The New Hampshire Senate
Republican Majority Office
Department of Revenue Administration seeking to expand Real Estate Transfer Tax without legislative approval
Concord, NH – State Senators David Boutin (R-Hooksett) and John Reagan (R-Deerfield) today called on Governor Maggie Hassan to halt her Administration’s plan to expand the Real Estate Transfer Tax (RETT). The Hassan Administration recently asked the Joint Legislative Committee on Administrative Rules (JLCAR) for authority to apply the tax on leases, but then withdrew that request. The Hassan Administration is now claiming that it has the ability to tax leases. This unilateral expansion of the tax has not been authorized by the Legislature, and is not allowed under current rules governing the Department of Revenue Administration.
“Bureaucrats cannot and should not expand an existing tax on their own. The law cannot mean whatever Governor Hassan wants it to mean,” said Sen. Boutin. “The law clearly states that the Real Estate Transfer Tax doesn’t apply to short term leases, and the Governor knows it. Otherwise, she wouldn’t have pushed to change the rules. Governor Hassan should immediately end her quest to impose a new Lease Tax on New Hampshire businesses.”
Both the DRA website and the RETT forms provided to buyers and sellers state that the tax applies to leases of 99 years or longer, but neither applies the tax to leases of shorter terms. Neither state law nor administrative rules authorize collection of the Real Estate Transfer Tax on those leases. The Hassan Administration has not provided any justification for its new claim to JLCAR.
“If the Governor wants to expand the Real Estate Transfer Tax, she’ll need to get a bill passed. She can’t make such a major policy change on a whim,” added Sen. Reagan, chair of JLCAR. “Not only would the Governor’s Lease Tax hurt our struggling real estate sector, but any such retroactive tax increase would create tremendous uncertainty in our tax code. New Hampshire businesses can’t operate when the Governor can increase their tax bills whenever she feels like it.”
NH RSA 78-B authorizes the Real Estate Transfer Tax of $0.75 per $100 of fair market value “imposed upon the sale, granting and transfer of real estate and any interest therein including transfers by operation of law.” The tax is paid by both the buyer and the seller, resulting in a total tax rate of 1.5%.
Administrative Rule Part Rev 802.01(f) applies RETT on leases of 99 years or longer, but do not authorize RETT on shorter leases. The Hassan Administration has sought a change in Administrative Rules to allow RETT on “ground lease transfers”, but delayed its request twice in the face of criticism from the Committee. The Hassan Administration has now withdrawn its request, claiming that “the taxability of ground leases exists currently under New Hampshire law.”
Administrative Rules Chapter Rev 800- Transfer of Real Property
Attached: DRA Letter to JLCAR