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Introduced Version Senate Bill 35 History

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Key: Green = existing Code. Red = new code to be enacted
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.
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