«Gallancy-Wininger, A.L.J.: Petitioner, George S. Wiggan, 130-12 233rd Street, Rosedale, New York, filed a Petition for Hearing with the New York City ...»
Moreover, there is no evidence that IndyMac was aware of a principal/agent relationship. Further, the checks in payment of the Mortgage, were checks drawn on the accounts of two
-10corporations, rather than on an account which denominated Mrs.
Wiggan as agent. There is no evidence that any actions taken by Mrs. Wiggan bound Petitioner (e.g., there is no evidence that Petitioner was an obligor under the Mortgage note given to IndyMac). Mrs. Wiggan did not act as agent in other respects: she did not collect the rents, she did not transmit the rents and there is no evidence that she held herself out to be the agent of both parties. See, e.g., (Commissioner of Internal Revenue v Bollinger 485 US 340, 108 ).
Administrative Code § 11-2106.b.8 provides that the RPTT shall
also not be applicable in the case of:
In this instance, the Transfer effected a change in the ownership of the Property and the exemption set forth in Administrative Code § 11-2106.b.8 is inapplicable.
The Transfer may not be construed as a transaction by a dummy, nominee or conduit and, the deed effecting the Transfer may not be construed as a correction deed. (Matter of Targee Medical Associates, TAT 92-1207 ); (Matter of Adolfo Welch, (TAT 91Matter of Lance Roberts, TAT (H) 93-312 ).
In the case of a transfer of real property,7 RPTT is due on the consideration pertaining to the value of the Property transferred and includes a proportionate share of the outstanding mortgage indebtedness at the time of the transfer. (Matter of Pate, TAT 92-0113 ); (Matter of De Lillo, TAT(H) 93-2343(RP) ); (Matter of Dalia Horowitz, TAT(H) 96-77(RP) );
(Matter of Jungil Song), each of which pertained to intra-family transfers subject to mortgage indebtedness.
ACCORDINGLY, IT IS CONCLUDED THAT Petitioner is liable for RPTT on the March 8, 2007 transfer computed on the consideration of $402,500, representing one-half of the value of the Mortgage, as Petitioner failed to prove either that (i) Petitioner had any legal or beneficial interest in the Property prior to such date, or (ii) that Mrs. Wiggan acted as an agent for herself and Petitioner on the First Acquisition Date.
7 Under certain circumstances, where the property transferred is a one, two or three-family house, Administrative Code § 11-2102.f. permits the exclusion of outstanding mortgage indebtedness from the amount of consideration on which the RPTT is based.