There is hereby levied a tax on (1) each transfer in the County of a fee simple interest in real property, except a transfer by mortgage, deed of trust, or deed of trust for the benefit of creditors, (2) the initial transfer of stock or other evidence of ownership in a cooperative housing corporation or similar entity, and (3) each transfer of a leasehold interest in real property where the lease or instrument by which a leasehold interest is transferred contains a covenant for perpetual renewal, known as ground rent. The tax must be computed on the value of the full consideration for each transfer at the following rates:
(a) On improved residential property:
(1) One-quarter of one (0.25) percent on property where the value of the full consideration is less than forty thousand dollars ($40,000.00);
(2) One-half of one (0.50) percent on property where the value of the full consideration is forty thousand dollars ($40,000.00) or more, but less than seventy thousand dollars ($70,000.00); and
(3) One (1) percent on property where the value of the full consideration is seventy thousand dollars ($70,000.00) or more.
Where the transfer is subject both to the tax imposed by this subsection and the tax imposed by another subsection of this section, the tax imposed by the other subsection shall be the only tax imposed on the transfer. "Improved property" means real property that includes a structure that is under roof, plastered or ceiled, and trimmed.
(b) On improved nonresidential property, one (1) percent regardless of the value of the full consideration.
Where the transfer is subject both to the tax imposed by this subsection and the tax imposed by another subsection of this section, the tax imposed by the other subsection shall be the only tax imposed on the transfer. "Improved property" means real property that includes a structure that is under roof, plastered or ceiled, and trimmed.
(c) On unimproved property, one (1) percent regardless of the value of the full consideration.
(d) On land assessed as farmland, a percentage of the value of the consideration for the transfer of land, excluding improvements thereon, which, while owned by the transferor, has been assessed and taxed at any time during the five (5) years preceding transfer on the basis of being actively devoted to farm or agricultural use, said tax to be paid by the transferor of such land, which percentage shall vary according to the following schedule:
(1) Land assessed and taxed to the transferor for one (1) year on the basis of farm or agricultural use, two and four-tenths (2.4) percent.
(2) Land assessed and taxed to the transferor for two (2) years on the basis of farm or agricultural use, three and eight-tenths (3.8) percent.
(3) Land assessed and taxed to the transferor for three (3) years on the basis of farm or agricultural use, five and two-tenths (5.2) percent.
(4) Land assessed and taxed to the transferor for more than three (3) years on the basis of farm or agricultural use, six (6) percent.
(5) Land zoned Rural Density Transfer Zone (RDT) or its successor zone, or land covered by a permanent easement prohibiting development for residential or other nonagricultural use, one (1) percent.
Improvements and land which were not assessed based on farm or agricultural use and are not subject to the farmland transfer tax levied under this subsection and are transferred as a part of a transaction including a transfer of land previously assessed as farmland, shall be taxed as provided in other subsections of this section as if such improvements and land were not part of a transaction including farmland. Consideration for the improvements and non-farm-assessed land shall be presumed to be the total full cash value most recently determined by the supervisor of assessments based on the most recent notice of assessment. The presumption may be rebutted by clear and convincing evidence.
Where the transfer is subject both to the tax imposed by this subsection and the tax imposed by subsection (e) of this section, the tax imposed by subsection (e) shall be the only tax imposed on the transfer.
The county executive may from time to time issue written regulations adopted under method (3) of section 2A-15 of this Code, pertaining to the collection of the tax levied in this subsection.
(e) On rezoned property, 6 percent of the value of the consideration for any transfer of real property which has been rezoned to a more intensive use at the request of the transferor, transferee, or any other person who has or had at the time of application for rezoning a financial, contractual or proprietary interest in the property, not including the value of any improvement constructed after the rezoning. “Rezoned” as used in this subsection means the classification, reclassification, or change from one zone to another of any property by local map amendment under Chapter 59. “Rezoned to a more intensive use” as used in this subsection means a classification, reclassification, or change in zone which permits a greater number of dwelling units per acre in any residential zone, or which permits a greater number of permitted uses regardless of area or allows more floor area in a commercial, commercial/residential, employment, or industrial zone, or is from any residential zone to any commercial, commercial/residential, employment, or industrial zone, or is from any industrial zone to any commercial, commercial/residential, or employment zone.
“Rezoned to a more intensive use” does not include:
(1) A zoning from a residential zone to a residential floating zone if the approved floating zone plan, including any amendments to the plan, does not increase the total number of permitted dwelling units and does not permit commercial or industrial uses, but the transfer must be subject to any tax otherwise due under this subsection if at any time an amendment to the floating zone plan increases the total number of permitted dwelling units or permits commercial or industrial uses;
(2) A zoning from a residential zone to a commercial, commercial/residential, or employment, zone within one year after the property was down zoned from a zone of equal or greater intensity to a residential zone by sectional map amendment;
(3) A rezoning from an industrial zone to a commercial, commercial/residential, or employment, zone which:
(i) Is necessitated by a previously adopted amendment to Chapter 59 that was not requested by the transferor, transferee, owner or former owner of the real property, or by any person who has or has previously had an interest of any kind in the property, including a contractual interest; and
(ii) Allows establishment or continuance of a use or uses which were permitted uses on the property under the industrial zone immediately before the text amendment, to which use or uses the property was restricted by bona fide covenants recorded among the land records before July 1, 1971, and which covenants are in effect at the time of a transfer; or
(4) a rezoning of any property that is located in an enterprise zone when the property is transferred.
The taxpayer may deduct from the consideration on which the tax is based any cost actually incurred by the transferor for public improvements, such as sewer, water, roads, sidewalks, storm drainage structures, and permanent soil erosion and sediment control measures, if the taxpayer submits satisfactory proof of costs documented by certificates from public agencies where applicable, but the rate of the tax on a single transfer must not exceed 6 percent of the bona fide market value consideration for the transfer. If a transfer is subject both to the tax imposed by this subsection and the tax imposed by subsection (d), the tax imposed by this subsection must be the only tax imposed on the transfer. Any tax collected under this subsection must be collected only once on the first taxable transaction after each rezoning to a more intensive use, and any transfer that does not follow a rezoning to a more intensive use must be taxed at the rates applicable under other subsections of this section. The Executive may issue regulations under method (3) regarding the collection of the tax levied in this subsection.
(f) On condominium property, four (4) percent of the value of the consideration for the initial transfer of a residential unit subject to a condominium regime, which unit was offered for rent for residential purposes prior to the establishment of the condominium regime.
(1) The tax shall be paid by the transferor initially transferring a unit and shall be in addition to the taxes imposed under subsection (a) of this section.
(2) No transfer of any interest in real property shall be taxed under this subsection where:
(A) The transfer is pursuant to a bona fide contract or agreement for sale of the individual unit entered into prior to July 28, 1980; or
(B) The transfer is of a unit in a condominium regime established by recording a declaration, bylaws and condominium plat, before July 28, 1980, under the Maryland Condominium Act, Title 11 of the Real Property Article of the Maryland Code. For purposes of this subsection, residential units contained in an expanding condominium regime established by recording a declaration, bylaws and condominium plat before July 28, 1980, but not added to the established condominium regime by that date, shall continue to be exempt from taxation under this subsection if the unit becomes a condominium unit in an established condominium regime by the last date for establishment of units in the expanded condominium as contained in the declaration filed before July 28, 1980, either as a part of the original expanding condominium or as a part of a separate condominium.
(3) All taxes and interest collected and received pursuant to this subsection shall be paid into a special fund to be used to preserve multiunit rental residential facilities, to support construction of new rental facilities, to provide rental assistance and financing assistance to eligible persons, to otherwise mitigate the impact on tenants displaced or threatened with displacement by the conversion of a multiunit residential rental facility to a condominium or cooperative, to provide affordable housing, and for any other purpose related to the loss of rental housing as set forth in regulations to be adopted by the county executive. The executive must transfer any balance in this fund not committed to an existing project, and any revenue the fund receives after May 15, 1988, to support the Montgomery Housing Initiative established under section 25B-9.
(4) The county executive may adopt regulations, under method (2) of section 2A-15 of this Code, for the implementation of the purposes set forth above. Expenditures from the fund shall be authorized by appropriation by the county council.
(5) Where the transfer of a unit is subject to this tax and is subject to tax under subsection (d) or (e) of this section the director of finance shall collect at the rate which shall yield the highest return; and all taxes and interest collected shall be paid into the special fund provided in paragraph (3) of this subsection.
(g) On cooperative housing, 4% of the value of the consideration for the initial transfer of stock or other evidence of membership in a cooperative housing corporation or similar entity where such stock corresponds to a residential unit which is being converted from rental status to a system of cooperative housing corporation ownership under which title to a multi-unit residential facility is held by a corporation, the shareholders or members of which, by virtue of such ownership or membership, are entitled to enter into an occupancy agreement for a particular residential unit.
(1) The tax shall be paid by the transferor initially transferring the stock or other evidence of membership in a cooperative housing corporation or similar entity, corresponding to a residential unit, and shall be in addition to other taxes imposed by subsection (a) of this section.
(2) No transfer of stock or other evidence of ownership in a cooperative housing corporation or similar entity shall be taxed under this article where:
(A) The transfer is made pursuant to the purchase of a building by or on behalf of a bona fide tenants' association; or
(B) The transfer is made pursuant to a bona fide contract or agreement for sale of the stock or other evidence of membership corresponding to a residential unit entered into prior to July 1, 1981; or
(C) The transfer is of stock or other evidence of membership in a cooperative housing corporation which, prior to July 1, 1981, had been specifically incorporated as a cooperative and was the owner in fee simple of the multifamily residential facility.
(3) All taxes and interest collected and received pursuant to this subsection shall be paid into the special fund established under subsection (f)(3) of this section.
(4) The county executive may adopt regulations, under method (2) of section 2A-15 of this Code, for the implementation of the purposes set forth above. Expenditures from the fund shall be authorized by appropriation by the county council.
(5) Where the transfer of the stock corresponding to a residential unit is subject to this tax and is subject to tax under subsection (d) or (e) of this section the director of finance shall collect at the rate which shall yield the highest return; and all taxes and interest collected shall be paid into the special fund provided in subsection (f) of this section.
(6) The tax levied by this subsection shall be paid prior to the actual transfer of the stock or other evidence of membership. The tax shall be paid to the county at the office of the director of finance and shall be evidenced by the affixing of an official stamp upon the stock certificate, membership certificate or other instrument of conveyance, showing the amount of the tax paid. At the time of payment, the person paying such tax shall present to the director, in a form prescribed by the director, a signed statement setting forth the actual and true value of the consideration for the transfer. The person paying the tax shall be given a receipt for such payment. This paragraph shall be applicable to this subsection only and shall supersede any of the provisions of Section 52-32, to the extent they are inconsistent.
(7) For purposes of this subsection, a transfer or issuance of stock or other evidence of membership from the cooperative housing corporation to the developer shall not be deemed to be the initial transfer. The county executive may from time to time issue written regulations, adopted under method (2) of section 2A-15 of this Code, to define any terms or to effectuate the purposes of this subsection.
(8) It shall be the duty of the transferor to keep and preserve, for a period of three (3) years, a record of transfers that have occurred and the amount of consideration for each transfer. The director of finance, or his designee, shall have the right to inspect these records at all reasonable times.
(h) On any nonresidential leasehold interest in real property, one percent of the value of the consideration, where there is a simultaneous or later transfer of the fee interest in the real property to any transferee or assignee of the leasehold, or any entity in which a transferee or assignee of the leasehold has any interest. The consideration for tax purposes must be:
(1) The average annual rent over the term of the lease, including renewals, capitalized at ten (10) percent, plus any additional consideration payable, other than rent; or
(2) If the average annual rent cannot be determined, the greater of:
(i) One hundred five (105) percent of the minimum average annual rent, as determined by the lease, capitalized at ten (10) percent, plus any additional consideration payable, other than rent; or
(ii) One hundred fifty (150) percent of the assessed value of the real property subject to lease.
(i) Where transfers are taxable under more than one subsection of this section, the director of finance must collect the tax at the rate which yields the highest return. (Mont. Co. Code 1965, § 84-25; Ord. No. 6-32; Ord. No. 6-127, § 1; Ord. No. 6-171; 1969 L.M.C., ch. 40, § 9; 1971 L.M.C., ch. 46, § 1; 1971 L.M.C., ch. 47, § 1; 1973 L.M.C., ch. 34, § 1; 1974 L.M.C., ch. 1, § 1; 1974 L.M.C., ch. 10, § 1; 1979 L.M.C., ch. 58, § 1; 1981 L.M.C., ch. 6, § 1; 1982 L.M.C., ch. 4, § 1; 1982 L.M.C., ch. 36, § 1; 1982 L.M.C., ch. 52, § 1; 1983 L.M.C., ch. 37, § 1; 1984 L.M.C., ch. 24, § 50; 1984 L.M.C., ch. 27, § 33; 1985 L.M.C., ch. 6, § 1; 1988 L.M.C., ch. 42, § 2; 1989 L.M.C., ch. 46, § 1; 2013 L.M.C., ch. 4, § 1; 2014 L.M.C., ch. 29, § 1; 2016 L.M.C., ch. 7, § 2.)
Editor’s note—Section 52-31(e) (formerly § 52-21(e), 2016 L.M.C., ch. 7, § 1) is referenced in Rouse-Fairwood Limited Partnership v. Supervisor of Assesments of Prince George’s County, 120 Md. App. 667, 708 A.2d 19 (1998), regarding inclusion of definition of rezoned to a “more intensive use”. In Nordheimer v. Montgomery County, 307 Md. 85, 512 A.2d 379 (1986), the court upheld the validity of the tax on the initial transfer of a condominium unit imposed by § 52-21(f) [then designated subsection (h)] (now § 52-31(f), 2016 L.M.C., ch. 7, § 1) against challenges alleging violations of the Maryland Condominium Act [formerly Horizontal Property Act] [formerly § 11-120(b), now § 11-122(b) of the Real Property Article, Md. Code Ann.] and violations of the equal protection guarantees of Art. 24, Maryland Declaration of Rights, and the Fourteenth Amendment of the U.S. Constitution. In Dean v. Director of Finance of Montgomery County, 96 Md. App. 80, 623 A.2d 707 (1993), the court held that a vested remainder subject to life estates in real property constituted a fee simple interest, and that the transfer of this interest by the remaindermen to the life tenants is subject to the tax imposed by § 52-31 (formerly §52-21, 2016 L.M.C., ch. 7, § 1). The above section is cited in Montgomery County Board of Realtors, Inc. v. Montgomery County, 287 Md. 101, 411 A.2d 97 (1980). Section 52-31(e) (formerly § 52-21(e), 2016 L.M.C., ch. 7, §1) is cited in Montgomery County v. Fulks, 65 Md.App. 227, 500 A.2d 302 (1985) and is interpreted in Maisel v. Montgomery County, 94 Md.App. 31, 614 A.2d 1333 (1992). Section 52-31(h) (formerly § 52-21(h), 2016 L.M.C., ch. 7, § 1) is held valid in Nordheimer v. Montgomery County, 307 Md. 85, 512 A.2d 379 (1986).
See County Attorney Opinion dated 2/29/08 regarding when the State is exempt from the County’s farmland transfer tax only when the State is the transferor.
Section 2 of 1985 L.M.C., ch. 6, reads as follows: “Sec. 2. Refunds. The provisions of Section 52-21(e)(1) and (2) (now § 52-31(e)(1) and(2), 2016 L.M.C., ch. 7, § 1) shall apply to all taxes paid within three years prior to the effective date of this Act and all claims for refund shall be filed within three years from the date of payment of the taxes as provided in Section 215, Article 81, Annotated Code of Maryland.” Md. Ann. Code art. 81 § 215 appears in Md. Code Ann., Tax-Gen. §§ 13-901, 13-902, 13- 904 (2004), and Md. Ann. Code art. 24, §§ 9-710, 9-712, and 9-724 (2005).
*Editor’s note—Maryland Condominium Act.