Property transfer tax. 90-day rule invalid.

Polly's Properties v. Department of Taxes (2009-124) (21-May-2010) 2010 VT 41 (Skoglund, J.)

Polly’s Properties, LLC (taxpayer) appeals from a superior court judgment upholding the Department of Taxes’ assessment of a property-transfer tax on two parcels of real property transferred to taxpayer as its start-up capital. Taxpayer contends the trial court erred in concluding that, because the transfers did not occur at the time of, or within ninety days thereafter, the filing of taxpayer’s articles of organization it was not entitled to a transfer-tax exemption under 32 V.S.A. § 9603(24). For the reasons set forth below, we reverse.

The Department of Taxes denied the claimed exemption on the ground that the transfer was not made at the time of the LLC’s “formation” or within the subsequent “ninety-day window” allowed by the Department. If the “formation” of an LLC for purposes of qualifying for the transfer-tax exemption necessarily occurs when it is “organized” by means of filing articles with the Secretary of State, it thus follows that the property transfers at issue here—which occurred some ten months after taxpayer filed its articles—were untimely and ineligible for the tax relief afforded by the statute. However, this renders the statue meaningless. As the Department acknowledges however, neither taxpayer nor any other LLC could literally comply with the plain terms of the statute because property transfers to an LLC must logically follow its organization.

The statute cannot be enforced according to its plain meaning because it leads to absurd results. To correct problem the Department arbitrarily created a ninety-day window for tax-exempt property transfers, with no reference whatsoever to any underlying legislative purpose or justification. Instead we construe the statute, consistent with the legislative tax-relief purpose, to mean that the “formative” event is the initial transfer of capital, or capitalization of the company.