Bill Text: NY A10758 | 2019-2020 | General Assembly | Introduced


Bill Title: Authorizes the town of Blooming Grove to establish community preservation funds; establishes a real estate transfer tax with revenues therefrom to be deposited in said community preservation fund.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2020-07-09 - referred to local governments [A10758 Detail]

Download: New_York-2019-A10758-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          10758

                   IN ASSEMBLY

                                      July 9, 2020
                                       ___________

        Introduced  by COMMITTEE ON RULES -- (at request of M. of A. Schmitt) --
          read once and referred to the Committee on Local Governments

        AN ACT to amend the town law, in relation to  authorizing  the  town  of
          Blooming  Grove,  county of Orange to establish community preservation
          funds; to amend the tax law, in relation to authorizing  the  town  of
          Blooming  Grove  to  impose  a  real estate transfer tax with revenues
          therefrom to be deposited in said  community  preservation  fund;  and
          providing for the repeal of certain provisions upon expiration thereof

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. The town law is amended by adding a  new  section  64-k  to
     2  read as follows:
     3    §  64-k. Town of Blooming Grove preservation funds. 1. As used in this
     4  section, the following words and terms shall have  the  following  mean-
     5  ings:
     6    (a) "Town" means the town of Blooming Grove.
     7    (b)  "Community  preservation"  shall  mean  and  include  any  of the
     8  purposes outlined in subdivision five of this section.
     9    (c) "Board" means the advisory board required pursuant to  subdivision
    10  six of this section.
    11    (d)  "Fund"  means the community preservation fund created pursuant to
    12  subdivision two of this section.
    13    (e) "Tax" shall mean the real estate transfer tax imposed pursuant  to
    14  section  fourteen  hundred  thirty-nine-bbb  of  the  tax law or, if the
    15  context clearly indicates, shall  mean  the  real  estate  transfer  tax
    16  imposed pursuant to article thirty-one of the tax law.
    17    2.  The  town  board  of  the  town of Blooming Grove is authorized to
    18  establish by local law a community preservation  fund  pursuant  to  the
    19  provisions  of this section. Deposits into the fund may include revenues
    20  of the local government from whatever source and  shall  include,  at  a
    21  minimum, all revenues from a tax imposed upon the transfer of real prop-
    22  erty interests in such town pursuant to article thirty-one-A-four of the
    23  tax  law.  The fund shall also be authorized to accept gifts of any such
    24  interests in land or of funds. Interest accrued by monies deposited into

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16824-02-0

        A. 10758                            2

     1  the fund shall be credited to the fund. In no event shall monies  depos-
     2  ited  in the fund be transferred to any other account. Nothing contained
     3  in this section shall be construed to prevent the financing in whole  or
     4  in  part,  pursuant to the local finance law, of any acquisition author-
     5  ized pursuant to this section. Monies from the fund may be  utilized  to
     6  repay  any  indebtedness  or  obligations incurred pursuant to the local
     7  finance law consistent with effectuating the purposes of this section.
     8    3. The purposes of the fund shall be exclusively: (a) to  implement  a
     9  plan  for  the  preservation  of community character as required by this
    10  section, (b) to acquire interests or rights in  real  property  for  the
    11  preservation  of  community character within the town including villages
    12  therein in accordance with such plan and  in  cooperation  with  willing
    13  sellers,  (c)  to establish a bank pursuant to a transfer of development
    14  rights program consistent with section two hundred sixty-one-a  of  this
    15  chapter,  and  (d)  to  provide a management and stewardship program for
    16  such interests and  rights  consistent  with  subdivision  ten  of  this
    17  section  and in accordance with such plan designed to preserve community
    18  character. Not more than ten percent of the fund shall be  utilized  for
    19  the management and stewardship program.
    20    4.  If  the implementation of the community preservation project plan,
    21  adopted by the town board, as provided  in  subdivision  seven  of  this
    22  section,  has  been  completed,  and  funds are no longer needed for the
    23  purposes outlined in this subdivision, then any remaining monies in  the
    24  fund  shall  be applied to reduce any bonded indebtedness or obligations
    25  incurred to effectuate the purposes of this section.
    26    5. Preservation of community character shall involve one  or  more  of
    27  the following:
    28    (a) preservation of open space;
    29    (b) establishment of parks, nature preserves, or recreation areas;
    30    (c)  preservation  of  land which is predominantly viable agricultural
    31  land, as defined in subdivision seven of section three  hundred  one  of
    32  the  agriculture  and  markets law, or unique and irreplaceable agricul-
    33  tural land, as defined in subdivision six of section three  hundred  one
    34  of the agriculture and markets law;
    35    (d) preservation of lands of exceptional scenic value;
    36    (e) preservation of freshwater marshes or other wetlands;
    37    (f) preservation of aquifer recharge areas;
    38    (g) preservation of undeveloped beach-lands or shoreline;
    39    (h)  establishment  of wildlife refuges for the purpose of maintaining
    40  native animal species diversity, including  the  protection  of  habitat
    41  essential to the recovery of rare, threatened or endangered species;
    42    (i) preservation of unique or threatened ecological areas;
    43    (j)  preservation of rivers and river areas in a natural, free-flowing
    44  condition;
    45    (k) preservation of forested land;
    46    (l) preservation of public access to lands for  public  use  including
    47  stream rights and waterways;
    48    (m)  preservation  of historic places and properties listed on the New
    49  York state register of historic places and/or protected under a  munici-
    50  pal historic preservation ordinance or law; and
    51    (n) undertaking any of the purposes of this subdivision in furtherance
    52  of the establishment of a greenbelt.
    53    6.  The town board which has established a community preservation fund
    54  shall create an advisory board to review  and  make  recommendations  on
    55  proposed  acquisitions  of  interests in real property using monies from
    56  the fund. Such board shall consist of five or seven legal  residents  of

        A. 10758                            3

     1  the  municipality who shall serve without compensation. No member of the
     2  local legislative body shall serve on  the  board.  A  majority  of  the
     3  members  of  the board shall have demonstrated experience with conserva-
     4  tion or land preservation activities. The board shall act in an advisory
     5  capacity to the town board. At least one member of the board shall be an
     6  active farmer. Board members' terms shall be staggered.
     7    7.  The town board which has established a community preservation fund
     8  shall, by local law, adopt a community preservation project  plan.  Such
     9  plan shall list every project which the town plans to undertake pursuant
    10  to  the  community  preservation  fund.    Such plan shall provide for a
    11  detailed evaluation of all available land use  alternatives  to  protect
    12  community character, including but not limited to: (a) fee simple acqui-
    13  sition,  (b)  zoning  regulations, including density reductions, cluster
    14  development, and site plan and  design  requirements,  (c)  transfer  of
    15  development  rights,  (d)  the  purchase  of development rights, and (e)
    16  scenic and conservation easements. Said evaluation shall be as  specific
    17  as  practicable  as  to each parcel selected for inclusion in such plan.
    18  Such plan shall establish the priorities  for  preservation,  and  shall
    19  include the preservation of farmland as its highest priority. Funds from
    20  the  community preservation fund may only be expended for projects which
    21  have been included in such plan. Such plan shall  be  updated  not  less
    22  than  once  every five years, but in no event until at least three years
    23  after the adoption of the original plan. A copy of such  plan  shall  be
    24  filed  with  the town clerk, the commissioner of environmental conserva-
    25  tion, the commissioner of agriculture and markets and  the  commissioner
    26  of  the office of parks, recreation and historic preservation. Such plan
    27  shall be completed at least sixty days  before  the  submission  of  the
    28  mandatory  referendum  required by section fourteen hundred thirty-nine-
    29  bbb of the tax law. If at the time of referendum, the town shall have in
    30  place an adopted open space plan, such plan shall be  deemed  sufficient
    31  to  waive  the  preservation  plan requirements of this subdivision. Any
    32  monies expended from the community preservation plan shall,  however  be
    33  consistent  with the purposes outlined in subdivisions three and five of
    34  this section and with the open space plan for a  period  not  to  exceed
    35  twelve months.
    36    8.  The town board which has established a community preservation fund
    37  pursuant to this section may study and consider establishing a  transfer
    38  of development rights program to protect community character as provided
    39  for  by  section two hundred sixty-one-a of this chapter. All provisions
    40  of such section two hundred sixty-one-a shall be complied  with.  If  at
    41  any  time  during the life of the community preservation fund a transfer
    42  of development rights program  is  established,  the  town  may  utilize
    43  monies  from the community preservation fund in order to create and fund
    44  a central bank of the transfer of development rights program. If at  any
    45  time  during  the life of the community preservation fund, a transfer of
    46  development rights program is repealed by the town, all monies from  the
    47  central bank shall be returned to the community preservation fund.
    48    9.  No interests or rights in real property shall be acquired pursuant
    49  to this section until a public hearing is held as  required  by  section
    50  two hundred forty-seven of the general municipal law; provided, however,
    51  that  nothing  herein  shall prevent the town board from entering into a
    52  conditional purchase agreement before a  public  hearing  is  held.  Any
    53  resolution  of  the  town  board  approving  an acquisition of rights or
    54  interest in real property pursuant to  this  section,  shall  find  that
    55  acquisition  was  the  best  alternative for the protection of community
    56  character of all the reasonable alternatives available to the town.

        A. 10758                            4

     1    10. Rights or interest in real  property  acquired  pursuant  to  this
     2  section  shall  be administered and managed in a manner which (a) allows
     3  public use and enjoyment  in  a  manner  compatible  with  the  natural,
     4  scenic,  historic  and open space character of such lands; (b) preserves
     5  the  native  biological diversity of such lands; (c) with regard to open
     6  spaces, limits improvements to enhancing access for passive use of  such
     7  lands  such  as nature trails, boardwalks, bicycle paths, and peripheral
     8  parking areas provided that such improvements do not degrade the ecolog-
     9  ical value of the land or threaten essential wildlife habitat;  and  (d)
    10  preserves  cultural  property  consistent  with  accepted  standards for
    11  historic preservation.  Notwithstanding  any  other  provision  of  this
    12  subdivision  there shall be no right to public use and enjoyment of land
    13  used in conjunction with a farm  operation  as  defined  by  subdivision
    14  eleven  of section three hundred one of the agriculture and markets law.
    15  In furthering the purposes of this section,  the  town  may  enter  into
    16  agreements  with  corporations organized under the not-for-profit corpo-
    17  ration law and engage in land trust activities to manage lands including
    18  less than fee interests acquired pursuant  to  the  provisions  of  this
    19  section, provided that any such agreement shall contain a provision that
    20  such  corporation  shall  keep the lands accessible to the public unless
    21  such corporation shall demonstrate to the satisfaction of the town  that
    22  public  accessibility  would  be detrimental to the lands or any natural
    23  resources associated therewith.
    24    11. Rights or interests in real property  acquired  with  monies  from
    25  such  fund  shall  not be sold, leased, exchanged, donated, or otherwise
    26  disposed of or used for  other  than  the  purposes  permitted  by  this
    27  section  without  the  express authority of an act of the state legisla-
    28  ture, which shall provide for the substitution of other lands  of  equal
    29  environmental  value  and  fair  market  value and reasonably equivalent
    30  usefulness and location to those to be discontinued,  sold  or  disposed
    31  of, and such other requirements as shall be approved by the state legis-
    32  lature. Any conservation easements, created under title three of article
    33  forty-nine  of  the  environmental  conservation law, which are acquired
    34  with monies from such fund may  only  be  modified  or  extinguished  as
    35  provided  in section 49-0307 of such law.  Nothing in this section shall
    36  preclude  the  town,  by  local  law,   from   establishing   additional
    37  restrictions  to  the  alienation  of  lands  acquired  pursuant to this
    38  section. This subdivision shall not apply to  the  sale  of  development
    39  rights by the town acquired pursuant to this section, where said sale is
    40  made  by  a  central bank created by the town, pursuant to a transfer of
    41  development rights program established by the town pursuant  to  section
    42  two  hundred sixty-one-a of this chapter, provided, however that (a) the
    43  lands from which said development  rights  were  acquired  shall  remain
    44  preserved  in  perpetuity  by a permanent conservation easement or other
    45  instrument that similarly preserves the community  character  referenced
    46  in subdivision five of this section, and (b) the proceeds from such sale
    47  shall be deposited in the community preservation fund.
    48    §  2. The tax law is amended by adding a new article 31-A-4 to read as
    49  follows:
    50                               ARTICLE 31-A-4
    51         TAX ON REAL ESTATE TRANSFERS IN THE TOWN OF BLOOMING GROVE
    52  Section 1439-aaa. Definitions.
    53          1439-bbb. Imposition of tax.
    54          1439-ccc. Payment of tax.
    55          1439-ddd. Liability for tax.
    56          1439-eee. Exemptions.

        A. 10758                            5

     1          1439-fff. Credit.
     2          1439-ggg. Cooperative housing corporation transfers.
     3          1439-hhh. Designation of agents.
     4          1439-iii. Liability of recording officer.
     5          1439-jjj. Refunds.
     6          1439-kkk. Deposit and disposition of revenue.
     7          1439-lll. Judicial review.
     8          1439-mmm. Apportionment.
     9          1439-nnn. Miscellaneous.
    10          1439-ooo. Returns to be secret.
    11          1439-ppp. Foreclosure proceedings.
    12    §  1439-aaa.  Definitions. When used in this article, unless otherwise
    13  expressly stated, the following words and terms shall have the following
    14  meanings:
    15    1. "Person" means an individual, partnership, limited liability compa-
    16  ny, society, association,  joint  stock  company,  corporation,  estate,
    17  receiver,  trustee,  assignee,  referee  or any other person acting in a
    18  fiduciary or representative capacity, whether appointed by  a  court  or
    19  otherwise,  any  combination of individuals, and any other form of unin-
    20  corporated enterprise owned or conducted by two or more persons.
    21    2. "Controlling interest" means (a) in  the  case  of  a  corporation,
    22  either  fifty  percent or more of the total combined voting power of all
    23  classes of stock of such corporation, or fifty percent or  more  of  the
    24  capital,  profits  or  beneficial  interest in such voting stock of such
    25  corporation, and (b) in the case of a partnership, association, trust or
    26  other entity, fifty percent or more of the capital, profits  or  benefi-
    27  cial interest in such partnership, association, trust or other entity.
    28    3.  "Real  property"  means every estate or right, legal or equitable,
    29  present or future, vested or contingent, in lands, tenements or  heredi-
    30  taments, including buildings, structures and other improvements thereon,
    31  which are located in whole or in part within the town of Blooming Grove.
    32  It shall not include rights to sepulture.
    33    4.  "Consideration"  means  the  price actually paid or required to be
    34  paid for the real property or interest therein, including payment for an
    35  option or contract to purchase real property, whether or  not  expressed
    36  in  the deed and whether paid or required to be paid by money, property,
    37  or any other thing of  value.  It  shall  include  the  cancellation  or
    38  discharge  of  an  indebtedness or obligation. It shall also include the
    39  amount of any mortgage, purchase money mortgage, lien  or  other  encum-
    40  brance,  whether  or not the underlying indebtedness is assumed or taken
    41  subject to.
    42    (a) In the case of a creation of a leasehold interest or the  granting
    43  of  an  option  with  use  and occupancy of real property, consideration
    44  shall include, but not be limited to, the value of the rental and  other
    45  payments  attributable  to the use and occupancy of the real property or
    46  interest therein, the value of any amount paid for an option to purchase
    47  or renew and the value of rental or other payments attributable  to  the
    48  exercise of any option to renew.
    49    (b)  In  the  case of a creation of a subleasehold interest, consider-
    50  ation shall include, but not be limited to, the value  of  the  sublease
    51  rental  payments attributable to the use and occupancy of the real prop-
    52  erty, the value of any amount paid for an option to renew and the  value
    53  of  rental  or other payments attributable to the exercise of any option
    54  to renew less the value of the remaining  prime  lease  rental  payments
    55  required to be made.

        A. 10758                            6

     1    (c) In the case of a controlling interest in any entity that owns real
     2  property,  consideration  shall  mean  the fair market value of the real
     3  property or interest therein, apportioned based on the percentage of the
     4  ownership interest transferred or acquired in the entity.
     5    (d)  In the case of an assignment or surrender of a leasehold interest
     6  or the assignment or surrender of an option or contract to purchase real
     7  property, consideration shall not include the  value  of  the  remaining
     8  rental  payments required to be made pursuant to the terms of such lease
     9  or the amount to be paid for the real property pursuant to the terms  of
    10  the option or contract being assigned or surrendered.
    11    (e) In the case of (1) the original conveyance of shares of stock in a
    12  cooperative housing corporation in connection with the grant or transfer
    13  of a proprietary leasehold by the cooperative corporation or cooperative
    14  plan  sponsor, and (2) the subsequent conveyance by the owner thereof of
    15  such stock in a cooperative housing corporation in connection  with  the
    16  grant  or  transfer  of  a  proprietary leasehold for a cooperative unit
    17  other than an individual residential unit, consideration shall include a
    18  proportionate share of the unpaid principal of any mortgage on the  real
    19  property  of  the cooperative housing corporation comprising the cooper-
    20  ative dwelling or dwellings.  Such share shall be determined  by  multi-
    21  plying  the  total  unpaid  principal of the mortgage by a fraction, the
    22  numerator of which shall be the number of shares of stock being conveyed
    23  in the cooperative housing corporation in connection with the  grant  or
    24  transfer  of  a proprietary leasehold and the denominator of which shall
    25  be the total number of shares of stock in the cooperative housing corpo-
    26  ration.
    27    5. "Conveyance" means the transfer or transfers  of  any  interest  in
    28  real  property  by  any  method,  including  but  not  limited to, sale,
    29  exchange, assignment, surrender, mortgage foreclosure, transfer in  lieu
    30  of  foreclosure,  option,  trust  indenture,  taking  by eminent domain,
    31  conveyance upon liquidation or by a receiver, or transfer or acquisition
    32  of a controlling interest in any entity with an interest in real proper-
    33  ty. Transfer of an interest in real property shall include the  creation
    34  of  a  leasehold  or  sublease only where (a) the sum of the term of the
    35  lease or sublease and any options for renewal exceeds forty-nine  years,
    36  (b)  substantial  capital  improvements are or may be made by or for the
    37  benefit of the lessee or sublessee, and (c) the lease or sublease is for
    38  substantially all  of  the  premises  constituting  the  real  property.
    39  Notwithstanding  the  foregoing,  conveyance  of real property shall not
    40  include a conveyance made pursuant to devise,  bequest  or  inheritance;
    41  the  creation,  modification,  extension,  spreading, severance, consol-
    42  idation, assignment, transfer, release or satisfaction of a mortgage;  a
    43  mortgage  subordination  agreement,  a  mortgage severance agreement, an
    44  instrument given to perfect or correct a recorded mortgage; or a release
    45  of lien of tax pursuant to this chapter or the internal revenue code.
    46    6. "Interest in the real property" includes title in fee, a  leasehold
    47  interest, a beneficial interest, an encumbrance, development rights, air
    48  space  and  air  rights,  or any other interest with the right to use or
    49  occupancy of real property or the right to  receive  rents,  profits  or
    50  other income derived from real property. It shall also include an option
    51  or  contract  to purchase real property. It shall not include a right of
    52  first refusal to purchase real property.
    53    7. "Grantor" means the person making the conveyance of  real  property
    54  or  interest  therein. Where the conveyance consists of a transfer or an
    55  acquisition of a controlling interest in an entity with an  interest  in
    56  real property, "grantor" means the entity with an interest in real prop-

        A. 10758                            7

     1  erty  or  a  shareholder  or  partner  transferring stock or partnership
     2  interest, respectively.
     3    8.  "Grantee"  means  the person who obtains real property or interest
     4  therein as a result of a conveyance.
     5    9. "Fund" means a community  preservation  fund  created  pursuant  to
     6  section sixty-four-k of the town law.
     7    10.  "Recording  officer"  means  the  county  clerk  of the county of
     8  Orange.
     9    11. "Town" means the town of Blooming Grove, county of Orange.
    10    12. "Treasurer" means the treasurer of the county of Orange.
    11    13. "Town supervisor" means the town supervisor of the town of  Bloom-
    12  ing Grove.
    13    14.  "Tax" shall mean the real estate transfer tax imposed pursuant to
    14  section fourteen hundred thirty-nine-bbb of  this  article  or,  if  the
    15  context  clearly  indicates,  shall  mean  the  real estate transfer tax
    16  imposed pursuant to article thirty-one of this chapter.
    17    15. "Residential real property"  means  property  which  satisfies  at
    18  least one of the following conditions:
    19    (a)  the  property classification code assigned to the property on the
    20  latest final assessment roll, as reported on the transfer  report  form,
    21  indicates  that  the  property  is  a one, two or three family home or a
    22  rural residence; or
    23    (b) the transfer report indicates that the property is a one,  two  or
    24  three  family  residential  property  that has been newly constructed on
    25  vacant land; or
    26    (c) the transfer report form indicates that the property is a residen-
    27  tial condominium.
    28    § 1439-bbb. Imposition of tax. Notwithstanding any other provisions of
    29  law to the contrary, the town of Blooming Grove, acting through its town
    30  board, is hereby authorized and empowered to adopt a local law  imposing
    31  in such town a tax on each conveyance of real property or interest ther-
    32  ein  not  to  exceed  a  maximum of three-quarters of one percent of the
    33  consideration for such conveyance, subject to the exemptions  set  forth
    34  in  section  fourteen  hundred thirty-nine-eee of this article; any such
    35  local law shall fix the rate of such tax. Provided,  however,  any  such
    36  local law imposing, repealing or reimposing such tax shall be subject to
    37  a mandatory referendum pursuant to section twenty-three of the municipal
    38  home  rule law. Notwithstanding the foregoing, prior to adoption of such
    39  local law, the town must establish a community preservation fund  pursu-
    40  ant  to  section  sixty-four-k  of  the town law. Revenues from such tax
    41  shall be deposited in such fund and may be used solely for the  purposes
    42  of  such fund. Such local law shall apply to any conveyance occurring on
    43  or after the first day of a month to be designated by such  town  board,
    44  which is not less than sixty days after the enactment of such local law,
    45  but  shall  not apply to conveyances made on or after such date pursuant
    46  to binding written contracts entered into prior to such  date,  provided
    47  that  the date of execution of such contract is confirmed by independent
    48  evidence such as the recording of the contract, payment of a deposit  or
    49  other facts and circumstances as determined by the treasurer.
    50    §  1439-ccc.  Payment  of tax. 1. The real estate transfer tax imposed
    51  pursuant to this article shall be paid to the treasurer or the recording
    52  officer acting as the agent of the treasurer upon  designation  as  such
    53  agent  by  the treasurer. Such tax shall be paid at the same time as the
    54  real estate transfer tax imposed by article thirty-one of  this  chapter
    55  is  required  to  be  paid.  Such  treasurer  or recording officer shall

        A. 10758                            8

     1  endorse upon each deed or instrument effecting a  conveyance  a  receipt
     2  for the amount of the tax so paid.
     3    2.  A  return  shall  be  required  to be filed with such treasurer or
     4  recording officer for purposes of the real estate transfer  tax  imposed
     5  pursuant  to this article at the same time as a return is required to be
     6  filed for purposes of the real estate transfer tax  imposed  by  article
     7  thirty-one  of  this  chapter. The treasurer shall prescribe the form of
     8  return, the information which it shall contain,  and  the  documentation
     9  that  shall  accompany  the  return. Said form shall be identical to the
    10  real estate transfer tax return required to be filed pursuant to section
    11  fourteen hundred nine of this chapter, except that the  treasurer  shall
    12  adapt  said  form  to  reflect  the  provisions in this chapter that are
    13  inconsistent, different, or in addition to  the  provisions  of  article
    14  thirty-one  of  this  chapter.    The  real  estate transfer tax returns
    15  required to be filed pursuant to this section  shall  be  preserved  for
    16  three  years  and  thereafter  until such treasurer or recording officer
    17  orders them to be destroyed.
    18    3. The recording officer shall not record an  instrument  effecting  a
    19  conveyance unless the return required by this section has been filed and
    20  the  tax  imposed  pursuant  to  this  article  shall  have been paid as
    21  required in this section.
    22    § 1439-ddd. Liability for tax. 1. The real estate transfer  tax  shall
    23  be paid by the grantee. If the grantee has failed to pay the tax imposed
    24  pursuant  to this article or if the grantee is exempt from such tax, the
    25  grantor shall have the duty to pay the tax. Where the  grantor  has  the
    26  duty  to pay the tax because the grantee has failed to pay the tax, such
    27  tax shall be the joint and several liability  of  the  grantee  and  the
    28  grantor.
    29    2. For the purpose of the proper administration of this article and to
    30  prevent evasion of the tax hereby imposed, it shall be presumed that all
    31  conveyances  are  subject  to  the tax. Where the consideration includes
    32  property other than money, it shall be presumed that  the  consideration
    33  is the fair market value of the real property or interest therein. These
    34  presumptions  shall prevail until the contrary is proven, and the burden
    35  of proving the contrary shall be on the person liable for payment of the
    36  tax.
    37    § 1439-eee. Exemptions. 1. The following  shall  be  exempt  from  the
    38  payment of the real estate transfer tax imposed by this article:
    39    (a)  The state of New York, or any of its agencies, instrumentalities,
    40  political subdivisions,  or  public  corporations  (including  a  public
    41  corporation  created  pursuant  to  an agreement or compact with another
    42  state or the Dominion of Canada); and
    43    (b) The United Nations, the United States of America  or  any  of  its
    44  agencies or instrumentalities.
    45    2. The tax shall not apply to any of the following conveyances:
    46    (a)  Conveyances  to the United Nations, the United States of America,
    47  the state of New York, or any of their  instrumentalities,  agencies  or
    48  political  subdivisions  (or  any public corporation, including a public
    49  corporation created pursuant to agreement or compact with another  state
    50  or the Dominion of Canada);
    51    (b) Conveyances which are or were used to secure a debt or other obli-
    52  gation;
    53    (c)  Conveyances  which,  without  additional  consideration, confirm,
    54  correct, modify or supplement a deed previously recorded;

        A. 10758                            9

     1    (d) Conveyances of real property without consideration  and  otherwise
     2  than in connection with a sale, including deeds conveying realty as bona
     3  fide gifts;
     4    (e) Conveyances given in connection with a tax sale;
     5    (f)  Conveyances  to  effectuate  a mere change of identity or form of
     6  ownership or organization where there is no change in beneficial  owner-
     7  ship, other than conveyances to a cooperative housing corporation of the
     8  real property comprising the cooperative dwelling or dwellings;
     9    (g) Conveyances which consist of a deed of partition;
    10    (h) Conveyances given pursuant to the federal bankruptcy act;
    11    (i)  Conveyances  of real property which consist of the execution of a
    12  contract to sell real property without the  use  or  occupancy  of  such
    13  property  or the granting of an option to purchase real property without
    14  the use or occupancy of such property;
    15    (j) Conveyances of real property or a  portion  or  portions  of  real
    16  property  that  are the subject of one or more of the following develop-
    17  ment restrictions:
    18    (1) agricultural, conservation, scenic, or an open space easement,
    19    (2) covenants or restrictions prohibiting development where the  prop-
    20  erty  or  portion  of  property  being  conveyed has had its development
    21  rights permanently removed,
    22    (3) a purchase of development rights agreement where the  property  or
    23  portion of property being conveyed has had its development rights perma-
    24  nently removed,
    25    (4)  a  transfer  of  development rights agreement, where the property
    26  being conveyed has had its development rights removed,
    27    (5) real property subject to any  locally  adopted  land  preservation
    28  agreement, provided said exemption is included in the local law imposing
    29  the tax authorized by this article;
    30    (k)  Conveyances  of real property, where the property is viable agri-
    31  cultural land as defined in subdivision seven of section  three  hundred
    32  one  of  the  agriculture  and markets law and the entire property to be
    33  conveyed is to be made subject to one of  the  development  restrictions
    34  provided  for  in  subparagraph two of paragraph (j) of this subdivision
    35  provided that said development restriction precludes the  conversion  of
    36  the property to a non-agricultural use for at least eight years from the
    37  date  of  transfer,  and said development restriction is evidenced by an
    38  easement, agreement,  or  other  suitable  instrument  which  is  to  be
    39  conveyed  to  the  town  simultaneously  with the conveyance of the real
    40  property; or
    41    (l) Conveyances of real property for open space,  parks,  or  historic
    42  preservation purposes to any not-for-profit tax exempt corporation oper-
    43  ated for conservation, environmental, or historic preservation purposes.
    44    3.  An  exemption  of one hundred thousand dollars shall be allowed on
    45  the consideration of the conveyance of  improved  real  property  or  an
    46  interest  therein,  and  an exemption of fifty thousand dollars shall be
    47  allowed on the consideration of the conveyance of unimproved real  prop-
    48  erty.
    49    §  1439-fff.  Credit.  A grantee shall be allowed a credit against the
    50  tax due on a conveyance of real property to the extent tax was  paid  by
    51  such  grantee  on a prior creation of a leasehold of all or a portion of
    52  the same real property or on the granting of an option  or  contract  to
    53  purchase  all  or  a  portion of the same real property by such grantee.
    54  Such credit shall be  computed  by  multiplying  the  tax  paid  on  the
    55  creation  of  the leasehold or on the granting of the option or contract
    56  by a fraction, the numerator of which is the value of the  consideration

        A. 10758                           10

     1  used  to  compute  such tax paid which is not yet due to such grantor on
     2  the date of the subsequent conveyance (and which such grantor  will  not
     3  be entitled to receive after such date), and the denominator of which is
     4  the total value of the consideration used to compute such tax paid.
     5    §  1439-ggg.  Cooperative  housing corporation transfers. 1.  Notwith-
     6  standing the definition of "controlling interest" contained in  subdivi-
     7  sion  two of section fourteen hundred thirty-nine-aaa of this article or
     8  anything to the contrary contained in subdivision five of section  four-
     9  teen  hundred  thirty-nine-aaa of this article, the tax imposed pursuant
    10  to this article shall apply to (a) the original conveyance of shares  of
    11  stock  in a cooperative housing corporation in connection with the grant
    12  or transfer of a proprietary leasehold by the cooperative corporation or
    13  cooperative plan sponsor, and (b)  the  subsequent  conveyance  of  such
    14  stock  in a cooperative housing corporation in connection with the grant
    15  or transfer of a  proprietary  leasehold  by  the  owner  thereof.  With
    16  respect to any such subsequent conveyance where the property is an indi-
    17  vidual  residential  unit,  the  consideration for the interest conveyed
    18  shall exclude the value of any liens on certificates of stock  or  other
    19  evidences  of  an  ownership  interest in and a proprietary lease from a
    20  corporation or partnership formed for the purpose of cooperative  owner-
    21  ship  of  residential  interest  in real estate remaining thereon at the
    22  time of conveyance. In determining the tax on a conveyance described  in
    23  paragraph  (a)  of  this  subdivision,  a  credit shall be allowed for a
    24  proportionate part of the amount of any tax paid upon the conveyance  to
    25  the  cooperative housing corporation of the real property comprising the
    26  cooperative dwelling or dwellings to the  extent  that  such  conveyance
    27  effectuated a mere change of identity or form of ownership of such prop-
    28  erty  and not a change in the beneficial ownership of such property. The
    29  amount of the credit shall be determined by multiplying  the  amount  of
    30  tax paid upon the conveyance to the cooperative housing corporation by a
    31  percentage  representing the extent to which such conveyance effectuated
    32  a mere change of identity or form of ownership and not a change  in  the
    33  beneficial  ownership of such property, and then multiplying the result-
    34  ing product by a fraction, the numerator of which shall be the number of
    35  shares of stock conveyed in a transaction described in paragraph (a)  of
    36  this subdivision, and the denominator of which shall be the total number
    37  of shares of stock of the cooperative housing corporation (including any
    38  stock  held by the corporation). In no event, however, shall such credit
    39  reduce the tax, on a conveyance  described  in  paragraph  (a)  of  this
    40  subdivision,  below zero, nor shall any such credit be allowed for a tax
    41  paid more than twenty-four months prior to the date on which occurs  the
    42  first  in  a  series of conveyances of shares of stock in an offering of
    43  cooperative housing corporation shares described  in  paragraph  (a)  of
    44  this subdivision.
    45    2.  Every cooperative housing corporation shall be required to file an
    46  information return with the treasurer by July  fifteenth  of  each  year
    47  covering  the  preceding  period of January first through June thirtieth
    48  and by January fifteenth of each year covering the preceding  period  of
    49  July  first through December thirty-first. The return shall contain such
    50  information regarding the conveyance of shares of stock in  the  cooper-
    51  ative  housing  corporation as the treasurer may deem necessary, includ-
    52  ing, but not limited to, the names, addresses and  employee  identifica-
    53  tion  numbers or social security numbers of the grantor and the grantee,
    54  the number of shares conveyed,  the  date  of  the  conveyance  and  the
    55  consideration paid for such conveyance.

        A. 10758                           11

     1    §  1439-hhh.  Designation  of  agents.  The treasurer is authorized to
     2  designate the recording officer to act as his or her agent for  purposes
     3  of  collecting  the  tax authorized by this article. The treasurer shall
     4  provide for the manner in which such person may be designated as his  or
     5  her  agent  subject  to such terms and conditions as the treasurer shall
     6  prescribe.  The real estate transfer tax shall be paid to such agent  as
     7  provided in section fourteen hundred thirty-nine-ccc of this article.
     8    §  1439-iii. Liability of recording officer. A recording officer shall
     9  not be liable for any inaccuracy in the amount of tax  imposed  pursuant
    10  to  this article that he or she shall collect so long as he or she shall
    11  compute and collect such tax on the amount of consideration or the value
    12  of the interest conveyed as such amounts are provided to him or  her  by
    13  the person paying the tax.
    14    §  1439-jjj.  Refunds. Whenever the treasurer shall determine that any
    15  moneys received under the provisions of the local law  enacted  pursuant
    16  to  this  article were paid in error, he or she may cause such moneys to
    17  be refunded pursuant to such requirements as he or  she  may  prescribe,
    18  provided that any application for such refund is filed with the treasur-
    19  er within two years from the date the erroneous payment was made.
    20    §  1439-kkk.  Deposit and disposition of revenue. 1. All taxes, penal-
    21  ties and interest imposed by the town under  the  authority  of  section
    22  fourteen hundred thirty-nine-bbb of this article, which are collected by
    23  the treasurer or his or her agents, shall be deposited in a single trust
    24  fund for the town and shall be kept in trust and separate and apart from
    25  all  other  monies  in  possession of the treasurer. Moneys in such fund
    26  shall be deposited and secured in the manner provided by section ten  of
    27  the  general  municipal law.  Pending expenditure from such fund, moneys
    28  therein may be invested in the manner provided in section eleven of  the
    29  general  municipal  law. Any interest earned or capital gain realized on
    30  the moneys so deposited or invested shall accrue to and become  part  of
    31  such fund.
    32    2.  The  treasurer shall retain such amount as he or she may determine
    33  to be necessary for refunds with respect to the tax imposed by the town,
    34  under the authority of section fourteen hundred thirty-nine-bbb of  this
    35  article,  out of which the treasurer shall pay any refunds of such taxes
    36  to those taxpayers entitled to a refund pursuant to  the  provisions  of
    37  this article.
    38    3. The treasurer, after reserving such refunds, shall on or before the
    39  twelfth  day  of each month pay to the town supervisor the taxes, penal-
    40  ties and interest imposed by the town under  the  authority  of  section
    41  fourteen hundred thirty-nine-bbb of this article, collected by the trea-
    42  surer,  pursuant  to  this  article  during  the next preceding calendar
    43  month. The amount so payable shall be certified to the  town  supervisor
    44  by  the  treasurer,  who  shall not be held liable for any inaccuracy in
    45  such certification. Provided, however, any  such  certification  may  be
    46  based  on  such  information as may be available to the treasurer at the
    47  time such certification must be made under  this  section.    Where  the
    48  amount so paid over to the town in any such distribution is more or less
    49  than the amount due to the town, the amount of the overpayment or under-
    50  payment  shall be certified to the town supervisor by the treasurer, who
    51  shall not be held liable for any inaccuracy in such  certification.  The
    52  amount  of  the overpayment or underpayment shall be so certified to the
    53  town supervisor as soon after the discovery of the overpayment or under-
    54  payment as reasonably possible and subsequent payments and distributions
    55  by the treasurer to the town shall be adjusted by subtracting the amount
    56  of any such overpayment from or by adding the amount of any such  under-

        A. 10758                           12

     1  payment  to  such number of subsequent payments and distributions as the
     2  treasurer and town supervisor shall consider reasonable in view  of  the
     3  overpayment or underpayment and all other facts and circumstances.
     4    4.  All  monies  received from the treasurer shall be deposited in the
     5  fund of the town, pursuant to section sixty-four-k of the town law.
     6    § 1439-lll. Judicial review. 1. Any final determination of the  amount
     7  of  any  tax  payable  under section fourteen hundred thirty-nine-ccc of
     8  this article shall be reviewable for error,  illegality  or  unconstitu-
     9  tionality  or  any other reason whatsoever by a proceeding under article
    10  seventy-eight of the civil practice law and rules if application  there-
    11  for  is made to the supreme court within four months after the giving of
    12  the notice of such final determination, provided, however, that any such
    13  proceeding under article seventy-eight of the  civil  practice  law  and
    14  rules shall not be instituted unless (a) the amount of any tax sought to
    15  be reviewed, with such interest and penalties thereon as may be provided
    16  for  by  local law shall be first deposited and there is filed an under-
    17  taking, issued by a surety company authorized to  transact  business  in
    18  this  state  and  approved  by  the  state  superintendent  of financial
    19  services as to solvency and responsibility, in such amount as a  justice
    20  of the supreme court shall approve to the effect that if such proceeding
    21  be  dismissed or the tax confirmed the petitioner will pay all costs and
    22  charges which may accrue in the prosecution of such proceeding or (b) at
    23  the option of the petitioner, such undertaking may be in  a  sum  suffi-
    24  cient to cover the taxes, interest and penalties stated in such determi-
    25  nation,  plus  the  costs and charges which may accrue against it in the
    26  prosecution of the proceeding, in which event the petitioner  shall  not
    27  be  required  to  pay  such  taxes, interest or penalties as a condition
    28  precedent to the application.
    29    2. Where any tax imposed hereunder shall have been erroneously,  ille-
    30  gally  or  unconstitutionally  assessed or collected and application for
    31  the refund or revision thereof duly made to the proper fiscal officer or
    32  officers, and such officer or officers shall have made  a  determination
    33  denying  such refund or revision, such determination shall be reviewable
    34  by a proceeding under article seventy-eight of the  civil  practice  law
    35  and  rules;  provided,  however,  that (a) such proceeding is instituted
    36  within four months after the giving of the notice of such denial, (b)  a
    37  final  determination  of  tax  due  was  not previously made, and (c) an
    38  undertaking is filed with the proper fiscal officer or officers in  such
    39  amount  and  with  such sureties as a justice of the supreme court shall
    40  approve to the effect that if such proceeding be dismissed  or  the  tax
    41  confirmed,  the  petitioner  will  pay  all  costs and charges which may
    42  accrue in the prosecution of such proceeding.
    43    § 1439-mmm. Apportionment. A local law adopted by the town of Blooming
    44  Grove, pursuant to this article, shall provide for a  method  of  appor-
    45  tionment for determining the amount of tax due whenever the real proper-
    46  ty or interest therein is situated within and without the town.
    47    § 1439-nnn. Miscellaneous. A local law adopted by the town of Blooming
    48  Grove,  pursuant  to  this article, may contain such other provisions as
    49  the town deems necessary  for  the  proper  administration  of  the  tax
    50  imposed  pursuant  to  this article, including provisions concerning the
    51  determination of tax, the imposition of interest  on  underpayments  and
    52  overpayments  and  the  imposition  of  civil penalties. Such provisions
    53  shall be identical to the corresponding provisions of  the  real  estate
    54  transfer  tax  imposed  by article thirty-one of this chapter, so far as
    55  such provisions can be made applicable to the tax  imposed  pursuant  to
    56  this article.

        A. 10758                           13

     1    §  1439-ooo. Returns to be secret. 1. Except in accordance with proper
     2  judicial order or as otherwise provided by law, it shall be unlawful for
     3  the treasurer or any officer or employee of the county or town,  includ-
     4  ing  any person engaged or retained on an independent contract basis, to
     5  divulge  or  make  known  in  any  manner  the  particulars set forth or
     6  disclosed in any return required under a local law enacted  pursuant  to
     7  this  article.  However, that nothing in this section shall prohibit the
     8  recording officer from making a notation on an  instrument  effecting  a
     9  conveyance  indicating  the  amount  of tax paid. No recorded instrument
    10  effecting a conveyance shall be considered a return for purposes of this
    11  section.
    12    2. The officers charged with the custody of such returns shall not  be
    13  required  to  produce  any  of them or evidence of anything contained in
    14  them in any action or proceeding in any court, except on behalf  of  the
    15  county or town in any action or proceeding involving the collection of a
    16  tax due under a local law enacted pursuant to this article to which such
    17  county  or  town is a party, or a claimant, or on behalf of any party to
    18  any action or proceeding under the provisions of  a  local  law  enacted
    19  pursuant  to  this  article  when the returns or facts shown thereby are
    20  directly involved in such action or proceeding, in any of  which  events
    21  the  court  may require the production of, and may admit in evidence, so
    22  much of said returns or of the facts shown thereby, as are pertinent  to
    23  the action or proceeding and no more.
    24    3.  Nothing  herein  shall  be construed to prohibit the delivery to a
    25  grantor or grantee of an instrument effecting a conveyance or  the  duly
    26  authorized representative of a grantor or grantee of a certified copy of
    27  any  return  filed in connection with such instrument or to prohibit the
    28  publication of statistics so classified as to prevent the identification
    29  of particular returns and the items thereof, or the  inspection  by  the
    30  legal  representatives  of  such  county  or  town  of the return of any
    31  taxpayer who shall bring action to set aside or  review  the  tax  based
    32  thereon.
    33    4.  Any  officer  or  employee  of  such  county or town who willfully
    34  violates the provisions of this section shall be dismissed  from  office
    35  and be incapable of holding any public office in this state for a period
    36  of five years thereafter.
    37    §  1439-ppp. Foreclosure proceedings. Where the conveyance consists of
    38  a transfer of property made as a result of an order of the  court  in  a
    39  foreclosure  proceeding  ordering the sale of such property, the referee
    40  or sheriff effectuating such transfer shall not be liable for any inter-
    41  est or penalties that are authorized pursuant to this article or article
    42  thirty-seven of this chapter.
    43    § 3. Severability. If any provision of this  act  or  the  application
    44  thereof  shall  for  any  reason  be  adjudged by any court of competent
    45  jurisdiction to be invalid, such judgment shall not affect,  impair,  or
    46  invalidate the remainder of this act, but shall be confined in its oper-
    47  ation  to  the provision thereof directly involved in the controversy in
    48  which such judgment shall have been rendered.
    49    § 4. This act shall take effect immediately; provided,  however,  that
    50  section  two of this act shall take effect on the ninetieth day after it
    51  shall have become a law and shall expire December  31,  2040  when  upon
    52  such date the provisions of such section shall be deemed repealed.
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