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1 DENNIS J. HERRERA, State Bar #139669
City Attorney
2 SCOTT M. REIBER, State Bar #245418 ELECTRONICALLY
Chief Tax Attorney F I L E D
3 CAROLE F. RUWART, State Bar #146737 Superior Court of California,
County of San Francisco
KEVIN YEH, State Bar #314079
4 Deputy City Attorneys 05/21/2020
Fox Plaza Clerk of the Court
5 1390 Market Street, 7th floor BY: ERNALYN BURA
Deputy Clerk
San Francisco, California 94102-5408
6 Telephone: (415) 554-3856
Facsimile: (415) 437-4644
7 E-Mail: Kevin.Yeh@sfcityatty.org
8 Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SAN FRANCISCO
12 UNLIMITED JURISDICTION
13 CWI 2 SAN FRANCISCO HOTEL, L.P., Case No. CGC-19-581046
14 Plaintiff, DECLARATION OF CAROLE F. RUWART IN
SUPPORT OF DEFENDANT CITY AND
15 vs. COUNTY OF SAN FRANCISCO’S
DEMURRER TO PLAINTIFF CWI 2 SAN
16 CITY AND COUNTY OF SAN FRANCISCO HOTEL, L.P.’S THIRD,
FRANCISCO, FOURTH, FIFTH, SIXTH, AND SEVENTH
17 CAUSES OF ACTION IN PLAINTIFF’S
Defendant. COMPLAINT
18
Reservation No.: Not required by Court due to
19 Coronavirus pandemic
20 Hearing Date: June 25, 2020
Hearing Judge: Hon. Ethan P. Schulman
21 Time: 9:30 a.m.
Place: Dept. 302
22
Date Action Filed: November 26, 2019
23 Trial Date: None Set
24 Attached documents: Notice of Demurrer
Memorandum of Points and
25 Authorities
Request for Judicial Notice
26 Proposed Order
Courtesy Copy of Complaint
27
28
RUWART DECL. ISO DEMURRER, CASE NO. CGC-19-581046 N:\TAXLIT\LI2020\200637\01430687.DOCX
EXHIBIT A
San Francisco Business and Tax Regulations Code
ARTICLE 12‐C: REAL PROPERTY TRANSFER TAX
(as of December 30, 2016; last amended by Proposition W, November 8, 2016)
Sec. 1101 Short Title.
Sec. 1102 Tax Imposed.
Sec. 1102.1 Assessor's Parcel Numbers.
Sec. 1102.2 Domestic Partners.
Sec. 1103 Payment of Tax.
Sec. 1104 Instrument to Secure Debt.
Sec. 1105 Exemptions.
Sec. 1106 Exceptions.
Sec. 1107 Orders of Securities & Exchange Commission.
Sec. 1108 Application to Partnerships; Title Changes Not Affecting Ownership.
Sec. 1108.1 Exemption; Dissolution of Marriage, Etc.
Sec. 1108.2 Exemption; Deeds in Lieu of Foreclosure, Etc.
Sec. 1108.3 Application to Leasehold Instruments.
Sec. 1108.4 Exemption; Certain Conversions of Stock Cooperatives to Condominium
Units.
Sec. 1108.5 Exemption; Transfers between Spouses and Transfers between Domestic
Partners.
Sec. 1109 Title Changes Not Affecting Ownership.
Sec. 1110 Administration by County Recorder.
Sec. 1111 Recording Payment of Tax.
Sec. 1111.1 Proof of Exemption, Consideration and Value.
Sec. 1113 Claims for Refunds.
Sec. 1113.1 Refunds Permissible Without a Claim.
Sec. 1113.2 Refunds; Interest.
Sec. 1113.3 Exhaustion of Administrative Remedies; Presentation of Claim for Refund as
Prerequisite to Suit; Payment of Disputed Amount and Petition for Refund; Limitations.
1
Sec. 1114 Administration and Interpretation.
Sec. 1115 Delinquency Taxes.
Sec. 1115.1 Lien Proceedings.
Sec. 1115.3 Manner of Giving Notice.
Sec. 1115.4 Tax as Debt.
Sec. 1116 Penalty.
SEC. 1101. SHORT TITLE.
This Article shall be known as the "Real Property Transfer Tax Ordinance." It is
adopted pursuant to the authority contained in Part 6.7 (commencing with Section 11901)
of Division 2 of the Revenue and Taxation Code of the State of California.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 352‐84, App. 8/8/84; Ord. 377‐84, App.
8/31/84)
SEC. 1102. TAX IMPOSED.
There is hereby imposed on each deed, instrument or writing by which any lands,
tenements, or other realty sold within the City and County of San Francisco shall be
granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or
purchasers, or any other person or persons, by his or her or their direction, when the
consideration or value of the interest or property conveyed (not excluding the value of any
lien or encumbrances remaining thereon at the time of sale) (a) exceeds $100 but is less
than or equal to $250,000, a tax at the rate of $2.50 for each $500 or fractional part thereof;
or (b) more than $250,000 and less than $1,000,000, a tax at the rate of $3.40 for each $500
or fractional part thereof for the entire value or consideration, including, but not limited to,
any portion of such value or consideration that is less than $250,000; or (c) at least
$1,000,000 and less than $5,000,000, a tax at the rate of $3.75 for each $500 or fractional
part thereof for the entire value or consideration, including, but not limited to, any portion
of such value or consideration that is less than $1,000,000; or (d) at least $5,000,000 and
less than $10,000,000, a tax at the rate of $ 11.25 for each $500 or fractional part thereof
for the entire value or consideration, including, but not limited to, any portion of such value
or consideration that is less than $5,000,000; or (e) at least $10,000,000 andless than
$25,000,000, a tax at the rate of $13.75 for each $500 or fractional part thereof for the
entire value or consideration, including but not limited to, any portion of such value or
consideration that is less than $10,000,000; or (f) at least $25,000,000, a tax at the rate of
$15 for each $500 or fractional part thereof for the entire value or consideration, including
but not limited to, any portion of such value or consideration that is less than $25,000,000.
The People of the City and County of San Francisco authorize the Board of Supervisors to
enact ordinances, without further voter approval, that will exempt rent‐restricted
affordable housing, as the Board may define that term, from the increased tax rate in
subsections (d), (e), and (f).
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 357‐90, App.
10/17/90; Ord. 337‐94, App. 9/8/94; Ord. 338‐94, Eff. 10/4/94; Proposition N,
11/4/2008; Proposition N, 11/2/2010; Proposition W, 11/8/2016)
2
SEC. 1102.1. ASSESSOR'S PARCEL NUMBERS.
Every document pertaining to real property that is submitted for recordation shall
show on the face of the document the Assessor's correct parcel number, or numbers, and
the commonly‐known situs and/or street name and number of the real property described
therein.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 579‐85, App. 12/27/85; Ord. 201‐01, File
No. 011242, App. 9/28/2001)
SEC. 1102.2. DOMESTIC PARTNERS.
"Domestic partnership" shall mean a domestic partnership created pursuant to
Chapter 62 of the Administrative Code, Division 2.5 of the California Family Code, or the
laws of another state or political subdivision thereof, and for which a Declaration of
Domestic Partnership or similar official record acknowledging the domestic partnership
has been filed with the County Clerk pursuant to Chapter 62, or with the public official
responsible for the registration of domestic partnerships pursuant to the laws of the
jurisdiction under which the domestic partnership was created.
(Added by Ord. 108‐04, File No. 040493, App. 6/21/2004)
SEC. 1103. PAYMENT OF TAX.
Any tax imposed pursuant to Section 1102 hereof shall be paid by any person who
makes, signs or issues any document or instrument subject to the tax, or for whose use or
benefit the same is made, signed or issued.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84)
SEC. 1104. INSTRUMENT TO SECURE DEBT.
Any tax imposed pursuant to this ordinance shall not apply to any instrument in
writing given to secure a debt.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84)
SEC. 1105. EXEMPTIONS.
Any deed, instrument or writing to which the United States or any agency or
instrumentality thereof, any state or territory, or political subdivision thereof, is a party
shall be exempt from any tax imposed pursuant to this ordinance when the exempt agency
is acquiring title.
Any deed, instrument or writing shall be exempt from up to one‐third (1/3) of any
tax imposed pursuant to this ordinance if: (1) it transfers an interest in real property used
as a residence; and (2) after January 1, 2009, the transferor has installed an active solar
system, as that term is defined in Revenue & Taxation Code §73(b), or has made seismic
retrofitting improvements or improvements utilizing earthquake hazard mitigation
technologies, as those terms are defined in Revenue & Taxation Code §74.5(b), and the
transferor has claimed and the Assessor has approved an exclusion from reassessment for
the value of that system or those improvements. This partial exemption shall only apply to
the initial transfer by the person who installed the active solar system or made the seismic
safety improvements. The amount of this partial exemption shall not exceed the
transferor's cost of seismic retrofitting improvements or the active solar system. Multi‐
family residential properties are eligible for this partial exemption.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Proposition N,
11/4/2008)
3
SEC. 1106. EXCEPTIONS.
Any tax imposed pursuant to this ordinance shall not apply to the making, delivering
or filing of conveyances to make effective any plan of reorganization or adjustment:
(a) Confirmed under Title 11 of the United States Code;
(b) Whereby a mere change in identity, form or place or organization is effected.
Subdivisions (a) and (b), inclusive, of this Section shall only apply if the making, delivery
or filing of instruments of transfer or conveyances occurs within five years from the date of
such confirmation approval or change.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 20‐09, File No.
081450, App. 2/5/2009)
SEC. 1107. ORDERS OF SECURITIES & EXCHANGE COMMISSION.
Any tax imposed pursuant to this ordinance shall not apply to the making or
delivery of conveyances to make effective any order of the Securities & Exchange
Commission, as defined in subdivision (a) of Section 1083 of the Internal Revenue Code of
1954; but only if:
(a) The order of the Securities & Exchange Commission in obedience to which
such conveyance is made recites that such conveyance is necessary or appropriate to
effectuate the provisions of Section 79K of Title 15 of the United States Code, relating to the
Public Utility Holding Company Act of 1935;
(b) Such order specifies the property which is ordered to be conveyed;
(c) Such conveyance is made in obedience to such order.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84)
SEC. 1108. APPLICATION TO PARTNERSHIPS; TITLE CHANGES NOT AFFECTING
OWNERSHIP.
(a) In the case of any realty held by a partnership or other entity treated as a
partnership for federal income tax purposes, no levy shall be imposed pursuant to this
Article by reason of any transfer of an interest in a partnership or other entity treated as a
partnership for federal income tax purposes or otherwise, if:
(1) Such partnership or other entity treated as a partnership (or another
partnership or other entity treated as a partnership) is considered a continuing
partnership within the meaning of Section 708 of the Internal Revenue Code of 1986, as
amended; and
(2) Such continuing partnership or other entity treated as a partnership
continues to hold the realty concerned.
(b) If there is a termination of any partnership or other entity treated as a
partnership for federal income tax purposes within the meaning of Section 708 of the
Internal Revenue Code of 1986, as amended, for purposes of this Article, such partnership
or other entity shall be treated as having executed an instrument whereby there was
conveyed, for fair market value, all realty held by such partnership or other entity at the
time of such termination.
(c) Not more than one tax shall be imposed pursuant to this Article by reason of a
termination described in Subdivision (b), and any transfer pursuant thereto, with respect
to the realty held by such partnership or other entity treated as a partnership for federal
income tax purposes at the time of such termination.
(d) Notwithstanding any other language in this Section 1108, nothing in this Section
shall exempt from the tax imposed under this Article 12‐C any “realty sold” as described in
Section 1114(b).
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 28‐95, App.
2/3/95; Ord. 20‐09, File No. 081450, App. 2/5/2009; Proposition W, 11/8/2016)
4
SEC. 1108.1. EXEMPTION; DISSOLUTION OF MARRIAGE, ETC.
(a) Any tax imposed pursuant to this Article shall not apply with respect to any
transfer of real property to transfer, divide, or allocate community, quasi‐community, or
quasi‐marital property assets between spouses for the purpose of effecting a division of
community, quasi‐community, or quasi‐marital property which is required by a judgment
decreeing a dissolution of the marriage or legal separation, by a judgment of nullity, or by
any other judgment or order rendered pursuant to Divisions 4, 6 and 7 of the Family Code,
or by written agreement between the spouses, executed in contemplation of any such
judgment or order, whether or not the written agreement is incorporated as part of any of
those judgments or orders.
(b) Any tax imposed pursuant to this Article shall not apply with respect to any
transfer to transfer, divide, or allocate assets held as joint tenants or as tenants‐in‐common
between domestic partners for the purpose of effecting a division of assets upon the
dissolution of a domestic partnership.
(c) In order to qualify for the exemption provided in subsections (a) or (b), the
deed, instrument or other writing effecting the transfer shall include a written recital,
signed by either spouse or domestic partner, stating that the transfer is entitled to the
exemption.
(d) Individuals of the same sex who obtain a certificate of marriage or other
official government document of any state or political subdivision thereof acknowledging
their union in marriage shall be deemed to be or have been in a "domestic partnership"
that qualifies for the exemption under subsection (b) in the event such individuals are
denied the legal status of spouses or former spouses for purposes of the exemption in
subsection (a), or the marriage certificate or other official government document
acknowledging their marriage is invalidated in a final judgment or by operation of law
because such individuals are of the same sex, if: (i) the transfer is for the purpose of
effecting a division of assets between such individuals upon the dissolution of their union;
(ii) they hold the real property or interest therein as joint tenants or tenants‐in‐common
before the transfer; (iii) the union, regardless of its characterization as an invalid marriage
or an informal or unregistered domestic partnership, has been dissolved; and (iv) the
written recital signed by either individual pursuant to subsection (c) states the particulars
that exempt the transfer under this subsection (d).
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 236‐94, App.
6/16/94; Ord. 108‐04, File No. 040493, App. 6/21/2004)
SEC. 1108.2. EXEMPTION; DEEDS IN LIEU OF FORECLOSURE, ETC.
Any tax imposed pursuant to this ordinance shall not apply with respect to any
deed, instrument, or writing to a beneficiary or mortgagee, which is taken from the
mortgagor, trustor or trustee, as a result of or in lieu of foreclosure; provided, that such tax
shall apply to the extent that the consideration exceeds the unpaid debt, including accrued
interest and cost of foreclosure. Consideration, unpaid debt amount and identification of
grantee as beneficiary or mortgagee shall be noted on said deed, instrument or writing or
stated in an affidavit for tax purposes.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 352‐84, App. 8/8/84; Ord. 377‐84, App.
8/31/84)
SEC. 1108.3. APPLICATION TO LEASEHOLD INSTRUMENTS.
Any tax imposed pursuant to this ordinance shall not apply with respect to any
deed, instrument or writing which creates, terminates, or transfers a leasehold interest
having a remaining term (including renewal options) of less than 35 years.
5
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Amended by
Proposition N, 5, 11/4/2008)
SEC. 1108.4. EXEMPTION; CERTAIN CONVERSIONS OF STOCK COOPERATIVES TO
CONDOMINIUM UNITS.
Any tax imposed pursuant to this Article shall not apply with respect to any deed,
instrument, or writing in connection with the conversion to condominium units of the
following kind of stock cooperative project: a stock cooperative project (a) which is entitled
to an exemption from the annual limitation imposed on the number of conversions and the
annual condominium conversion lottery pursuant to Section 1396 of the San Francisco
Subdivision Code; and (b) wherein 80 percent or more of the condominium units serve as
security for loans in favor of the City and County of San Francisco, pursuant to the
Homeownership Assistance Loan Fund (under San Francisco Administrative Code Section
10.100‐08) or its predecessor program, as identified by the Mayor's Office of Housing, prior
to the conversion.
(Added by Ord. 473‐96, App. 12/13/96; Ord. 20‐09, File No. 081450, App. 2/5/2009)
SEC. 1108.5. EXEMPTION; TRANSFERS BETWEEN SPOUSES AND TRANSFERS
BETWEEN DOMESTIC PARTNERS.
(a) The tax imposed under this Article shall not apply to transfers of real property
between spouses or between domestic partners.
(b) Individuals of the same sex who obtain a certificate of marriage or other
official government document of any state or political subdivision thereof acknowledging
their union in marriage shall be deemed to be in a "domestic partnership" that qualifies for
the exemption under subsection (a) in the event such individuals are denied the legal
status of marriage or the legal rights, privileges and obligations of spouses, or the marriage
certificate or other official government document acknowledging their marriage is
invalidated or revoked in a final judgment or by operation of law, because such individuals
are of the same sex.
(c) In order to qualify for the exemption provided in this Section, the deed,
instrument or other writing effecting the transfer of real property shall include a written
recital, signed by either spouse or domestic partner, stating that the transfer is entitled to
the exemption for spouses and domestic partners.
(Added by Ord. 108‐04, File No. 040493, App. 6/21/2004)
SEC. 1109. TITLE CHANGES NOT AFFECTING OWNERSHIP
The tax imposed under this Article shall not apply where the deed, instrument, or
other writing transferring title to real property between an individual or individuals and a
legal entity or between legal entities results solely in a change in the method of holding title
and in which the proportional ownership interests in the real property, whether
represented by stock, membership interest, partnership interest, cotenancy interest, or
otherwise, directly or indirectly, remains exactly the same before and after the transfer.
(As Sec. 1108(d), established by Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84,
App. 8/31/84; Ord. 28‐95, App. 2/3/95; Ord. 20‐09, File No. 081450, App. 2/5/2009;
amended and redesignated as Sec. 1109 by Proposition W, 11/8/2016)
(Former Sec. 1109 set forth by Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App.
8/31/84; repealed by Ord. 20‐09, File No. 081450, App. 2/5/2009)
6
SEC. 1110. ADMINISTRATION BY COUNTY RECORDER.
The County Recorder shall administer this ordinance. On or before the fifteenth day
of the month the Recorder shall report to the County Auditor the amounts of taxes collected
during the preceding month pursuant to this ordinance.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 352‐84, App. 8/8/84; Ord. 377‐84, App.
8/31/84)
SEC. 1111. RECORDING PAYMENT OF TAX.
The Recorder shall collect the tax hereby imposed and deposit the same to the
General Fund. The Recorder shall not record any deed, instrument or writing subject to the
tax imposed by this ordinance unless the tax is paid.
A declaration of the amount of the tax due, signed by the party determining the tax
or his agent, shall appear on the face of every document subject to tax hereunder which is
submitted for recordation,. The declaration shall include a statement that the consideration
or value on which the tax due was computed was exclusive of the value of liens or
encumbrances remaining on the interest or property conveyed at the time of sale.
With every document subject to tax hereunder which is submitted for recordation,
there shall also be submitted a separate affidavit stating all relevant information that is
necessary for the determination of the proper transfer tax. A form for such affidavit shall be
prepared by the County Recorder. The affidavit form shall include the following notice:
"NOTICE: Any material misrepresentation of fact in this affidavit is a misdemeanor under
Section 1116 of the Real Property Transfer Tax Ordinance. Any person who makes such a
misrepresentation is subject to prosecution for such offense."
In accepting a document for recordation, the County Recorder shall rely upon the
declaration of the amount of tax due and upon the affidavit of relevant information
accompanying the document.
Every document subject to tax hereunder which is submitted for recordation shall
show on the face of the document, or in a separate document the location of the lands,
tenements or other realty described in the document.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; amended by Ord.
201‐13, File No. 130276, App. 10/3/2013, Eff. 11/2/2013; Ord. 111‐15, File No. 150495,
App. 7/2/2015, Eff. 8/1/2015)
SEC. 1111.1. PROOF OF EXEMPTION, CONSIDERATION AND VALUE.
The Recorder may require the person submitting any deed, instrument or writing
for recordation, or the person for whom said person is acting as agent, to furnish affidavits,
true copies of relevant records or other documentary proof in order to:
(a) substantiate any claim that the deed, instrument or writing submitted for
recordation is not subject to the tax imposed by this ordinance or is exempt therefrom; and
(b) establish the consideration or value of the interest or property conveyed and
the amount of any lien or encumbrance remaining thereon at the time of sale.
(Added by Ord. 377‐84, App. 8/31/84)
SEC. 1113. CLAIMS FOR REFUNDS.
(a) Except as otherwise provided in subsection (c) of this Section 1113 or as
provided in Section 1113.1, the Controller shall refund or cause to be refunded the amount
of any tax, interest, or penalty imposed under this Article 12‐C that has been overpaid or
paid more than once, or has been erroneously or illegally collected or received by the City,
provided the person that paid such amount files a claim in writing with the Controller
within the later of one year of payment of such amount or the date the tax was due. The
claim must state: (1) the specific amount claimed to have been overpaid or paid more than
7
once, or erroneously or illegally collected or received by the City; (2) the date of transfer;
and (3) the grounds upon which the claim is founded, with specificity sufficient to enable
the responsible City officials to understand and evaluate the claim.
(b) Claims for refund shall be made according to California Government Code, Title
1, Division 3.6, Part 3. The Controller shall furnish a form to be used for these claims. The
Controller shall enter the claim in the register, and shall forthwith forward it to the City
Attorney. The City Attorney is designated to take such actions on claims as authorized by
California Government Code, Title 1, Division 3.6, Part 3, Chapter 2, except that the City
Attorney’s authority with regard to rejecting or allowing claims shall be as provided in this
Section 1113. The City Attorney may reject the claim, and shall notify the claimant of such
rejection. Allowance or compromise and settlement of claims under this Section 1113 in
excess of $25,000 shall require the written approval of the City Attorney and approval of
the Board of Supervisors by resolution. The City Attorney may allow or compromise and
settle such claims if the amount is $25,000 or less. No claim may be paid until the
Controller certifies that monies are available from the proper funds or appropriations to
pay the claim as allowed or as compromised and settled. If the City approves the claim, the
City may refund the excess amount collected or paid, or may credit such amount toward
any amount due and payable to the City from the person from whom it was collected or by
whom it was paid, and the balance may be refunded to such person, or the person’s
administrator or executor. For purposes of this Section 1113, a claim shall be deemed to
accrue on the later of the date the tax was due or the date the tax was paid.
(c) The City Attorney, in his or her discretion and upon good cause shown, prior to
the expiration of the one‐year limitations period, may waive the requirement set forth in
subsection (a) of this Section 1113 that a taxpayer file a written claim for a refund in any
case in which the Recorder and City Attorney determine on the basis of the evidence that:
(1) an amount of tax, interest, or penalty has been overpaid or paid more
than once, or has been erroneously or illegally collected or received by the City; and
(2) all other conditions precedent to the payment of a refund to the taxpayer
have been satisfied.
(d) If a refund claim is allowed under this Section 1113 or a refund request is
allowed under Section 1113.1, the Controller will not pay the refund unless the taxpayer
first records a document that reflects payment of tax in an amount reduced by the amount
of the refund.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 20‐09, File No.
081450, App. 2/5/2009; Ord. 111‐15, File No. 150495, App. 7/2/2015, Eff. 8/1/2015; Ord.
154‐15, File No. 150730, App. 8/6/2015, Eff. 9/5/2015)
SEC. 1113.1. REFUNDS PERMISSIBLE WITHOUT A CLAIM.
The Recorder may authorize the Controller to refund transfer tax payments, without
the need for a refund claim, if the Recorder determines:
(a) the tax was paid more than once;
(b) the amount paid exceeds the amount due as a result of an arithmetic or clerical
error; or
(c) the tax was paid on a type of transaction that is exempt from the tax.
The Recorder may authorize such a refund no later than one year after payment of
the tax.
(Added by Ord. 20‐09, File No. 081450, App. 2/5/2009)
SEC. 1113.2. REFUNDS; INTEREST.
(a) Any amounts refunded prior to entry of a final judgment in a judicial proceeding
shall bear interest at the rate for prejudgment interest on refunds of local taxes or fees
8
provided by section 3287(c) of the California Civil Code, as amended from time to time, and
shall be computed from the date of payment to the date of refund.
(b) If the Controller offsets overpayments for a particular transfer against another
liability or liabilities owed to the City, or against penalties or interest on the other liability
or liabilities owed to the City, the taxpayer will be credited with interest on the amount so
applied at the rate of interest set forth above, computed from the date of payment.
(c) If a taxpayer elects to apply all or part of a refund, inclusive of any interest
accrued up to the date of the taxpayer’s election, against a future San Francisco tax liability,
the taxpayer will not be credited with interest on the amount so applied from the date of
the taxpayer’s election.
(Added by Ord. 154‐15, File No. 150730, App. 8/6/2015, Eff. 9/5/2015)
SEC. 1113.3. EXHAUSTION OF ADMINISTRATIVE REMEDIES; PRESENTATION OF
CLAIM FOR REFUND AS PREREQUISITE TO SUIT; PAYMENT OF DISPUTED AMOUNT
AND PETITION FOR REFUND; LIMITATIONS.
(a) Persons claiming they are aggrieved under the Business and Tax Regulations
Code must prior to seeking judicial relief:
(1) pay the amount of the disputed tax, penalty, and interest; and
(2) present a claim for refund to the Controller and allow action to be taken
on such claim, pursuant to Section 1113.
(b) The person who paid the tax, his or her guardian or conservator, the executor of
his or her will, or the administrator of his or her estate may bring an action in Superior
Court against the City and County of San Francisco to recover taxes, interest, or penalties
that the City has refused to refund on a claim for refund pursuant to Section 1113. No
other person may bring such an action; but if another person should do so, judgment shall
not be rendered for the plaintiff. Any suit for refund of taxes, interest, or penalties shall be
commenced within the time provided by California Government Code section 945.6, as
amended from time to time. Persons claiming they are aggrieved under the Business and
Tax Regulations Code may not file any type of judicial action other than a refund action.
Notwithstanding any other section of this Code, no claim or defense that, for any reason, a
tax is not due or cannot be applied under this Code may be raised in any judicial proceeding
except in an action for refund of the disputed tax.
(Added by Ord. 154‐15, File No. 150730, App. 8/6/2015, Eff. 9/5/2015)
SEC. 1114. ADMINISTRATION AND INTERPRETATION.
(a) In the administration of this ordinance the recorder shall interpret its provisions
consistently with those Documentary Stamp Tax Regulations adopted by the Internal
Revenue Service of the United States Treasury Department which relate to the Tax on
Conveyances and are identified as Sections 47.4361‐1, 47.4361‐2 and 47.4362‐1 of Part 47
of Title 26 of the Code of Federal Regulations, as the same existed on November 8, 1967,
except that for the purposes of this ordinance, the determination of what constitutes
"realty" shall be determined by the definition or scope of that term under state law.
(b) Notwithstanding subsection (a), "realty sold" includes any acquisition or
transfer of ownership interests in a legal entity that would be a change of ownership of real
property under California Revenue and Taxation Code Section 64. In such cases, there shall
be deemed to have been an instrument executed whereby there was conveyed, for fair
market value, all real property that experienced a change of ownership under California
Revenue and Taxation Code Section 64.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Amended by
Proposition N, 11/4/2008; Proposition W, 11/8/2016)
9
SEC. 1115. DELINQUENCY TAXES.
(a) Delinquency Penalties. The tax imposed by this ordinance is due and payable
at the time the deed, instrument or writing effecting a transfer subject to the tax is
delivered, and is delinquent if unpaid thirty days later. In the event that tax is not paid prior
to becoming delinquent, a delinquency penalty of 25 percent of the amount of tax due shall
accrue. In the event only a portion of the tax is unpaid prior to becoming delinquent, the
penalty shall accrue only as to the portion remaining unpaid. An additional penalty of 10
percent shall accrue if the tax remains unpaid on the ninetieth day following the date of the
original delinquency. Interest shall accrue at the rate of one percent a month, or fraction
thereof, on the amount of delinquent tax, exclusive of penalties, from the date the tax
becomes delinquent to the date of payment. Interest and penalties accrued shall become
part of the tax.
(b) Audits. The County Recorder may audit any documents transferring an
interest in real property before or after any transfer, to determine if the transfer is exempt
from the tax under this Article or is unpaid or underpaid. The County Recorder may adopt
and implement necessary and appropriate audit procedures.
(c) Delinquency Determination. Whenever the County Recorder has reason to
believe that the full amount of tax due under this ordinance was not paid, the County
Recorder may, by notice served upon any person liable therefor, require him to furnish
affidavits, true copies of relevant records or other documentary proof sufficient to establish
the amount of the consideration or value of the interest or property conveyed including the
amount of any lien or encumbrance remaining thereon at the time of sale; and, if it was
claimed that the deed, instrument or other writing was not subject to this tax or was
exempt therefrom, the County Recorder may, by such notice, require any person liable for
the tax to furnish affidavits, true copies of relevant records or other documentary proof to
substantiate such claim. On the basis of the proof so submitted and any other available
evidence, the County Recorder shall determine whether the full amount of tax due under
this ordinance was paid before recordation and, if it was not, the County Recorder shall
determine the amount of tax which was not paid and is delinquent.
(d) Delinquency Notices. Promptly after making his or her delinquent tax
determination, the County Recorder shall record a notice of delinquent tax which shall
include:
(1) The amount of delinquent tax;
(2) The interest that shall accrue on the delinquent tax;
(3) The delinquency penalty then due;
(4) The additional penalty that shall accrue if the tax is not promptly paid;
(5) A description of the real property that was transferred by the
document recorded without full payment of tax; and
(6) A notice that if the tax, penalties and interest are not paid within 30
days, proceeding will be taken at a noticed hearing before the Board of Supervisors to
impose a lien for the unpaid tax, together with penalties and interest, against the real
property described in the delinquency notice.
The County Recorder shall also serve or mail copies of the notice of delinquent tax
to the person liable for the tax and to the owner or owners of the real property described in
the notice, as said owners are shown on the records of the County Tax Collector.
(Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 20‐09, File No.
081450, App. 2/5/2009; amended by Ord. 201‐13, File No. 130276, App. 10/3/2013, Eff.
11/2/2013)
SEC. 1115.1. LIEN PROCEEDINGS.
(a) Initiating Lien Proceedings. If the full amount of the delinquent tax, penalties
and interest is not paid within 30 days following mailing of the delinquency notice the
10
County Recorder, within one year of when the tax became delinquent, shall report the
delinquency to the Board of Supervisors ("the Board") and request the Board to initiate
proceedings to impose a lien for the total unpaid balance against the real property that was
transferred by the document delivered without full payment of tax. Said report shall, for
each delinquent account, contain the names of the persons liable for the tax, the total
amount due, including delinquent taxes, penalties and interest, and a description of the real
property that was transferred by the document delivered without full payment of tax. Upon
receipt of such report the Board shall fix a time and place for hearing the report and any
protests or objections thereto and shall cause notice of the hearing to be mailed not less
than 10 days prior to the date of hearing to each person liable for the tax and to the owner
or owners of the real property described in the recorded notice of delinquent tax.
(b) Hearing. At the time so fixed, the Board shall meet to hear the report and any
protests or objections thereto. The Board may make such revisions, corrections or
modifications of the report as it may deem just; and in the event that the Board is satisfied
with the correctness of the report (as submitted or as revised, corrected or modified), it
shall be confirmed. The decision of the Board on the report and on all protests or objections
thereto shall be final and conclusive; provided, however, any delinquent account may be
removed from the report by payment in full at any time prior to confirmation of the report.
The Clerk of the Board shall cause the confirmed report to be verified in form sufficient to
meet recording requirements.
(c) Special Assessment Lien. Upon confirmation of the report by the Board, the
unpaid balance reporte
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1 DENNIS J. HERRERA, State Bar #139669 City Attorney 2 SCOTT M. REIBER, State Bar #245418 ELECTRONICALLY Chief Tax Attorney F I L E D 3 CAROLE F. RUWART, State Bar #146737 Superior Court of California, County of San Francisco KEVIN YEH, State Bar #314079 4 Deputy City Attorneys 05/21/2020 Fox Plaza Clerk of the Court 5 1390 Market Street, 7th floor BY: ERNALYN BURA Deputy Clerk San Francisco, California 94102-5408 6 Telephone: (415) 554-3856 Facsimile: (415) 437-4644 7 E-Mail: Kevin.Yeh@sfcityatty.org 8 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN FRANCISCO 12 UNLIMITED JURISDICTION 13 CWI 2 SAN FRANCISCO HOTEL, L.P., Case No. CGC-19-581046 14 Plaintiff, DECLARATION OF CAROLE F. RUWART IN SUPPORT OF DEFENDANT CITY AND 15 vs. COUNTY OF SAN FRANCISCO’S DEMURRER TO PLAINTIFF CWI 2 SAN 16 CITY AND COUNTY OF SAN FRANCISCO HOTEL, L.P.’S THIRD, FRANCISCO, FOURTH, FIFTH, SIXTH, AND SEVENTH 17 CAUSES OF ACTION IN PLAINTIFF’S Defendant. COMPLAINT 18 Reservation No.: Not required by Court due to 19 Coronavirus pandemic 20 Hearing Date: June 25, 2020 Hearing Judge: Hon. Ethan P. Schulman 21 Time: 9:30 a.m. Place: Dept. 302 22 Date Action Filed: November 26, 2019 23 Trial Date: None Set 24 Attached documents: Notice of Demurrer Memorandum of Points and 25 Authorities Request for Judicial Notice 26 Proposed Order Courtesy Copy of Complaint 27 28 RUWART DECL. ISO DEMURRER, CASE NO. CGC-19-581046 N:\TAXLIT\LI2020\200637\01430687.DOCX EXHIBIT A San Francisco Business and Tax Regulations Code ARTICLE 12‐C: REAL PROPERTY TRANSFER TAX (as of December 30, 2016; last amended by Proposition W, November 8, 2016) Sec. 1101 Short Title. Sec. 1102 Tax Imposed. Sec. 1102.1 Assessor's Parcel Numbers. Sec. 1102.2 Domestic Partners. Sec. 1103 Payment of Tax. Sec. 1104 Instrument to Secure Debt. Sec. 1105 Exemptions. Sec. 1106 Exceptions. Sec. 1107 Orders of Securities & Exchange Commission. Sec. 1108 Application to Partnerships; Title Changes Not Affecting Ownership. Sec. 1108.1 Exemption; Dissolution of Marriage, Etc. Sec. 1108.2 Exemption; Deeds in Lieu of Foreclosure, Etc. Sec. 1108.3 Application to Leasehold Instruments. Sec. 1108.4 Exemption; Certain Conversions of Stock Cooperatives to Condominium Units. Sec. 1108.5 Exemption; Transfers between Spouses and Transfers between Domestic Partners. Sec. 1109 Title Changes Not Affecting Ownership. Sec. 1110 Administration by County Recorder. Sec. 1111 Recording Payment of Tax. Sec. 1111.1 Proof of Exemption, Consideration and Value. Sec. 1113 Claims for Refunds. Sec. 1113.1 Refunds Permissible Without a Claim. Sec. 1113.2 Refunds; Interest. Sec. 1113.3 Exhaustion of Administrative Remedies; Presentation of Claim for Refund as Prerequisite to Suit; Payment of Disputed Amount and Petition for Refund; Limitations. 1 Sec. 1114 Administration and Interpretation. Sec. 1115 Delinquency Taxes. Sec. 1115.1 Lien Proceedings. Sec. 1115.3 Manner of Giving Notice. Sec. 1115.4 Tax as Debt. Sec. 1116 Penalty. SEC. 1101. SHORT TITLE. This Article shall be known as the "Real Property Transfer Tax Ordinance." It is adopted pursuant to the authority contained in Part 6.7 (commencing with Section 11901) of Division 2 of the Revenue and Taxation Code of the State of California. (Ord. 315‐67, App. 12/12/67; amended by Ord. 352‐84, App. 8/8/84; Ord. 377‐84, App. 8/31/84) SEC. 1102. TAX IMPOSED. There is hereby imposed on each deed, instrument or writing by which any lands, tenements, or other realty sold within the City and County of San Francisco shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his or her or their direction, when the consideration or value of the interest or property conveyed (not excluding the value of any lien or encumbrances remaining thereon at the time of sale) (a) exceeds $100 but is less than or equal to $250,000, a tax at the rate of $2.50 for each $500 or fractional part thereof; or (b) more than $250,000 and less than $1,000,000, a tax at the rate of $3.40 for each $500 or fractional part thereof for the entire value or consideration, including, but not limited to, any portion of such value or consideration that is less than $250,000; or (c) at least $1,000,000 and less than $5,000,000, a tax at the rate of $3.75 for each $500 or fractional part thereof for the entire value or consideration, including, but not limited to, any portion of such value or consideration that is less than $1,000,000; or (d) at least $5,000,000 and less than $10,000,000, a tax at the rate of $ 11.25 for each $500 or fractional part thereof for the entire value or consideration, including, but not limited to, any portion of such value or consideration that is less than $5,000,000; or (e) at least $10,000,000 andless than $25,000,000, a tax at the rate of $13.75 for each $500 or fractional part thereof for the entire value or consideration, including but not limited to, any portion of such value or consideration that is less than $10,000,000; or (f) at least $25,000,000, a tax at the rate of $15 for each $500 or fractional part thereof for the entire value or consideration, including but not limited to, any portion of such value or consideration that is less than $25,000,000. The People of the City and County of San Francisco authorize the Board of Supervisors to enact ordinances, without further voter approval, that will exempt rent‐restricted affordable housing, as the Board may define that term, from the increased tax rate in subsections (d), (e), and (f). (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 357‐90, App. 10/17/90; Ord. 337‐94, App. 9/8/94; Ord. 338‐94, Eff. 10/4/94; Proposition N, 11/4/2008; Proposition N, 11/2/2010; Proposition W, 11/8/2016) 2 SEC. 1102.1. ASSESSOR'S PARCEL NUMBERS. Every document pertaining to real property that is submitted for recordation shall show on the face of the document the Assessor's correct parcel number, or numbers, and the commonly‐known situs and/or street name and number of the real property described therein. (Ord. 315‐67, App. 12/12/67; amended by Ord. 579‐85, App. 12/27/85; Ord. 201‐01, File No. 011242, App. 9/28/2001) SEC. 1102.2. DOMESTIC PARTNERS. "Domestic partnership" shall mean a domestic partnership created pursuant to Chapter 62 of the Administrative Code, Division 2.5 of the California Family Code, or the laws of another state or political subdivision thereof, and for which a Declaration of Domestic Partnership or similar official record acknowledging the domestic partnership has been filed with the County Clerk pursuant to Chapter 62, or with the public official responsible for the registration of domestic partnerships pursuant to the laws of the jurisdiction under which the domestic partnership was created. (Added by Ord. 108‐04, File No. 040493, App. 6/21/2004) SEC. 1103. PAYMENT OF TAX. Any tax imposed pursuant to Section 1102 hereof shall be paid by any person who makes, signs or issues any document or instrument subject to the tax, or for whose use or benefit the same is made, signed or issued. (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84) SEC. 1104. INSTRUMENT TO SECURE DEBT. Any tax imposed pursuant to this ordinance shall not apply to any instrument in writing given to secure a debt. (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84) SEC. 1105. EXEMPTIONS. Any deed, instrument or writing to which the United States or any agency or instrumentality thereof, any state or territory, or political subdivision thereof, is a party shall be exempt from any tax imposed pursuant to this ordinance when the exempt agency is acquiring title. Any deed, instrument or writing shall be exempt from up to one‐third (1/3) of any tax imposed pursuant to this ordinance if: (1) it transfers an interest in real property used as a residence; and (2) after January 1, 2009, the transferor has installed an active solar system, as that term is defined in Revenue & Taxation Code §73(b), or has made seismic retrofitting improvements or improvements utilizing earthquake hazard mitigation technologies, as those terms are defined in Revenue & Taxation Code §74.5(b), and the transferor has claimed and the Assessor has approved an exclusion from reassessment for the value of that system or those improvements. This partial exemption shall only apply to the initial transfer by the person who installed the active solar system or made the seismic safety improvements. The amount of this partial exemption shall not exceed the transferor's cost of seismic retrofitting improvements or the active solar system. Multi‐ family residential properties are eligible for this partial exemption. (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Proposition N, 11/4/2008) 3 SEC. 1106. EXCEPTIONS. Any tax imposed pursuant to this ordinance shall not apply to the making, delivering or filing of conveyances to make effective any plan of reorganization or adjustment: (a) Confirmed under Title 11 of the United States Code; (b) Whereby a mere change in identity, form or place or organization is effected. Subdivisions (a) and (b), inclusive, of this Section shall only apply if the making, delivery or filing of instruments of transfer or conveyances occurs within five years from the date of such confirmation approval or change. (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 20‐09, File No. 081450, App. 2/5/2009) SEC. 1107. ORDERS OF SECURITIES & EXCHANGE COMMISSION. Any tax imposed pursuant to this ordinance shall not apply to the making or delivery of conveyances to make effective any order of the Securities & Exchange Commission, as defined in subdivision (a) of Section 1083 of the Internal Revenue Code of 1954; but only if: (a) The order of the Securities & Exchange Commission in obedience to which such conveyance is made recites that such conveyance is necessary or appropriate to effectuate the provisions of Section 79K of Title 15 of the United States Code, relating to the Public Utility Holding Company Act of 1935; (b) Such order specifies the property which is ordered to be conveyed; (c) Such conveyance is made in obedience to such order. (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84) SEC. 1108. APPLICATION TO PARTNERSHIPS; TITLE CHANGES NOT AFFECTING OWNERSHIP. (a) In the case of any realty held by a partnership or other entity treated as a partnership for federal income tax purposes, no levy shall be imposed pursuant to this Article by reason of any transfer of an interest in a partnership or other entity treated as a partnership for federal income tax purposes or otherwise, if: (1) Such partnership or other entity treated as a partnership (or another partnership or other entity treated as a partnership) is considered a continuing partnership within the meaning of Section 708 of the Internal Revenue Code of 1986, as amended; and (2) Such continuing partnership or other entity treated as a partnership continues to hold the realty concerned. (b) If there is a termination of any partnership or other entity treated as a partnership for federal income tax purposes within the meaning of Section 708 of the Internal Revenue Code of 1986, as amended, for purposes of this Article, such partnership or other entity shall be treated as having executed an instrument whereby there was conveyed, for fair market value, all realty held by such partnership or other entity at the time of such termination. (c) Not more than one tax shall be imposed pursuant to this Article by reason of a termination described in Subdivision (b), and any transfer pursuant thereto, with respect to the realty held by such partnership or other entity treated as a partnership for federal income tax purposes at the time of such termination. (d) Notwithstanding any other language in this Section 1108, nothing in this Section shall exempt from the tax imposed under this Article 12‐C any “realty sold” as described in Section 1114(b). (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 28‐95, App. 2/3/95; Ord. 20‐09, File No. 081450, App. 2/5/2009; Proposition W, 11/8/2016) 4 SEC. 1108.1. EXEMPTION; DISSOLUTION OF MARRIAGE, ETC. (a) Any tax imposed pursuant to this Article shall not apply with respect to any transfer of real property to transfer, divide, or allocate community, quasi‐community, or quasi‐marital property assets between spouses for the purpose of effecting a division of community, quasi‐community, or quasi‐marital property which is required by a judgment decreeing a dissolution of the marriage or legal separation, by a judgment of nullity, or by any other judgment or order rendered pursuant to Divisions 4, 6 and 7 of the Family Code, or by written agreement between the spouses, executed in contemplation of any such judgment or order, whether or not the written agreement is incorporated as part of any of those judgments or orders. (b) Any tax imposed pursuant to this Article shall not apply with respect to any transfer to transfer, divide, or allocate assets held as joint tenants or as tenants‐in‐common between domestic partners for the purpose of effecting a division of assets upon the dissolution of a domestic partnership. (c) In order to qualify for the exemption provided in subsections (a) or (b), the deed, instrument or other writing effecting the transfer shall include a written recital, signed by either spouse or domestic partner, stating that the transfer is entitled to the exemption. (d) Individuals of the same sex who obtain a certificate of marriage or other official government document of any state or political subdivision thereof acknowledging their union in marriage shall be deemed to be or have been in a "domestic partnership" that qualifies for the exemption under subsection (b) in the event such individuals are denied the legal status of spouses or former spouses for purposes of the exemption in subsection (a), or the marriage certificate or other official government document acknowledging their marriage is invalidated in a final judgment or by operation of law because such individuals are of the same sex, if: (i) the transfer is for the purpose of effecting a division of assets between such individuals upon the dissolution of their union; (ii) they hold the real property or interest therein as joint tenants or tenants‐in‐common before the transfer; (iii) the union, regardless of its characterization as an invalid marriage or an informal or unregistered domestic partnership, has been dissolved; and (iv) the written recital signed by either individual pursuant to subsection (c) states the particulars that exempt the transfer under this subsection (d). (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 236‐94, App. 6/16/94; Ord. 108‐04, File No. 040493, App. 6/21/2004) SEC. 1108.2. EXEMPTION; DEEDS IN LIEU OF FORECLOSURE, ETC. Any tax imposed pursuant to this ordinance shall not apply with respect to any deed, instrument, or writing to a beneficiary or mortgagee, which is taken from the mortgagor, trustor or trustee, as a result of or in lieu of foreclosure; provided, that such tax shall apply to the extent that the consideration exceeds the unpaid debt, including accrued interest and cost of foreclosure. Consideration, unpaid debt amount and identification of grantee as beneficiary or mortgagee shall be noted on said deed, instrument or writing or stated in an affidavit for tax purposes. (Ord. 315‐67, App. 12/12/67; amended by Ord. 352‐84, App. 8/8/84; Ord. 377‐84, App. 8/31/84) SEC. 1108.3. APPLICATION TO LEASEHOLD INSTRUMENTS. Any tax imposed pursuant to this ordinance shall not apply with respect to any deed, instrument or writing which creates, terminates, or transfers a leasehold interest having a remaining term (including renewal options) of less than 35 years. 5 (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Amended by Proposition N, 5, 11/4/2008) SEC. 1108.4. EXEMPTION; CERTAIN CONVERSIONS OF STOCK COOPERATIVES TO CONDOMINIUM UNITS. Any tax imposed pursuant to this Article shall not apply with respect to any deed, instrument, or writing in connection with the conversion to condominium units of the following kind of stock cooperative project: a stock cooperative project (a) which is entitled to an exemption from the annual limitation imposed on the number of conversions and the annual condominium conversion lottery pursuant to Section 1396 of the San Francisco Subdivision Code; and (b) wherein 80 percent or more of the condominium units serve as security for loans in favor of the City and County of San Francisco, pursuant to the Homeownership Assistance Loan Fund (under San Francisco Administrative Code Section 10.100‐08) or its predecessor program, as identified by the Mayor's Office of Housing, prior to the conversion. (Added by Ord. 473‐96, App. 12/13/96; Ord. 20‐09, File No. 081450, App. 2/5/2009) SEC. 1108.5. EXEMPTION; TRANSFERS BETWEEN SPOUSES AND TRANSFERS BETWEEN DOMESTIC PARTNERS. (a) The tax imposed under this Article shall not apply to transfers of real property between spouses or between domestic partners. (b) Individuals of the same sex who obtain a certificate of marriage or other official government document of any state or political subdivision thereof acknowledging their union in marriage shall be deemed to be in a "domestic partnership" that qualifies for the exemption under subsection (a) in the event such individuals are denied the legal status of marriage or the legal rights, privileges and obligations of spouses, or the marriage certificate or other official government document acknowledging their marriage is invalidated or revoked in a final judgment or by operation of law, because such individuals are of the same sex. (c) In order to qualify for the exemption provided in this Section, the deed, instrument or other writing effecting the transfer of real property shall include a written recital, signed by either spouse or domestic partner, stating that the transfer is entitled to the exemption for spouses and domestic partners. (Added by Ord. 108‐04, File No. 040493, App. 6/21/2004) SEC. 1109. TITLE CHANGES NOT AFFECTING OWNERSHIP The tax imposed under this Article shall not apply where the deed, instrument, or other writing transferring title to real property between an individual or individuals and a legal entity or between legal entities results solely in a change in the method of holding title and in which the proportional ownership interests in the real property, whether represented by stock, membership interest, partnership interest, cotenancy interest, or otherwise, directly or indirectly, remains exactly the same before and after the transfer. (As Sec. 1108(d), established by Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 28‐95, App. 2/3/95; Ord. 20‐09, File No. 081450, App. 2/5/2009; amended and redesignated as Sec. 1109 by Proposition W, 11/8/2016) (Former Sec. 1109 set forth by Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; repealed by Ord. 20‐09, File No. 081450, App. 2/5/2009) 6 SEC. 1110. ADMINISTRATION BY COUNTY RECORDER. The County Recorder shall administer this ordinance. On or before the fifteenth day of the month the Recorder shall report to the County Auditor the amounts of taxes collected during the preceding month pursuant to this ordinance. (Ord. 315‐67, App. 12/12/67; amended by Ord. 352‐84, App. 8/8/84; Ord. 377‐84, App. 8/31/84) SEC. 1111. RECORDING PAYMENT OF TAX. The Recorder shall collect the tax hereby imposed and deposit the same to the General Fund. The Recorder shall not record any deed, instrument or writing subject to the tax imposed by this ordinance unless the tax is paid. A declaration of the amount of the tax due, signed by the party determining the tax or his agent, shall appear on the face of every document subject to tax hereunder which is submitted for recordation,. The declaration shall include a statement that the consideration or value on which the tax due was computed was exclusive of the value of liens or encumbrances remaining on the interest or property conveyed at the time of sale. With every document subject to tax hereunder which is submitted for recordation, there shall also be submitted a separate affidavit stating all relevant information that is necessary for the determination of the proper transfer tax. A form for such affidavit shall be prepared by the County Recorder. The affidavit form shall include the following notice: "NOTICE: Any material misrepresentation of fact in this affidavit is a misdemeanor under Section 1116 of the Real Property Transfer Tax Ordinance. Any person who makes such a misrepresentation is subject to prosecution for such offense." In accepting a document for recordation, the County Recorder shall rely upon the declaration of the amount of tax due and upon the affidavit of relevant information accompanying the document. Every document subject to tax hereunder which is submitted for recordation shall show on the face of the document, or in a separate document the location of the lands, tenements or other realty described in the document. (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; amended by Ord. 201‐13, File No. 130276, App. 10/3/2013, Eff. 11/2/2013; Ord. 111‐15, File No. 150495, App. 7/2/2015, Eff. 8/1/2015) SEC. 1111.1. PROOF OF EXEMPTION, CONSIDERATION AND VALUE. The Recorder may require the person submitting any deed, instrument or writing for recordation, or the person for whom said person is acting as agent, to furnish affidavits, true copies of relevant records or other documentary proof in order to: (a) substantiate any claim that the deed, instrument or writing submitted for recordation is not subject to the tax imposed by this ordinance or is exempt therefrom; and (b) establish the consideration or value of the interest or property conveyed and the amount of any lien or encumbrance remaining thereon at the time of sale. (Added by Ord. 377‐84, App. 8/31/84) SEC. 1113. CLAIMS FOR REFUNDS. (a) Except as otherwise provided in subsection (c) of this Section 1113 or as provided in Section 1113.1, the Controller shall refund or cause to be refunded the amount of any tax, interest, or penalty imposed under this Article 12‐C that has been overpaid or paid more than once, or has been erroneously or illegally collected or received by the City, provided the person that paid such amount files a claim in writing with the Controller within the later of one year of payment of such amount or the date the tax was due. The claim must state: (1) the specific amount claimed to have been overpaid or paid more than 7 once, or erroneously or illegally collected or received by the City; (2) the date of transfer; and (3) the grounds upon which the claim is founded, with specificity sufficient to enable the responsible City officials to understand and evaluate the claim. (b) Claims for refund shall be made according to California Government Code, Title 1, Division 3.6, Part 3. The Controller shall furnish a form to be used for these claims. The Controller shall enter the claim in the register, and shall forthwith forward it to the City Attorney. The City Attorney is designated to take such actions on claims as authorized by California Government Code, Title 1, Division 3.6, Part 3, Chapter 2, except that the City Attorney’s authority with regard to rejecting or allowing claims shall be as provided in this Section 1113. The City Attorney may reject the claim, and shall notify the claimant of such rejection. Allowance or compromise and settlement of claims under this Section 1113 in excess of $25,000 shall require the written approval of the City Attorney and approval of the Board of Supervisors by resolution. The City Attorney may allow or compromise and settle such claims if the amount is $25,000 or less. No claim may be paid until the Controller certifies that monies are available from the proper funds or appropriations to pay the claim as allowed or as compromised and settled. If the City approves the claim, the City may refund the excess amount collected or paid, or may credit such amount toward any amount due and payable to the City from the person from whom it was collected or by whom it was paid, and the balance may be refunded to such person, or the person’s administrator or executor. For purposes of this Section 1113, a claim shall be deemed to accrue on the later of the date the tax was due or the date the tax was paid. (c) The City Attorney, in his or her discretion and upon good cause shown, prior to the expiration of the one‐year limitations period, may waive the requirement set forth in subsection (a) of this Section 1113 that a taxpayer file a written claim for a refund in any case in which the Recorder and City Attorney determine on the basis of the evidence that: (1) an amount of tax, interest, or penalty has been overpaid or paid more than once, or has been erroneously or illegally collected or received by the City; and (2) all other conditions precedent to the payment of a refund to the taxpayer have been satisfied. (d) If a refund claim is allowed under this Section 1113 or a refund request is allowed under Section 1113.1, the Controller will not pay the refund unless the taxpayer first records a document that reflects payment of tax in an amount reduced by the amount of the refund. (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 20‐09, File No. 081450, App. 2/5/2009; Ord. 111‐15, File No. 150495, App. 7/2/2015, Eff. 8/1/2015; Ord. 154‐15, File No. 150730, App. 8/6/2015, Eff. 9/5/2015) SEC. 1113.1. REFUNDS PERMISSIBLE WITHOUT A CLAIM. The Recorder may authorize the Controller to refund transfer tax payments, without the need for a refund claim, if the Recorder determines: (a) the tax was paid more than once; (b) the amount paid exceeds the amount due as a result of an arithmetic or clerical error; or (c) the tax was paid on a type of transaction that is exempt from the tax. The Recorder may authorize such a refund no later than one year after payment of the tax. (Added by Ord. 20‐09, File No. 081450, App. 2/5/2009) SEC. 1113.2. REFUNDS; INTEREST. (a) Any amounts refunded prior to entry of a final judgment in a judicial proceeding shall bear interest at the rate for prejudgment interest on refunds of local taxes or fees 8 provided by section 3287(c) of the California Civil Code, as amended from time to time, and shall be computed from the date of payment to the date of refund. (b) If the Controller offsets overpayments for a particular transfer against another liability or liabilities owed to the City, or against penalties or interest on the other liability or liabilities owed to the City, the taxpayer will be credited with interest on the amount so applied at the rate of interest set forth above, computed from the date of payment. (c) If a taxpayer elects to apply all or part of a refund, inclusive of any interest accrued up to the date of the taxpayer’s election, against a future San Francisco tax liability, the taxpayer will not be credited with interest on the amount so applied from the date of the taxpayer’s election. (Added by Ord. 154‐15, File No. 150730, App. 8/6/2015, Eff. 9/5/2015) SEC. 1113.3. EXHAUSTION OF ADMINISTRATIVE REMEDIES; PRESENTATION OF CLAIM FOR REFUND AS PREREQUISITE TO SUIT; PAYMENT OF DISPUTED AMOUNT AND PETITION FOR REFUND; LIMITATIONS. (a) Persons claiming they are aggrieved under the Business and Tax Regulations Code must prior to seeking judicial relief: (1) pay the amount of the disputed tax, penalty, and interest; and (2) present a claim for refund to the Controller and allow action to be taken on such claim, pursuant to Section 1113. (b) The person who paid the tax, his or her guardian or conservator, the executor of his or her will, or the administrator of his or her estate may bring an action in Superior Court against the City and County of San Francisco to recover taxes, interest, or penalties that the City has refused to refund on a claim for refund pursuant to Section 1113. No other person may bring such an action; but if another person should do so, judgment shall not be rendered for the plaintiff. Any suit for refund of taxes, interest, or penalties shall be commenced within the time provided by California Government Code section 945.6, as amended from time to time. Persons claiming they are aggrieved under the Business and Tax Regulations Code may not file any type of judicial action other than a refund action. Notwithstanding any other section of this Code, no claim or defense that, for any reason, a tax is not due or cannot be applied under this Code may be raised in any judicial proceeding except in an action for refund of the disputed tax. (Added by Ord. 154‐15, File No. 150730, App. 8/6/2015, Eff. 9/5/2015) SEC. 1114. ADMINISTRATION AND INTERPRETATION. (a) In the administration of this ordinance the recorder shall interpret its provisions consistently with those Documentary Stamp Tax Regulations adopted by the Internal Revenue Service of the United States Treasury Department which relate to the Tax on Conveyances and are identified as Sections 47.4361‐1, 47.4361‐2 and 47.4362‐1 of Part 47 of Title 26 of the Code of Federal Regulations, as the same existed on November 8, 1967, except that for the purposes of this ordinance, the determination of what constitutes "realty" shall be determined by the definition or scope of that term under state law. (b) Notwithstanding subsection (a), "realty sold" includes any acquisition or transfer of ownership interests in a legal entity that would be a change of ownership of real property under California Revenue and Taxation Code Section 64. In such cases, there shall be deemed to have been an instrument executed whereby there was conveyed, for fair market value, all real property that experienced a change of ownership under California Revenue and Taxation Code Section 64. (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Amended by Proposition N, 11/4/2008; Proposition W, 11/8/2016) 9 SEC. 1115. DELINQUENCY TAXES. (a) Delinquency Penalties. The tax imposed by this ordinance is due and payable at the time the deed, instrument or writing effecting a transfer subject to the tax is delivered, and is delinquent if unpaid thirty days later. In the event that tax is not paid prior to becoming delinquent, a delinquency penalty of 25 percent of the amount of tax due shall accrue. In the event only a portion of the tax is unpaid prior to becoming delinquent, the penalty shall accrue only as to the portion remaining unpaid. An additional penalty of 10 percent shall accrue if the tax remains unpaid on the ninetieth day following the date of the original delinquency. Interest shall accrue at the rate of one percent a month, or fraction thereof, on the amount of delinquent tax, exclusive of penalties, from the date the tax becomes delinquent to the date of payment. Interest and penalties accrued shall become part of the tax. (b) Audits. The County Recorder may audit any documents transferring an interest in real property before or after any transfer, to determine if the transfer is exempt from the tax under this Article or is unpaid or underpaid. The County Recorder may adopt and implement necessary and appropriate audit procedures. (c) Delinquency Determination. Whenever the County Recorder has reason to believe that the full amount of tax due under this ordinance was not paid, the County Recorder may, by notice served upon any person liable therefor, require him to furnish affidavits, true copies of relevant records or other documentary proof sufficient to establish the amount of the consideration or value of the interest or property conveyed including the amount of any lien or encumbrance remaining thereon at the time of sale; and, if it was claimed that the deed, instrument or other writing was not subject to this tax or was exempt therefrom, the County Recorder may, by such notice, require any person liable for the tax to furnish affidavits, true copies of relevant records or other documentary proof to substantiate such claim. On the basis of the proof so submitted and any other available evidence, the County Recorder shall determine whether the full amount of tax due under this ordinance was paid before recordation and, if it was not, the County Recorder shall determine the amount of tax which was not paid and is delinquent. (d) Delinquency Notices. Promptly after making his or her delinquent tax determination, the County Recorder shall record a notice of delinquent tax which shall include: (1) The amount of delinquent tax; (2) The interest that shall accrue on the delinquent tax; (3) The delinquency penalty then due; (4) The additional penalty that shall accrue if the tax is not promptly paid; (5) A description of the real property that was transferred by the document recorded without full payment of tax; and (6) A notice that if the tax, penalties and interest are not paid within 30 days, proceeding will be taken at a noticed hearing before the Board of Supervisors to impose a lien for the unpaid tax, together with penalties and interest, against the real property described in the delinquency notice. The County Recorder shall also serve or mail copies of the notice of delinquent tax to the person liable for the tax and to the owner or owners of the real property described in the notice, as said owners are shown on the records of the County Tax Collector. (Ord. 315‐67, App. 12/12/67; amended by Ord. 377‐84, App. 8/31/84; Ord. 20‐09, File No. 081450, App. 2/5/2009; amended by Ord. 201‐13, File No. 130276, App. 10/3/2013, Eff. 11/2/2013) SEC. 1115.1. LIEN PROCEEDINGS. (a) Initiating Lien Proceedings. If the full amount of the delinquent tax, penalties and interest is not paid within 30 days following mailing of the delinquency notice the 10 County Recorder, within one year of when the tax became delinquent, shall report the delinquency to the Board of Supervisors ("the Board") and request the Board to initiate proceedings to impose a lien for the total unpaid balance against the real property that was transferred by the document delivered without full payment of tax. Said report shall, for each delinquent account, contain the names of the persons liable for the tax, the total amount due, including delinquent taxes, penalties and interest, and a description of the real property that was transferred by the document delivered without full payment of tax. Upon receipt of such report the Board shall fix a time and place for hearing the report and any protests or objections thereto and shall cause notice of the hearing to be mailed not less than 10 days prior to the date of hearing to each person liable for the tax and to the owner or owners of the real property described in the recorded notice of delinquent tax. (b) Hearing. At the time so fixed, the Board shall meet to hear the report and any protests or objections thereto. The Board may make such revisions, corrections or modifications of the report as it may deem just; and in the event that the Board is satisfied with the correctness of the report (as submitted or as revised, corrected or modified), it shall be confirmed. The decision of the Board on the report and on all protests or objections thereto shall be final and conclusive; provided, however, any delinquent account may be removed from the report by payment in full at any time prior to confirmation of the report. The Clerk of the Board shall cause the confirmed report to be verified in form sufficient to meet recording requirements. (c) Special Assessment Lien. Upon confirmation of the report by the Board, the unpaid balance reporte