TITLE V
TAXATION

Chapter 78-B
TAX ON TRANSFER OF REAL PROPERTY

Section 78-B:1

    78-B:1 Transfer Tax. –
I. (a) A tax is imposed upon the sale, granting and transfer of real estate and any interest therein including transfers by operation of law. Each sale, grant and transfer of real estate, and each sale, grant and transfer of an interest in real estate shall be presumed taxable unless it is specifically exempt from taxation under RSA 78-B:2.
(b) The rate of the tax is $.75 per $100, or fractional part thereof, of the price or consideration for such sale, grant, or transfer; except that where the price or consideration is $4,000 or less there shall be a minimum tax of $20. The tax imposed shall be computed to the nearest whole dollar.
II. [Repealed.]
III. This section shall be construed in all respects so as to meet all constitutional requirements. If any provision or clause of this section is held invalid, such invalidity shall not affect other provisions of the section.
IV. For the purposes of this chapter, manufactured housing, as defined by RSA 674:31, shall be deemed real estate at such time as it is placed on a site and tied into required utilities.

Source. 1967, 320:1. 1969, 48:1. 1972, 53:1. 1977, 495:1; 600:75. 1983, 230:7. 1989, 197:1; 416:1, 3. 1991, 362:2. 1999, 17:32, 33, eff. July 1, 1999.

Section 78-B:1-a

    78-B:1-a Definitions. –
In this chapter:
I. "Commissioner" means the commissioner of the department of revenue administration.
II. "Contractual transfer" means a bargained-for exchange of all transfers of real estate or an interest therein, including but not limited to:
(a) From a shareholder to a corporation in which he holds an interest; or
(b) From a partner to the partnership in which he holds an interest; or
(c) From any other interest holder to an organization in which he owns an interest; or
(d) From an individual to a business entity; or
(e) From a corporation to its shareholder(s); or
(f) From a partnership to its partners; or
(g) From any entity to the interest holders in that entity.
II-a. " Lease " means a contractually binding agreement that grants a right to exclusive possession of land, buildings, or both, for a fixed or renewable period or periods of time. The term lease also includes any ground leases of unimproved real property whereby the lessee is granted the right to construct improvements on the leased real property.
III. "Noncontractual transfer" means a transfer which satisfies the 3 elements of a gift transfer:
(a) Donative intent;
(b) Actual delivery; and
(c) Immediate relinquishment of control.
IV. " Price or consideration ", in a contractual transfer, means the amount of money, or other property and services, or property or services valued in money which is given in exchange for real estate, and measured at a time immediately after the transfer of the real estate. The value of such consideration in contractual transfers where the property exchanged includes the surrender of rights or choses-in-action by the transferee, including the surrender of shareholder or beneficial interest holder rights in liquidation of a corporation or other entity, the forgiveness of an obligation owed to the transferee, or the assumption of an obligation by the transferee, shall be no less than the fair market value of the real estate or interest in such real estate as determined by the department pursuant to RSA 78-B:9, III; except that in the case of a deed given in lieu of a foreclosure, the value of such consideration shall be the amount by which the debt of the obligor secured by the real estate or interest in the real estate is reduced plus the amount of such debt which is assumed by the transferee in exchange for the real estate, if any. Transfers made solely to obtain financing or refinancing, as required by a lending institution, and that accomplish no other business purposes shall not be considered sufficient consideration to make a transfer a contractual transfer. The recitation of nominal consideration of $10 or other valuable consideration for purposes of satisfying the statute of frauds is not consideration for purposes of this chapter.
V. " Sale, granting and transfer " means every contractual transfer of real estate, or any interest in real estate from a person or entity to another person or entity, whether or not either person or entity is controlled directly or indirectly by the other person or entity in the transfer. Transfers of interests in real estate holding companies holding real estate or holding interests in real estate, transfer of which would be taxable under this chapter if transferred directly, shall be taxable as transfers under this chapter to the extent of the fair market value of the real estate. Transfers of interests in an entity that holds, either directly or indirectly, an interest in a real estate holding company shall be considered to be a transfer of an interest in the real estate holding company to the extent of the ownership interest of the entity in the real estate holding company.
VI. " Real estate holding company " means an organization which is engaged principally in owning, holding, selling, or leasing real estate and which owns real estate or an interest in real estate within the state.

Source. 1989, 197:2. 1992, 203:1. 1993, 111:1. 1997, 351:33, 34. 2006, 149:1. 2009, 144:268, eff. July 1, 2009. 2015, 133:1; 255:1, eff. July 1, 2015. 2016, 288:3, eff. June 21, 2016.

Section 78-B:2

    78-B:2 Exceptions. –
The tax imposed by this chapter shall not apply:
I. To a transfer of title to the state, a state agency, a county, a city, a town, a school district, or a village district.
II. To the United States, or any agency or instrumentality thereof.
III. To a mortgage or other instrument given to secure payment of a debt or obligation.
IV. To a discharge of mortgage or other instrument solely to release security for a debt or obligation.
V. To a deed or other instrument which corrects a deed or other instrument previously given.
VI. To a deed given by a collector of taxes for property purchased at a tax sale.
VII. To a transfer of title from one organization exempt from federal taxation under section 501 of the United States Internal Revenue Code of 1986, as amended, to another organization which is also exempt from federal taxation under section 501, when both the transfer organization and the transferee organization are created by or result from the corporate reorganization of a licensed, general, or specialty hospital.
VIII. To a transfer of title to the Trust for New Hampshire Lands when the Trust for New Hampshire Lands acquires the real estate for the purpose of transferring title to the real estate so acquired to the land conservation investment program, RSA 221-A, prior to June 30, 1993. The exception provided in this paragraph shall only apply to the Trust for New Hampshire Lands. The seller, grantor, assignor, or transferor of any real estate to the Trust shall still be liable for payment of the tax imposed by RSA 78-B:1.
IX. To noncontractual transfers.
X. To transfers of cemetery plots.
XI. To transfers that occur by devise or by other testamentary disposition, or by the laws regulating intestate succession and descent, or by the death of any cotenant in real estate held by joint tenancy; regardless of any consideration paid or obligation assumed by the transferee.
XII. To the beneficiary of a partnership interest where the partnership dissolves by operation of law due to the death of a partner.
XIII. To a transfer of title between spouses pursuant to a final decree of divorce or nullity.
XIV. [Repealed.]
XV. To an otherwise taxable transfer between a land trust, incorporated under RSA 292 and established to provide affordable housing to low-income people, and a housing cooperative, incorporated under RSA 301-A, if the transfer tax is paid by the trust on the initial purchase of the property.
XVI. [Repealed.]
XVII. [Repealed.]
XVIII. To a deed transferred in accordance with RSA 80:89, VI.
XIX. [Repealed.]
XX. To a lease, including any sales, transfers, or assignments of any interest in the leased property, where the term of the lease, including all renewals, is less than 99 years.
XXI. (a) To a transfer of title provided that:
(1) The transfer of title, where no consideration is exchanged, is coincidental to a change in the transferor's form of organization to that of the transferee;
(2) As a result of the change in the transferor's form of organization, the assets and liabilities of the transferor immediately preceding the change in form of organization and the assets and liabilities of the transferee immediately following the change in form of organization are the same; and
(3) At the time of the transfer of title, the owner or owners of the transferor and the owner or owners of the transferee, and the respective ownership percentages of each, are identical.
(b) For the purpose of this paragraph, a beneficial interest in a trust shall be considered an ownership interest in such trust.
XXII. To a transfer of title from the owners of an entity to the entity, or from the entity to the owners of the entity; provided that:
(a) No consideration is exchanged for the transfer of the real estate; and
(b) The direct or indirect owners of the parties to the transfer remain the same before and after the transfer of the real estate, the respective ownership percentages of each are identical, and the combined assets and liabilities of the transferor and transferee remain the same except with respect to the real estate.
XXIII. (a) To a direct or indirect transfer of an interest in real property, provided that the real estate transfer tax was paid by the buyer or seller, or an affiliate of either, when the real property title was acquired, unless otherwise exempt pursuant to this section, and the transfer is made in connection with the commencement, syndication, development, re-syndication, or conclusion of investment financing related to any of the following:
(1)(A)(i) A federal low-income housing tax credit project, as defined in Section 42 of the Internal Revenue Code of 1986, as amended; or
(ii) A project funded with federal grants made to states for low-income housing projects in lieu of low-income housing tax credits under Section 1602 of the American Recovery and Reinvestment Act of 2009 ;
(B) Provided that the project under subparagraph (A)(i) or (A)(ii) remains subject to an extended low-income housing commitment in accordance with the provisions of Section 42(h)(6) of the Internal Revenue Code of 1986, as amended.
(2) A Rental Assistance Demonstration (RAD) public housing conversion under the federal Consolidated and Further Continuing Appropriations Act of 2012, as amended.
(3) Such other federal, state, or local financing program requiring that the real estate remains subject to land use restriction and rental housing affordability covenants which limit allowable rents charged to individuals or families, consistent with (i) RSA 674:58, IV, pertaining to workforce housing; or (ii) as otherwise required under the applicable federal, state, or local program.
(b) For purposes of this paragraph, " affiliate " means any entity which controls or is controlled by, or is under common control with, another entity. For purposes of this definition, an entity controls another entity when the first entity possesses or exercises directly, or indirectly through one or more other affiliates or related entities, the power to direct the management and policies of the other entity, whether through the ownership of voting rights, membership, or the power to appoint members, trustees, or directors, by contract or otherwise.
XXIV. To a lease of any term by and between the Pease development authority and any other person, including any sales, transfers, or assignments of any interest in the leased property.

Source. 1967, 320:1. 1969, 48:2. 1986, 124:1. 1988, 88:1. 1989, 197:3, 4. 1990, 231:1, 5. 1991, 362:3. 1992, 203:2. 1993, 139:1. 1994, 325:5, 6. 1995, 10:1. 1996, 212:1. 1999, 163:3. 2001, 158:27. 2006, 219:1. 2007, 146:1, IV, eff. Aug. 17, 2007. 2015, 133:2; 255:2, eff. July 1, 2015. 2016, 288:2, eff. June 21, 2016. 2019, 136:1, eff. July 1, 2019; 346:292, eff. July 1, 2019.

Section 78-B:3

    78-B:3 Evidence of Payment. – The payment of the tax imposed by this chapter shall be evidenced by indicia of tax paid as approved by the commissioner of revenue administration attached to the instrument in writing by which any real estate or any interest in real estate is sold, granted, assigned, transferred or otherwise conveyed to or vested in the purchaser, or grantee, or in any other person by the purchaser's or grantee's direction.

Source. 1967, 320:1. 1973, 544:8, eff. Sept. 1, 1973. 2018, 171:1, eff. July 1, 2018.

Section 78-B:4

    78-B:4 Payment of Tax. –
I. The purchaser, grantee, assignee or transferee of any real estate or any interest in real estate shall buy and attach the indicia of tax paid approved by the commissioner of revenue administration to the instrument by which the real estate or interest in real estate is sold, granted, assigned or transferred. The indicia of tax paid shall indicate the full consideration paid for the real estate or interest in real estate. The amount of tax shall be computed to the nearest whole dollar.
II. The seller, grantor, assignor or transferor of any real estate or any interest shall buy and attach the indicia of tax paid approved by the commissioner of revenue administration to the instrument by which the real estate or interest in real estate is sold, granted, assigned or transferred. The indicia of tax paid shall indicate the full consideration paid for the real estate or interest in real estate. The amount of tax shall be computed to the nearest whole dollar.
III. The rate of tax established in RSA 78-B:1 shall apply to both the purchaser, grantee, assignee or transferee and the seller, grantor, assignor or transferor.
IV. Notwithstanding any other provision of this chapter to the contrary, the following subparagraphs shall govern payment of transfer taxes where the real estate consists of manufactured housing, as defined by RSA 674:31:
(a) If the manufactured housing constitutes stock-in-trade of any dealer engaged in the business of selling manufactured housing and if such manufactured housing has not been previously occupied as a dwelling by any person, the initial sale of such manufactured housing by the dealer shall not constitute a taxable transfer within the meaning of this chapter.
(b) If the manufactured housing has been occupied as a dwelling by any person or is owned by any person other than a dealer described in subparagraph (a), the sale of such manufactured housing shall constitute such a taxable transfer; and the transfer tax shall be paid as follows:
(1) If such manufactured housing remains in the same county within this state, the tax shall be paid by both the purchaser, grantee, assignee or transferee and the seller, grantor, assignor or transferor to the register of deeds of the county in which the manufactured housing is located;
(2) If such manufactured housing is relocated from one county to another county within this state, the tax shall be paid by both the purchaser, grantor, assignee or transferee and the seller, grantor, assignor or transferor only to the register of deeds of the county to which the manufactured housing is relocated;
(3) If such manufactured housing is relocated into this state from another state, the tax shall be paid only by the purchaser, grantee, assignee or transferee to the register of deeds of the county to which the manufactured housing is relocated; and
(4) If such manufactured housing is relocated out of this state, the tax shall be paid only by the seller, grantor, assignor or transferor to the register of deeds of the county from which the manufactured housing is relocated.

Source. 1967, 320:1. 1973, 544:9. 1981, 568:152, I. 1983, 230:8. 1989, 197:5. 1990, 231:2. 2004, 195:4, eff. July 1, 2004. 2018, 171:2, eff. July 1, 2018.

Section 78-B:5

    78-B:5 Indicia of Tax Paid. – The commissioner of revenue administration shall determine and prescribe the size, shape and design of the indicia of tax paid and shall approve the use of any machine or mechanical device used to produce indicia of payment of the tax imposed by this chapter. Evidence of payment of the tax imposed by this chapter shall be affixed by the registry of deeds in each county, and at such other places as the commissioner shall determine.

Source. 1967, 320:1. 1973, 544:11, XIX. 1975, 439:10, eff. July 1, 1975. 2018, 171:3, eff. July 1, 2018.

Section 78-B:6

    78-B:6 Recording. – The indicia of payment of the tax imposed by this chapter shall be attached to the deed, assignment or other instrument in writing before recording the same unless the instrument bears a statement that the transaction is not subject to the tax imposed by this chapter.

Source. 1967, 320:1, eff. Jan. 2, 1968. 2018, 171:3, eff. July 1, 2018.

Section 78-B:7

    78-B:7 False Statements. – If any purchaser, grantee, assignee, transferee, seller, grantor, assignor or transferor who is a party to a transfer of real estate or an interest in real estate falsely states in writing upon any instrument to be recorded or upon the declaration of consideration required by RSA 78-B:10 that no tax is due, or attaches to the instrument indicia of tax paid that indicate a purchase price or consideration less than the actual price or consideration, he or she shall be subject to a civil penalty of 100 percent of the amount of additional taxes determined to be due, in lieu of the provisions of RSA 21-J:33.

Source. 1967, 320:1. 1973, 528:29. 1981, 568:152, II. 1989, 197:6. 1990, 231:4. 1991, 163:28, eff. May 27, 1991. 2018, 171:3, eff. July 1, 2018.

Section 78-B:7-a

    78-B:7-a Interest. – Any party to a transfer of real estate or an interest in real estate subject to a penalty under RSA 78-B:7 shall pay interest as prescribed in RSA 21-J:28.

Source. 1989, 197:7, eff. Jan. 1, 1990.

Section 78-B:8

    78-B:8 Administration. –
I. This chapter shall be administered by the commissioner of revenue administration. The commissioner may adopt rules, pursuant to RSA 541-A, relative to the administration of this chapter. Rules adopted under this chapter may include written examples of taxable and nontaxable real estate transactions. The commissioner shall recommend the amount of bond for each register of deeds. The cost of such bond shall be paid by the state as an expense of administering this chapter. Each register of deeds, or county if the register of deeds is on a salary basis, shall be paid for his or her services 4 percent of the face value of the approved indicia of payment of the tax sold in his or her registry. Such payment for services shall be made prior to remitting all taxes collected, and shall be deducted from the remittance made in paragraph II. A sum sufficient to pay each register of deeds for his or her services pursuant to this section is hereby continually appropriated. The governor is authorized to draw a warrant for the payment thereof out of any funds in the treasury not otherwise appropriated.
II. Following payment for services in paragraph I, each register of deeds shall remit the taxes so collected, minus payment for his or her services, to the department monthly or more often. All funds received from the sale of approved indicia shall be credited to the department for administering this chapter and shall not lapse, but whenever the amount available exceeds $12,000, the excess shall be paid over to the state treasurer.
III. [Repealed.]

Source. 1967, 320:1. 1973, 544:11, XX. 1975, 439:11. 1981, 128:26. 1985, 158:1. 1988, 38:2. 1994, 158:7. 2007, 263:46, eff. July 1, 2008; 263:48, eff. July 1, 2018. 2014, 192:2, eff. Sept. 9, 2014. 2018, 171:4, eff. July 1, 2018.

Section 78-B:9

    78-B:9 Authority to Audit. –
I. The commissioner of the department of revenue administration shall have the power to audit all real estate transfers within this state for purposes of verifying and determining the existence of a sale, granting or transfer of real estate, and for purposes of verifying and determining the amount of the price or consideration paid for real estate transferred within this state.
II. If there is occasion to determine if there has been a sale, grant or transfer of real estate within this state, the commissioner shall look to the substance of the transaction or series of transactions to determine if a sale, grant or transfer of real estate has occurred.
III. If there is occasion to determine if the stated price or consideration is the actually paid or required to be paid price or consideration, then the commissioner shall have the power, barring specific proof to the contrary, to determine the actual price or consideration by the fair market value of the real estate.
IV, V. [Repealed.]

Source. 1989, 197:8. 1990, 231:3. 1991, 163:43, XXVI, eff. May 27, 1991.

Section 78-B:9-a

    78-B:9-a Procedure for Assessment or Refund of Tax. –
I. Pursuant to the power granted under RSA 78-B:9, the commissioner may assess and collect additional tax, penalties, or interest imposed under this chapter or RSA 21-J, or refund any overpayment of tax paid under this chapter.
II. (a) Upon completion of the assessment and collection of additional tax, the commissioner shall issue to the register of deeds of the county in which the real estate is located notice of the additional tax collected. Such notice shall indicate the following:
(1) The names of the grantor and grantee.
(2) The book and page number of the deed to which the additional tax relates.
(3) The amount of the tax originally paid.
(4) The amount of the additional tax collected.
(5) The location of the property.
(b) Upon receipt of the notice of additional tax collected, the register of deeds shall:
(1) Attach to the notice indicia reflecting the amount of the additional tax collected; and
(2) Record the notice with the indicia of tax paid with no additional charge to the state.
III. (a) Upon completion of the refund of tax the commissioner shall issue to the register of deeds of the county in which the real estate is located notice of the refund of tax issued. Such notice shall indicate the following:
(1) The names of the grantor and grantee.
(2) The book and page number of the deed to which the refund or credit of tax relates.
(3) The amount of the tax originally paid.
(4) The amount of the refund of tax issued.
(5) The location of the property.
(b) Upon receipt of the notice of refund, the register of deeds shall record the notice.
IV. At the same time the notice of additional tax is forwarded to the register of deeds pursuant to paragraph II, the commissioner shall certify to the state treasurer the amount of 4 percent of the additional tax assessed and collected, such amount to be paid within one month of the certification to the register of deeds. The amount paid to the register of deeds hereunder shall constitute the total payment for services related to the affixing of indicia of tax paid and recording of the notice of additional taxes required by subparagraph II(b).
V. On or before the end of the month following the month in which the commissioner forwards a notice of refund pursuant to paragraph III, the register of deeds shall add to said month's remission of taxes collected required by RSA 78-B:4, II, the amount of 4 percent of the tax refunded.

Source. 2005, 31:1, eff. July 9, 2005. 2018, 171:5, 6, eff. July 1, 2018.

Section 78-B:10

    78-B:10 Declaration of Consideration Required. –
I. A declaration of consideration shall be filed separately by the purchaser, grantee, assignee, or transferee and by the seller, grantor, assignor, or transferor with the department of revenue administration for each transfer of real estate or interest therein. The commissioner of revenue administration shall adopt rules, pursuant to RSA 541-A, relative to the form of such declaration of consideration. Each form shall:
(a) Contain a conspicuous declaration of the price or consideration exchanged for the real estate transferred, which shall say substantially: " __________ (buyer's name) and ______________ (seller's name) agree and affirm that the full price or consideration paid for the real estate transferred by this deed is $ _____. The tax due upon this transfer is calculated at $ _____ per $100 or any part thereof, for an amount due of $ _____ (computed to the nearest whole dollar)."
(b) Contain a space immediately below the statement in subparagraph (a) for the dated signature of the purchaser, grantee, assignee, or transferee of the deeded real estate on their respective declaration of consideration and for the dated signature of the seller, grantor, assignor, or transferor of the deeded real estate on their respective declaration of consideration.
II. The declaration of RSA 78-B:10, I(a) shall be prima facie evidence of the price or consideration paid for the real estate.
III. A declaration shall not be required for the following:
(a) Transfers exempted by RSA 78-B:2, except transfers exempted by RSA 78-B:2, IX.
(b) Transfers involving only utility easements.
IV. The declarations required by this section shall be filed separately by the purchaser, grantee, assignee, or transferee, and the seller, grantor, assignor, or transferor with the department of revenue administration, no later than 30 days from the recording of the deed at the registry of deeds or transfer of real estate, whichever is later.
V. No deed, recording a transfer of real estate or any interest therein, executed before January 1, 1990, shall be required to comply with this section.
VI. Failure to comply with this section shall not be construed to cloud title.

Source. 1989, 197:8. 1990, 231:6, 7. 1991, 163:29. 1996, 212:2. 1999, 100:1. 2001, 158:24. 2011, 179:1, eff. Aug. 13, 2011. 2016, 85:12, eff. July 18, 2016.

Section 78-B:10-a

    78-B:10-a Repealed by 1999, 17:58, II, eff. April 29, 1999. –

Section 78-B:11

    78-B:11 Taxpayer Records. –
Every buyer and seller of real estate shall:
I. Keep such records as may be necessary to determine the amount of his liability under this chapter.
II. Preserve such records for the period of 3 years or until any litigation or prosecution under this chapter is finally determined.
III. Make such records available for inspection by the commissioner or his authorized agents, upon demand, at reasonable times during regular business hours.

Source. 1989, 197:8. 1991, 163:30, eff. May 27, 1991.

Section 78-B:12

    78-B:12 Repealed by 1991, 163:43, XXVII, eff. May 27, 1991. –

Section 78-B:13

    78-B:13 Distribution of Funds. –
I. The commissioner shall determine the additional amounts of revenue produced by an increase of $.25 per $100 in the rate of tax imposed by RSA 78-B:1 for each fiscal year and shall certify such amounts to the state treasurer by October 1 of that year for deposit in the education trust fund established by RSA 198:39.
II. The commissioner shall make quarterly estimates of the amount of additional revenues that will be produced by the increase in tax rate for the next fiscal year and shall certify such amounts to the state treasurer for deposit in the education trust fund established by RSA 198:39. Such estimates shall be certified on June 1, September 1, December 1, and March 1 of each year.
III. Annually, on or before October 1, the commissioner shall direct the state treasurer to transfer the sum of $5,000,000 from revenue collected pursuant to the tax imposed by RSA 78-B:1 to the affordable housing fund established in RSA 204-C:57.

Source. 1999, 17:34, eff. April 29, 1999. 2019, 346:250, eff. July 1, 2020.