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ordinance.council.008-10ORDINANCE NO. 8 (Series of 2010) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, TO AMEND CHAPTER 23.48 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN TITLED "REAL ESTATE TRANSFER TAX" BY AMENDING SECTION 23.48.010, DEFINITIONS; AMENDING SECTION 23.48.030, FINANCE DIRECTOR TO ENFORCE; AND, AMENDING SECTION 23.48.040, EXEMPTIONS. WHEREAS, Clarifications are necessary in the Real Estate Transfer Tax Ordinance regarding applicability of the City's Real Estate Transfer Tax to transfers connected to Foreclosure sales and Transfers in lieu of Foreclosure. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN COLORADO, THAT Section 1. Section 23.48.010 of the Municipal Code of the City of Aspen is hereby amended to read as follows: Sec. 23.48.010. Definitions. For the purposes of this Chapter, certain words are defined as follows (a) Document means and includes any deed, instrument or writing by which real property located within the City is transferred. (b) Transfer means and includes any conveyance of the ownership of a title to real property and is evidenced by any deed or instrument or writing wherein or whereby title to real property situated in the City is granted or conveyed, subject to the exclusions provided in this Chapter. Conveyance of ownership, for the purpose of this Chapter, means and includes the transfer of more than fifty percent (50%) of the authorized and issued shares of a corporation which has as its principal asset real property situated in the City. (c) Real property means and includes all lands or interests in lands within the City to which title or the right to title has been acquired from or ratified by the government of the United States or the State, and shall be construed as coextensive in meaning with the terms "land," "tenements" and "hereditaments" and as embracing all mining claims and other claims and chattels real. (d) Consideration means and includes the actual cash paid and/or value of the property delivered, or contracted to be paid or delivered, in return for the transfer of ownership or title to real property and shall include the amount of any lien, mortgage, contract indebtedness, or other encumbrance, either given to secure the purchase price or any part thereof, or remaining unpaid on the property at the time of sale. The term does not include the amount of any outstanding lien or encumbrance in favor of the United States, the State or of a municipal or quasi-municipal governmental corporation or district for taxes, special benefits or improvements. (e) Deed In Lieu of Foreclosure: A conveyance by a property owner to a secured party or wholly owned subsidiary of the secured party of property which is the subject of a mortgage, deed of trust, or other security instrument in consideration of the cancellation of all or part of the indebtedness secured by such security instrument or release of the debtor or guarantor from any personal liability on account of such indebtedness. Section 2. Section 23.48.030 of the Municipal Code of the City of Aspen is hereby amended to read as follows. Sec. 23.48.030. Director of Finance to enforce. (a) The Director of Finance of the City is charged with the enforcement of the provisions of this Chapter and is hereby authorized and empowered to prescribe, adopt and promulgate and enforce rules and regulations pertaining thereto. (b) At the time of any transfer upon which a tax is imposed by this Chapter there shall be made a report to the Director of Finance on forms prescribed by him, setting forth the true, complete and actual consideration for the transfer, the names of the parties thereto, the location of the real estate transferred and such other information as he or she may require. (c) For the purpose of collection of the taxes imposed by this Chapter, the office of the County Clerk and Recorder, together with all banks, title companies, escrow companies, building and loan institutions and real estate agencies permitted as such to do business under the laws of the State and maintaining offices within the City are hereby appointed as authorized agents for the City for the collection of said tax. The Director of Finance is authorized to negotiate with such appointed agents to allow them to retain a reasonable amount of the sum collected to cover their expense in the collection and remittance of said tax. (d) Notwithstanding the provisions of Section 2.48.040, if an artifice or device is employed in connection with the transfer of real property, which term "artifice or device" means a transaction or transactions a substantial purpose of which was to evade the provisions of this Chapter and the imposition of the tax hereunder, then such transfer will nevertheless be subject to the real estate transfer tax. "Artifice or device" includes but is not limited to (1) a transfer to a corporation, partnership, limited partnership, joint venture, business trust, or other association or organization followed within three (3) years by an assignment of the controlling interest in such association or organization, or (2) such a transfer plus the intent to ultimately assign the controlling interest in such association or organization. Section 3. Section 23.48.040 of the Municipal Code of the City of Aspen is hereby amended to read as follows: Sec. 23.48.040. Exemptions. The real estate transfer tax imposed by this Chapter shall not apply to: (a) Any document wherein the United States, or any agency or instrumentality thereof, the State, any county, city and county, municipality, district or other political subdivision of this State is either the grantor or grantee; (b) Any document wherein the grantee corporation, association or trust has been organized, operated and maintained solely and exclusively for charitable or religious purposes; (c) Any document granting or conveying title to real property in consequence of a gift of such property, where no consideration other than love and affection, charitable donation or nominal compensation is evidenced by the terms of the instrument of transfer; (d) Any document terminating or evidencing termination of a joint tenancy in real property except where additional consideration of value is paid in connection with such termination, or a decree or agreement partitioning real property held under common ownership unless a consideration of value is paid in connection therewith; (e) The transfer of title or change of interest in real property by reason of death, will or decree of distribution; (f) Transfers made pursuant to mergers or consolidations of corporations, or by a subsidiary to a parent corporation for no consideration other than cancellation or surrender of the subsidiary's stock; (g) Any deed or conveyance made and delivered without consideration for the purpose of confirming, correcting, modifying or supplementing a transfer previously recorded; making minor boundary adjustments, removing clouds on titles or granting easements, rights-of--way or licenses; (h) Any decree or order of a court of record determining or resting title, including a final order awarding title pursuant to a condemnation proceeding; (i) Any deed granting or conveying title to cemetery lots; (j) Any lease of any real property (or assignment or transfer of any interest in any such lease) provided such lease by its terms does not constitute a de facto conveyance of the subject property. In the latter event the real estate transfer tax shall be based upon the capitalization at five percent (5%) of the average annual rental over the entire term of the lease, including any renewal term, plus the actual consideration, other than rent, paid or to be paid. When the average annual rental cannot be determined, or at the election of the Director of Finance, the tax shall be based upon the assessed value of the property covered by the lease; (k) Any mineral deed or royalty deed; (1) Transfers to secure a debt or other obligation, or transfers or release of property which is security for a debt or other obligation; (m) Any executory contract for the sale of real property under which the vendee is entitled to or does take possession thereof without acquiring title thereto, or any assignment or cancellation of any such contract; (n) Any deed or conveyance under execution, sale, or foreclosure sale under a power sale or court decree of lien foreclosure; sheriffs deed; public trustee deed or treasurer's deed or deed in lieu of foreclosure provided that the person holding the obligation or instrument upon which the proceeding or sale is based intends, as market conditions will allow, to resell the property in order to satisfy the obligation. If the property is not sold within two years, or within any extension of such time beyond two years as the Finance Director shall allow for good cause shown, then the transfer shall be considered an "artifice" as provided for in this chapter and taxable as provided for in this chapter. The Finance Director may place a lien on the subject property equal to the amount of tax that may be levied or other form of security acceptable to the Finance Director. Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a sepazate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 5. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. A public hearing on the ordinance shall be held on the ~~?- day of , 2010, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERS P BLISHED as provided by law by the City Council of the City of Aspen on the ~~ day of ~~21-2~ ~%~C--f2010. ATTEST: ~,~~ «~ Kathryn S. ch, City Clerk Michael C. Ireland, Ma r FINALLY ADOPTED AFTER PUBLIC HEARING on the ATTEST: ~~ Kathryn S. h, City Clerk Approved as to Form: L---~alii-~Worcester, City Attorney 3- ~ day of ~, 2010. fn . r n m rt n UD 'CY tQ '� m L O y O r ry O O rD m i f-, i 41. n G n n ro g n 00 n ^. 0 Et o R. r ^. n F r o w o a w mr, r O Q' H fo c„ N ph, OD `C ° 0 m ry > n 4 n On o fee E g o _ a , p o n h 9 �� or G ' ° ° o <oCO r Cr el f� M o "� 6 n O w 0 CD n� y p1 0 < ' 0 E O o n ry n W 0 b SO o n rn so, r rt n '� 2 • n n O n t 0 0 O a :a x '5 s) a a • nn O n CO n FD f4 p W rt N � ' N O ro EI 00 p O 1 ` 0 n �' N 4.n " g ril O`C t" r O n 0 N Q w N en o o D ro o � s C7 " ` r f9 rt N 4 � r F ro � "^ N {» O b a cg. " 4` . rro � w FD Q CC onm fro 8 r 1- I S . a O a to N O "' ¢, \ n O c ct P it rt fro 5 0 Z O C G" `' 0 0 n o m `� io n p ' w 0 m7 O W ' r G CO N f n Oey O ff CD 0 o TI `G ` r' 9, O ff w to 'b r r ^-, '47 . .,'b 7-. O ' -. S Q- n Q✓ O rt - -' n rt W n 0 t Q o x „ fro ° rt ro ° = Z Cr 86 o moo , s e 0" rg . ; scam nr 8 0 n � o R Gt rt. n 5 nro n z cn s' 8b Gro P p CD 0 N 0 0 ' n q rt n . a ¢, 0 �1 '< O o .Q . = fo c� I�� 0 s p ro o , rt C '°� Q-, 0- O n ' +1 EL PUBLIC NOTIC ORDINANCE NO. 8 (Series of 2010) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, TO AMEND CHAPTER 23.48 OF THE MUNICIPAL CODE OF THE CITY OF ASP N ENFORCE; "REAL REAAND, E AT AMENDING SECTION 23.48.040, EXEMPTIONS. SECTION 23.48. 010, DEFINITIONS; AMENDING SECTION 23.48.030, FINANCE DI- OF WHEREAS, t to bons sales and inr necessary t a Real Il Estate Tran Foreclosure. Tax Ordnance regarding applicability of the City's Real Estate Transfer Tax to transfers NOW THEREFORE BE IT ORDAINED BY THE CITY COIINCIL OF THE CITY OF ASPEN COLORADO THAT Section 1. Section 23.48 010 of the Municipal Code of the City of Aspen is hereby amended to read as follows: Sec. 23.48 010.Definitions. For the purposes of this Chapter, certain words are defined as follows: (a)Document means and includes any deed, instrument or writing by which real property located within the City is transferred. (b)Transfer means and includes any conveyance of the ownership of a title to real property and is evidenced by any deed or instrument or writing wherein or purpose o this Chapter, means situated is of more than conveyed, percent (50 %) of the authorized and this Chapter. shares d a corporaton which has as it s purpose asset real property situated in the City. (c)Real property means and includes all lands or interests in lands within the City to which title or the right to tithe has been acquired from or ratified by the gov- emment of the United States or the State, and shall be construed as coextensive in meaning with the terms "land' "tenements" and "heredttaments' and as em- bracing all mining claims and other clams and chattels real. (d)Consideration means and includes the actual cash paid andlor value of the property delivered, or contracted to be paid or delivered, in return for the trans - C3 fer of ownership or title to real property and shall include the amount of any lien, mortgage, contract indebtedness, or other encumbrance, either given to secure the purchase price or any part thereof, or remaining unpaid on the property at the time of sale. The tem does not include the amount of any outstanding lien or encumbrance in favor of the United States, the State or of a municipal or quasi - municipal governmental corporation or district for taxes, special benefits or im- prov f e. (� ( Deed In Lieu of Foreclosure: A conveyance by a property owner to a secured party d property which is the subject of a mortgage, tleetl of trust, or 0th- \ `�. e) D t er security instrument in consideration of the cancellation of all or part of the indebtedness secured by such security instrument. (� Section 2. ' °ti I Section 23.48.030 of the Municipal Code of the City of Aspen is hereby amended to read as follows. 0 ' Sec. 23.48 030. Director of Finance to enforce. l (a) The Director of Finance of the City is charged with the enforcement of the provisions of this Chapter and is hereby authorized and empowered to — (\, prescribe, adopt and promulgate and enforce rules and regulations pertaining thereto. J (b) At the time of any transfer upon which a tax is imposed by this Chapter there shell be made a report to the Director d Finance on forms prescribed by him, setting forth the true, complete and actual consideration for the transfer, the names of the parties thereto, the location of the real estate transferred and such other information as he or she may require. ry (c) For the purpose of collection of the taxes imposed by this Chapter, the office of the County Clerk and Recorder, together with all banks, title companies, J escrow companies, building and loan institutions and real estate agencies permitted as such to do business under the laws of the State and maintaining offices within the City are hereby appointed as authorized agents for the City for the collection of said tax. The Director of Finance is authorized to negotiate with such appointed agents to allow them to retain a reasonable amount of the sum collected to cover their expense in the collection and remittancof said tax. (d) Notwithstanding the provisions of Section 2.48. 040, if an edifice or device i5 employed in connection with the transfer of real properly, which term "edifice or device' means a transaction or transactions a substantial purpose of which was to evade the provisions of this Chapter and the imposition of the tax hereunder, then such transfer will nevertheless be subject to the real estate transfer tax. "Artifice or device" includes but Is not limited 10 (1) a transfer to a corporation, partnership, limited partnership, joint venture. business trust, or other association or organization followed within three (3) years by an assignment of the controlling interest in such association or organization, or (2) such a transfer plus the intent to ultimately assign the controlling Interest in such association or organization. Section 3. Section 23.48.040 of the Municipal Code of the City of Aspen is hereby amended to read as follows: Sec. 23.48.040. Exemptions. The real estate transfer tax imposed by this Chapter shall not apply to: (a)Any document wherein the United States, or any agency or instrumentality thereof, the State, any county, city and county, municipality, disidct or other political subdivision of this State is either Me grantor or grantee; (b)Any document wherein the grantee corporation, association or trust has been organized. operated and maintained solely and exclusively for charitable or religous granting or conveying fate to real property in consequence of a gift of such properly, where no considerafon other than love and affection. by charitable donation or nominal compensation is evidenced the terms of the instrument of transfer, ( d)Any document terminating or evidencing termination of a joint tenancy in real property except where additional consideration of value Is paid in connection with such termination, or a decree or agreement partitioning real property held under common ownership unless a consideration of value is paid in connection therewith: reason of death, will or decree of distribution; (e)The sr of flueogm of interest n real property by r (f)Transfers made pursuant ant nt to mergers or r consolidations of corporations, or by a subsidiary to a parent corporation for no consideration other than cancellation or surrender of the subsidiary's stock; ( g)Any deed or conveyance made and delivered without consideration for the purpose of confirming, correcting, modifying or supplementing a transfer previously recorded; making minor boundary adjustments, removing clouds on titles or granting easements, rights -of -way or licenses; (h)Any decree or order of a court of record determining or resting title, including a final order awarding title pursuant to a condemnation proceeding; (i)Any deed granting or conveying title to cemetery lots; ()Any lease of any real property (or assignment or transfer of any interest in any such lease) provided such lease by its terms does not constitute a de facto conveyance of the subject property. In the latter event the real estate transfer tax shall be based upon the capitalization at five percent (5 %) of the average annual rental over the entire term of the lease, including any renewal term, plus the actual fax a co si based other than rent. paid dlo to bee aid, When erege y annual rental cannot be determined, or at the election of the Director of Finance, p h lease; ( k)Any mineral deed or royalty deed; (II)Transfers to secure a debt or other obligation, or transfers or release of property which is security for a debt or other obligation, (m)Any executory contract for the sale of real property under which the vendee is entitled to or does lake possession thereof without acquiring title thereto, or any assignment or cancellation of any such contract: (n)Any deed or conveyance under execution, sale, or foreclosure sale under a power sale or court decree of lien foreclosure; sheriff's deed public trustee deed or treasurers deed. provided, that: 1. Such transfer shall be exempt only H the grantee is the person holding the obligation or instrument upon which the proceeding is based, and 2. Such transfer shall be exempt only to the extent of the obligation to be satisfied at the execution or foreclosure sale and any obligations to prior lienholders paid from the sale; and 3. Such transfer shall be exempt only if the person holding the obligation or instrument upon which the proceeding is based intends to immediately resell the property in order to satisfy the obligation. If the property is not sold within two years then the transfer shall be considered an "artifice" as provided for in this chapter and taxable as provided for in this chapter. The Finance Director may place a lien on the subject property equal to the amount of tax that may be levied or other tom, of security acceptable to the Finance Director. (o) Any transfer by deed in lieu of foreclosure; provided, that: 1. Such transfer shall be exempt only if the grantee in such deed is the person holding the obligation or instrument which is being canceled, a whole or in part a exchange for the transfer; and 2. Such transfer shall be exempt only to the extent of the amount of the obligation which is being canceled, in whole or in pad, in exchange for the transfer. 3. Such transfer shall be exempt only if the erson holding the obligation or instrument upon which the proceeding is based intends to immediately resell the properly In order to satisfy the obligation. Inihe properly is not sold within two years then the transfer shall be considered an "edifice as provided for in this chapter and taxable as provided for in this chapter. The Finance Director may place a lien on the subject property equal to the amount of tax that may be levied or other form of security acceptable to the Finance Director. Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a toad of competent jurisdiction, such portion shall be deemed a separate. distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 5. y as an abatement This ordinance shall not have of the ordinances amended as h effect on n provided, a th same sha be constr and concluded under p ordiinanctling now pending under or es y virtue A public hearing on the ordinance shell be held on the 12th day April, 2010, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the 22nd day March, 2010, ATTEST: Kathryn 5. Koch, City Clerk Michael C. Ireland, Mayor Published in the Aspen Times Weekly on March 28, 2010 (4]945041 , a W O w rt M P co m n n w n ott cn kil VD r w r P p �' n n w P 0 i —a n 'JC O O =" y' w O n f n O O C ' .'t �+ a, M , N < 0 "'� w . �' N p � rrt etp� n r O it /1:1 Ft 0 fi r q . \ w. O�„1 n n w n , P," P n R• n F O G • O w q C�, O O C w ti n O a co \ rt x F F S1 , -, t a w� rt �� ' n is . o w � � � n n� � O N CnF�' a ro ,R2_, 5, o /-11 :-4 0 p W r n r = rt ` w " g N m Y F " w 0 �. N - O n n w R. �, p r .w 0..1-'4' .. 'Y lin It O re w ]' P 'C w FO 5 P: n ed P On -'w r. C ' � °!' � w C ^ p . f ro v.? 'a w z y a a. Z r w O o it o O . . ro , ' / p rt w ° n nnort Z n n a n n N E. " 'P OH O O Z n w Z P om ^ o o n � Q- (I 0 0 c ° o ° 0 �Q � � ° M Q w F F P. w E . i Nv o 3' 0 X2-2 g z a .. .. °g 52 m oi. 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