Current through Register Vol. 24-06, March 15, 2024
(1)
Introduction. The transfer of a controlling interest in an entity
that has an interest in real property in this state is considered a taxable
sale of the entity's real property for purposes of the real estate excise tax
under chapter 82.45 RCW. This rule explains the application of the tax on those
transfers.
Legislation adopted in
2019.
Effective January 1, 2020, chapter 424, Laws of 2019 established new
requirements , extending the time period in which a controlling interest
transfer occurs for real estate excise tax purposes from twelve months to
thirty-six months.
(2)
Definitions. For the purposes of this chapter, the following
definitions apply unless the context requires otherwise.
(a)
"Controlling interest"
means:
(i) In the case of a profit
corporation, either fifty percent or more of the total combined voting power of
all classes of stock of the corporation entitled to vote, or fifty percent of
the capital, profits, or beneficial interest in the voting stock of the
corporation; and
(ii) In the case
of any other corporation, or a partnership, association, trust, or other
entity, fifty percent or more of the capital, profits, or beneficial interest
in such corporation, partnership, association, trust, or other entity.
Examples. The following examples, while not
exhaustive, illustrate some of the circumstances in which the transfer of an
interest in an entity may or may not be taxable. These examples should be used
only as a general guide. The status of each situation must be determined after
a review of all of the facts and circumstances.
(A) Able and Baker each own 40% of the voting
shares of a corporation, Flyaway, Inc. Charlie, Delta, Echo, and Frank each own
5% voting shares. Charlie acquires Baker's 40% interest, and Delta's and Echo's
5% interests. This is a taxable acquisition because a controlling interest (50%
or more) was acquired by Charlie (40% from Baker plus 5% from Delta and 5% from
Echo). However, if Charlie, Delta, and Echo were to transfer their shares
(totaling 15%) to Able, those transfers would not be taxable. Although Able
would own 55% of the corporation, only a 15% interest was transferred and
acquired, so the acquisition by Able is not taxable.
(B) Melody LLC consists of a general partner
and three limited partners, each possessing a 25% interest. Even though the
general partner controls the management and daily operations, a 25% interest is
not a controlling interest. If someone were to acquire a 50% or greater
interest from any of the existing partners, there would be a taxable
acquisition of a controlling interest. If one partner acquires an additional
25% interest from another partner for a total of a 50% interest, no transfer or
acquisition of a controlling interest occurs because less than 50% is
transferred and acquired.
(C) Anne,
Bobby, Chelsea, and David each own 25% of the voting shares of a corporation.
The corporation redeems the shares of Bobby, Chelsea, and David. Anne now owns
all the outstanding shares of the corporation. A taxable transfer occurred when
the corporation redeemed the shares of Bobby, Chelsea, and David.
(D) Andrew owns 75% of the voting shares of a
corporation. Andrew transfers all of his stock by 25% portions of the shares in
three separate and unrelated transactions to Betsy, Carolyn, and Daniel, who
are not acting in concert. A taxable transfer of a controlling interest occurs
when Andrew transfers 75% of the voting shares of the corporation, even though
no one has subsequently acquired a controlling interest.
(E) Big Corporation has two stockholders,
Adrian and Britain. Adrian owns 90 shares of stock (90%) and Britain owns 10
shares of stock (10%). Big Corporation owns 60% of the stock of Little
Corporation, which owns real property. Adrian, by virtue of owning 90% of Big
Corporation's stock, has a 54% interest in Little Corporation (90% interest in
Big multiplied by the 60% interest Big has in Little equals the 54% interest
Adrian has in Little). Adrian sells his 90 shares of stock in Big to Britain.
Adrian, by selling his 90 shares of Big stock, has transferred a controlling
interest (54%) in an entity that owns real property (Little). This transfer is
subject to the real estate excise tax.
(F) Assume the same facts as in Example (E)
of this subsection, except that Big owns only 50% of Little's stock. Since
Adrian has not transferred and Britain has not acquired a controlling interest
in Little (90% x 50%=45%), the real estate excise tax does not apply. If,
however, Big had transferred its 50% interest in Little, that would be a
transfer of a controlling interest and it would be subject to the real estate
excise tax.
(b) The terms "person" or
"company" mean any individual, receiver, administrator, executor,
assignee, trustee in bankruptcy, trust, estate, firm, copartnership, joint
venture, club, company, joint stock company, business trust, municipal
corporation, the state of Washington or any political subdivision thereof,
corporation, limited liability company association, society, or any group of
individuals acting as a unit, whether mutual, cooperative, fraternal,
nonprofit, or otherwise, and the United States or any agency or instrumentality
thereof.
(c)
"True and fair
value" means market value, which is the amount of money that a willing,
but unobliged, buyer would pay a willing, but unobligated, owner for real
property, taking into consideration all reasonable, possible uses of the
property.
(d)
"Taxable
transfer period" is either twelve months or thirty-six months. If twelve
months, the period may span two calendar years. If thirty-six months, the
period may span four calendar years.
RCW
82.45.010(2). The
thirty-six-month period is effective January 1, 2020. The department of revenue
has issued guidance on the application of the thirty-six-month period,
available at dor.wa.gov.
(e)
"Acting in concert" occurs:
(i)
When one or more persons have a relationship with each other such that one
person influences or controls the actions of another through common ownership.
For example, if a parent corporation and a wholly owned subsidiary each
purchase a 25% interest in an entity, the two corporations have acted in
concert and acquired a controlling (i.e., at least 50%) interest in the
entity.
(ii) Where buyers are not
commonly controlled or owned, but the unity of purpose with which they have
negotiated and will complete the acquisition of ownership interests, indicates
that they are acting together. For example, three separate individuals who
decide together to acquire control of a company jointly through separate
purchases of 20% interests in the company act in concert when they acquire the
interests.
(3)
In general. In order for the
tax to apply when the controlling interest in an entity that owns real property
is transferred, the following must have occurred:
(a) The transfer or acquisition of the
controlling interest occurred within a taxable transfer period.
Solely for the purpose of determining whether a transfer or
acquisition pursuant to the exercise of an option occurred within a taxable
transfer period, the date on which the option agreement was executed is deemed
to be the date of the transfer or acquisition;
(b) The controlling interest was transferred
in a single transaction or series of transactions by a single person or
acquired by a single person or a group of persons acting in concert;
(c) The entity has an interest in real
property located in this state;
(d)
The transfer is not otherwise exempt under chapters 82.45 RCW and 458-61A WAC;
and
(e) The transfer was made for
valuable consideration.
(4)
Measure of the tax. The measure of the tax is the
"selling price." For the purpose of this rule, "selling price" means the true
and fair value of the real property owned by the entity at the time the
controlling interest is transferred.
(a) If
the true and fair value of the property cannot reasonably be determined, one of
the following methods may be used to determine the true and fair value:
(i) A fair market value appraisal of the
property; or
(ii) An allocation of
assets by the seller and the buyer made pursuant to section 1060 of the
Internal Revenue Code of 1986, as amended or renumbered as of January 1,
2005.
(b) If the true
and fair value of the property to be valued at the time of the sale cannot
reasonably be determined by either of the methods in (a) of this subsection,
the market value assessment for the property maintained on the county property
tax rolls at the time of the sale will be used as the selling price.
(c)
Examples.
(i) A partnership owns real property and
consists of two partners, Amy and Beth. Each has a 50% partnership interest.
The true and fair value of the real property owned by the partnership is
$100,000. Amy transfers her 50% interest in the partnership to Beth for
valuable consideration. The taxable selling price is the true and fair value of
the real property owned by the partnership, or $100,000.
(ii) A corporation consists of two
shareholders, Chris and Dilbert. The assets of the corporation include real
property, tangible personal property, and other intangible assets (goodwill,
cash, licenses, etc.). An appraisal of the corporation's assets determines that
the values of the assets are as follows: $250,000 for real property; $130,000
for tangible personal property; and $55,000 for miscellaneous intangible
assets. Chris transfers his 50% interest to Ellie for valuable consideration.
The taxable selling price is the true and fair value of the real property owned
by the corporation, or $250,000.
(iii) An LLC owns real property and consists
of two members, Frances and George. Each has a 50% LLC interest. Frances
transfers her 50% interest to George. In exchange for the transfer, George pays
Frances $100,000. The true and fair value of the real property owned by the LLC
is unknown. There is no debt on the real property. A fair market value
appraisal is not available. The market value assessment for the property
maintained on the county property tax rolls is $275,000. The taxable selling
price is the market value assessment, or $275,000.
(5)
Persons acting in
concert. The tax applies to acquisitions made by persons acting in
concert, as defined in subsection (2) (e) of this rule.
(a) Where persons are not commonly controlled
or influenced, factors that indicate whether persons are acting in concert
include:
(i) A close relation in time of the
transfers or acquisitions;
(ii) A
small number of purchasers;
(iii)
Mutual terms contained in the contracts of sale; and
(iv) Additional agreements to the sales
contract that bind the purchasers to a course of action with respect to the
transfer or acquisition.
(b) If the acquisitions are completely
independent, with each purchaser buying without regard to the identity of the
other purchasers, then the persons are not acting in concert, and the
acquisitions will be considered separate acquisitions.
(c)
Example. Able owns 100% of
Emerald Corporation, which owns real property. As a group, Baker, Charlie,
Delta, and Echo negotiate to acquire all of Able's interest in Emerald. Baker,
Charlie, Delta, and Echo each acquire 25% of Able's interest. The contracts of
Baker, Charlie, Delta, and Echo are identical and the purchases occur
simultaneously. Baker, Charlie, Delta, and Echo also negotiated an agreement
binding themselves to a course of action with respect to the acquisition of
Emerald and the terms of the shareholders agreement that will govern their
relationship as owners of Emerald. Baker, Charlie, Delta, and Echo are acting
in concert and their acquisitions from Able are treated as a single acquisition
of a controlling interest that is subject to the real estate excise
tax.
(6)
Date of
sale.
(a) When the controlling interest
is acquired in one transaction, the actual date control is transferred is the
date of sale. Examples of when an interest in an entity is transferred include
when payment is received by the seller and the shares of stock are delivered to
the buyer, or when payment is received by the seller and partnership documents
are signed, etc.
(b) When the
parties enter into an agreement to acquire or transfer a controlling interest
over time through a series of transactions, the date of sale is deemed the date
of the agreement arranging the transactions. The agreement results in the
transfer of both a present interest and a beneficial interest in the entity,
the sum of which results in a controlling interest, regardless of whether the
first of the successive transactions occurred outside the taxable transfer
period.
(c) When the controlling
interest is transferred or acquired pursuant to the exercise of an option, the
date upon which the option is exercised is the date of sale.
(d)
Examples.
(i) Andrew owns 100% of the voting shares of
Topaz Corporation. Andrew signs a binding agreement to transfer 51% of his
shares in the corporation to Ted. The agreement states that the transfer will
occur as follows: 49% of the shares will be transferred on January 1st, and the
remaining 2% of the shares will be transferred on February 1st of the following
year. Andrew has contractually agreed to sell 51% of the voting shares in Topaz
within a taxable transfer period, even though the shares will not actually be
transferred to Ted until later. The date of sale is the date of the agreement,
and real estate excise tax is due upon the true and fair value of the property
as of the date of the agreement.
(ii) Matt acquires a 10% interest in an
entity which owns an apartment building under construction worth $500,000 from
Simon on January 30th. On July 30th Matt acquires a 30% interest in the same
entity from Mary, but the building is now worth $900,000. On September 30th
Matt acquires a 10% interest in the same entity from Ruth, but the building is
now worth $1,000,000. These are three separate and completely independent
transfers. The final transfer allowed Matt to acquire, within a taxable
transfer period, a controlling interest in an entity that owns real property.
September 30th is the date of sale.
To determine the sellers' proportional tax liability in the
example above, the series of transactions is viewed as a whole. Note both the
individual and the total interests transferred. Here, Simon and Mary each
conveyed 10% interests, while Ruth conveyed a 30% interest, with a total of a
50% interest being conveyed. To determine the liability percentage for each
seller, divide the interest each conveyed by the total interest conveyed (Here,
Simon and Mary: 10/50=20%; Ruth: 30/50=60%). This results in tax liability
percentages here for Simon and Mary of 20% each and for Ruth, 60%.
To determine the amount of tax owed, the percentage is
applied to the value of the property at the time of conveyance. In the example
above, the value of the property to which the percentage applies is dependent
on the time of each transfer (i.e., Simon's 20% on the $500,000; Mary's 60% on
the $900,000; Ruth's 20% on the $1,000,000).
(7)
Tax liability.
When there is a transfer or acquisition of a controlling interest in an entity
that has an interest in real property, the seller of the interest is generally
liable for the tax.
(a)
The department may, at the department's option, enforce the
obligation of the seller.
(i) If the
entity is a corporation;
(A) Against the
corporation;
(B) Against the person
or persons who acquired the controlling interest; or
(C) When the corporation is not a publicly
traded company, against the person or persons who transferred the controlling
interest.
(ii) If the
entity is a partnership, association, trust, or other entity that is not a
corporation;
(A) Against the entity;
or
(B) Against the person or persons
who transferred or acquired the controlling interest.
(b) Unpaid tax is a specific lien
on each parcel of real property in this state owned by an entity in which a
controlling interest has been transferred or acquired. The lien attaches from
the time of sale until the tax is paid, which lien may be enforced in the
manner prescribed for the foreclosure of mortgages.
(8)
Reporting requirements.
(a) The transfer of a controlling interest in
real property must be reported to the department when no instrument is recorded
in the official real property records of the county in which the property is
located. If the transfer is not taxable due to an exemption, that exemption
should be stated on the affidavit.
(i) The
sale must be reported by the seller to the department within five days from the
date of the sale on the department of revenue affidavit form, DOR Form
84-0001B. The affidavit form must be signed by both the seller and the buyer,
or their agent, and must be accompanied by payment of the tax due.
(ii) The affidavit form may also be used to
disclose the sale, in which case:
(A) It must
be signed by the person making the disclosure; and
(B) It must be accompanied by payment of the
tax due only when submitted by a seller reporting a taxable sale.
(iii) Any person who intentionally
makes a false statement on any return or form required to be filed with the
department under this chapter is subject to penalty of perjury.
(iv)
Examples. The following
examples, while not exhaustive, illustrate some of the circumstances in which
the transfer of an interest in an entity must be reported to the department.
These examples should be used only as a general guide. The status of each
situation must be determined after a review of all of the facts and
circumstances.
(A) Simon and Peter each own
40% of the voting shares of a corporation. Paul, Matthew, Mark, and John each
own 5% voting shares. Paul acquires Peter's 40% interest, and Matthew's and
Mark's 5% interests. This is a taxable acquisition because a controlling
interest (50% or more) was acquired by Paul (40% from Peter plus 5% from
Matthew and 5% from Mark). This transaction must be reported.
(B) Assume same facts as in example (iv)(A)
of this subsection. Paul files an affidavit to disclose the sale to the
department within thirty days of the date of sale. Peter, Matthew, and Mark go
on vacation and the affidavit and required tax payment is not sent to the
department. The department notifies Peter, Matthew, and Mark of their tax
liability, which now includes interest and penalties. Paul is not relieved of
personal liability for the tax, interest, or penalties, if the department
cannot collect from Peter, Matthew, and Mark.
(C) Assume the same facts as in example
(iv)(A) of this subsection, except Paul only acquires Peter's 40% interest and
Matthew's 5% interest. This is not a taxable acquisition because a controlling
interest (50% or more) was not acquired by Paul. This transaction does not need
to be reported.
(b) Under
RCW
43.07.390, an entity must report the transfer
of a controlling interest or an interest that amounts to at least one-third of
a controlling interest in the entity to the secretary of state, and, also the
granting of any option that, if exercised, would result in a transfer or
acquisition of a controlling interest. Failure to report a taxable transfer
subjects the entity to interest and penalties.
(9)
Due date, interest and
penalties. The tax imposed is due and payable immediately on the date of
sale. See WAC
458-61A-306
for interest and penalties that may apply.
(10)
Transfers after tax has been
paid. When there is a transfer or acquisition of a controlling interest
in an entity and the real estate excise tax is paid on the transfer, and there
is a subsequent acquisition of an additional interest in the same entity within
the same taxable transfer period by a person acting in concert with the
previous buyer(s), the subsequent seller is liable for its proportional portion
of the tax. After payment by the subsequent seller of its proportional share,
the person(s) who previously paid the tax may apply to the department for a
refund of the amount overpaid because of the new proportional amount paid as a
result of the subsequent transfer or acquisition.
(11)
Exemptions. Because
transfer and acquisition of a controlling interest in an entity that owns real
estate in this state is statutorily defined as a "sale" of the real property
owned by the entity, the exemptions of chapter 82.45 RCW and this chapter also
apply to the sale of a controlling interest.
Examples.
(a) The merger of a wholly owned subsidiary
owning real property located in this state with another subsidiary wholly owned
by the same parent is a transfer of a controlling interest. However, this
transfer may be exempt from taxation on two grounds. First, it may be exempt
because it is a mere change in form or identity (see WAC
458-61A-211
). Second, it may be exempt if it qualifies under the nonrecognition of gain or
loss provisions of the Internal Revenue Code for entity formation, liquidation
and dissolution, and reorganization. (See WAC
458-61A-212.)
(b) Taki owns 100% of a corporation. Taki
wants her child, Mieko, and corporate manager, Sage, to be co-owners with her
in the corporation. Taki makes a gift of 50% of the voting stock to Mieko and
sells 33 1/3% to Sage. Although a controlling interest in the corporation has
been transferred to and acquired by Mieko, it is not taxed because a gift is an
exempt transfer and not considered for purposes of determining whether a
controlling interest has transferred. The sale of the 33 1/3% interest to Sage
is not a controlling interest, and is not taxed.
(c) Richard owns 75% of the voting stock of a
corporation that owns real estate located in this state. Richard pledges all of
his corporate stock to secure a loan with a bank. When Richard defaults on the
loan and the bank forecloses on Richard's stock in the corporation, the
transfer and acquisition of the controlling interest of the entity is not a
taxable transaction because foreclosures of mortgages and other security
devices are exempt transfers. (See WAC
458-61A-208.)
Statutory Authority:
RCW
82.45.150,
82.32.300, and
82.01.060. 11-16-106, §
458-61A-101, filed 8/3/11, effective 9/3/11. Statutory Authority:
RCW
82.32.300,
82.01.060(2), and
82.45.150. 05-23-093, §
458-61A-101, filed 11/16/05, effective
12/17/05.