debtor upon payment of the debt before default.
Living trust--An ordinary trust:
(i) Which, throughout the settlor's lifetime, is wholly revocable by the settlor without the consent of an adverse party.
(ii) Which vests no present interest in any of the trust corpus or income in any person other than the settlor or trustee until the settlor dies.
(iii) All the corpus and income of which can be reached or materially affected by the settlor without revocation of the trust or the consent of an adverse party.
(iv) From which no transfer of corpus or income may be made by the trustee at any time prior to the death of the settlor to any person in the capacity of a beneficiary other than the settlor.
(v) Under which the trustee exercises no discretion as to the disposition of the trust corpus or income during the settlor's lifetime to any person other than the settlor without the express direction of the settlor to make the specific disposition.
(vi) Which the trustee or, if the settlor was the trustee, the successor trustee is required under the governing instrument to distribute the corpus and retained income upon the death of the settlor.
Example 1. If a trust agreement provides that the income of the trust is distributable one-half to the settlor and one-half to another person, at least annually, the trust is not a living trust because income of the trust is required to be transferred to someone other than the settlor in the capacity as a beneficiary during the settlor's lifetime.
Example 2. If a trust agreement provides that during the settlor's lifetime, the trustee may in the trustee's sole and absolute discretion, make distributions to members of the settlor's family (or other persons), the trust does not qualify as a living trust because someone other than the settlor can receive trust corpus or income without the settlor's consent prior to the settlor's death.
Example 3. If a trust agreement provides that during the settlor's lifetime, the trustee, solely at the direction of the settlor, may transfer trust corpus or income to a person other than the settlor, the provision will not in itself disqualify the trust as a living trust. Because the trustee has the authority to distribute trust corpus or income to someone other than the settlor only at the settlor's direction, effectively the settlor is making the transfer. Thus, the settlor is the party who is reaching and materially affecting the trust corpus or income. Further, the transfer is not made to the other person in the capacity as a trust beneficiary.
Ordinary trust--
(i) A private trust which takes effect during the lifetime of the settlor of the trust and for which the trustees of the trust take title to property primarily for the purpose of protecting, managing or conserving trust assets, under the ordinary rules applied in the orphan's court division of the court of common pleas or in other chancery or probate courts, until distribution to the beneficiaries of the trust.
(ii) The term does not include:
(A) Business trusts organized under Pennsylvania law or the law of any state or foreign jurisdiction, or any form of trust that has either of the following features:
(I) The treatment of beneficiaries as associates.
(II) Beneficial interests in the trust estate or profits that are evidenced by transferable shares, similar to corporate shares, or are otherwise treated as personal property.
(B) Minors' estates.
(C) Incompetents' estates.
(D) A resulting or constructive trust created by operation of law.
(E) A testamentary trust.
Settlor--One who creates and furnishes the consideration for the creation of a trust by the transfer of property to the trust.
Testamentary trust--A private trust that is established by will or takes effect only at or after the death of the settlor.
Subchapter F. IMPOSITION OF TAX § 91.113. Imposition of tax on declarations of acquisition.
(a) A real estate company is subject to pay a State tax at the rate of 1% of the value of the realty held by the real estate company when it becomes an acquired company under § 91.202 (relating to acquired real estate company). The tax shall be paid within 30 days after the real estate company becomes acquired.
(b) A family farm corporation or family farm partnership is subject to pay a State tax at the rate of 1% of the value of the family farm real estate held by the family farm corporation or the family farm partnership when it becomes an acquired company under §§ 91.212 and 91.222 (relating to acquired family farm corporation; and acquired family farm partnership). The tax shall be paid within 30 days after the family farm corporation or the family farm partnership becomes acquired.
§ 91.115. Publication of common level ratio factors.
The Department will publish the applicable common level ratio factors for each fiscal year beginning July 1 and ending June 30 and during the fiscal year, any changes thereto, in the Pennsylvania Bulletin.
Subchapter G. VALUATION § 91.132. Bona fide sale transactions.
(a) In a bona fide sale of real estate, the value of the real estate is the total agreed consideration for the sale which is paid or to be paid.
(b) The value includes liens existing before the transfer and not removed thereby--whether or not the underlying indebtedness is assumed--or a commensurate part of the liens, if they also encumber other real estate.
Example 1 (existing mortgage lien):
S conveyed a parcel to P in a bona fide sale. The agreed cash consideration was $20,000. P also agreed to assume S's mortgage on the parcel which had a remaining balance due of $10,000. The value of the realty conveyed to P is $20,000 plus $10,000 or a total of $30,000, because the existing mortgage lien was not removed by the transfer.
Example 2 (a lien encumbers both the transferred realty and other realty):
S owns two lots, both of which are encumbered by a single $10,000 lien. The assessed value of the lots are $4,000 and $6,000. S sells the lot assessed at $4,000 to B for $20,000 in a bona fide sale. If the lien is removed by the sale, the total consideration for the sale is $20,000. If the lien is not removed by the sale the total consideration is $24,000 which is computed as follows:
$20,000 (actual consideration) + $4,000 (assessed value of lot sold to B)
×
$10,000 (amount of lien) $4,000 + $6,000 (assessed value of two lots encumbered by lien)
(c) The value for which a seller will be liable for the payment of tax does not include the value of consideration paid by a buyer's assignee, or a subsequent assignee thereof, for the right to have the seller convey the real estate to the assignee or subsequent assignee unless the seller or the seller's affiliate is a party to the assignment and receives part or all of the consideration paid for the assignment. If the seller or the seller's affiliate is a party to the assignment and receives part or all of the consideration paid for the assignment, the value shall include the value of the consideration that the seller and its affiliate receives. For purposes of this section, the term ''seller's affiliate'' has the same meaning as the term grantor's affiliate in § 91.131 (relating to definitions).
Example 1. X enters into an agreement of sale with Y for the conveyance of real estate for $100,000. Y subsequently assigns the sales agreement to Z for $1 million. X executes a deed for the conveyance of the real estate to Z and receives $100,000. Y receives $1 million from Z for the assignment. The taxable value of the deed from X to Z for which X is liable is $100,000.
Example 2. X enters into an agreement of sale with Y for the conveyance of real estate for $100,000, plus 20% of the value of any consideration that Y receives for an assignment of the agreement of sale. Y subsequently assigns the sales agreement to Z for $1 million. X executes a deed for the conveyance of the real estate to Z and receives $100,000, plus 20% of the assignment price of $1 million ($200,000). The taxable value of the deed from X to Z for which X is liable is $300,000.
Example 3. X enters into an agreement of sale with Y, X's wholly-owned entity, for the conveyance of real estate for $100,000. Y subsequently assigns the sales agreement to Z for $500,000. X executes a deed for the conveyance of the real estate to Z. X receives $100,000 from Y and Y receives $500,000 from Z for the conveyance. The taxable value of the deed from X to Z for which X is liable is $600,000.
§ 91.135. Judicial sales and other transactions.
The value of real estate is its computed value where the real estate is transferred through any of the following:
(1) By execution upon a judgment or upon foreclosure of a mortgage or under a judicial sale or tax sale or a transfer to a transferee or assignee of a bid or other rights of a purchaser under a judicial or tax sale.
(2) In exchange for stock in a corporation, an interest in a partnership, limited partnership or association, or property--other than cash or credit--in a bona fide sale or otherwise.
(3) By gift or otherwise without consideration or for a nominal consideration.
(4) Under a transaction other than a bona fide sale.
§ 91.136. Appraisal.
The value of real estate shall be determined by appraisal only when one of the following occurs:
(1) The real estate was transferred in lieu of foreclosure.
(2) The real estate is not the subject of a bona fide sale, cannot be valued under § 91.133 (relating to leases) and is not separately assessed for local real estate tax purposes.
Subchapter H. SPECIAL SITUATIONS § 91.152. Confirmatory deed.
(a) A deed made without consideration for the sole purpose of confirming title to real estate under a prior recorded document, including a deed that only asserts a transfer of title to real estate by operation of law as a result of an existing survivorship interest, is not taxable. This subsection only applies if the following apply:
(1) The grantee of the deed of confirmation held or holds record title to the property interest described in the deed of confirmation under a prior deed.
(2) The deed of confirmation is made solely for the purpose of making the grantee's record legal title under the prior deed sure and unavoidable.
(3) The grantor of the deed of confirmation has no interest in the real estate conveyed or the grantor received his interest by a document that was void from inception.
(b) A deed made without consideration for the sole purpose of confirming an entity's existing real estate ownership following a conversion of the entity is not taxable. This subsection only applies if all of the following occur:
(1) The entity holds title to the real estate at the time of the conversion as opposed to its owners. An entity does not hold title to real estate if the entity's owners have merely made a capital contribution of the real estate to the entity without the conveyance of title to the real estate.
(2) Without the making of any document:
(i) The entity is vested with all the same property, real, personal and mixed, franchises and debts before and after the conversion.
(ii) The entity is subject to all the same obligations before and after the conversion.
(iii) Liens upon the property of the entity before the conversion are not impaired by the conversion.
(iv) Any claim existing or action or proceeding pending by or against the entity before the conversion may be prosecuted to judgment against the entity after the conversion.
(3) The entity is not required to wind up its affairs or pay its liabilities and distribute its assets either because there is no break in the continuity of its existence or because its separate existence ceases with the conversion.
(4) Considering all the ownership interests in the entity prior to the conversion, there is no change in proportionate ownership interests resulting from the conversion. Notwithstanding the provisions of § 91.154 (relating to documents involving corporations, partnerships, limited partnerships and other associations), when determining if there is a change in proportionate ownership interests, entities will not be considered to be entities separate from their members, partners, stockholders or shareholders; and when determining if there is a change in proportionate ownership interests resulting from the change to a limited partnership, the interests of the limited partners and general partners will both be considered.
(5) Title to real estate would not revert or be in any way impaired by reason of the conversion.
Example 1. A and B are equal partners in a general partnership known as AB, general partnership. One of the assets of the partnership is real estate that A and B contributed to the partnership but own in their individual names. A and B want to convert their general partnership to a limited partnership known as AB, LP. A and B set up a limited liability company (LLC) to be the 1% general partner in the limited partnership. A and B will have a 99% limited partnership interest in the limited partnership (that is, A and B each have a 49.5% limited partnership interest). In order to effectuate the conversion, A and B merge AB into AB, LP. The limited partnership is the surviving entity of the merger. The general partnership ceases to exist as a result of the merger.
By way of the merger, AB has changed its business organization form, or converted, from a general partnership to a limited partnership. AB, LP continues the same business as AB and has all the same assets and liabilities as AB. Further, ownership of the business has not changed. A and B were equal owners of AB and are equal owners of AB, LP through their equal ownership of the LLC and their equal limited partnership interests in AB, LP.
After the conversion, A and B prepare a deed for the real estate from A and B, individually, and AB, general partnership, as grantors to AB, LP as grantee. The deed is taxable because the real estate was in the name of A and B individually. Legal title was never transferred to the general partnership. Therefore, the deed effectuates a transfer of title in the real estate from A and B, individually, to AB, LP. AB, general partnership is merely joining in the deed. A document that transfers title to real estate from individuals to an entity is taxable.
Example 2. Assume the same facts as in Example 1 except that AB purchased the real estate with partnership funds and titled the real estate in the name of AB. Because the general partnership holds title to the real estate and because the deed merely confirms AB's existing ownership of the real estate following its conversion to AB, LP, the deed is not taxable.
Example 3. Assume the same facts as in Example 2, except that instead of setting up a limited liability company (LLC) to be the general partner of AB, LP, A becomes the general partner and B becomes the limited partner. Each holds a 50% interest in the partnership's income. Although A and B each have an equal income interest, A now has sole control over the limited partnership as its general partner and B has only an income interest as a limited partner. In the general partnership, A and B had equal management and income interests. Because there is a change in ownership interests, AB, LP is a different entity than AB. Therefore, the deed is taxable.
Example 4. X, Y and Z are equal co-partners in XYZ general partnership. XYZ general partnership owns Pennsylvania real estate. X, Y and Z desire to change the form of the general partnership to a limited liability company (LLC). X, Y and Z set up an LLC to take the place of the general partnership. X, Y and Z are equal members in the LLC. To effectuate the conversion, X, Y and Z transfer their partnership interests to the LLC. As a result, the LLC becomes the sole partner of the partnership. By law, the partnership must dissolve. As part of the dissolution, the partnership conveys all its assets, including real estate, and assigns its liabilities to the LLC, the sole partner. Because of the dissolution, the general partnership ceases to exist and the LLC survives with the same owners, assets and liabilities as the general partnership. Because of the dissolution, there has been a break in the continuity of the general partnership. Consequently, the exclusion under this subsection does not apply. Further, the document that conveyed the real estate from the general partnership to the LLC effectuated a direct transfer of real estate from the general partnership to the LLC while they both existed. Because the transfer was from an entity, XYZ general partnership, to its sole member, the LLC, the document is subject to tax under § 91.154(a) (relating to documents involving corporations, partnerships, limited partnerships and other associations), and the exclusion under § 91.193(13) (relating to excluded transactions) does not exclude the document from tax because the LLC has not owned its interest in the general partnership for more than 2 years.
§ 91.153. Principal and agent.
(a) Transfers from agent.
(1) The transfer of realty without consideration from an agent to the agent's principal is not subject to tax, if the agent acquired the transferred realty for the exclusive benefit of the principal.
(2) The transfer from an agent to a third person of realty acquired by the agent for the exclusive benefit of the agent's principal is subject to tax to the same extent the transfer would be taxed if made directly by the agent's principal.
(b) Transfers to agent.
(1) A transfer without consideration to an agent from the agent's principal of realty in which the principal retains the beneficial interest is not subject to tax.
(2) A transfer to an agent from a third person of realty acquired by the agent for the exclusive benefit of the agent's principal is subject to tax to the same extent that the transfer would be taxed if made directly to the agent's principal.
(c) Presumption. If the document by which title is acquired by a grantee fails to set forth that the realty was acquired by the grantee from or for the benefit of the agent's principal, there is a rebuttable presumption the realty is that of the grantee in the grantee's individual capacity if an exemption from taxation under this section is claimed.
(d) Like-kind exchanges. For purposes of this section and § 91.193(b)(11) (relating to excluded transactions), an agent or straw party does not include:
(1) A qualified intermediary as defined under Federal Treasury regulation in 26 CFR 1.1031(k)-1(g)(4) (relating to treatment of deferred exchanges) in an Internal Revenue Code § 1031 exchange.
(2) An exchange accommodation titleholder or any other accommodation party utilized in a parking transaction as defined under Federal Revenue Procedure 2000-37 (Rev. Proc. 2000-37, 2000-2 C.B. 308) in an Internal Revenue Code § 1031 exchange.
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