2023 New York Laws › TAX - Tax › Article 31A2*3 - Tax on Real Estate Transfers in the Town of Fishkill › 1439-A*3 - Definitions.

* §  1439-a.  Definitions. When used in this article, unless otherwise
expressly stated, the following words and terms shall have the following
meanings:
1.  "Person"  means  an  individual,  partnership,  limited  liability
company, society, association, joint stock company, corporation, estate,
receiver,  trustee,  assignee,  referee  or any other person acting in a
fiduciary or representative capacity, whether appointed by  a  court  or
otherwise,  any  combination  of  individuals,  and  any  other  form of
unincorporated enterprise owned or conducted by two or more persons.
2. "Controlling interest" means (a) in  the  case  of  a  corporation,
either  fifty  percent or more of the total combined voting power of all
classes of stock of such corporation, or fifty percent or  more  of  the
capital,  profits  or  beneficial  interest in such voting stock of such
corporation, and (b) in the case of a partnership, association, trust or
other  entity,  fifty  percent  or  more  of  the  capital,  profits  or
beneficial  interest  in  such  partnership, association, trust or other
entity.
3. "Real property" means every estate or right,  legal  or  equitable,
present  or  future,  vested  or  contingent,  in  lands,  tenements  or
hereditaments, including buildings, structures  and  other  improvements
thereon,  which  are  located  in  whole  or  in part within the town of
Fishkill. It shall not include rights to sepulture.
4. "Consideration" means the price actually paid  or  required  to  be
paid for the real property or interest therein, including payment for an
option  or  contract to purchase real property, whether or not expressed
in the deed and whether paid or required to be paid by money,  property,
or  any  other  thing  of  value.  It  shall include the cancellation or
discharge of an indebtedness or obligation. It shall  also  include  the
amount   of  any  mortgage,  purchase  money  mortgage,  lien  or  other
encumbrance, whether or not the underlying indebtedness  is  assumed  or
taken subject to.
(a)  In the case of a creation of a leasehold interest or the granting
of an option with use and  occupancy  of  real  property,  consideration
shall  include, but not be limited to, the value of the rental and other
payments attributable to the use and occupancy of the real  property  or
interest therein, the value of any amount paid for an option to purchase
or  renew  and the value of rental or other payments attributable to the
exercise of any option to renew.
(b)  In  the  case  of  a  creation  of   a   subleasehold   interest,
consideration  shall  include,  but  not be limited to, the value of the
sublease rental payments attributable to the use and  occupancy  of  the
real  property,  the value of any amount paid for an option to renew and
the value of rental or other payments attributable to  the  exercise  of
any  option  to renew less the value of the remaining prime lease rental
payments required to be made.
(c) In the case of a controlling interest in any entity that owns real
property, consideration shall mean the fair market  value  of  the  real
property or interest therein, apportioned based on the percentage of the
ownership interest transferred or acquired in the entity.
(d)  In the case of an assignment or surrender of a leasehold interest
or the assignment or surrender of an option or contract to purchase real
property, consideration shall not include the  value  of  the  remaining
rental  payments required to be made pursuant to the terms of such lease
or the amount to be paid for the real property pursuant to the terms  of
the option or contract being assigned or surrendered.
(e) In the case of (1) the original conveyance of shares of stock in a
cooperative housing corporation in connection with the grant or transfer
of a proprietary leasehold by the cooperative corporation or cooperative

plan  sponsor, and (2) the subsequent conveyance by the owner thereof of
such stock in a cooperative housing corporation in connection  with  the
grant  or  transfer  of  a  proprietary leasehold for a cooperative unit
other than an individual residential unit, consideration shall include a
proportionate  share of the unpaid principal of any mortgage on the real
property  of  the  cooperative  housing   corporation   comprising   the
cooperative  dwelling  or  dwellings.  Such share shall be determined by
multiplying the total unpaid principal of the mortgage  by  a  fraction,
the  numerator  of  which  shall  be the number of shares of stock being
conveyed in the cooperative housing corporation in connection  with  the
grant  or  transfer  of  a  proprietary leasehold and the denominator of
which shall be the total number of shares of stock  in  the  cooperative
housing corporation.
5.  "Conveyance"  means  the  transfer or transfers of any interest in
real property by  any  method,  including  but  not  limited  to,  sale,
exchange,  assignment, surrender, mortgage foreclosure, transfer in lieu
of foreclosure, option,  trust  indenture,  taking  by  eminent  domain,
conveyance upon liquidation or by a receiver, or transfer or acquisition
of  a  controlling  interest  in  any  entity  with  an interest in real
property. Transfer of an interest in real  property  shall  include  the
creation  of  a leasehold or sublease only where (a) the sum of the term
of the lease or sublease and any options for renewal exceeds  forty-nine
years, (b) substantial capital improvements are or may be made by or for
the benefit of the lessee or sublessee, and (c) the lease or sublease is
for  substantially  all  of the premises constituting the real property.
Notwithstanding the foregoing, conveyance of  real  property  shall  not
include  a  conveyance  made pursuant to devise, bequest or inheritance;
the   creation,   modification,   extension,    spreading,    severance,
consolidation,  assignment,  transfer,  release  or  satisfaction  of  a
mortgage; a  mortgage  subordination  agreement,  a  mortgage  severance
agreement,  an  instrument  given  to  perfect  or  correct  a  recorded
mortgage; or a release of lien of tax pursuant to this  chapter  or  the
internal revenue code.
6.  "Interest in the real property" includes title in fee, a leasehold
interest, a beneficial interest, an encumbrance, development rights, air
space and air rights, or any other interest with the  right  to  use  or
occupancy  of  real  property  or the right to receive rents, profits or
other income derived from real property. It shall also include an option
or contract to purchase real property. It shall not include a  right  of
first refusal to purchase real property.
7.  "Grantor"  means the person making the conveyance of real property
or interest therein. Where the conveyance consists of a transfer  or  an
acquisition  of  a controlling interest in an entity with an interest in
real property, "grantor" means the  entity  with  an  interest  in  real
property  or  a shareholder or partner transferring stock or partnership
interest, respectively.
8. "Grantee" means the person who obtains real  property  or  interest
therein as a result of a conveyance.
9.  "Fund"  means  a  community  preservation fund created pursuant to
section sixty-four-i of the town law.
10. "Recording officer" means  the  county  clerk  of  the  county  of
Dutchess.
11. "Town" means the town of Fishkill, county of Dutchess.
12. "Treasurer" means the treasurer of the county of Dutchess.
13.  "Town  supervisor"  means  the  town  supervisor  of  the town of
Fishkill.
14. "Tax" shall mean the real estate transfer tax imposed pursuant  to
section  fourteen  hundred  thirty-nine-b  of  this  article  or, if the

context clearly indicates, shall  mean  the  real  estate  transfer  tax
imposed pursuant to article thirty-one of this chapter.
15.  "Residential  real  property"  means  property which satisfies at
least one of the following conditions:
(a) the property classification code assigned to the property  on  the
latest  final  assessment roll, as reported on the transfer report form,
indicates that the property is a one, two or  three  family  home  or  a
rural residence; or
(b)  the  transfer report indicates that the property is a one, two or
three family residential property that has  been  newly  constructed  on
vacant land; or
(c)  the  transfer  report  form  indicates  that  the  property  is a
residential condominium.
* NB Repealed December 31, 2027
* NB There are 3 § 1439-a's