Senate Bill No. 374
(By Senator Foster)
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[Introduced January 28, 2010; referred to the Committee on
Government Organization; and then 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 $1 per $1,000.
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 $100 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 $1.10 for each $500 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 $20 upon the privilege of transferring
real estate for consideration. The clerk of the county commission
shall collect the additional $20 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 spent 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 December 1,
2007, 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 55ó for each $500 value or fraction thereof
as represented by
such the document as defined in section one of
this article, which county tax
shall be is payable at the time of
delivery, acceptance or presenting for recording of
such the
document:
Provided, That after the July 1, 1989, the county may increase
said the 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 is paid on
any one document
and shall be pursuant to this section, and the
taxes are collected in the county where the document is first
admitted to record and the tax
shall be is paid by the grantor
therein unless the grantee accepts the document without
such
the tax having been paid, in which event
such the tax
shall be is
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 the tax
shall be is 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
that 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 the increase
will be considered,
such the 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 is the county in which
such the 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, is
subject to pay for, and in respect to the transaction or any part
thereof, a state excise tax upon the privilege at the rate of $.50
for each $500 of debt secured or fraction thereof as represented by
the document as defined in section one of this article, which state
tax is payable at the time of delivery, acceptance or presenting
for recording of the 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, codified in chapter thirty-
nine-a of this code.
NOTE: The purpose of this bill is to limit each county
commission imposing a mortgage recording tax of not more than $1
per $1,000.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added