Senate Bill No. 35
(By Senator Foster)
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[Introduced January 9, 2008; referred to the Committee on
Finance.]
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A BILL to amend and reenact §11-22-1 and §11-22-2 of the Code of
West Virginia, 1931, as amended, all relating to limiting each
county commission to imposing a mortgage recording tax of not
more than one dollar per one thousand dollars.
Be it enacted by the Legislature of West Virginia:
That §11-22-1 and §11-22-2 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 22. EXCISE TAX ON PRIVILEGE OF TRANSFERRING REAL PROPERTY.
§11-22-1. Definitions.
As used in this chapter:
(1) "Association" means a partnership, limited partnership or
any other form of unincorporated enterprise, owned or conducted by
two or more persons.
(2) "Corporation" means a corporation or joint-stock
association, organized under the laws of this state, the United States or any other state, territory or foreign country or
dependency including, but not limited to, banking institutions.
(3) "Commissioner" means the State Tax Commissioner.
(4) "Document" means any deed, or instrument or writing by
which any real property within this state or any interest in real
property is granted, conveyed or otherwise transferred to the
grantee, purchaser or any other person; but does not include wills,
transfer of real property where the value of the property
transferred is one hundred dollars or less, testamentary or inter
vivos trusts, deeds of partition, deeds made pursuant to mergers of
corporations, limited liability companies, partnerships, limited
partnerships, testamentary or inter vivos trusts, deeds made
pursuant to conversions to limited liability companies from
corporations, partnerships, limited partnerships or trusts, deeds
made by a subsidiary corporation to its parent corporation for no
consideration other than the cancellation or surrender of the
subsidiary's stock, leases, transfers between husband and wife,
transfers between parent and child or transfers between parent and
child and his or her spouse, without consideration, transfers
between grandparent and grandchild or transfers between grandparent
and grandchild and his or her spouse, without consideration,
transfers without consideration between a principal and straw party
for any purpose, gifts to or transfers from or between voluntary
charitable or educational associations or trustees of voluntary charitable or educational associations and like nonprofit
corporations having the same or similar purposes, quitclaim or
corrective deeds without consideration, transfers to or from the
United States, the State of West Virginia, or to or from any of
their instrumentalities, agencies or political subdivisions, by
gift, dedication, deed or condemnation proceedings. or mortgages
or deeds of trust given as security for a debt
(5) "Limited liability company" means a limited liability
company organized under the laws of this state, the United States
or by any other state, territory or the District of Columbia.
(6) "Person" means 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, means the partners or members of the association,
and, as applied to corporations, the officers of the corporation.
(7) "Transaction" means the delivering, accepting or
presenting for recording of a document.
(8) "Value" means in the case of any document not a gift, the
amount of the full actual consideration for the document, paid or
to be paid, including the amount of any lien or liens assumed; in
the case of a gift, or any other document without consideration,
the actual monetary value of the property conveyed or transferred.
In the event any document includes real property or any interest in
real property lying outside the State of West Virginia or includes personal property, value is the proportion of the consideration
paid in case of the transfer for consideration, or the proportion
of the true and actual value in case of a gift, which the actual
value of the real property located in West Virginia bears to the
total actual value of all the property, real or personal,
transferred by the document. The value as defined in this
subdivision shall be stated in the declaration of consideration or
value provided for in section six of this article.
§11-22-2. Rate of tax; when and by whom payable; additional
county tax.
(a) Every person who delivers, accepts or presents for
recording any document, or in whose behalf any document is
delivered, accepted or presented for recording, other than a
mortgage or deed of trust given as security for a debt, is subject
to pay for, and in respect to the transaction or any part thereof,
a state excise tax upon the privilege of transferring title to real
estate at the rate of one dollar and ten cents for each five
hundred dollars value or fraction thereof as represented by the
document as defined in section one of this article. The state tax
is payable at the time of delivery, acceptance or presenting for
recording of the document. In addition to the state excise tax
described in this subsection, there is assessed a fee of twenty
dollars upon the privilege of transferring real estate for
consideration. The clerk of the county commission shall collect the additional twenty-dollar fee before recording a transfer of
title to real estate and shall deposit the moneys from the
additional fees into the West Virginia Affordable Housing Trust
Fund as provided in article eighteen-d, chapter thirty-one of this
code. The moneys collected from this additional fee shall be
segregated from other funds in the West Virginia Affordable Housing
Trust Fund and shall be accounted for separately. Not more than
ten percent of these additional moneys may be expended by the West
Virginia Affordable Housing Trust Fund to defray administrative and
operating costs and expenses actually incurred by the West Virginia
Affordable Housing Trust Fund. The Housing Development Fund, as
fiscal agent of the West Virginia Affordable Housing Trust Fund,
shall publish monthly on the Internet site an accounting of all
revenue deposited into the fund during the month and a full
disclosure of all expenditures from the fund including the group
receiving funds, their location and any contractor awarded the
construction contract. Additionally, the West Virginia Affordable
Housing Trust Fund is to provide an annual report to the Joint
Committee on Government and Finance before the first day of
December, two thousand seven, and each year thereafter.
(b) Effective the first day of January, one thousand nine
hundred sixty-eight, and thereafter, there is imposed an additional
county excise tax for the privilege of transferring title to real
estate at the rate of fifty-five cents for each five hundred dollars' value or fraction thereof as represented by such document
as defined in section one of this article, which county tax shall
be payable at the time of delivery, acceptance or presenting for
recording of such document: Provided, That after the first day of
July, one thousand nine hundred eighty-nine, the county may
increase said excise tax to an amount equal to the state excise
tax. The additional tax hereby imposed is declared to be a county
tax and to be used for county purposes: Provided, however, That
only one such state tax and one such county tax shall be paid on
any one document and shall be collected in the county where the
document is first admitted to record and the tax shall be paid by
the grantor therein unless the grantee accepts the document without
such tax having been paid, in which event such tax shall be paid by
the grantee: Provided further, That on any transfer of real
property from a trustee or a county clerk transferring real estate
sold for taxes, such tax shall be paid by the grantee. The county
excise tax imposed under this section may not be increased in any
county unless the increase is approved by a majority vote of the
members of the county commission of such county. Any county
commission intending to increase the excise tax imposed in its
county shall publish a notice of its intention to increase such tax
not less than thirty days nor more than sixty days prior to the
meeting at which such increase will be considered, such notice to
be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code
and the publication area shall be the county in which such county
commission is located.
(c) Every person who delivers, accepts or presents for
recording any mortgage or deed of trust given as security for a
debt, or in whose behalf any such mortgage or deed of trust
document is delivered, accepted or presented for recording, shall
be subjected to pay for and in respect to the transaction or any
part thereof, a state excise tax upon the privilege at the rate of
fifty cents for each five hundred dollars of debt secured or
fraction thereof as represented by such document as defined in
section one of this article, which state tax shall be payable at
the time of delivery, acceptance or presenting for recording of
such document. All tax collected upon the recordation of mortgages
and deeds of trust shall be returned to the clerks of the court for
the exclusive purpose of implementing such equipment and technology
as may be required to comply with the Uniform Electronic
Transaction Act,
§
39A-1-1 et. seq.
NOTE: The purpose of this bill is to
limit each county
commission imposing a mortgage recording tax of not more than one
dollar per thousand dollars.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.