Delaware General Assembly

CHAPTER 413

AN ACT TO AMEND TITLE 30, DELAWARE CODE, RELATING TO REALTY TRANSFER TAX BY CHANGING THE PROVISIONS ON DEFINITIONS AND BY PROVIDING FOR REFUNDS OF TAXES IMPROPERLY COLLECTED.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Chapter 54, Title 30, Delaware Code, is hereby amended by striking section 5401 thereof, and substituting a new section 5401 as follows:

§ 5401. Definitions

As used in this chapter, except where the context clearly indicated a different meaning—

(a) "Document" means any deed, instrument, or writing whereby any real estate within this State, or any interest therein, shall be quitclaimed, granted, bargained, sold, or otherwise conveyed to the grantee, but shall not include the following:

(8) Any conveyance between persons who were previously husband and wife, but who have since been divorced, provided such conveyance is made after the granting of the final decree in divorce and the real estate or interest therein subject to such conveyance was acquired by the husband and wife, or husband or wife, prior to the granting of the final decree in divorce;

(9) Any conveyance between parent and child or the spouse of such a child;

(0) Any conveyance (a) to a trustee, nominee or straw party for the grantor as beneficial owner, (b) for the beneficial ownership of a person other than the grantor where, if such person were the grantee, no tax would be imposed upon the conveyance pursuant to this chapter, or (c) from a trustee, nominee or straw party to the beneficial owner;

(1) Any conveyance between a parent corporation and a wholly-owned subsidiary corporation, provided such conveyance is without actual consideration;

(2) Correctional deeds without actual consideration;

(3) Any conveyance to or from the United States, this State, or to any of their instrumentalities, agencies, or political subdivisions;

(4) Any conveyance to or from a corporation, or a partnership, where the grantor or grantee owns stock of the corporation, or an interest in the partnership in the same proportion as his interest in, or ownership of, the real estate being conveyed;

(5) Any conveyance by the owner of previously occupied residential premises to a builder of new residential premises when such previously occupied residential premises are taken in trade by such builder as a part of the consideration from the purchaser of a new, previously unoccupied premises;

(16) Any conveyance from a purchase money mortgagor to the lendor holding the purchase money mortgage, whether pursuant to a foreclosure or in lieu thereof;

(17) Any conveyance to a religious organization or other body or person holding title to real estate for a religious organization, if such real estate will not be used following such transfer by the grantee, or by any privy of the grantee, for any commercial purpose.

(b) "Transaction" means the making, executing, delivering, accepting or presenting for recording, of a document.

(c) "Value" means, in the case of any document granting, bargaining, selling or otherwise conveying any real estate or interest therein, the amount of the actual consideration thereof, including liens or other encumbrances thereon and ground rents, or a commensurate part of the liens or other encumbrances thereon and ground rents where such liens or other encumbrances and ground rents also encumber or are charged against other lands, tenements or hereditaments: Provided, that where such documents shall set forth a small or nominal consideration, the "value" thereof shall be determined from the price set forth in, or actual consideration for, the contract of sale, or, in the case of a gift, or any other document without consideration, from the actual monetary worth of the property granted, bargained, sold or otherwise conveyed, which, in either event, shall not be less than the amount of the highest assessment of such lands, tenements or hereditaments for local tax purposes.

Section 2. Chapter 54, Title 30, Delaware Code, is amended by adding thereto a new section.

§ 5413. Refund, interest, payment

Upon determining that any moneys collected with respect to this chapter have been collected improperly, the Department shall certify to the State Treasurer that such Tax has been improperly collected. Upon receipt of such certification the State Treasurer shall refund the sums so paid to the taxpayer with interest from the date of payment.

Section 3. This amendment shall be effective retroactively to the effective date of this chapter. Any tax paid on a transfer exempted from the application of this chapter by this amendment shall be refunded to the payor upon application to the State Tax Department.

Approved June 27, 1966.