South Carolina General Assembly
111th Session, 1995-1996

Bill 1294


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                       1294
Type of Legislation:               General Bill GB
Introducing Body:                  Senate
Introduced Date:                   19960326
Primary Sponsor:                   Passailaigue 
All Sponsors:                      Passailaigue 
Drafted Document Number:           bbm\10700htc.96
Companion Bill Number:             4826
Residing Body:                     Senate
Current Committee:                 Finance Committee 06 SF
Subject:                           Deed Recording Fees



History


Body    Date      Action Description                       Com     Leg Involved
______  ________  _______________________________________  _______ ____________

Senate  19960326  Introduced, read first time,             06 SF
                  referred to Committee

View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND TITLE 12, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO TAXATION, BY ADDING CHAPTER 24, IMPOSING A FEE ON THE RECORDATION OF DEEDS AT FEES EQUAL TO, AND FOR THE PURPOSES OF THE FORMER DOCUMENTARY STAMP TAX INCLUDING THE COUNTY DOCUMENTARY STAMP TAX, ON CONVEYANCES OF REALTY, TO PROVIDE EXEMPTIONS FROM THE FEE, TO PROVIDE FOR THE PAYMENT OF AND COLLECTION OF THE FEE BY THE REPORTING METHOD, TO ESTABLISH THOSE LIABLE FOR THE FEE AND PROVIDE CIVIL AND CRIMINAL PENALTIES FOR VIOLATIONS, AND TO REPEAL ARTICLE 3, CHAPTER 21, TITLE 12 AND CHAPTER 25, TITLE 12 OF THE 1976 CODE, RELATING TO THE DOCUMENTARY STAMP TAX.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Title 12 of the 1976 Code is amended by adding:

"CHAPTER 24

Deed Recording Fee

Section 12-24-10. In addition to all other recording fees, a recording fee is imposed for the privilege of recording a deed in which any lands and all improvements on the land, tenements, or other realty is transferred to another person. The fee is one dollar and eighty-five cents for each five hundred dollars, or fractional part of five hundred dollars, of the realty's value as determined by Section 12-24-30.

Section 12-24-20. (A) Except as provided in subsection (B), the fee imposed by this chapter is the liability of the grantor or the joint or several liability of the grantors, but the grantee is secondarily liable for the payment of the fee.

(B) In the case of a master-in-equity deed, the liability for the fee imposed by this chapter is on the grantee or grantees.

Section 12-24-30. (A) For purposes of this chapter, the term `value' means the realty's fair market value. In arm's length real property transactions, this value is the sales price paid or to be paid in money or money's worth.

(B) A deduction from value is allowed for the amount of any lien or encumbrance existing on the land, tenement, or realty before the transfer and remaining on the land, tenement, or realty after the transfer.

Section 12-24-40. Exempted from the fee imposed by this chapter are deeds:

(1) transferring realty to the federal government;

(2) transferring realty to the State, its agencies and departments, and its political subdivisions, including school districts;

(3) that are otherwise exempted under the laws and Constitution of this State or of the United States;

(4) transferring realty in which no gain or loss is recognized by reason of Section 1041 of the Internal Revenue Code as defined in Section 12-6-40(A);

(5) transferring realty from an agent to the agent's principal in which the realty was purchased with the funds of the principal;

(6) transferring an individual grave space at a cemetery owned by a cemetery company licensed under Chapter 55 of Title 39;

(7) transferring realty to a member of the family or to a family trust or to a family partnership. `Family' means spouse, parents, sisters, brothers, grandparents, grandchildren, and lineal descendants. A `family trust' is a trust whose beneficiaries are all members of the family of the transferor. A `family partnership' is a partnership whose partners are all members of the family of the transferor;

(8) transferring realty to a legal heir or devisee;

(9) that constitute a contract for the sale of timber to be cut;

(10) transferring realty from an individual to a partnership, limited liability company, or corporation upon the formation of the entity if the individual is transferring the realty in order to become a partner, member, or shareholder in the entity. All other transfers of realty to or from the partnership, limited liability company, or corporation, not otherwise exempt, are subject to the fee;

(11) transferring realty in a statutory merger or consolidation from a constituent corporation to the continuing or new corporation;

(12) transferring realty between a parent corporation and its subsidiary corporation provided no consideration of any kind is paid or is to be paid for the transfer;

(13) transferring realty to a nonprofit corporation organized and operated exclusively for either a religious, scientific, charitable, or educational purpose and provided no consideration of any kind is paid or is to be paid for the transfer;

(14) that constitute a corrective deed or a quitclaim deed used to confirm title already vested in the grantee provided no consideration of any kind is paid or is to be paid under the corrective or quitclaim deed;

(15) transferring realty from an individual to a partnership or limited liability company of which the individual is a partner or a member, provided the transfer is subject to the fee to the extent that the transfer is a transfer of an undivided interest in the realty to partners or members other than the transferor. The determination as to the portion of the realty's value upon which the fee must be paid must be based on the percentage interest in the partnership or limited liability company of the partners or members other than the transferor.

Section 12-24-50. The fee imposed by this chapter must be remitted to the clerk of court or the register of mesne conveyances in the county in which the realty is located and recorded. If the realty is located in more than one county, the person having the deed recorded in a county must state by affidavit what portion of the value of the realty is in that county and payment of the fee must be made based on the proportionate value of the realty located in that county.

Section 12-24-60. The clerk of court or register of mesne conveyances, before recording a deed subject to the fee imposed by this chapter, shall collect the fee and place a notation on the deed containing the following information: the date the deed was filed; the fee collected; and any other information required by the county. If the deed qualifies for an exemption under Section 12-24-40, the word `exempt' must be placed in the notation.

Section 12-24-70. (A) An affidavit must accompany every deed presented for recording and must set forth the true, full, and complete value of the realty as defined in Section 12-24-30. In addition, the clerk or register of mesne conveyances may require any other information considered necessary. However, the clerk or register of mesne conveyances, at his discretion, may waive the affidavit requirement.

If the deed is exempt under Section 12-24-40, the affidavit must state that the deed is exempt and state the reason for the exemption. This affidavit must be signed by a responsible person connected with the transaction and the affidavit must state that connection.

(B) The clerk of court or register of mesne conveyances shall file these affidavits in his office.

A person required to furnish the affidavit who wilfully furnishes a false or fraudulent affidavit is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than one year, or both.

Section 12-24-80. Every clerk of court or register of mesne conveyances and the county shall keep and preserve suitable records to determine the amount of fee due and collected under this chapter. The clerk of court or register of mesne conveyances and the county shall keep and preserve records for five years.

Section 12-24-90. (A) The fee imposed by this chapter is composed of two fees as follows:

(1) a state fee equal to one dollar and thirty cents for each five hundred dollars, or fractional part of five hundred dollars, of the realty's value, and

(2) a county fee equal to fifty-five cents for each five hundred dollars, or fractional part of five hundred dollars, of the realty's value.

(B) The state fee must be credited as follows:

(1) ten cents of each one dollar and thirty cents into the Heritage Land Trust Fund;

(2) twenty cents of each one dollar and thirty cents into the South Carolina Housing Trust Fund; and

(3) one dollar of each one dollar and thirty cents into the general fund of the state.

(C) The county fee must be credited to the general fund of the county.

Section 12-24-100. (A) The fees imposed by this chapter and collected by the clerk of court or register of mesne conveyances are due and payable to the department in monthly installments with a report on or before the twentieth day of the month following the month in which the fees were collected. The report required by this section must be filed by the county on a form or in the method prescribed by the department. The department, at its discretion, may require counties to remit the fee by electronic funds transfer or any other method considered appropriate.

(B) The department, at its discretion, may allow a county to file its report on a basis other than monthly.

(C) The county shall remit with each report only that portion of the fee that represents the state portion. The county portion of the fee must be retained by the county.

(D) When a return required by this section is filed and the fees due with it are paid in full on or before the final due date, including any date to which the time for making the return and paying the fees has been extended pursuant to the provisions of Section 12-54-70, the county is allowed a discount equal to three percent of the State's portion of the fees. In no case is a discount allowed if the return or fee on the return is received after the due date or after any extension granted by the department.

Section 12-24-110. When an instrument has been recorded it is presumed that all requirements of law affecting the title to the realty have been complied with.

Section 12-24-120. (A) The penalty provisions of Chapter 54 of this title apply to both the state and county portions of the fee imposed by this chapter.

(B) If the clerk of court or register of mesne conveyances fails to collect the proper fee due, or place the notation on the instrument as required by this chapter, the clerk of court or register of mesne conveyances is subject to a penalty of not less than fifty dollars nor more than five hundred dollars for each failure. This penalty may be waived or reduced by the department.

(C) If the person liable for the fee imposed by this chapter fails to pay the proper fee due, that person is subject to a penalty of not less than fifty dollars nor more than five hundred dollars for each failure. This penalty may be waived or reduced by the department.

(D) All penalties and interest collected with respect to this fee must be paid proportionately into the Heritage Land Trust Fund, the South Carolina Housing Trust Fund, the general fund of the state, and the county general fund in accordance with Section 12-24-90(B).

Section 12-24-130. The fee imposed under this chapter and any penalties and interest thereon are a debt owing to the State by the person or persons liable for the fee and are a lien on all property of these persons, but this lien is valid, so as to affect the rights of purchasers for value, mortgagees, or judgement or other lien creditors, only from the time when warrant is entered upon the transcript of judgments in the county, in the case of real property where the property is situate, and in the case of personal property, where the person liable for the fee resides or possesses personal property if the receiver is a resident of this State, or if the person is a nonresident, where the personal property is situate.

Section 12-24-140. If the governing body of a county determines that another office of the county shall administer the collecting of the fee as provided under this chapter, the county shall notify the department of this determination and provide the department a letter from the person assigned these duties stating that he is accepting this responsibility. The office designated to collect the fee is subject to all the applicable provisions of this chapter in place of the clerk of court or register of mesne conveyances.

Section 12-24-150. (A) The department may promulgate regulations, issue instructions or advisory opinions, or provide any other information to the clerks of court, registers of mesne conveyances, or fee payors to ensure uniform administration and collection of the fee imposed by this chapter.

(B) All refund requests must be filed with the department, and it is the responsibility of the department to determine if a refund is due and order the issuance of any refund due.

(C) The provisions of Chapter 54, including the provisions of Section 12-54-85, and Chapter 60 of this title are applicable to the fee imposed by this chapter and for purposes of applying these chapters the fee payor is deemed the taxpayer. For purposes of applying Chapter 60, if a clerk of court or register of mesne conveyances disagrees with a fee payor as to whether or not a transaction is exempt or as to the amount of the fee due, the fee payor may do one of the following:

(1) The fee payor may pay the fee and file a claim for refund request with the department under the provisions of Section 12-60-470. If the department determines that a refund is not due, the fee payor may appeal the matter to the Administrative Law Judge Division. If the department determines that a refund is due, the department shall refund the state portion of the fee and order the county to issue a refund for the county portion of the fee. Refund orders by the department may not be appealed by the county.

(2) The fee payer, upon filing an appeal with the department and a copy of the appeal with the clerk of court or register of mesne conveyances, may record the deed without payment of the fee. The appeal to the department must be administered in the same manner as appeals of property tax exemptions are administered by the department. If the department determines that the fee is due, the fee payor may appeal the decision to the Administrative Law Judge Division. If the department determines that the fee is not due, the county may not appeal that determination."

SECTION 2. Article 3, Chapter 21, Title 12, and Chapter 25, Title 12, both of the 1976 Code, are repealed.

SECTION 3. This act takes effect on the first day of the sixth month following approval by the Governor and applies with respect to deeds recorded on and after that date.

-----XX-----