Tuesday, April 13, 2010

Mortgage Recording Tax

Arguments are scheduled to be heard today in the New York Supreme Court over whether federal credit unions operating in New York are exempt from the state's mortgage recording tax.

New York assesses two mortgage recording taxes -- a regular mortgage recording tax that is paid by the borrower and a "special additional mortgage recording tax" that is paid by the lending institution

According to the New York Times, Hudson Valley Federal Credit Union, in Poughkeepsie, N.Y., is suing the state of New York. The credit union contends that New York State forced the credit union to collect the recording tax, despite its tax-exempt status. Hudson Valley Federal Credit Union is seeking a refund of all of the special additional mortgage recording taxes paid prior to the Tax Department's ruling that the credit union is exempt from the tax.

The complaint states that Hudson Valley FCU and other federal credit unions, as instrumentalities of the United States government, are afforded immunity from taxation under the Supremacy Clause of the United States Constitution in that a state cannot tax an instrumentality of the United States government without the express authorization of Congress. The U.S. Justice Department filed a brief supporting the federal credit union.

However, the New York Times wrote that:

The state maintains that it has not violated the tenets of the Federal Credit Union Act of 1934, which stipulates that credit unions “shall be exempt from all taxation,” except on real and tangible personal property. The tax, the state says, is not on the credit union or on mortgages but for the privilege of recording a mortgage.

A decision is expected in about 6 weeks.

If the credit union wins the case, the state of New York could lose millions of dollars of revenue.

1 comment:

  1. Keith, Slippery Slope here? Aren’t Freddie and Fannie both Instrumentalities too? Maybe this is just NY state’s backdoor way of looting the half-dead GSEs for zillions of reconveyance and other mortgage filings. And FDIC is an Instrumentality too – hope the bank regulator doesn’t move any assets for institutions in receivership or otherwise in NY. How about the NY Fed as well as the rest of the Federal Reserve Banks; instrumentalities still? And of course there are the Federal Home Loan Banks (AKA “Flubs”) that are tax exempt financial cooperatives with a social mission, just like credit unions.

    Overall, banking has more loss exposure via your narrative on tax exemption than does Hudson Valley Federal Credit Union, or the entire CU system added together. Be careful about what ABA is asking for. The policy calculus was poorly done. It would cost banks far more than anticipated.



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