subch. II of ch. 77 SUBCHAPTER II
REAL ESTATE TRANSFER FEE
77.21 77.21 Definitions. In this subchapter:
77.21(1) (1) "Conveyance" includes deeds and other instruments for the passage of ownership interests in real estate, including contracts and assignments of a vendee's interest therein, including instruments that are evidence of a sale of time-share property, as defined in s. 707.02 (32), and including leases for at least 99 years but excluding leases for less than 99 years, easements and wills.
77.21(1e) (1e) "Mergers of entities" means the merger or combination of 2 or more corporations, nonstock corporations, limited liability companies, limited partnerships, or other entities, or any combination thereof, under a plan of merger or a plan of consolidation permitted by the laws that govern the entities.
Effective date note NOTE: Sub. (1e) is shown as amended eff. 7-1-16 by 2015 Wis. Act 295. Prior to 7-1-16 it reads:
Effective date text (1e) "Mergers of corporations" means the merger or combination of 2 or more corporations, nonstock corporations, limited liability companies, or limited partnerships, or any combination thereof, under a plan of merger or a plan of consolidation permitted by the laws that govern the entities.
77.21(1k) (1k) "Partition" means the division among several persons of real property, including noncontiguous real property, that belongs to them as co-owners.
77.21(1m) (1m) "Real estate" includes, but is not limited to, fixtures; roots, vines and trees of perennial crops; stock in a cooperative building; improvements on leased land; timber; and minerals.
77.21(2) (2) "Register" means the register of deeds for the county in which particular real estate is located.
77.21(3) (3) "Value" means:
77.21(3)(a) (a) In the case of any conveyance not a gift, the amount of the full actual consideration paid therefor or to be paid, including the amount of any lien or liens thereon; and
77.21(3)(b) (b) In case of a gift, or any deed of nominal consideration or any exchange of properties, the estimated price the property would bring in an open market and under the then prevailing market conditions in a sale between a willing seller and a willing buyer, both conversant with the property and at prevailing general price levels.
77.21 Cross-reference Cross-reference: See also ch. Tax 15, Wis. adm. code.
77.21 Annotation A memorandum announcing a reorganization of a land-owning partnership into a limited liability company and that the LLC was now the owner of the real estate was a document intended to transfer title to real estate. The receipt by members of ownership interests in the LLC was for value so that there was a conveyance under sub. (1) subject to taxation under s. 77.22. Wolter v. DOR, 231 Wis. 2d 651, 605 N.W.2d 283 (Ct. App. 1999), 99-0671.
77.22 77.22 Imposition of real estate transfer fee.
77.22(1) (1) There is imposed on the grantor of real estate a real estate transfer fee at the rate of 30 cents for each $100 of value or fraction thereof on every conveyance not exempted or excluded under this subchapter. In regard to land contracts the value is the total principal amount that the buyer agrees to pay the seller for the real estate. This fee shall be collected by the register at the time the instrument of conveyance is submitted for recording. Except as provided in s. 77.255, at the time of submission the grantee or his or her duly authorized agent or other person acquiring an ownership interest under the instrument, or the clerk of court or judgment creditor in the case of a foreclosure under s. 846.16, shall execute a return, signed by both grantor and grantee, on the form prescribed under sub. (2). The register shall enter the fee paid on the face of the deed or other instrument of conveyance before recording, and, except as provided in s. 77.255, submission of a completed real estate transfer return and collection by the register of the fee shall be prerequisites to acceptance of the conveyance for recording. The register shall have no duty to determine either the correct value of the real estate transferred or the validity of any exemption or exclusion claimed. If the transfer is not subject to a fee as provided in this subchapter, the reason for exemption shall be stated on the face of the conveyance to be recorded by reference to the proper subsection under s. 77.25.
77.22(2) (2) The secretary of revenue shall prescribe the form required under sub. (1). Forms filed on or after July 1, 2009, shall be filed electronically in the manner prescribed by the secretary. The secretary may waive the requirement to file electronically if the secretary determines, based on a written application for a waiver, that the requirement causes an undue hardship. The form shall include an application for a credit under s. 79.10 (5) and shall provide for the submission of the following:
77.22(2)(a) (a) The value of the ownership interest transferred by the instrument of conveyance.
77.22(2)(b) (b) The amount of the fee payable under this section.
77.22(2)(c) (c) Whether the real estate transferred is subject to certification under s. 101.122 (4) (a), waiver under s. 101.122 (4) (b) or stipulation under s. 101.122 (4) (c).
77.22(2)(d) (d) If the real estate transferred is not subject to certification under s. 101.122 (4) (a), waiver under s. 101.122 (4) (b) or stipulation under s. 101.122 (4) (c), the reason why it is not so subject or the form prescribed by the department of safety and professional services under s. 101.122 (6).
77.22(2)(e) (e) The financing terms under which agricultural land is transferred that are relevant to determining only the value of the property.
77.22(2)(f) (f) Any other information the secretary requires.
77.22 Annotation The transfer by all owners of property held as a in tenancy in common to a partnership consisting of all the original tenants in common was a taxable conveyance. DOR v. Mark, 168 Wis. 2d 288, 483 N.W.2d 302 (Ct. App. 1992).
77.22 Annotation A memorandum announcing a reorganization of a land-owning partnership into a limited liability company and that the LLC was now the owner of the real estate was a document intended to transfer title to real estate. The receipt by members of ownership interests in the LLC was for value so that there was a conveyance under s. 77.21 (1) subject to taxation under sub. (1). Wolter v. DOR, 231 Wis. 2d 651, 605 N.W.2d 283 (Ct. App. 1999), 99-0671.
77.22 Annotation There need not be both a conveyance and consideration with value for a transfer to be subject to the transfer fee. F.M. Management Co. v. Department of Revenue, 2004 WI App 19, 269 Wis. 2d 526, 674 N.W.2d 922, 03-1536.
77.23 77.23 Disposition of fees and returns. On or before the 15th day of each month the register shall submit to the county treasurer transfer fees collected together with the returns filed in the office during the preceding month for the treasurer's transmission to the department of revenue under s. 77.24 and shall submit to the county treasurer, or to the city treasurer if the property is located in a city that collects taxes under s. 74.87, all applications for credits under s. 79.10 (5) that the county register of deeds receives during the preceding month.
77.24 77.24 Division of fee. Twenty percent of all fees collected under this subchapter shall be retained by the county and the balance shall be transmitted to the state. Remittances shall be made monthly by the county treasurers to the department of revenue by the 15th day of the month following the close of the month in which the fee was collected. The remittance to the department shall be accompanied by the returns executed under s. 77.22.
77.24 History History: 1977 c. 29; 1981 c. 20.
77.25 77.25 Exemptions from fee. The fees imposed by this subchapter do not apply to a conveyance:
77.25(1) (1) Prior to October 1, 1969.
77.25(2) (2) From the United States or from this state or from any instrumentality, agency or subdivision of either.
77.25(2g) (2g) By gift, to the United States or to this state or to any instrumentality, agency or subdivision of either.
77.25(2r) (2r) Under s. 236.29 (1) or (2) or 236.34 (1m) (e) or for the purpose of a road, street, or highway, to the United States or to this state or to any instrumentality, agency, or subdivision of either.
77.25(3) (3) Which, executed for nominal, inadequate or no consideration, confirms, corrects or reforms a conveyance previously recorded.
77.25(4) (4) On sale for delinquent taxes or assessments.
77.25(5) (5) On partition.
77.25(6) (6) Pursuant to mergers of entities.
Effective date note NOTE: Sub. (6) is shown as amended eff. 7-1-16 by 2015 Wis. Act 295. Prior to 7-1-16 it reads:
Effective date text (6) Pursuant to mergers of corporations.
77.25(6d) (6d) Pursuant to partnerships filing or cancelling a statement of qualification under s. 178.0901 or a corresponding statement under the law of another jurisdiction.
Effective date note NOTE: Sub. (6d) is shown as amended eff. 7-1-16 by 2015 Wis. Act 295. Prior to 7-1-16 it reads:
Effective date text (6d) Pursuant to partnerships registering as limited liability partnerships under s. 178.40.
77.25(6m) (6m) Pursuant to the conversion of a business entity to another form of business entity under s. 178.1141, 179.76, 180.1161, 181.1161, or 183.1207, if, after the conversion, the ownership interests in the new entity are identical with the ownership interests in the original entity immediately preceding the conversion.
Effective date note NOTE: Sub. (6m) is shown as amended eff. 7-1-16 by 2015 Wis. Act 295. Prior to 7-1-16 it reads:
Effective date text (6m) Pursuant to the conversion of a business entity to another form of business entity under s. 179.76, 180.1161, 181.1161, or 183.1207, if, after the conversion, the ownership interests in the new entity are identical with the ownership interests in the original entity immediately preceding the conversion.
77.25(6q) (6q) Pursuant to an interest exchange under s. 178.1131.
Effective date note NOTE: Sub. (6q) is created eff. 7-1-16 by 2015 Wis. Act 295.
77.25(6t) (6t) Pursuant to a domestication under s. 178.1151.
Effective date note NOTE: Sub. (6t) is created eff. 7-1-16 by 2015 Wis. Act 295.
77.25(7) (7) By a subsidiary corporation to its parent for no consideration, nominal consideration or in sole consideration of cancellation, surrender or transfer of capital stock between parent and subsidiary corporation.
77.25(8) (8) Between parent and child, stepparent and stepchild, parent and son-in-law or parent and daughter-in-law for nominal or no consideration.
77.25(8m) (8m) Between husband and wife.
77.25(8n) (8n) Between an individual and his or her domestic partner under ch. 770.
77.25(9) (9) Between agent and principal or from a trustee to a beneficiary without actual consideration.
77.25(10) (10) Solely in order to provide or release security for a debt or obligation.
77.25(10m) (10m) Solely to designate a TOD beneficiary under s. 705.15.
77.25(11) (11) By will, descent or survivorship.
77.25(11m) (11m) By nonprobate transfer on death under s. 705.15.
77.25(12) (12) Pursuant to or in lieu of condemnation.
77.25(13) (13) Of real estate having a value of $1,000 or less.
77.25(14) (14) Under a foreclosure or a deed in lieu of a foreclosure to a person holding a mortgage or to a seller under a land contract.
77.25(15) (15) Between a corporation and its shareholders if all of the stock is owned by persons who are related to each other as spouses, as lineal ascendants, lineal descendants or siblings, whether by blood or by adoption, or as spouses of siblings, if the transfer is for no consideration except the assumption of debt or stock of the corporation and if the corporation owned the property for at least 3 years.
77.25(15m) (15m) Between a partnership and one or more of its partners if all of the partners are related to each other as spouses, as lineal ascendants, lineal descendants or siblings, whether by blood or by adoption, or as spouses of siblings and if the transfer is for no consideration other than the assumption of debt or an interest in the partnership.
77.25(15s) (15s) Between a limited liability company and one or more of its members if all of the members are related to each other as spouses, as lineal ascendants, lineal descendants or siblings, whether by blood or by adoption, or as spouses of siblings and if the transfer is for no consideration other than the assumption of debt or an interest in the limited liability company.
77.25(16) (16) To a trust if a transfer from the grantor to the beneficiary of the trust would be exempt under this section.
77.25(17) (17) Of a deed executed in fulfillment of a land contract if the proper fee was paid when the land contract or an instrument evidencing the land contract was recorded.
77.25(18) (18) To a local exposition district under subch. II of ch. 229.
77.25(20) (20) Made under s. 184.15.
77.25(21) (21) Of transmission facilities or land rights to the transmission company, as defined in s. 196.485 (1) (ge), under s. 196.485 (5) (b) or (c) or (6) (a) 1. in exchange for securities, as defined in s. 196.485 (1) (fe).
77.25 Annotation Corporate stock constitutes "actual consideration" under sub. (9). Gottfried, Inc. v. DOR, 145 Wis. 2d 715, 429 N.W.2d 508 (Ct. App. 1988).
77.25 Annotation A principal/agent relationship for purposes of sub. (9) must be examined as of the date of the conveyance. Washington National Development Co. v. DOR, 194 Wis. 2d 567, 535 N.W.2d 71 (Ct. App. 1995).
77.25 Annotation Exemptions are strictly construed against granting the exemption. While subs. (15m) and (15s) exempt transfers between family members and family business entities, they do not exempt transfers from one family business to another even though the same transaction, had it been completed in 2 separate transfers, would have been exempt. Wolter v. DOR, 231 Wis. 2d 651, 605 N.W.2d 283 (Ct. App. 1999), 99-0671.
77.25 Annotation Sub. (15s) applies only if the members of the limited liability company are human. The requirement that all of the members of the LLC be related to each other was reasonably interpreted to reject the argument that if there is only one member, that member need not be human because neither humans nor entities may be related to themselves. F.M. Management Co. v. Department of Revenue, 2004 WI App 19, 269 Wis. 2d 526, 674 N.W.2d 922, 03-1536.
77.25 Annotation There is no family member exemption under sub. (15m) when the transfer is between partnerships rather than from a partnership to exempted family members. For the exemption to apply, the partner or partners who are involved in the conveyance must be human beings, not just legal entities. Turner v. DOR, 2004 WI App 82, 271 Wis. 2d 760, 679 N.W.2d 880, 03-1517.
77.255 77.255 Exemptions from return. No return is required with respect to a conveyance exempt under s. 77.25 (1), (10m)[,].
77.255 Note NOTE: This section is shown as affected by 2015 Wis. Acts 145 and 216 and as merged by the legislative reference bureau under s. 13.92 (2) (i). The comma in brackets was rendered unnecessary by the treatment by Act 145. Corrective legislation to remove the bracketed comma and replace the comma following "s. 77.25 (1)" with "or" is pending.
77.255 History History: 1983 a. 27; 1987 a. 27; 1991 a. 39; 2015 a. 145, 216; s. 13.92 (2) (i).
77.256 77.256 Local fees prohibited.
77.256(1) (1) No city, village, town, or county may impose a fee on a conveyance that is exempt from the real estate transfer fee under s. 77.25.
77.256(2) (2) If a city, village, town, or county has an ordinance in effect on February 6, 2016, that is inconsistent with the prohibition under sub. (1), the city, village, town, or county may not enforce the ordinance.
77.256 History History: 2015 a. 145.
77.26 77.26 Powers of investigation, additional fees, refunds, penalties.
77.26(1)(1) The department of revenue may examine any records of any party to a conveyance to determine the real estate transfer fee due and the accuracy of the return submitted.
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2013-14 Wisconsin Statutes updated through 2015 Wis. Act 392 and all Supreme Court Orders entered before June 18, 2016. Published and certified under s. 35.18. Changes effective after June 18, 2016 are designated by NOTES. (Published 6-18-16)