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.
See also ch. Tax 15
, Wis. adm. code.
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
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 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
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:
The value of the ownership interest transferred by the instrument of conveyance.
The amount of the fee payable under this section.
The financing terms under which agricultural land is transferred that are relevant to determining only the value of the property.
Any other information the secretary requires.
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).
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
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.
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
History: 1977 c. 29
; 1981 c. 20
Exemptions from fee.
The fees imposed by this subchapter do not apply to a conveyance:
From the United States or from this state or from any instrumentality, agency or subdivision of either.
By gift, to the United States or to this state or to any instrumentality, agency or subdivision of either.
Under s. 236.29 (1)
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.
Which, executed for nominal, inadequate or no consideration, confirms, corrects or reforms a conveyance previously recorded.
On sale for delinquent taxes or assessments.
Pursuant to mergers of entities.
Pursuant to partnerships filing or cancelling a statement of qualification under s. 178.0901
or a corresponding statement under the law of another jurisdiction.
Pursuant to the conversion of a business entity to another form of business entity under s. 178.1141
, 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.
By a subsidiary corporation to its parent corporation for no consideration, nominal consideration or in sole consideration of cancellation, surrender or transfer of capital stock between parent and subsidiary corporation.
Between parent and child, stepparent and stepchild, parent and son-in-law or parent and daughter-in-law for nominal or no consideration.
Between an individual and his or her domestic partner under ch. 770
Between agent and principal or from a trustee to a beneficiary without actual consideration.
Solely in order to provide or release security for a debt or obligation, if the debt or obligation was not incurred as the result of a conveyance.
By will, descent or survivorship.
Pursuant to or in lieu of condemnation.
Of real estate having a value of $1,000 or less.
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.
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.
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.
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.
To a trust if a transfer from the grantor to the beneficiary of the trust would be exempt under this section.
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.
Corporate stock constitutes “actual consideration" under sub. (9). Gottfried, Inc. v. DOR, 145 Wis. 2d 715
, 429 N.W.2d 508
(Ct. App. 1988).
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).
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
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. DOR, 2004 WI App 19
, 269 Wis. 2d 526
, 674 N.W.2d 922
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
Exemptions from return.
No return is required with respect to a conveyance exempt under s. 77.25 (1)
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
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.
History: 2015 a. 145
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.
If the department of revenue determines that the amount of the real estate transfer fee reported was in error or that an exemption was improperly claimed, the department shall compute the additional transfer fee to be paid by, or the amount of the overpayment of transfer fee to be refunded to, the grantor.
All additional assessments and claims for refund are subject to the applicable notice provisions and procedures for review, final determination, collection, interest and penalties provided for additional income or franchise tax assessments and claims for refund under ch. 71
The department of revenue shall collect additional real estate transfer fees and divide the amount collected with the appropriate county in the proportion under s. 77.24
In the case of overpayment of transfer fees by any grantor under sub. (2)
, the department of revenue shall certify the overpayment to the department of administration for payment of the refund to the grantor.
The department of revenue shall notify the appropriate county treasurer of any refund paid by the state, and the appropriate county treasurer shall increase the county's next payment to the state to reimburse the state for the county's share of the refund.
No person may make additional assessments of transfer fees or claim a refund of excess transfer fees paid after 4 years have elapsed from the date the transfer fee was due under s. 77.22
If the department of revenue determines that the value reported on the return under s. 77.22
is understated by 25 percent or more or that an exemption was improperly claimed under s. 77.25
, the department shall assess and collect a penalty of $25 or 25 percent of the additional fee due, whichever is greater, in the manner that additional transfer fees are collected.
History: 1983 a. 27
; 1991 a. 39
Grantor and grantee social security numbers and grantor and grantee telephone numbers from real estate transfer returns shall be confidential, but the returns, and the information contained in the returns, may be disclosed as follows:
The department of revenue shall distribute information from the returns to local assessors. The local assessors shall maintain the confidentiality of social security numbers and telephone numbers from the returns.
The local assessor shall permit the inspection of all returns filed under this subchapter for property within any local unit of government for which property taxes are levied by the chief elected official, or a person designated by the official, of that unit upon the adoption of a resolution by the governing body of the unit directing the official to inspect the returns for the purpose of reviewing the basis upon which equalized values were established by the department of revenue under s. 70.57
, and the official or designee shall maintain the confidentiality of grantor and grantee social security numbers and telephone numbers from the returns.
The returns may be used in any proceeding involving the requisite amount of the fee and may be produced in any proceeding subject to a valid subpoena or court order, but the court, or adjudicating agency, and the parties shall maintain the confidentially of social security numbers and telephone numbers from the returns.
The department of workforce development may use the returns under s. 106.50
, but shall maintain the confidentiality of social security numbers and telephone numbers from the returns.
The department of revenue, county real property listers under s. 70.09
, and local assessors and their employees and agents may use the returns, but shall maintain the confidentiality of social security numbers and telephone numbers from the returns.
Governmental agencies that acquire real property for public purposes, or that administer taxes, may use the returns, but shall maintain the confidentiality of social security numbers and telephone numbers from the returns.
In a condemnation proceeding or in an appeal of an assessment of real property, the property owners and the owners' agents may inspect the returns after signing a written agreement to maintain the confidentiality of social security numbers and telephone numbers from the returns inspected.
A county may use the returns to develop a tract index, but shall maintain the confidentiality of social security numbers and telephone numbers from the returns.
The department of revenue may make available to the public all information obtained from the returns except social security numbers and telephone numbers from the returns.
Penalty for falsifying value.
Any person who intentionally falsifies value on a return required to be filed under this subchapter may for each such offense be fined not more than $1,000 or imprisoned in the county jail not more than one year, or both.
This section is violated when a value is intentionally falsified on a Wisconsin real estate transfer return. Falsely declaring a transfer as a sale when it is in fact a gift does not constitute a violation, nor will it support the issuance of a false swearing complaint under s. 946.32, but it may constitute a gift tax avoidance in violation of s. 72.86 (6), 1989 stats. 62 Atty. Gen. 251.
Fee for recording.
In any county in which the register of deeds is compensated on a fee basis, the county shall pay the register of deeds an additional amount equal to 25 percent of the recording fees for all deeds or other instruments conveying real estate evidencing transfers subject to fee under this subchapter.
History: 1991 a. 316