Chapter 3.08 — DOCUMENTARY TRANSFER TAX

This chapter may be cited as the documentary transfer tax ordinance of the city of Orinda. It is adopted under the authority of Part 6.7 of Division 2 of the Revenue and Taxation Code of the state of California beginning with Section 11901. (Prior code § 10-401)

There is imposed on each instrument or writing by which land, tenement or other realty sold within the city is transferred or conveyed to the purchaser or other grantee when the consideration or value of the interest conveyed (exclusive of the value of an encumbrance remaining at the time of sale) exceeds one hundred dollars ($100.00), a tax at the rate of $0.275 of each five hundred dollars ($500.00) or fractional part of five hundred dollars ($500.00). (Prior code § 10-402)

The tax imposed under Section 3.08.020 shall be paid by the person who makes, signs or issues the instrument subject to the tax, or for whose use or benefit the instrument is made, signed or issued.

(Prior code § 10-403)

The tax imposed does not apply to an instrument in writing given to secure a debt. (Prior code § 10-404)

Any deed, instrument or writing to which the United States or any instrumentality thereof, any state or territory or political subdivision thereof is a party shall be exempt from any tax imposed under this chapter when the exempt agency is acquiring title. Other exemptions from this tax are as follows: A. Inapplicability to Deed Instrument or Writing to Beneficiary or Mortgagee Taken in Lieu of Foreclosure— Exception—Notations Required on Deed, etc., Affidavit. Any tax imposed pursuant to this chapter shall not apply with respect to any deed, instrument or writing to a beneficiary or mortgagee, which is taken from the mortgagor or trustor as a result of or in lieu of foreclosure; provided, that such tax shall apply to the extent that the consideration exceeds the unpaid debt, including accrued interest and cost of foreclosure. Consideration, unpaid debt amount and identification of grantee as beneficiary or mortgagee shall be noted on the deed, instrument or writing or stated in an affidavit or declaration under penalty of perjury for tax purposes. B. Deed, Instrument or Other Writing Which Purports to Transfer, Divide or Allocate Property Assets Between Spouses Under Judgment of Dissolution of Marriage, Separation or Agreement in Contemplation of Judgment or Order. 1. Any tax imposed pursuant to this chapter shall not apply with respect to any deed, instrument or other writing which purports to transfer, divide or allocate community, quasi-community or quasi-marital property assets between spouses for the purpose of effecting a division of community, quasi-community or quasi- marital property which is required by a judgment decreeing a dissolution of the marriage or legal separation, by a judgment of nullity, or by any other judgment or order rendered pursuant to the Family Code, or by a written agreement between the spouses, executed in contemplation of any such judgment or order, whether or not the written agreement is incorporated as part of any of those judgments or orders. 2. In order to qualify for the exemption provided in subdivision 1 of this subsection, the deed, instrument or other writing shall include a written recital, signed by either spouse, stating that the deed, instrument or other writing is entitled to the exemption.

C. Deed, Instruction or Other Writing for Conveyance of Realty by State or Political Subdivision or Agency With Agreement for Purchaser to Reconvey. Any tax imposed pursuant to this chapter shall not apply with respect to any deed, instrument or other writing by which realty is conveyed by the state of California, any political subdivision thereof, or agency or instrumentality of either thereof, pursuant to an agreement whereby the purchaser agrees to immediately reconvey the realty to the exempt agency. D. Deed, Instrument or Other Writing for Conveyance by State, Political Subdivision or Agency of Realty Financed by Obligations Issued by Nonprofit Corporation. Any tax imposed pursuant to this chapter shall not apply with respect to any deed, instrument or other writing by which the state of California, any political subdivision thereof, or agency or instrumentality of either thereof, improvement of which was financed or refinanced by obligations issued by the nonprofit corporation on behalf of a governmental unit, within the meaning of Section 1.103-1(b) of Title 26 of the Code of Federal Regulations. (Ord. 98-1 § 12; prior code § 10-405)

The tax imposed does not apply to a conveyance to make effective a plan of reorganization or adjustment: A. Confirmed under the Federal Bankruptcy Act; B. Approved in an equity receivership proceeding in a court involving a railroad corporation, as defined in subdivision (m) of Section 205 of Title 11 of the United States Code as amended; C. Approved in an equity receivership proceeding in a court involving a corporation, as defined in subdivision (3) of section 506 of Title 11 of the United States Code, as amended; or D. Whereby a mere change in identity, form or place of organization is affected. Subsections A through D of this section only apply if the filing of instrument of transfer or conveyance occurs within five years from the date of confirmation, approval or change. (Prior code § 10-406)

The tax does not apply to the making of conveyances to make effective an order of the Securities and Exchange Commission, as defined in subdivision (a) of Section 1083 of the Internal Revenue Code of 1954

if: A. The order of the Securities and Exchange Commission recites that the conveyance is necessary or appropriate to carry out Section 79k of Title 15 of the United States Code, relating to the Public Utility Holding Company Act of 1935; and B. The order specifies the property which is ordered to be conveyed. (Prior code § 10-407)

A. In the case of realty held by a partnership, no levy is imposed by reason of transfer of an interest in a partnership if: 1. The partnership is a continuing partnership within the meaning of Section 708 of the Internal Revenue Code of 1954; and 2. The continuing partnership continues to hold the realty concerned. B. If there is a termination of a partnership within the meaning of Section 708 of the Internal Revenue Code of 1954, for purposes of this chapter the partnership shall be treated as having executed an instrument whereby there was conveyed for fair market value (exclusive of the value of an encumbrance remaining) all realty held by the partnership at the time of termination. C. Not more than one tax may be imposed by reason of a termination described in subsection B of this section, any transfer pursuant to it, with respect to the realty held by the partnership at the time of termination. (Prior code § 10-408)

The County Recorder shall administer this chapter in conformity with Part 6.7 of Division 2 of the Revenue and Taxation Code and a county ordinance adopted pursuant to it. (Prior code § 10-409)

A claim for refund of the tax imposed is governed by Chapter 5 of Part 9 of Division 1 of the Revenue and Taxation Code of the state of California beginning with Section 5096. (Prior code § 10-410)