Pinole Municipal Code Ch. 3.16 Real Property Transfer Tax

* For statutory provisions authorizing cities to impose a tax on transfers of real property, see Rev. and Tax. Code §11901 et seq.

The tax imposed under this chapter is solely for the purpose of raising income and revenue which is necessary to pay the usual and current expenses of conducting the municipal government of the city. (Ord. 566 § 2(part), 1994).

As used in this chapter:

A. REAL PROPERTY and REALTY. Real property as defined by and under the laws of the state of California.

B. VALUE OF CONSIDERATION. The total consideration, valued in money of the United States, paid or delivered, or contracted to be paid or delivered in return for the transfer of real property, including the amount of any indebtedness existing immediately prior to the transfer which is secured by a lien, deed of trust, or other encumbrance on the property conveyed and which continues to be secured by such lien, deed of trust or encumbrance after said transfer, and also including the amount of any indebtedness which is secured by a lien, deed of trust or encumbrance given or placed upon the property in connection with the transfer to secure the payment of the purchase price or any part thereof which remains unpaid at the time of the transfer. Value of the consideration also includes the amount of any special assessment levied or imposed upon the property by a public body, district or agency, where said special assessment is a lien or encumbrance on the property and the purchaser or transferee agrees to pay such special assessment or takes the property subject to the lien of such special assessment. The value of any lien or encumbrance of a type other than those which are hereinabove specifically included, existing immediately prior to the transfer, and remaining after the transfer, shall not be included in determining the value of the consideration. If the value of the consideration cannot be definitely determined, or is left open to be fixed by future contingencies, value of consideration shall be deemed to mean the fair market value of the property at the time of transfer, after deducting the amount of any lien or encumbrance, if any, of a type which would be excluded in determining the value of the consideration pursuant to the above provisions of this section. (Ord. 566 § 2(part), 1994).

There is imposed on each deed, instrument or writing by which any lands, tenements, or other realty sold within the city shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his, her or their direction, when the consideration for, or value of the interest of property conveyed exceeds one hundred dollars, a tax at the rate of twenty-seven and one-half cents for each five hundred dollars or fractional part thereof. (Ord. 97-111 § 1, 1997: Ord. 566 § 2(part), 1994).

Any person who makes a transfer which is subject to the tax imposed under Section 3.16.020 of this chapter, and any person or persons to whom such transfer is made, shall be jointly and severally liable for payment of the tax imposed under Section 3.16.020. (Ord. 566 § 2(part), 1994).

The tax imposed under this chapter is due and payable at the time the deed, instrument or writing effecting a transfer subject to the tax is delivered, and is delinquent if unpaid at the time of recordation thereof. In the event that the tax is not paid prior to becoming delinquent, a delinquency penalty of fifteen percent of the amount of tax shall accrue. In the event a portion of the tax is unpaid prior to becoming delinquent, the penalty shall only accrues as to the portion remaining unpaid. An additional penalty of twenty percent shall accrue if the tax remains unpaid on the ninetieth day following the date of the original delinquency. Interest shall accrue at the rate of one percent a month, or fraction thereof, on the amount of tax, exclusive of penalties, from the date the tax becomes delinquent to the date of payment. Interest and penalty accrued shall become part of the tax. (Ord. 566 § 2 (part), 1994).

Any tax imposed pursuant to this chapter shall not apply to any instrument in writing given to secure a debt. (Ord. 566 § 2(part), 1994).

Any tax imposed pursuant to this chapter shall not apply 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 said deed, instrument or writing, or stated in an affidavit or declaration under penalty of perjury for tax purposes. (Ord. 566 § 2(part), 1994).

The United States or any agency or instrumentality thereof or the state of California or any political subdivision thereof shall not be liable for any tax imposed pursuant to this chapter with respect to any deed, instrument, or writing to which it is a party, but the tax may be collected by assessment from any other party liable therefor. (Ord. 566 § 2(part), 1994).

Any tax imposed pursuant to this chapter shall not apply to the making, delivering or filing of conveyances to make effective any plan or reorganization or adjustment:

A. Confirmed under the Federal Bankruptcy Act, as amended;

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 effected. Subsections A through D of this section shall only apply if the making, delivering or filing of instruments of transfer or conveyance occurs within five years from the date of such confirmation, approval or change. (Ord. 566 § 2(part), 1994).

Any tax imposed pursuant to this chapter shall not apply to the making, delivering or filing of conveyances to make effective any order of the Securities and Exchange Commission, as defined in subdivision (a) of Section 1083 of the Internal Revenue Code of 1954, but only if:

A. The order of the Securities and Exchange Commission in obedience to which such conveyance is made recites that such conveyance is necessary or appropriate to effectuate the provisions of Section 79k of Title 15 of the United States Code, relating to the Public Utility Holding Company Act of 1935;

B. Such order specifies the property which is ordered to be conveyed;

C. Such conveyance is made in obedience to such order. (Ord. 566 § 2(part), 1994).

A. In the case of any realty held by a partnership, no levy shall be imposed pursuant to this chapter by reason of any transfer of an interest in a partnership or otherwise, if:

1. Such partnership, or another partnership, is considered a continuing partnership within the meaning of Section 708 of the Internal Revenue Code of 1954; and

2. Such continuing partnership continues to hold the realty concerned.

B. If there is a termination of any partnership within the meaning of Section 708 of the Internal Revenue Code of 1954, for purposes of this chapter, such partnership, shall be treated as having executed an instrument whereby there was conveyed, for fair market value, exclusive of the value of any lien or encumbrance remaining thereon, all realty held by such partnership at the time of such termination.

C. Not more than one tax shall be imposed pursuant to this chapter by reason of a termination described in subsection B of this section, and any transfer pursuant thereto, with respect to the realty held by such partnership at the time of such termination. (Ord. 566 § 2(part), 1994).

Any tax imposed pursuant to this chapter shall not apply to any transfer of property from one spouse to the other in accordance with the terms of a decree of dissolution or in fulfillment of a property settlement incident thereto; provided, however, that such property was acquired by the husband and wife or husband or wife prior to the final decree of dissolution. (Ord. 566 § 2(part), 1994).

The county recorder shall use the definition of “value of consideration” found in Section 3.16.015 of this chapter when computing the tax to be paid pursuant to this chapter. Otherwise, the county recorder shall administer this chapter in conformity with the provisions of Part 6.7 of Division 2 of the Revenue and Taxation Code (commencing at Section 11901), the provisions of any county ordinance adopted pursuant thereto, and any contractual agreement between the city and the county. The county shall promptly remit to the city all funds collected pursuant to this chapter which exceed the amount the county is specifically authorized to retain. (Ord. 566 § 2 (part), 1994).

A. Any action or proceeding challenging the constitutionality or validity of the tax imposed by this chapter shall be brought according to the procedures and within the sixty-day limitations period set forth in Chapter 9 of Title X of Part 2 of the Code of Civil Procedure (commencing with Section 860). No challenge to the constitutionality or validity of this chapter shall be made other than within the time and manner specified therein.

B. Any request for a refund not involving a challenge to the validity or constitutionality of the tax imposed by this chapter shall be presented in a claim filed within one year of payment of the tax sought to be refunded. Any action brought against the city for failure to refund such taxes must be commenced within six months after the date the claim is acted upon or deemed rejected by the City Council . (Ord. 566 § 2(part), 1994).

The amount of any tax, penalty and interest imposed under the provisions of this chapter shall be deemed a debt to the city. Any person owing money to the city under the provisions of this chapter shall be liable to an action brought in the name of the city for the recovery of such amount. (Ord. 566 § 2(part), 1994).

Claims for refund of taxes imposed pursuant to this chapter shall be governed by the provisions of Chapter 5 (commencing with Section 5096) of Part 9 of Division 1 of the Revenue and Taxation Code of the state of California. (Ord. 566 § 2(part), 1994).