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Chicago City Taxation of the Assignment of Mortgage Loans
The Chicago City Treasury Department recently passed Decision No. 4 on property acquisition taxes, which makes clear the city' s intention to levy property acquisition taxes. This judgment regulates the applicability of the exemption from land purchase taxes since it concerns the assignment of mortgage loans and the assignment of immovable property by means of documents instead of execution.
It distinguishes the transferor either as a good faith creditor, such as a bank, cooperative bank or mortgage company, and a non-creditor, or as those who accept an assignment of a mortgage with the main object of acquiring ownership of the home for the development, investment or use of the same.
According to this judgment, a creditor in good faith may still benefit from the advantages of relief from carry-over taxes if he assigns a mortgage or receives a court document or instrument in place of enforcement, either under indemnity C (exempting assignments securing a debt) or indemnity M (exempting assignments for documents in place of enforcement).
That judgment and the ensuing modification by the City of 2013 of Regulation C to the Regulation now exempt transactions where the document, cession or other means of conveyance safeguards a liability - but such transaction must be made to a mortgagor or guaranteed lender. Amendments in 2013 were a precursor to the city's intention to levy taxes on qualified mortgage surrenders and certificates instead of enforcement as a rateable conveyance of shares in immovable property.
Several of the first cases of enforcing the city's mortgage transfer policy were recently ruled at the Circuit Court of Cook County, Illinois: KTCP (adopted on 6 August 2015); and Halsted West v. City of Chicago (adopted on 11 August 2015). In both cases, the city appealed against an administration judge's decision that the transfer of a mortgage and the ensuing document were exempted under the Transfer Tax Ordinance instead of execution.
The KTCP case was where the document, instead of enforcement, was simultaneously with the cession of the mortgage, with a group of three making the document dependent on the cession of the mortgage to the new creditor instead of enforcement. The Halsted West case involved the document being transferred instead of enforcement to the new creditor who bought the mortgage month after receipt of an assigned mortgage.
Having established that a mortgage cession is a chargeable tax credit transferred, the Tribunal examined the application of the C and M exemptions under the TAR. When dealing with waiver C, the Tribunal found in the KTCP case that, instead of a tripartite arrangement, the instrument was not a credit escrow.
In the Halsted West case, the Tribunal found that the grant of a mortgage was exempted for debts under exemption C, but continued to find that an assignation of a mortgage was a "transfer of debts" and did not constitute a "security for a debt", so that an assignation of a mortgage under exemption C was not applicable. In the Halsted West case, the Tribunal found that the exemption C is valid only upon the grant of a mortgage to a "bona fide creditor " and that the acquirer in the Halsted West case was a "non-lender" when he obtained the mortgage.
As regards the treatment of Release Issue A, the Halsted West case noted that a title assignment by means of a document instead of enforcement is only exempted if the assignment document is addressed either to the initial creditor or to an assignor of the initial creditor. In the KTCP case, the waiver was not dealt with in detail.
Both cases were found by the Tribunal not to be exempted and subject to taxation under the Ordinance. Currently the city levy is $7.50 per $1,000 "transfer price" payable by the buyer and $3.00 per $1,000 payable by the vendor. In both cases, the Tribunal referred the issue of the'transfer price' back to the management tier, which could claim that the city should base the amount of the mortgage assigned (irrespective of the real value of the land pledged) - potentially on a substantial amount to be payed for the assignment of a mortgage.
One of the many outstanding issues arising from the KTCP and Halsted West cases is the level of mortgage assignment duty. While these recent cases only confirm a convincing case example, they clearly demonstrate the city's intention to levy taxes on those exempted transactions that were previously exempted under the Ordinance.
Putting aside the truthfulness of the court's argumentation, those who buy mortgage debts for the Chicago properties should be conscious of the city's intention to claim this income on these qualified transactions and should try to restructure the transactions accordingly. When the City can demonstrate that this condition is not met that the Mortgagor owns the Pledged Object (either in the Simultaneous or Short Term Transaction), the City may consider the assignment as a so-called "loan to own" business.