Owners of LLC’s Holding California Real Estate Beware
The State of California is at it again. A recent case decided by the California Supreme Court allows cities to asses Documentary Transfer Taxes like never before.
When property is transferred by a deed, counties and some cities can charge a transfer tax.
They have done so for over 150 years. In Los Angeles, for example, the transfer of a $1 million property results in a transfer tax of $5600. In San Francisco, a $5 million property transfer results in a $112,500 transfer tax. Although in many cases the tax is split between the buyers and sellers, the income for cities and counties is significant.
However, private transfers, where the deed was left intact and at no time transferred, were never taxed. An example of such a transaction would be where an LLC was on title to the property. The owners could sell their membership interests in the LLC and not pay a transfer tax. This was because the LLC was still on title, and thus no deeding occurred.
The case of 926 North Ardmore changed all this, resulting in higher taxes and many unanswered questions.
If you own California real estate you need to read the case summary below.
In 926 North Ardmore Avenue, LLC v. County of Los Angeles, 3 Cal.5th 319, 396 P.3d 1036, 219 Cal.Rptr.3d 695 (decided June 29, 2017), a single member limited liability company apartment building owner brought an action for a tax refund after it was required to pay a documentary transfer tax based on the value of the apartment building, when its single member partnership sold approximately 90% of its partnership interests to two trusts. The Superior Court, Los Angeles County, entered judgment for the County; the LLC appealed; and the California Court of Appeal affirmed. The California Supreme Court granted review, and in a 6-1 decision, held that: (1) a transfer tax is not a fee paid in connection with the recordation of deeds or other documents evidencing transfers of ownership of real property, but rather is an excise tax on the privilege of conveying real property by means of a written instrument; (2) that a written instrument conveying an interest in a legal entity that owns real property may be taxable under the Documentary Transfer Tax Act (“DTTA”), even if the instrument does not directly reference the real property and is not recorded; and (3) that the transfer is subject to the DTTA.
The Facts of 926 North Ardmore
Beryl and Gloria Averbook (the “Averbooks”) owned an apartment building at 926 North Ardmore Avenue in Los Angeles (the “Building”). They established a family trust and transferred the Building into it. Beryl died, and after his death, the family trust’s assets, including the Building, were transferred to an administrative trust maintained for Gloria’s benefit. Gloria’s two sons, Bruce and Allen Averbook, were named successor trustees, and they formed the following two entities: 926 North Ardmore Avenue, LLC (the “LLC”), a single-member limited liability company established to acquire and hold the Building; and BA Realty, LLLP, a partnership. The administrative trust was the sole member of the LLC. It also held a 99 percent partnership interest in BA Realty.
Initially, the administrative trust conveyed the Building by grant deed to the LLC. It then transferred its membership interest in the LLC to BA Realty, and divided its 99 percent interest in BA Realty and distributed it to four subtrusts also maintained for Gloria’s benefit. The survivor’s trust received 64.66 percent; the nonexempt marital trust 23.86 percent; the exempt marital trust 0.67 percent; and the bypass trust 9.81 percent. The net result of these transactions did not alter one central reality. When the Averbooks transferred the Building from themselves personally into the family trust, they retained a beneficial interest. The trust became the legal owner, but it was obligated to hold and manage the Building for their benefit. After Beryl’s death, Gloria held the sole beneficial interest. The subsequent transactions moved the Building’s legal ownership among the various entities. But Gloria’s beneficial interest remained unchanged.
Later, a different kind of transaction triggered imposition of the DTTA. The survivor’s trust, the nonexempt marital trust, and the marital trust transferred all of their interests in BA Realty to two trusts maintained for Bruce and Allen, who were each the sole beneficiary of their named trust. As a result, Bruce and Allen each acquired a beneficial interest in the Building they had not held before.
The later transfers were effectuated by written instruments, including six limited partner transfer and substitution agreements. The transaction did not involve the execution of a deed or other instrument transferring title to the Building. The agreements did not mention the Building or its location, nor were they recorded. After the transfers, Bruce’s and Allen’s trusts each held a 44.595 percent partnership interest in BA Realty, which was the sole member of the LLC, which, in turn, held legal title to the Building. In consideration for the transferred interests, Bruce’s and Allen’s trusts each executed promissory notes to Gloria’s three subtrusts. The amount paid by Bruce and Allen was based on an appraisal of the assets of BA Realty, including the Building.
The Majority Opinion in 926 North Ardmore
In a 6-1 decision, the Supreme Court of California noted that the DTTA permits the county to levy a tax “on each deed, instrument, or writing by which any lands, tenements, or other realty sold within the county shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or purchasers,” if “the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrance remaining thereon at the time of sale)” exceeds $100. The Court pointed out that documentary transfer tax is not a fee paid in connection with the recordation of deeds or other documents evidencing transfers of ownership of real property, but rather is an excise tax on the privilege of conveying real property by means of a written instrument.
As such, a written instrument conveying an interest in a legal entity that owns real property may be taxable under the DTTA, even if the instrument does not directly reference the real property and is not recorded. The Court observed that the critical factor in determining whether the documentary transfer tax may be imposed is whether there was a sale that resulted in a transfer of beneficial ownership of real property. Thus, the imposition of a documentary transfer tax is permitted whenever a transfer of an interest in a legal entity results in a change in ownership of real property through a change in a legal entity results in a change of ownership of real property, so long as there is a written instrument reflecting a sale of the property for consideration. The Court concluded that the Building owned by the LLC changed ownership when the partnership interests were transferred, and thus was subject to documentary transfer tax. The Court stated that the following approach would elevate form over substance and would conflict with the purposes of the DTTA:
“[I]f A executed a deed transferring real property to B, that deed would be taxable. But if A created a limited liability company, executed a deed transferring real property to that company, and then executed a written instrument transferring the company to B, the tax would not apply.”
Justice Kruger’s Lone Dissenting Opinion in 926 North Ardmore
Associate Justice Kruger disagreed with the majority opinion, and she wrote a strong dissenting opinion. In her dissenting opinion, Justice Kruger noted the absence of any precedent to justify application of the California DTTA to “run-of the mill transfers of interests in legal entities that happen to own real estate.”
In her view, the majority opinion finds no support either in the language of the DTTA or in “the over-150-year history of the documentary transfer tax.” Justice Kruger concluded that the existing California DTTA requires a direct transfer of real estate to trigger the transfer tax, and that it was the job of the California legislature, and not the job of the California courts, to decide whether the California DTTA should be expanded to transfers of entity interests:
“The majority’s expansion of the DTTA may or may not be a good idea, but it ventures well beyond the statute’s language and historical practice. I would leave it to the Legislature to determine the circumstances under which an entity interest transfer should result in a deemed sale of the entity’s real estate, and how to calculate the tax due in those circumstances.”
A number of California cities and counties, including, but not limited to, the City and County of San Francisco, Santa Clara County, and the City of Oakland, already have changed their ordinances to apply the DTTA to legal entity changes. In addition, Los Angeles County, the defendant in 926 North Ardmore, and other California cities and counties, have disclosed informally on their websites that the DTTA is due on legal entity changes. Most assuredly, other California cities and counties will apply the DTTA to legal entity changes.
The California Supreme Court’s decision in 926 North Ardmore raises a plethora of unanswered questions, such as: (1) Will the documentary transfer tax be imposed upon the buyers and sellers of the transferred entity interests, or upon the entity itself? (2) How will “value” be determined? (3) Will mergers, acquisitions, and restructuring transactions trigger a documentary transfer tax obligation for real property owned by the entities? (4) Will the documentary transfer tax be imposed upon the full value of the entity interests, or only upon the realty attributable to the transferred entity interests? (5) Will the holding in 926 North Ardmore be applied retroactively or prospectively only? (6) If so, then how far back can the cities and counties go? (7) Will penalties and interest apply? (8) Will taxpayers have to examine various internet websites to determine whether cities and counties will apply the DTTA to legal entity changes? and (9) Will cumulative transfers over time of more than 50% ownership of the entity interests trigger application of the DTTA?
Although no commentator has discussed or even mentioned the issue, it seems apparent that, if the California Supreme Court’s decision in 926 North Ardmore is applied retroactively, rather than prospectively only, then the big loser will be the Mortgage Electronic Registration System (MERS), which has been circumventing California cities and counties out of their documentary transfer tax fees for over two decades.
Once again, we see another tax grab by the State of California. Justice Kruger’s lone dissenting opinion basically “got it right.” There is no California precedent, either in the language of the DTTA or in “the over-150-year history of the documentary transfer tax,” to support the majority opinion in 926 North Ardmore. The existing California DTTA requires a direct transfer of real estate to trigger the transfer tax, and it is the job of the California legislature, and not the job of the California courts, to decide whether the California DTTA should be expanded to transfers of entity interests.
In any event, the California Supreme Court’s decision in 926 North Ardmore raises a plethora of unanswered questions that will not be decided for many years to come.