HomeMy WebLinkAboutATM 18 ART 70 HR Comm Housing Fee1
Town of Nantucket
ulu
OFFICE OF THE
TOWN & COUNTY
CLERK
16 Broad Street
NANTUCKET, MASSACHUSETTS 02554-3590
Catherine Flanagan Stover, MMC, CMMC
Town & County Clerk
(508) 228-7216
FAX (508) 325-5313
Home: (508) 228-7841
Email: cstover@nantucket-ma.gov
flanaganstover@yahoo.com
townclerk@nantucket-ma.gov
WEBSITE: http://www.nantucket-ma.gov
ulu
April 4, 2018
TO WHOM IT MAY CONCERN:
I, Catherine Flanagan Stover, duly elected Clerk of the Town and County of Nantucket, hereby
certify that the April 3, 2018 ANNUAL TOWN MEETING adopted Article 70: “Home Rule
Petition: Community Housing Bank Real Estate Transfer Fee” at the April 3, 2018 adjourned
session when “...the adoption of all articles not heretofore acted upon as recommended by the
Finance Committee, or as recommended by the Planning Board, was duly motioned, seconded,
and voted in accordance with the motions recommended by the Finance Committee or, in the
absence of a Finance Committee motion, then in accordance with the motions as recommended
by the Planning Board, as printed in the Finance Committee Report, with technical amendments
brought forward during the course of the meeting…”
VOTE: The vote on the motion pursuant to Article 70 as moved by the Finance
Committee, was by Unanimous Voice Vote. The motion was adopted.
Catherine Flanagan Stover, MMC, CMMC
Town and County Clerk
ATM 18 Article 70,Page 1 of 13
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ARTICLE 70
(Home Rule Petition: Community Housing Bank Real Estate Transfer Fee)
To see if the Town will vote to request its representatives in the General Court to
introduce legislation seeking a special act the text of which is set forth below and to authorize
the General Court, with the approval of the Board of Selectmen, to make constructive changes in
the text thereto as may be necessary or advisable in order to accomplish the intent of this
legislation in order to secure passage; or to take any other action related thereto.
An Act Authorizing the Town of Nantucket to Impose a Real Estate Transfer Fee for Affordable
and Workforce Housing and Related Capital Improvements
SECTION 1. For purposes of this act, the words and phrases set forth in this section shall
have the following meanings:
“Affordable Housing Restriction" is a recorded instrument held by a qualified holder which
encumbers and/or restricts a real property interest so that the real property interest is perpetually
or for a term of at least thirty (30) years limited to use as a residence occupied by a low or
moderate income household which earns less than a specified income level, the upper limit of
which may not exceed one hundred seventy-five percent (175%) of the Nantucket median
income. A “qualified holder” is a governmental body or charitable corporation or trust which
qualifies under the terms of Massachusetts General Laws Chapter 184 (“Chapter 184”) to hold
an affordable housing restriction. Without limiting the generality of the foregoing, “Affordable
Housing Restriction” includes but is not limited to any instrument which conforms to the
requirements of (i) a Nantucket Housing Needs Covenant as described in Chapter 301 of the
Acts of 2002 and defined in the Town of Nantucket Code.
"Housing and Community Development Fund", shall refer to a discrete fund or account,
established by the county treasurer of the Nantucket County under the provisions of this act.
"Eligible Applicants", shall refer to non-profit and for-profit corporations and organizations,
individuals, and public entities.
"Purchaser", shall refer to the transferee, grantee or recipient of any real property interest.
"Purchase price", all consideration paid or transferred by or on behalf of a purchaser to a
seller or his nominee, or for his benefit, for the transfer of any real property interest, and shall
include, but not be limited to, all cash or its equivalent so paid or transferred; all cash or other
property paid or transferred by or on behalf of the purchaser to discharge or reduce any
obligation of the seller; the principal amount of all notes or their equivalent, or other deferred
payments, given or promised to be given by or on behalf of the purchaser to the seller or his
nominee; the outstanding balance of all obligations of the seller which are assumed by the
purchaser or to which the real property interest transferred remains subject after the transfer,
determined at the time of transfer, but excluding real estate taxes and other municipal liens or
assessments which are not overdue at the time of transfer; the fair market value, at the time of
transfer, of any other consideration or thing of value paid or transferred by or on behalf of the
purchaser, including, but not limited to, any property, goods or services paid, transferred or
rendered in exchange for such real property interest.
"Real property interest", shall refer to any present or future legal or equitable interest in or to
real property, and any beneficial interest therein, including the interest of any beneficiary in a
trust which holds any legal or equitable interest in real property, the interest of a partner or
member in a partnership or limited liability company, the interest of a stockholder in a
corporation, the interest of a holder of an option to purchase real property, the interest of a buyer
or seller under a contract for purchase and sale of real property, and the transferable
development rights created under chapter 183A of the General Laws; but shall not include any
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interest which is limited to any of the following: the dominant estate in any easement or right of
way; the right to enforce any restriction; any estate at will or at sufferance; any estate for years
having a term of less than 30 years;any reversionary right, condition, or right of entry for
condition broken; and the interest of a mortgagee or other secured party in any mortgage or
security agreement.
"Seller", shall refer to the transferor, grantor or immediate former owner of any real property
interest.
"Time of transfer" of any real property interest shall mean the time at which such transfer is
legally effective as between the parties thereto, and, in any event, with respect to a transfer
evidenced by an instrument recorded with the appropriate registry of deeds or filed with the
assistant recorder of the appropriate registry district, not later than the time of such recording or
filing.
“Town” shall refer to the Town of Nantucket acting by and through the Board of Selectmen.
SECTION 2. There is hereby imposed a fee equal to one half per cent (1/2%) of the purchase
price upon the transfer of any real property interest in any real property situated in Nantucket
County. Said fee shall be the liability of the seller of such real property interest, and any
agreement between the purchaser and the seller or any other person with reference to the
allocation of the responsibility for bearing said fee shall not affect such liability of the seller. The
fee shall be paid to the Town of Nantucket, or its designee, and shall be accompanied by a copy
of the deed or other instrument evidencing such transfer, if any, and an affidavit signed under
oath or under the pains and penalties of perjury by the purchaser or his legal representative and
the seller or his legal representative, attesting to the true and complete purchase price and the
basis, if any, upon which the transfer is claimed to be exempt in whole or in part from the fee
imposed hereby. The Town, or its designee, shall promptly thereafter execute and issue a
certificate indicating that the appropriate fee has been paid or that the transfer is exempt from
the fee, stating the basis for the exemption. The register of deeds for Nantucket County, and the
assistant recorder for the registry district of Nantucket County, shall not record or register, or
receive or accept for recording or registration, any deed, except a mortgage deed, to which has
not been affixed such a certificate executed by the Town or its designee. Failure to comply with
this requirement shall not affect the validity of any instrument. The Town shall deposit all fees
received hereunder with the Town treasurer. The treasurer shall deposit such fees as follows:
75% in the Affordable Housing Trust Fund and the remainder in capital project funds as
determined by the Board of Selectmen, unless such allocation is changed by the affirmative vote
of two-thirds of voters at an annual or special town meeting. The fee imposed hereunder shall be
due simultaneously with the time of transfer of the transfer upon which it is imposed.
Notwithstanding the foregoing, whenever there is a conveyance of real property interests and a
conveyance of personalty related thereto at or about the same time, the allocations of payments
between real estate and personalty agreed to by the purchaser and seller shall not determine
the amount of the fee due pursuant to this section; instead, the Town may require payment of
the fee referred to in real property interests so conveyed as determined by the Town.
SECTION 3. At any time within seven days following the issuance of the certificate of
payment of the fee imposed by section two, the seller or his legal representative may return said
certificate to the Town or its designee for cancellation, together with an affidavit signed under
oath or under the pains and penalties of perjury that the transfer, with respect to which such
certificate was issued, has not been consummated, and thereupon the fee paid with respect to
such transfer shall be forthwith returned to the seller or his legal representative.
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SECTION 4. The following transfers of real property interests shall be exempt from the fee
established by section 10. Except as otherwise provided, the seller shall have the burden of
proof that any transfer is exempt under this section and any otherwise exempt transfer shall not
be exempt in the event that such transfer (by itself or as part of a series of transfers) was made
for the primary purpose of evading the fee imposed by Section 10.
(a) Transfers to the government of the United States, the commonwealth, and any of their
instrumentalities, agencies or subdivisions, including but not limited to transfers to the Town of
Nantucket, the County of Nantucket.
(b) Transfers which, without additional consideration, confirm, correct, modify or supplement a
transfer previously made.
(c) Transfers made as gifts without consideration. In any proceedings to determine the
amount of any fee due hereunder, it shall be presumed that any transfer for consideration of less
than fair market value of the real property interest transferred was made as a gift without
consideration to the extent of the difference between the fair market value of the real property
interest transferred and the amount of consideration claimed by the seller to have been paid or
transferred, if the purchaser shall have been at the time of transfer the spouse, the lineal
descendant, or the lineal ancestor of the seller, by blood or adoption, and otherwise it shall be
presumed that consideration was paid in an amount equal to the fair market value of the real
property interest transferred, at the time of transfer.
(d) Transfer to the trustees of a trust in exchange for a beneficial interest received by the
purchaser in such trust; distributions by the trustees of a trust to the beneficiaries of such trust.
(e) Transfers by operation of law without actual consideration, including but not limited to
transfers occurring by virtue of the death or bankruptcy of the owner of a real property interest.
(f) Transfers made in partition of land and improvements thereto, under chapter two hundred
and forty-one of the General Laws.
(g) Transfers to any charitable organization as defined in clause Third of section five of
chapter fifty-nine of the General Laws, or any religious organization, provided that the real
property interest so transferred will be held by the charitable or religious organization solely for
its public charitable or religious purposes.
(h) Transfers to a mortgagee in foreclosure of the mortgage held by such mortgagee, and
transfers of the property subject to a mortgage to the mortgagee in consideration of the
forbearance of the mortgagee from foreclosing said mortgage.
(i) Transfers made to a corporation or partnership or limited liability company at the time of its
formation, pursuant to which transfer no gain or loss is recognized under the provisions of
section three hundred and fifty-one or seven hundred and twenty-one of the Internal Revenue
Code of 1986, as amended; provided, however, that such transfer shall be exempt only in the
event that (1) with respect to a corporation, the transferor retains an interest in the newly formed
corporation which is equivalent to the interest the transferor held prior to the transfer, or (2) with
respect to a partnership or limited liability company, the transferor retains after such formation
rights in capital interests and profit interests within such partnership or limited liability company
which are equivalent to the interest the transferor held prior to the transfer.
(j) Transfers made to a stockholder of a corporation in liquidation or partial liquidation of the
corporation, and transfers made to a partner of a partnership or to a member of a limited liability
company in dissolution or partial dissolution of the partnership or limited liability company; but
the transfer shall be exempt only if (i) with respect to a corporation, the transferee receives
property (including real property interests and other property received) which is the same
fraction of the total property of the transferor corporation as the fraction of the corporation's stock
owned by the transferee prior to the transfer or (ii) with respect to a partnership or limited liability
company, the transferee receives property (including real property interests and other property
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received) which is the same fraction of the property of the partnership or limited liability company
as the fraction of the capital and profit interests in the transferor formerly owned by the
transferee.
(k) Transfers consisting of the division of marital assets under the provisions of section thirty-
four of chapter two hundred and eight of the General Laws or other provisions of law.
(l) Transfers of property consisting in part of real property interests situated in Nantucket
County and in part of other property interests, to the extent that the property transferred consists
of property other than real property situated in Nantucket county; provided that the purchaser
shall furnish the Town with such information as it shall require or request in support of the claim
of exemption and manner of allocation of the consideration for such transfers.
(m) The first $2 million of the sale price of any transfer or series of transfers of real property
interests in a single parcel. Said exemption may be adjusted for inflation as determined annually
by the affirmative vote of two-thirds of voters at an annual or special town meeting. For purposes
of this subsection, "inflation" shall mean the increases, if any, in the total of prices paid for real
property transfers year to year for real property within the Town of Nantucket.
(n) Transfers of minority interests in corporations, trusts, partnerships or limited liability
companies which are publicly traded, which trades are not part of a series of transfers which
together constitute a transfer of control of a corporation, trust, partnership or limited liability
company.
SECTION 5. (a) The Town treasurer shall keep a full and accurate account stating when,
from or to whom, and on what account money has been paid or received relative to the activities
of the Trust Fund and the Housing Fund. Said account shall be subject to examination by the
director of accounts or his agent pursuant to section forty-four of chapter thirty-five of the
General Laws.
(b) Schedules of beneficiaries of trusts, list of stockholders of corporations and lists of
partnerships filed with the Trust Fund for the purpose of determining or fixing the amount of the
fee imposed under section ten or for the purpose of determining the existence of any exemption
under section twelve shall not be public records for the purposes of section ten of chapter sixty-
six of the General Laws.
SECTION 6. A seller who fails to pay all or any portion of the fee established by section two
on or before the time when the same is due shall be liable for the following additional payments
in addition to said fee:
(a) Interest: The seller shall pay interest on the unpaid amount of the fee to be calculated from
the time of transfer at a rate equal to fourteen per cent per annum.
(b) Penalties: Any person who, without fraud or willful intent to defeat or evade a fee imposed
by this chapter, fails to pay all or a portion of the fee within thirty days after the time of transfer,
shall pay a penalty equal to five per cent of the outstanding fee as determined by the Town for
each month or portion thereof thereafter that the fee is not paid in full; provided, however, that in
no event shall the amount of any penalty imposed hereunder exceed twenty-five per cent of the
unpaid fee due at the time of transfer. Whenever the Town determines that all or a portion of a
fee due under this chapter was unpaid due to fraud with intent to defeat or evade the fee
imposed by this chapter, a penalty equal to the amount of said fee as determined by the Town
shall be paid by the seller in addition to said fee.
SECTION 7. (a) The Town shall notify the purchaser and the seller by registered or certified
mail of any failure to discharge in full the amount of the fee due under this Act and any penalty or
interest assessed. The Town shall grant a hearing on the matter of the imposition of said fee, or
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of any penalty or interest assessed, if a petition requesting such hearing is received by the Town
within thirty days after the mailing of said notice. The Town shall notify the purchaser and the
seller in writing by registered or certified mail of its determination concerning the deficiency,
penalty or interest within fifteen days after said hearing. Any party aggrieved by a determination
of the Town concerning a deficiency, penalty or interest may, after payment of said deficiency,
appeal to the district or superior court within three months after the mailing of notification of the
determination of the Town. Upon the failure to timely petition for a hearing, or appeal to said
courts, within the time limits hereby established, the purchaser and seller shall be bound by the
terms of the notification, assessment or determination, as the case may be, and shall be barred
from contesting the fee, and any interest and penalty, as determined by the Town. All decisions
of said courts shall be appealable. Every notice to be given under this section by the Town shall
be effective if mailed by certified or registered mail to the purchaser or the seller at the address
stated in a recorded or registered instrument by virtue of which the purchaser holds any interest
in land, the transfer of which gives rise to the fee which is the subject of such notice; and if no
such address is stated or if such transfer is not evidenced by an instrument recorded or
registered in the public records in Nantucket County, such notice shall be effective when so
mailed to the purchaser or seller in care of any person appearing of record to have a fee interest
in such land, at the address of such person as set forth in an instrument recorded or registered
in Nantucket County.
(b) All fees, penalties and interest required to be paid pursuant to this chapter shall constitute
a personal debt of the seller and may be recovered in an action of contract or in any other
appropriate action, suit or proceeding brought by the Town; said action, suit or proceeding shall
be subject to the provisions of chapter two hundred and sixty of the General Laws.
(c) If any seller liable to pay the fee established by this act neglects or refuses to pay the
same, the amount, including any interest and penalty thereon, shall be a lien in favor of the
Town upon all property and rights to property, whether real or personal, belonging to either such
purchaser or such seller. Said lien shall arise at the time of transfer and shall continue until the
liability for such amount is satisfied. Said lien shall in any event terminate not later than six
years following the time of transfer. Said lien shall not be valid as against any mortgagee,
pledgee, purchaser or judgment creditor unless notice thereof has been filed by the Town (i) with
respect to real property or fixtures, in the registry of deeds for Nantucket County, or (ii) with
respect to personal property, in the office in which a security or financing statement or notice
with respect to the property would be filed in order to perfect a nonpossessory security interest
belonging to the person named in the relevant notice, subject to the same limitations as set forth
in section fifty of chapter sixty-two C of the General Laws.
(d) Sellers applying for an exemption under subsections (a) through (o) of section four shall
be required at the time of application for exemption to execute an agreement legally binding on
sellers and separately legally binding upon any Legal Representative of the sellers (1) assuming
complete liability for any fee, plus interest and penalties if any, waived on account of an allowed
exemption subsequently determined to have been invalid, and (2) submitting to the jurisdiction
of the trial court of the commonwealth sitting in Nantucket County. Fees, plus interest and
penalties if any, shall be calculated as of the date of the initial property transfer. Execution of the
above-described agreement shall not be required of any mortgagee, pledge, purchaser or
judgment creditor unless notice of the agreement has been recorded or filed by the Town.
In any case where there has been a refusal or neglect to pay any fee, interest or penalties
imposed by this act, whether or not levy has been made, the Town, in addition to other modes of
relief, may direct a civil action to be filed in a district or superior court of the commonwealth to
enforce the lien of the Town under this section with respect to such liability or to subject any
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property of whatever nature, of the delinquent, or in which he has any right, title or interest, to
the payment of such liability.
The Town may issue a waiver or release of any lien imposed by this section. Such waiver or
release shall be conclusive evidence that the lien upon the property covered by the waiver or
release is extinguished.
SECTION 8. The provisions of this act are severable, and if any provision hereof, including
without limitation any exemption from the fee imposed hereby, shall be held invalid in any
circumstances such invalidity shall not affect any other provisions or circumstances. This act
shall be construed in all respects so as to meet all constitutional requirements. In carrying out
the purposes and provisions of this act, all steps shall be taken which are necessary to meet
constitutional requirements whether or not such steps are required by statute.
SECTION 9. If the Town has determined that a fee is due by asserting the application of the
evasion of fee doctrine described in section 13, then the seller shall have the burden of
demonstrating by clear and convincing evidence as determined by the Town that the transfer, or
series of transfers, possessed both: (i) a valid, good faith business purpose other than
avoidance of the fee set forth in section 10 and (ii) economic substance apart from the asserted
fee avoidance benefit. In all such cases, the transferee shall also have the burden of
demonstrating by clear and convincing evidence as determined by the Town that the asserted
non-fee-avoidance business purpose is commensurate with the amount of the fee pursuant to
section 10 to be thereby avoided.
SECTION 10. This act shall take effect ninety (90) days following the date of passage.
(Board of Selectmen)
NOTE: The above home rule petition was approved as Article 82 of the 2016 Annual Town
Meeting; and Article 88 of the 2017 Annual Town Meeting. Home rule petitions currently pending
before the legislature, which were not acted upon by December 31, 2017, may expire unless
renewed by a confirmatory town meeting vote.
FINANCE COMMITTEE MOTION: Moved that the Town ’s representatives to the General
Court are hereby requested to introduce legislation as set forth below; and, that the General
Court, with the approval of the Board of Selectmen, make constructive changes in the text
hereof as may be necessary or advisable to accomplish the intent of this proposed
legislation in order to secure its passage, as follows:
An Act authorizing the town of Nantucket to impose a real estate transfer fee for affordable
and
workforce housing.
Be it enacted by the Senate and House of Representatives in General Court assembled, and
by the authority of the same, as follows:
SECTION 1. For purposes of this act, the words and phrases set forth in this section shall
have the following meanings:
“Affordable Housing Restriction" is a recorded instrument held by a qualified holder which
encumbers and/or restricts a real property interest so that the real property interest is
perpetually or for a term of at least thirty (30) years limited to use as a residence occupied by
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a low or moderate income household which earns less than a specified income level, the
upper limit of which may not exceed one hundred seventy-five percent (175%) of the
Nantucket median income. A “qualified holder ” is a governmental body or charitable
corporation or trust which qualifies under the terms of Massachusetts General Laws Chapter
184 (“Chapter 184 ”) to hold an affordable housing restriction. Without limiting the generality
of the foregoing, “Affordable Housing Restriction ” includes but is not limited to any
instrument which conforms to the requirements of (i) a Nantucket Housing Needs Covenant
as described in Chapter 301 of the Acts of 2002 and defined in the Town of Nantucket Code.
"Eligible Applicants", shall refer to non-profit and for-profit corporations and organizations,
individuals, and public entities.
"Purchaser", shall refer to the transferee, grantee or recipient of any real property interest.
"Purchase price", all consideration paid or transferred by or on behalf of a purchaser to a
seller or his nominee, or for his benefit, for the transfer of any real property interest, and shall
include, but not be limited to, all cash or its equivalent so paid or transferred; all cash or
other property paid or transferred by or on behalf of the purchaser to discharge or reduce any
obligation of the seller; the principal amount of all notes or their equivalent, or other deferred
payments, given or promised to be given by or on behalf of the purchaser to the seller or his
nominee; the outstanding balance of all obligations of the seller which are assumed by the
purchaser or to which the real property interest transferred remains subject after the transfer,
determined at the time of transfer, but excluding real estate taxes and other municipal liens
or assessments which are not overdue at the time of transfer; the fair market value, at the
time of transfer, of any other consideration or thing of value paid or transferred by or on
behalf of the purchaser, including, but not limited to, any property, goods or services paid,
transferred or rendered in exchange for such real property interest.
"Real property interest", shall refer to any present or future legal or equitable interest in or to
real property, and any beneficial interest therein, including the interest of any beneficiary in a
trust which holds any legal or equitable interest in real property, the interest of a partner or
member in a partnership or limited liability company, the interest of a stockholder in a
corporation, the interest of a holder of an option to purchase real property, the interest of a
buyer or seller under a contract for purchase and sale of real property, and the transferable
development rights created under chapter 183A of the General Laws; but shall not include
any interest which is limited to any of the following: the dominant estate in any easement or
right of way; the right to enforce any restriction; any estate at will or at sufferance; any estate
for years having a term of less than 30 years; any reversionary right, condition, or right of
entry for condition broken; and the interest of a mortgagee or other secured party in any
mortgage or security agreement.
"Seller", shall refer to the transferor, grantor or immediate former owner of any real property
interest.
"Time of transfer" of any real property interest shall mean the time at which such transfer is
legally effective as between the parties thereto, and, in any event, with respect to a transfer
evidenced by an instrument recorded with the appropriate registry of deeds or filed with the
assistant recorder of the appropriate registry district, not later than the time of such recording
or filing.
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“Town” shall refer to the Town of Nantucket acting by and through the Board of Selectmen.
SECTION 2. There is hereby imposed a fee equal to one half per cent (1/2%) of the purchase
price upon the transfer of any real property interest in any real property situated in Nantucket
County. Said fee shall be the liability of the seller of such real property interest, and any
agreement between the purchaser and the seller or any other person with reference to the
allocation of the responsibility for bearing said fee shall not affect such liability of the seller.
The fee shall be paid to the Town of Nantucket, or its designee, and shall be accompanied by
a copy of the deed or other instrument evidencing such transfer, if any, and an affidavit
signed under oath or under the pains and penalties of perjury by the purchaser or his legal
representative and the seller or his legal representative, attesting to the true and complete
purchase price and the basis, if any, upon which the transfer is claimed to be exempt in
whole or in part from the fee imposed hereby. The Town, or its designee, shall promptly
thereafter execute and issue a certificate indicating that the appropriate fee has been paid or
that the transfer is exempt from the fee, stating the basis for the exemption. The register of
deeds for Nantucket County, and the assistant recorder for the registry district of Nantucket
County, shall not record or register, or receive or accept for recording or registration, any
deed, except a mortgage deed, to which has not been affixed such a certificate executed by
the Town or its designee. Failure to comply with this requirement shall not affect the validity
of any instrument. The Town shall deposit all fees received hereunder with the Town
treasurer. The treasurer shall deposit such fees in the Affordable Housing Trust Fund. The
fee imposed hereunder shall be due simultaneously with the time of transfer of the transfer
upon which it is imposed. Notwithstanding the foregoing, whenever there is a conveyance of
real property interests and a conveyance of personalty related thereto at or about the same
time, the allocations of payments between real estate and personalty agreed to by the
purchaser and seller shall not determine the amount of the fee due pursuant to this section;
instead, the Town may require payment of the fee referred to in real property interests so
conveyed as determined by the Town.
SECTION 3. At any time within seven days following the issuance of the certificate of
payment of the fee imposed by section two, the seller or his legal representative may return
said certificate to the Town or its designee for cancellation, together with an affidavit signed
under oath or under the pains and penalties of perjury that the transfer, with respect to which
such certificate was issued, has not been consummated, and thereupon the fee paid with
respect to such transfer shall be forthwith returned to the seller or his legal representative.
SECTION 4. The following transfers of real property interests shall be exempt from the fee
established by section 10. Except as otherwise provided, the seller shall have the burden of
proof that any transfer is exempt under this section and any otherwise exempt transfer shall
not be exempt in the event that such transfer (by itself or as part of a series of transfers) was
made for the primary purpose of evading the fee imposed by Section 10.
(a) Transfers to the government of the United States, the commonwealth, and any of their
instrumentalities, agencies or subdivisions, including but not limited to transfers to the Town
of Nantucket, the County of Nantucket.
(b) Transfers which, without additional consideration, confirm, correct, modify or supplement
a transfer previously made.
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(c) Transfers made as gifts without consideration. In any proceedings to determine the
amount of any fee due hereunder, it shall be presumed that any transfer for consideration of
less than fair market value of the real property interest transferred was made as a gift without
consideration to the extent of the difference between the fair market value of the real
property interest transferred and the amount of consideration claimed by the seller to have
been paid or transferred, if the purchaser shall have been at the time of transfer the spouse,
the lineal descendant, or the lineal ancestor of the seller, by blood or adoption, and
otherwise it shall be presumed that consideration was paid in an amount equal to the fair
market value of the real property interest transferred, at the time of transfer.
(d) Transfer to the trustees of a trust in exchange for a beneficial interest received by the
purchaser in such trust; distributions by the trustees of a trust to the beneficiaries of such
trust.
(e) Transfers by operation of law without actual consideration, including but not limited to
transfers occurring by virtue of the death or bankruptcy of the owner of a real property
interest.
(f) Transfers made in partition of land and improvements thereto, under chapter two hundred
and forty-one of the General Laws.
(g) Transfers to any charitable organization as defined in clause Third of section five of
chapter fifty-nine of the General Laws, or any religious organization, provided that the real
property interest so transferred will be held by the charitable or religious organization solely
for its public charitable or religious purposes.
(h) Transfers to a mortgagee in foreclosure of the mortgage held by such mortgagee, and
transfers of the property subject to a mortgage to the mortgagee in consideration of the
forbearance of the mortgagee from foreclosing said mortgage.
(i) Transfers made to a corporation or partnership or limited liability company at the time of
its formation, pursuant to which transfer no gain or loss is recognized under the provisions of
section three hundred and fifty-one or seven hundred and twenty-one of the Internal
Revenue Code of 1986, as amended; provided, however, that such transfer shall be exempt
only in the event that (1) with respect to a corporation, the transferor retains an interest in the
newly formed corporation which is equivalent to the interest the transferor held prior to the
transfer, or (2) with respect to a partnership or limited liability company, the transferor retains
after such formation rights in capital interests and profit interests within such partnership or
limited liability company which are equivalent to the interest the transferor held prior to the
transfer.
(j) Transfers made to a stockholder of a corporation in liquidation or partial liquidation of the
corporation, and transfers made to a partner of a partnership or to a member of a limited
liability company in dissolution or partial dissolution of the partnership or limited liability
company; but the transfer shall be exempt only if (i) with respect to a corporation, the
transferee receives property (including real property interests and other property received)
which is the same fraction of the total property of the transferor corporation as the fraction of
the corporation's stock owned by the transferee prior to the transfer or (ii) with respect to a
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partnership or limited liability company, the transferee receives property (including real
property interests and other property received) which is the same fraction of the property of
the partnership or limited liability company as the fraction of the capital and profit interests in
the transferor formerly owned by the transferee.
(k) Transfers consisting of the division of marital assets under the provisions of section thirty-
four of chapter two hundred and eight of the General Laws or other provisions of law.
(l) Transfers of property consisting in part of real property interests situated in Nantucket
County and in part of other property interests, to the extent that the property transferred
consists of property other than real property situated in Nantucket county; provided that the
purchaser shall furnish the Town with such information as it shall require or request in
support of the claim of exemption and manner of allocation of the consideration for such
transfers.
(m) The first $2 million of the sale price of any transfer or series of transfers of real property
interests in a single transaction. Said exemption may be adjusted as determined by the
affirmative vote of two-thirds of voters at an annual or special town meeting.
(n) Transfers of minority interests in corporations, trusts, partnerships or limited liability
companies which are publicly traded, which trades are not part of a series of transfers which
together constitute a transfer of control of a corporation, trust, partnership or limited liability
company.
SECTION 5. (a) The Town treasurer shall keep a full and accurate account stating when,
from or to whom, and on what account money has been paid or received relative to the
activities of the Trust Fund and the Housing Fund. Said account shall be subject to
examination by the director of accounts or his agent pursuant to section forty four of chapter
thirty five of the General Laws.
(b) Schedules of beneficiaries of trusts, list of stockholders of corporations and lists of
partnerships filed with the Trust Fund for the purpose of determining or fixing the amount of
the fee imposed under section ten or for the purpose of determining the existence of any
exemption under section twelve shall not be public records for the purposes of section ten of
chapter sixty-six of the General Laws.
SECTION 6. A seller who fails to pay all or any portion of the fee established by section two
on or before the time when the same is due shall be liable for the following additional
payments in addition to said fee:
(a) Interest: The seller shall pay interest on the unpaid amount of the fee to be calculated
from the time of transfer at a rate equal to fourteen per cent per annum.
(b) Penalties: Any person who, without fraud or willful intent to defeat or evade a fee imposed
by this chapter, fails to pay all or a portion of the fee within thirty days after the time of
transfer, shall pay a penalty equal to five per cent of the outstanding fee as determined by
the Town for each month or portion thereof thereafter that the fee is not paid in full; provided,
however, that in no event shall the amount of any penalty imposed hereunder exceed twenty
five per cent of the unpaid fee due at the time of transfer. Whenever the Town determines
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that all or a portion of a fee due under this chapter was unpaid due to fraud with intent to
defeat or evade the fee imposed by this chapter, a penalty equal to the amount of said fee as
determined by the Town shall be paid by the seller in addition to said fee.
SECTION 7. (a) The Town shall notify the purchaser and the seller by registered or certified
mail of any failure to discharge in full the amount of the fee due under this Act and any
penalty or interest assessed. The Town shall grant a hearing on the matter of the imposition
of said fee, or of any penalty or interest assessed, if a petition requesting such hearing is
received by the Town within thirty days after the mailing of said notice. The Town shall notify
the purchaser and the seller in writing by registered or certified mail of its determination
concerning the deficiency, penalty or interest within fifteen days after said hearing. Any party
aggrieved by a determination of the Town concerning a deficiency, penalty or interest may,
after payment of said deficiency, appeal to the district or superior court within three months
after the mailing of notification of the determination of the Town. Upon the failure to timely
petition for a hearing, or appeal to said courts, within the time limits hereby established, the
purchaser and seller shall be bound by the terms of the notification, assessment or
determination, as the case may be, and shall be barred from contesting the fee, and any
interest and penalty, as determined by the Town. All decisions of said courts shall be
appealable. Every notice to be given under this section by the Town shall be effective if
mailed by certified or registered mail to the purchaser or the seller at the address stated in a
recorded or registered instrument by virtue of which the purchaser holds any interest in land,
the transfer of which gives rise to the fee which is the subject of such notice; and if no such
address is stated or if such transfer is not evidenced by an instrument recorded or registered
in the public records in Nantucket County, such notice shall be effective when so mailed to
the purchaser or seller in care of any person appearing of record to have a fee interest in
such land, at the address of such person as set forth in an instrument recorded or registered
in Nantucket County.
(b) All fees, penalties and interest required to be paid pursuant to this chapter shall
constitute a personal debt of the seller and may be recovered in an action of contract or in
any other appropriate action, suit or proceeding brought by the Town; said action, suit or
proceeding shall be subject to the provisions of chapter two hundred and sixty of the General
Laws.
(c) If any seller liable to pay the fee established by this act neglects or refuses to pay the
same, the amount, including any interest and penalty thereon, shall be a lien in favor of the
Town upon all property and rights to property, whether real or personal, belonging to either
such purchaser or such seller. Said lien shall arise at the time of transfer and shall continue
until the liability for such amount is satisfied. Said lien shall in any event terminate not later
than six years following the time of transfer. Said lien shall not be valid as against any
mortgagee, pledgee, purchaser or judgment creditor unless notice thereof has been filed by
the Town (i) with respect to real property or fixtures, in the registry of deeds for Nantucket
County, or (ii) with respect to personal property, in the office in which a security or financing
statement or notice with respect to the property would be filed in order to perfect a
nonpossessory security interest belonging to the person named in the relevant notice,
subject to the same limitations as set forth in section fifty of chapter sixty two C of the
General Laws.
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(d) Sellers applying for an exemption under subsections (a) through (o) of section four shall
be required at the time of application for exemption to execute an agreement legally binding
on sellers and separately legally binding upon any Legal Representative of the sellers (1)
assuming complete liability for any fee, plus interest and penalties if any, waived on account
of an allowed exemption subsequently determined to have been invalid, and (2) submitting to
the jurisdiction of the trial court of the commonwealth sitting in Nantucket County. Fees, plus
interest and penalties if any, shall be calculated as of the date of the initial property transfer.
Execution of the above-described agreement shall not be required of any mortgagee, pledge,
purchaser or judgment creditor unless notice of the agreement has been recorded or filed by
the Town.
In any case where there has been a refusal or neglect to pay any fee, interest or penalties
imposed by this act, whether or not levy has been made, the Town, in addition to other
modes of relief, may direct a civil action to be filed in a district or superior court of the
commonwealth to enforce the lien of the Town under this section with respect to such liability
or to subject any property of whatever nature, of the delinquent, or in which he has any right,
title or interest, to the payment of such liability.
The Town may issue a waiver or release of any lien imposed by this section. Such waiver or
release shall be conclusive evidence that the lien upon the property covered by the waiver or
release is extinguished.
SECTION 8. The fee described by Section 2 shall be of ten-year duration from the date this
legislation take effect. This fee may continue for five-year periods by a majority vote at Town
Meeting reauthorizing the fee. The fee described by Section 2 may be 1) decreased, or 2)
eliminated by a two-thirds vote of Town Meeting. The threshold exemption described in
Section 4 (m) may similarly be raised by an affirmative two-thirds vote of Town Meeting. In
the event that Town Meeting does not renew the fee at the ten-year anniversary, or any
subsequent five year anniversary, or Town Meeting votes to eliminate the fee, the balance of
any fees previously collected shall be transferred to the Town of Nantucket and held by the
Treasurer in a separate account, and shall first be used to satisfy any outstanding liabilities
or obligations incurred by the Town of Nantucket or the Affordable Housing Trust as a result
of imposition of the fee, and the remainder may be expended without further appropriation by
the Board of Selectmen for affordable housing purposes. In the event that the liabilities and
obligations of the Town of Nantucket or the Affordable Housing Trust exceed the amounts
transferred to the Town, the fee shall remain in full force and effect until such liabilities and
obligations have been satisfied.
SECTION 9. The provisions of this act are severable, and if any provision hereof, including
without limitation any exemption from the fee imposed hereby, shall be held invalid in any
circumstances such invalidity shall not affect any other provisions or circumstances. This act
shall be construed in all respects so as to meet all constitutional requirements. In carrying
out the purposes and provisions of this act, all steps shall be taken which are necessary to
meet constitutional requirements whether or not such steps are required by statute.
SECTION 10. If the Town has determined that a fee is due by asserting the application of the
evasion of fee doctrine described in Section 2, then the seller shall have the burden of
demonstrating by clear and convincing evidence as determined by the Town that the
transfer, or series of transfers, possessed both: (i) a valid, good faith business purpose other
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than avoidance of the fee set forth in Section 2 and (ii) economic substance apart from the
asserted fee avoidance benefit. In all such cases, the transferee shall also have the burden
of demonstrating by clear and convincing evidence as determined by the Town that the
asserted non-fee-avoidance business purpose is commensurate with the amount of the fee
pursuant to Section 2 to be thereby avoided.
SECTION 11. This act shall take effect ninety (90) days following the date of passage.