§ 1401 — Definitions

New York § 1401

• Jurisdiction: New York
• Law TAX: Tax
• Art. 31: Real Estate Transfer Tax

Text

§ 1401. Definitions. When used in this article, unless otherwise\nexpressly stated:\n * (a) "Person" means an individual, partnership, limited liability\ncompany, society, association, joint stock company, corporation, estate,\nreceiver, trustee, assignee, referee or any other person acting in a\nfiduciary or representative capacity, whether appointed by a court or\notherwise, any combination of individuals, and any other form of\nunincorporated enterprise owned or conducted by two or more persons.\n * NB Effective until July 1, 2021\n * (a) (1) "Person" means an individual, partnership, limited liability\ncompany, society, association, joint stock company, corporation, estate,\nreceiver, trustee, assignee, referee or any other person acting in a\nfiduciary or representative capacity, whether appointed by a court or\notherwise, any combination of individuals, and any other form of\nunincorporated enterprise owned or conducted by two or more persons.\n (2) "Person" shall include any individual, corporation, partnership or\nlimited liability company or an officer or employee of any corporation\n(including a dissolved corporation), or a member or employee of any\npartnership, or a member, manager or employee of a limited liability\ncompany, who as such officer, employee, manager or member is under a\nduty to act for such corporation, partnership, limited liability company\nor individual proprietorship in complying with any requirement of this\narticle, or has so acted.\n * NB Effective July 1, 2021\n (b) "Controlling interest" means (i) in the case of a corporation,\neither fifty percent or more of the total combined voting power of all\nclasses of stock of such corporation, or fifty percent or more of the\ncapital, profits or beneficial interest in such voting stock of such\ncorporation, and (ii) in the case of a partnership, association, trust\nor other entity, fifty percent or more of the capital, profits or\nbeneficial interest in such partnership, association, trust or other\nentity.\n (c) "Real property" means every estate or right, legal or equitable,\npresent or future, vested or contingent, in lands, tenements or\nhereditaments, including buildings, structures and other improvements\nthereon, which are located in whole or in part within the state of New\nYork. It shall not include rights to sepulture.\n (d) "Consideration" means the price actually paid or required to be\npaid for the real property or interest therein, including payment for an\noption or contract to purchase real property, whether or not expressed\nin the deed and whether paid or required to be paid by money, property,\nor any other thing of value. It shall include the cancellation or\ndischarge of an indebtedness or obligation. It shall also include the\namount of any mortgage, purchase money mortgage, lien or other\nencumbrance, whether or not the underlying indebtedness is assumed or\ntaken subject to.\n (i) In the case of a creation of a leasehold interest or the granting\nof an option with use and occupancy of real property, consideration\nshall include but not be limited to the value of the rental and other\npayments attributable to the use and occupancy of the real property or\ninterest therein, the value of any amount paid for an option to purchase\nor renew and the value of rental or other payments attributable to the\nexercise of any option to renew.\n (ii) In the case of a creation of a subleasehold interest,\nconsideration shall include but not be limited to the value of the\nsublease rental payments attributable to the use and occupancy of the\nreal property, the value of any amount paid for an option to renew and\nthe value of rental or other payments attributable to the exercise of\nany option to renew less the value of the remaining prime lease rental\npayments required to be made.\n (iii) In the case of a controlling interest in any entity that owns\nreal property, consideration shall mean the fair market value of the\nreal property or interest therein, apportioned based on the percentage\nof the ownership interest transferred or acquired in the entity.\n (iv) In the case of an assignment or surrender of a leasehold interest\nor the assignment or surrender of an option or contract to purchase real\nproperty, consideration shall not include the value of the remaining\nrental payments required to be made pursuant to the terms of such lease\nor the amount to be paid for the real property pursuant to the terms of\nthe option or contract being assigned or surrendered.\n (v) In the case of (i) the original conveyance of shares of stock in a\ncooperative housing corporation in connection with the grant or transfer\nof a proprietary leasehold by the cooperative corporation or cooperative\nplan sponsor and (ii) the subsequent conveyance by the owner thereof of\nsuch stock in a cooperative housing corporation in connection with the\ngrant or transfer of a proprietary leasehold for a cooperative unit\nother than an individual residential unit, consideration shall include a\nproportionate share of the unpaid principal of any mortgage on the real\nproperty of the cooperative housing corporation comprising the\ncooperative dwelling or dwellings. Such share shall be determined by\nmultiplying the total unpaid principal of the mortgage by a fraction,\nthe numerator of which shall be the number of shares of stock being\nconveyed in the cooperative housing corporation in connection with the\ngrant or transfer of a proprietary leasehold and the denominator of\nwhich shall be the total number of shares of stock in the cooperative\nhousing corporation.\n (e) "Conveyance" means the transfer or transfers of any interest in\nreal property by any method, including but not limited to sale,\nexchange, assignment, surrender, mortgage foreclosure, transfer in lieu\nof foreclosure, option, trust indenture, taking by eminent domain,\nconveyance upon liquidation or by a receiver, or transfer or acquisition\nof a controlling interest in any entity with an interest in real\nproperty. Transfer of an interest in real property shall include the\ncreation of a leasehold or sublease only where (i) the sum of the term\nof the lease or sublease and any options for renewal exceeds forty-nine\nyears, (ii) substantial capital improvements are or may be made by or\nfor the benefit of the lessee or sublessee, and (iii) the lease or\nsublease is for substantially all of the premises constituting the real\nproperty. Notwithstanding the foregoing, conveyance of real property\nshall not include a conveyance pursuant to devise, bequest or\ninheritance; the creation, modification, extension, spreading,\nseverance, consolidation, assignment, transfer, release or satisfaction\nof a mortgage; a mortgage subordination agreement, a mortgage severance\nagreement, an instrument given to perfect or correct a recorded\nmortgage; or a release of lien of tax pursuant to this chapter or the\ninternal revenue code.\n (f) "Interest in the real property" includes title in fee, a leasehold\ninterest, a beneficial interest, an encumbrance, development rights, air\nspace and air rights, or any other interest with the right to use or\noccupancy of real property or the right to receive rents, profits or\nother income derived from real property. It shall also include an option\nor contract to purchase real property. It shall not include a right of\nfirst refusal to purchase real property.\n (g) "Grantor" means the person making the conveyance of real property\nor interest therein. Where the conveyance consists of a transfer or an\nacquisition of a controlling interest in an entity with an interest in\nreal property, "grantor" means the entity with an interest in real\nproperty or a shareholder or partner transferring stock or partnership\ninterest, respectively.\n (h) "Grantee" means the person who obtains real property or interest\ntherein as a result of a conveyance.\n (i) "Recording officer" means the county clerk of the county, except\nin a county having a register, where it means the register of the\ncounty, or in the city of New York where it means the city register.\n