Does Transfer Tax Apply If the Deed Did Not Transfer a Beneficial Interest to Land to Anyone Other Than the Grantors ?
In Farda v. Commonwealth, 849 A.2d 297 (Pa. Cmwlth. 2004), Joseph and Ann Farda (the Fardas), husband and wife, stipulated that they had conveyed certain real estate to Farda Realty, a Delaware limited partnership.
Each of them was a limited partner and had a 49.5% interest individually in Farda Realty.
Also, they were general partners with a 1% interest as tenants by the entireties.
The Fardas had claimed a 100% exemption from the realty transfer tax because "the grantors each own fifty percent of the grantee limited partnership and this is not a document which conveys a real interest in real estate to someone other than the grantor . . . .". Id. at 298, quoting Statement of Value, Exhibit B, Stipulations of Facts.
The Department of Revenue determined that the property was subject to the realty transfer tax pursuant to Section 1102-C of the Act, 72 P.S. 8102-C.
The Board of Appeals sustained the Department of Revenue's determination.
The Fardas then appealed to the Board of Finance and Revenue (B.F.R.).
The B.F.R. sustained the decision of the Board of Appeals and concluded that Exton Plaza Associates v. Commonwealth of Pennsylvania, 763 A.2d 521 (Pa. Cmwlth. 2000) was not applicable because Exton Plaza involved the transfer from a general partnership to a limited partnership.
On appeal, the Fardas argued, as Petitioners do here, "citing to Exton Plaza Associates . . . the transfer tax does not apply in this case because the deed did not transfer a beneficial interest to land to anyone other than to themselves, the grantors." Id. at 299.
This Court rejected their argument:
In Exton Plaza Associates v. Commonwealth of Pennsylvania, 763 A.2d 521, 523 (Pa. Cmwlth. 2000), a general partnership held title to a shopping center with each partner owning 50%.
For the purposes of becoming a single purpose and bankruptcy remote entity, the general partnership converted itself into a limited partnership of the same name with each limited partner owning 49.5% (the same partners in the general partnership) and 1% being owned by the general partner, Exton Plaza G.P., LLC (made up of two limited partners).
The conveyance was from an association which had decided to change its business form to a newly formed association of another kind which continued to carry out the very same activities. In that case, we recognized that, 'transfers between partnerships are fully taxable, as are transfers between partnerships and their partners or members, unless the transaction is excluded; however, the first inquiry must be whether the deed affects a real transfer of an interest in property to someone other than the grantor.' Exton Plaza Associates, 763 A.2d at 523.
Because we characterized the transfer as merely the 'memorialization' of 'the conversion from a general partnership to a limited partnership,' we concluded that the transfer under those circumstances was 'analogous to the exclusion for correctional or confirmatory deed that does not change the beneficial interest in the property,' and, as such, we reserved the imposition of the realty transfer tax. Exton Plaza Associates, 763 A.2d at 524.
However, unlike Exton Plaza Associates, the Fardas, as grantors, were individuals, and not a business partnership wishing to change its business form under Pennsylvania law.
The deed in this case conveyed legal title to 'someone other than the grantors' because the Fardas, as tenants in the entirety, are not Farda Realty, the partnership, an entity governed by the laws for foreign registered limited liability partnerships. See 15 Pa. C.S. 8211(a).
Moreover, this transfer is governed by Section 1102-C.4 of the Act, 72 P.S. 8102-C.4 . . . . the deed in this case transferred property from the Fardas, as individuals, to an association, of which they were the sole partners, which under this provision, makes the deed a taxable document.
Because the deed was a taxable document that conveyed real estate with a fair market value of $ 5,223,320.20 to an association, the Board was correct in affirming the imposition of a 1% realty transfer tax in the amount of $ 52,233.20. Farda, 849 A.2d at 299-300.