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NEW AMENDMENTS TO REALTY TRANSFER TAX LAW IN NEW JERSEY

By: Rikki L. Field

Effective August 1, 2006, amendments to the Realty Transfer Tax law (Chapter 33, P.L. 2006) will go into effect which will expand the realty transfer tax imposed upon the purchasers of real property in New Jersey. Under the amended law, a 1% transfer tax will now apply to both the direct and indirect purchase of certain commercial properties where the purchase price is greater than $1 million.

Expansion Of “Mansion Tax” To Commercial Property

In August 2004, the legislature imposed, for the first time, a transfer tax upon the purchaser of real property. The tax initially applied only if the land conveyed was zoned for residential use and the consideration was in excess of $1 million. In February 2005, the law was changed to provide that the transfer tax would be imposed based upon the classification of the property rather than its zoning status. At that time, the transfer tax was amended to apply to the purchase of real property that is classified by the municipal tax assessor as either Class 2 (residential) or Class 3A (farm property) but only if the land contained a building or structure suited for residential use. As a result of the new amendment, the transfer tax will now also be imposed upon the purchaser of real property classified as Class 4A (commercial property). Thus, effective August 1, 2006, purchasers of commercial properties, such as office buildings and retail centers, will be assessed a transfer tax of 1% if the consideration is in excess of $1 million. The tax is not imposed on real property classified as Class 4B (industrial properties), Class 4C (apartments designed for the use of five or more families) or Class 1 (vacant land). The tax imposed is 1% of the entire amount of the consideration. This tax is in addition to, and separate from, the realty transfer tax imposed upon the seller of all real property in New Jersey.

Expansion Of “Mansion Tax” To Transfer Of Controlling Interest

In addition, for the first time, the legislature has also imposed a tax upon the sale or transfer of a controlling interest in an entity which possesses, directly or indirectly, a controlling interest in real property classified as Class 4A. This tax is imposed upon the purchaser if the consideration is in excess of $1 million and is equal to 1% of the entire amount of the consideration. The transfer subject to tax may occur in one or more transactions or by one purchaser or a group of purchasers acting in concert. Transactions which occur within six months of each other will be presumed to constitute a single transaction subject to the tax. Also, purchasers who are related parties are presumed to be acting in concert. For purposes of this law, “controlling interest” means 50% of the total combined voting power of all classes of stock if the entity is a corporation, and 50% of the beneficial ownership if the entity is a partnership, association, trust or other organization. If applicable, the tax must be paid on or before the last day of the month following the month in which the sale or transfer of the controlling interest is completed by filing a return with Division of Taxation in a form to be prescribed.

Exemptions

The new tax does not apply to direct or indirect purchases of real estate by organizations exempt from taxation under Section 501(3)(c) of the Internal Revenue Code. The tax also does not apply to a transfer of property incidental to a corporate merger or acquisition where the equalized assessed value of the property being transferred is less than 20% of the total value of all assets exchanged in the merger or acquisition.

Effective Date

The new law goes into effect on August 1, 2006 and applies to transfers of property on or after that date. However, a purchaser may apply for a refund of the tax if the deed is recorded on or before November 15, 2006 pursuant to a contract that was fully executed before July 1, 2006. A claim for such a refund must be made within one year of the date of the recording of the deed.