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Real Estate Transfer Tax
Which Transfers Require Payment of a Real Estate Transfer Tax?
Each county in Nevada charges a Real Estate Transfer Tax when title to property is changed unless one of the exceptions set forth in N.R.S. 375.090 applies. Although the statute lists 13 exceptions, our practice deals primarily with five exceptions.
The first major exception in our practice is N.R.S. 375.090(7) which is for transfer into or out of a trust without consideration and with proof of the trust. Typically the County Recorder wants to see a Certificate of Trust (to which it may be necessary to add the magic words, "This Trust has not been revoked or amended,") or wants to see the actual trust if it is not too long.
The second major exemption in our practice is that there is no real estate transfer tax due if the transfer is between parent and child or between husband and wife. If the property is valuable and the transfer is between siblings and a parent is still alive, it may be possible to avoid the real estate transfer tax by transferring from sibling to parent and then back to the other sibling. If the transfer is between parent and child and the two have different surnames (last names) the County Recorder will want to see proof of the actual parent child relationship by being shown copies of marriage licenses, birth certificates, name change orders, etc. However, if the Probate Court Order awarding the property to the adult children of Decedent where the parent and children have different last names, SPECIFICALLY MAKES A FINDING THAT THIS IS A TRANSFER BETWEEN PARENT AND CHILD, that may be sufficient to avoid the real estate transfer tax and to avoid the production of birth certificates, marriage certificates etc. to produce a parent child relationship. Another issue that come up under this exemption is if, for example, Mom wills her timeshare to her three adult children. Two of the children want nothing to do with the timeshare and one wants the timeshare. The transfer from the two adult children of their interests in the timeshare to their sibling could be subject to the real estate transfer tax which can be a real pain to compute in the case of timeshares. This can usually be avoided by having the two who don't want the timeshare disclaim their interest in that part of the inheritance or by having the two who don't want the timeshare sell their interest to the one who does want the timeshare for a nominal amount and then a trivial real estate transfer tax can be easily calculated and paid on this transfer.
A third major exception in our practice is if title to property changes according to the terms of a will. For example, Grandma dies and expressly leaves property to her granddaughter in the will. This comes under N.R.S. 375.090(3) although it is not clear from the literal language. This business of something not being clear by the literal language of the statute is a common issue in legal matters. Occasionally, we have had the Clark County Recorder refuse to honor this exemption, although we were eventually successful in getting the "will" exemption honored. Our feeling is that the current practice in Clark County of interpreting N.R.S. 375.090(3) to provide an exemption to the real estate transfer tax if property is transferred per the will could be changed at any time. (Of course, if the transfer is between parent and child or between spouses under a will, then the previous exception applies.) This exception suggests one advantage to dying with a will, even if the transfer would be the same under the laws that apply if there is no will. If the property transferred in probate without a will is not between parent and child or between spouses, it may still be possible to avoid the real estate transfer tax if the heir receiving the property has a trust or sets up a trust and assigns his or her interest in the property to the trust.
A fourth major exception is that under N.R.S. 375.090(10) there is no tax due if the transfer is to file a deed that becomes effective upon the grantor's death. In some situations, for example, Mom and Dad own a home and financial accounts, and they have only one adult child and they really don't care what happens to their assets if their single child fails to survive both of them, the simplest estate plan may be a transfer on death deed from Mom and Dad to the adult child and making the adult child the payable on death beneficiary of all of their accounts. However, this exception applies to the recording of the deed that says the property will go the grantee upon the grantor's death. And for this deed to work, the recording must occur before the grantor dies. However, after the grantor dies, the grantee will need to file a "Death of Grantor Affidavit." When this filed the County Recorder seek a real estate transfer tax unless the transfer is between spouses or between parent and child.
The final major exception in our practice is that no transfer tax due if one joint tenant or tenant in common transfer his or her interest to another one without consideration. This typically happens when one of two joint tenants dies and the remaining joint tenant automatically becomes the sole owner. See N.R.S. 375.090(4).
Legal Avoidance of Real Estate Transfer Tax:
A sibling to sibling (brother or sister to sister or brother) transfer is not exempt from the real estate transfer tax. However, if the siblings still have a living parent, the sibling owner can transfer to the parent who can then transfer to the other sibling. Both of these transfers avoid the Real Estate Transfer Tax. This is allowed. Instead of paying the real estate transfer tax, this procedure will involve preparing and recording an additional deed. One of our attorneys has received an e-mail from the Clark County Government Audit Team that this procedure is perfectly ok. But, possibly the I.R.S. could see the transfer as a gift subject to gift tax, so you might want to check with your federal tax advisor before using this tactic.
Also, as mentioned above, if an heir who is not a child, or parent, or spouse of the decedent is to inherit under the laws providing for what happens when there is no will, it may be possible to have the heir assign the inheritance to a trust in the heir's name.
Real Estate Transfer Tax on Fractional Interests:
(Warning: This Section is more technical than the rest of this page)
Suppose Dad dies unmarried and without a will and had three sons. Albert, Bill and Charlie. Suppose Charlie predeceased Dad but is survived by his adult son, David. Suppose the only asset in Dad's estate is a house. Albert, Bill and David are entitled to equal shares. Suppose the three of them decide to keep the house and use it as a rental, betting on a future increase in price. If Dad had willed the house to the three of them there would be no transfer tax. But since there was no will, the third going to David, Dad's grandchild, has a real estate transfer tax, whereas the two thirds going to Albert and Bill, Dad's children, is free of real estate transfer tax.
Now here is where it gets complicated. If the probate court order awarding the house to Albert, Bill and David awards it to them as tenants in common (which is what the Court will do in the absence of a proper request), then David pays a real estate transfer tax on his 1/3 interest. But if David were to die shortly thereafter, his 1/3 tenant in common interest would have to be probated. So, suppose all three ask the Court to award the house to them as joint tenants, so if one dies, the survivors own the house without probate. Now, the county assessor will want a real transfer tax on the entire value because the grandson of the decedent, who does not get an exemption without a will, is considered to have an undivided interest in the whole house. (To save transfer tax, the three could have the Court award the house to three as tenants in common, David would pay a transfer tax on his third, and then the three could deed from themselves as tenants in common to joint tenants and this last transfer would be tax-free because of the identity of grantors and sellers.)
Here is another complicated situation. There is an LLC (Limited Liability Corporation) set up to hold real estate investments. Sue is a 51% member and Mary is a 49% member. Sue buys an investment property and takes title in her name alone. Now she wants to transfer it to the LLC. There will be a real estate transfer tax on the full value of the property because the LLC owners have an undivided interest and there is no identity of ownership between Sue as owner of the property and Sue and Mary as owners of the LLC. But Sue can transfer a 49% interest to Mary. There will be a real estate transfer tax on the 49% interest transferred. Then Sue (now owning a 51% interest) and Mary (now owning a 49% interest) can transfer to the LLC (owned 51% by Sue and 49% by Mary) without a real estate transfer tax.
How is the Real Transfer Tax Calculated?
The transfer tax for all counties except Clark, Washoe and Churchill Counties is $1.95 for each $500 of value or fraction thereof if the value is over $100. For Clark County which includes Las Vegas, North Las Vegas, Henderson, Boulder City and Mesquite, the tax is as above except the amount is $2.55 instead of $1.95 for each $500 of value or fraction thereof if the value is over $100. For Washoe and Churchill Counties the tax amount is $2.05 for each $500 of value or fraction thereof if the value is over $100. For example, in Clark County the transfer tax on real estate which sold for $50,050 would be 100 times $2.55 or $255. If the real estate sold for $50,120, the transfer tax would be 101 times $2.55 or $257.55.
If there is an actual sale, the tax will be calculated on the sales price. If there is no sale, the tax will be calculated on the assessed taxable value. The assessor's office publishes on its public website the taxable value of just about every item of real estate except timeshares. The calculation of the taxable value of an individual timeshare has to be done by someone in the assessor's office taking the taxable value of the whole property and dividing it by the interest the timeshare represents, or, in the case of a timeshare, an estimate might be accepted.