The Vermont Statutes Online

Title 32: Taxation and Finance

Chapter 236: Tax on Gains from the Sale or Exchange of Land

• § 10001. Tax imposed

  There is imposed, in addition to all other taxes imposed by this title, a tax on the gains from the sale or exchange of land in Vermont. (Added 1973, No. 81, § 8, eff. May 1, 1973.)

• § 10002. Land and residences

  (a) “Land” means all land, whether or not improved, that has been purchased and subdivided by the transferor within the six years prior to the sale or exchange of the land, but does not include land not exceeding 10 acres, necessary for the use of a dwelling used by the seller of such land as his or her principal residence. Buildings or other structures are not included in this definition of “land.” “Land” also means timber or rights to timber when that timber or those timber rights are sold within six years of their purchase, provided the underlying land is also sold within six years. “Underlying land” means the land from which timber or timber rights have been separated, whether subdivided or not. As used in this subsection, the term “subdivision” means a tract or tracts of land, owned or controlled by a person, that the person has partitioned or divided for the purpose of sale or transfer. Subdivision shall be deemed to have occurred on the conveyance of the first lot or the filing of a plat, plan, or deed in the town records, whichever first occurs. A subdivision shall not include a boundary adjustment between adjacent parcels.

  (b) Also excluded from the definition of “land” is the land, not exceeding 10 acres, necessary for the use of a dwelling that, within one year from the date of acquisition, will be used for the principal residence of the purchaser of such land. As used in this section, “principal residence” means the principal dwelling of a person whose domicile is in the State of Vermont. If, at the time of transfer, there is not on the land a dwelling completed and fit for occupancy as the purchaser’s principal residence, the residence shall be completed and occupied within two years of the date of transfer, or the tax imposed by this chapter shall then become due and payable.

  (c) If zoning or similar laws or regulations require a minimum of more than 10 acres for residential property, that number of acres, instead of 10 acres, shall be excluded from the definition of “land” under subsections (a) and (b) of this section, except that not more than 25 acres shall be so excluded.

  (d) Also excluded from the definition of “land” of subsection (a) of this section is the land owned by a development corporation or local development corporation as defined in 10 V.S.A. § 212(10).

  (e) Also excluded from the definition of “land” of subsection (a) of this section is land purchased by the State of Vermont from organizations qualifying under 26 U.S.C. § 501(c)(3).

  (f) Also excluded from the definition of “land” is any land up to 10 acres, with the modification permitted by subsection (c) of this section, acquired by a person who will build on that land a house that, by the next succeeding sale, will be the principal residence of the occupant when the person purchases from the person who built the house. The person acquiring such land must certify to the Commissioner of Taxes that the person will begin building within one year of date of purchase, complete the building within two years from the date of purchase, and sell it within three years from date of purchase to a person who qualifies under subsection (b) of this section. If the land is sold as more than one parcel by the builder who acquired it, only those parcels on which a dwelling has been completed in accordance with the requirements of this subsection shall be excluded from the definition of “land.” The deed for the property shall recite the fact that there is running with the land a lien equal to the amount of land gains tax exempted by this subsection until the time as all conditions of this subsection have been met.

  (g) As used in this chapter, the phrase “necessary for the use of a dwelling” refers merely to the fact that land is beneath or directly contiguous to the dwelling, and no other showing of necessity shall be required. Where an exemption from taxation is provided in the case of a purchase of land “necessary for the use of a dwelling used by the taxpayer as the taxpayer’s principal residence,” the land need not have been purchased at the same time as the dwelling to qualify for the exemption.

  (h) Also excluded from the definition of “land” is any land conveyed pursuant to a court judgment decreeing the disposition of real estate of the parties to a civil marriage, to the extent that the land is conveyed to either of the parties.

  (i) Also excluded from the definition of “land” of subsection (a) of this section is farmland and open-space land sold to organizations qualifying under 26 U.S.C. § 501(c)(3), as amended, which also meet the “public support” test under 26 U.S.C. § 509(a)(2), provided one of the stated purposes of the organization is to acquire property or rights and interests in property in order to preserve agricultural, forestry, or open-space uses, and provided that the property transferred, or rights and interests in the property, will be held for agricultural, forestry, or open-space purposes, and is so held by such organization for at least six years. As used in this section, “farmland” means land that will be actively operated or leased as part of a farm enterprise, and “open-space land” shall mean land without structures thereon. If the property transferred, or rights and interests in the property, is not so held by such organization for the six-year period, the tax that would have been due from the seller or transferor shall become due from such organization for that portion of the property not so held or transferred to a governmental entity. In cases coming within this subsection, the Commissioner of Taxes may require the seller or transferor to file a land gains tax return at the time of the sale or exchange, in order to establish the amount of tax that will become the tax liability of such organization in such case. The exclusion under this subsection shall be disallowed if the Commissioner of Taxes determines that the sale was not for a conservation purpose, as defined in 26 U.S.C. § 170(h), as amended.

  (j) Also excluded from the definition of “land” of subsection (a) of this section is land sold by the United States of America, the State of Vermont, or any of its instrumentalities or subdivisions, or by organizations qualifying under 26 U.S.C. § 501(c)(3), provided that the sale is exempt from federal income taxation under the Internal Revenue Code.

  (k) Also excluded from the definition of “land” is agricultural land transferred by a farmer to a member of the farmer’s family, when the land is used by the transferee as agricultural land for a period of time that, when added to the time the land was used as agricultural land by the transferor, equals or exceeds six years. As used in this section, the terms “agricultural land” and “farmer” shall have the definitions provided under section 3752 of this title, and “family” shall mean persons in a relationship to the transferor of grandparent, parent or stepparent, brother or sister, or natural or adopted child. As used in this section, land is deemed to be transferred from a farmer to a transferee when the farmer has died and title vests in the transferee by right of survivorship in a joint tenancy, or tenancy by the entirety, or through intestate succession, or by will, without any intervening transfers, except those to and from the estate.

  (l) Also excluded from the definition of “land” are conservation rights and interests and preservation rights and interests transferred to a qualified holder. As used in this section, “conservation rights and interests,” “preservation rights and interests,” and “qualified holder” have the meanings given to them by 10 V.S.A. § 821.

  (m) Also excluded from the definition of “land” is a parcel of land 25 acres or less, purchased by a farmer, as defined in section 3752 of this title, for active and direct use by that farmer, and that, upon transfer, but for the acreage, meets the definition of “agricultural land” or “managed forestland” in section 3752 of this title, and continues to meet that definition for at least six years after the transfer.

  (n) Also excluded from the definition of “land” is the land comprising a mobile home park that is transferred in a single purchase to a group composed of a majority of the mobile home park leaseholders, as defined in 10 V.S.A. § 6242(a), or to a nonprofit organization that represents such a group.

  (o) Also excluded from the definition of “land” is the land sold to an organization that qualifies under 26 U.S.C. § 501(c)(3) and also meets the “public support” test of 26 U.S.C. § 509(a)(2), if one of the stated purposes of the organization is to provide affordable housing and if the land is sold by the organization within 12 months of the transfer to the organization to a buyer, qualified under an affordable housing program, in a transfer that meets all the requirements of subsection (b) of this section.

  (1) If the organization fails to transfer the land within 12 months, or transfers it within 12 months but not to a qualified buyer for occupancy as the buyer’s principal residence, then the organization shall become liable for the land gains tax due on the original transfer of the land to the organization and for the land gains tax on the transfer by the organization.

  (2) If the organization transfers the land within 12 months, but at the time of the transfer by the organization there is no dwelling on the land completed and fit for occupancy, and the qualified buyer fails to complete and occupy a principal residence on the land within two years of purchase from the organization, then the organization shall become liable for the land gains tax due on the original transfer of the land to the organization, and the buyer who purchased the land from the organization shall become liable for the land gains tax due on the transfer from the organization to the buyer.

  (p) Also excluded from the definition of “land” is a transfer of land in a Vermont neighborhood or neighborhood development area, a downtown development district, a village center, a growth center, or a new town center development district designated under 24 V.S.A. chapter 76A.

  (q) Also excluded from the definition of “land” is a transfer of property to the State of Vermont or a municipality for a project that is authorized under the State’s enacted Transportation Program or for an emergency project within the meaning of 19 V.S.A. § 10g(h), regardless of whether the State or the municipality has commenced any condemnation proceedings. (Added 1973, No. 81, § 8, eff. May 1, 1973; amended 1973, No. 209 (Adj. Sess.); 1975, No. 225 (Adj. Sess.), §§ 10-12; 1977, No. 240 (Adj. Sess.), §§ 1, 2, eff. April 17, 1978; 1979, No. 105 (Adj. Sess.), § 42; 1981, No. 247 (Adj. Sess.), § 16; 1983, No. 20, §§ 1, 2, eff. April 6, 1983; 1983, No. 59, § 7, eff. April 22, 1983; 1987, No. 27, § 2, eff. April 30, 1987; 1987, No. 64, § 11, eff. June 1, 1987; 1989, No. 119, § 17, eff. June 22, 1989; 1989, No. 222 (Adj. Sess.), §§ 27, 28, eff. May 31, 1990; 1991, No. 186 (Adj. Sess.), § 31a, eff. May 7, 1992; 1995, No. 53, § 5, eff. April 20, 1995; 1997, No. 103 (Adj. Sess.), § 12, eff. Jan. 1, 1998; 1999, No. 49, § 66, eff. June 2, 1999; 2003, No. 70 (Adj. Sess.), § 60, eff. March 1, 2004; 2007, No. 81, § 25, eff. June 11, 2007; 2007, No. 176 (Adj. Sess.), § 12; 2009, No. 3, § 12a, eff. Sept. 1, 2009; 2013, No. 59, § 13; 2015, No. 40, § 33; 2019, No. 71, § 16, eff. Jan. 1, 2020; 2021, No. 105 (Adj. Sess.), § 600, eff. July 1, 2022.)

• § 10002a. Principal residence

  (a) “Principal residence” means a dwelling that, within one year prior to sale, was occupied as the domicile of the seller or that, within one year from the date of sale, will be occupied as the domicile of the purchaser. As used in this section, a domicile is the principal dwelling of a person domiciled in the State of Vermont.

  (b) “Principal residence” includes any multi-family dwelling, not exceeding four units, if:

  (1) the seller used at the time of sale at least one unit within such dwelling as his or her principal residence; or

  (2) the purchaser will use at least one unit within such dwelling as his or her principal residence under the conditions of subsection 10002(b) of this title.

  (c) “Principal residence” also means any dwelling used as the seller’s principal residence or that will be used by the purchaser as his or her principal residence under the conditions of subsection 10002(b) of this title, even though the resident also carries on or will carry on commercial activity in that dwelling. Commercial activity includes an office for the resident’s business or profession or a retail store. (Added 1987, No. 64, § 12, eff. June 1, 1987; amended 1989, No. 222 (Adj. Sess.), § 29, eff. May 31, 1990.)

• § 10003. Rate of tax

  The tax imposed by section 10001 of this title shall be based upon the years held at the following rates on the gain, as gain is determined under section 10005 of this title:

  Years land held by	*Gain, as a percentage
  transferor	of basis (tax cost)
  	0-99%	100-199%	200% or more
  Less than 4 months	60%	70%	80%
  4 months, but less than 8	35%	52.5%	70%
  8 months, but less than 1 year	30%	45%	60%
  1 year, but less than 2	25%	37.5%	50%
  2 years, but less than 3	20%	30%	40%
  3 years, but less than 4	15%	22.5%	30%
  4 years, but less than 5	10%	15%	20%
  5 years, but less than 6	5%	7.5%	10%

  * Gain, as percent of basis, shall be rounded to the next highest whole percentage. A single flat rate of tax shall apply to all of the gain and shall be determined by the percentage that the entire gain is of the basis (tax cost). (Added 1973, No. 81, § 8, eff. May 1, 1973; amended 1987, No. 64, § 8, eff. June 1, 1987.)

• § 10004. Sale or exchange

  (a) As used in this chapter, “sale or exchange of land” shall mean any transfer of title to land for a consideration. As used in this chapter, “transfer” and “title” shall have the same meaning as “transfer” and “title to property” as used in section 9601 of this title, except as modified or enlarged by explicit provisions of this chapter and as limited herein to land. The transfer of an option for the sale or exchange of land shall be considered a transfer of title to land for the purposes of this chapter.

  (b) Contracts for the sale of land constitute sales or exchanges of land for all purposes of this chapter. However, contracts shall not constitute sales or exchanges until some consideration has passed thereunder to or for the benefit of the seller or exchanger. The sale or exchange is considered to take place at the time any consideration whatsoever, of whatever nature, first passes under the contract. If the land has been held by the seller for less than one year, the entire tax due on the sale then shall become due as provided under this chapter, even if the transaction between the parties involves an installment sale. A mere promise to purchase, and amounts paid as earnest money, or amounts paid in deposit or amounts paid in escrow to which the seller has no immediate right, do not constitute the passing of consideration for the purposes of this chapter.

  (c) Any sale or exchange of shares in a corporation or other entity, or of comparable rights or property interests in any other form of organization or legal entity, that effectively entitles the purchaser to the use or occupancy of land constitutes a sale or exchange of land. (Added 1973, No. 81, § 8, eff. May 1, 1973; amended 1987, No. 64, § 6, eff. June 1, 1987.)

• § 10005. Basis, gain, and holding period

  (a) The provisions of Title 26 of the U.S. Code shall determine the basis of land sold or exchanged, except basis for land transferred by a mortgagee who acquired the land by foreclosure or transfer in lieu of foreclosure shall be the amount of debt due the mortgagee, increased by the costs of acquisition, and decreased by the amount of any tax benefit due to bad debt loss on the mortgage debt.

  (b) The amount realized from the sale or exchange shall be the full actual consideration therefor, paid or to be paid, including the amount of any liens or encumbrances on the land existing before the sale or exchange and not removed thereby. The amount realized from the sale or exchange shall be the gross amount thereof, reduced by any reasonable expenses of sale and commissions. However, if the seller has owned the land for less than one year, the amount realized from the sale or exchange shall be the gross amount thereof, reduced by no more than a total of 12 percent by any expenses of sale and commissions. In the event that a sale includes land and buildings or other structures, the amount realized shall be allocated between the land and the buildings or other structures on the basis of fair market value.

  (c) The taxable gain from the sale or exchange is the amount realized minus the basis of the land as determined under subsection (a) of this section. No gain shall be recognized in cases where gain is not recognized under Title 26 of the U.S. Code, as amended, in relation to the sale or exchange of capital assets.

  (d) The land sold or exchanged shall be deemed to have been held as determined under Title 26 of the U.S. Code. If two spouses are tenants by the entirety, there may be added to the holding period the amount of time the land was held by one spouse alone before that spouse created the tenancy by the entirety. Notwithstanding any provision to the contrary under Title 26 of the U.S. Code, if a tenancy by the entirety is dissolved by reason of death or divorce, the holding period during the tenancy by the entirety will be added to the holding period of the spouse subsequently owning the property in his or her own name. For the purposes of this subsection, land devised to or inherited by a surviving spouse or land awarded to a spouse upon dissolution of civil marriage shall be treated as though it had been held by two spouses as tenants by the entirety.

  (e) The taxable gain under this chapter from the sale or exchange of land shall not be reduced by any losses incurred in other transactions.

  (f) Notwithstanding any other provisions of this section, land acquired from a decedent or an estate or sold by an estate shall have a holding period commencing as of the date of death of the decedent, and its basis shall be the fair market value of such property as of the date of death of the decedent, or alternative valuation date as finally determined under Title 26 of the U.S. Code for the federal estate tax. (Added 1973, No. 81, § 8, eff. May 1, 1973; amended 1973, No. 187 (Adj. Sess.), eff. March 30, 1974; 1977, No. 240 (Adj. Sess.), § 3, eff. April 17, 1978; 1979, No. 75; § 1, eff. May 10, 1979; 1983, No. 59, § 8, eff. April 22, 1983; 1987, No. 64, §§ 7, 13, eff. June 1, 1987; 1991, No. 186 (Adj. Sess.), §§ 31b, 31c, eff. May 7, 1992; 2009, No. 3, § 12a, eff. Sept. 1, 2009.)

• § 10006. Liability for tax

  (a) The person liable for the tax is the transferor, which includes the owner, seller, or other exchanger, of the land sold or exchanged. However, whenever in this chapter the transferor is relieved from liability for the payment of the tax on account of a certification or statement made by the transferee concerning the use or intended use of the land, and such certification or statement is, or turns out to be, untrue or incorrect, then the tax otherwise due from the transferor shall become the liability of, and shall be paid by, the transferee. The transferee’s tax liability shall be a lien upon the land transferred, running with the land, in favor of this State.

  (b) In any such case where the transferor is relieved of tax at the time of transfer on account of a certification or statement made by the transferee, the transferor shall file at the time of transfer a land gains tax return in order to establish the amount of the tax liability of the transferee in the event that the certification or statement made by the transferee is, or turns out to be, untrue or incorrect.

  (c) Notwithstanding any other provision of this section, when underlying land is sold separately from timber or rights to timber purchased with the underlying land and both sales occur within six years of the purchase, the gain on the sale of the timber or timber rights shall be combined with the gain or loss on the sale of the underlying land to determine the land gains tax liability. If the sale of the underlying land occurs first in time and land gains tax on the sale has already become due before the timber or timber rights are sold, the taxpayer shall, as many times as necessary, recompute the tax and file an amended return or amended returns to include the gain or loss on the sale of all timber or timber rights sold within six years of purchase. The holding period used to calculate the total tax shall be the holding period of the underlying land. Gains on the sale of timber or timber rights shall not be subject to the tax assessed under this subsection if, prior to cutting and throughout the remainder of the six years following purchase or throughout the subsequent period of the taxpayer’s ownership, whichever is less, the land is subject to and in compliance with a forest management plan approved under subsection 3755(b) of this title or under 10 V.S.A. § 2623(2). This subsection shall apply only where one or more transactions within six years by the same transferor involve underlying land that is or was part or all of a tract of more than 300 acres of contiguous land owned by the same transferor at any time during the holding period. Transferors owned or controlled, directly or indirectly by the same interests, shall be deemed to be the same transferor for purposes of this subsection.

  (d) If the property does not qualify as “land” under subsection 10002(a) of this chapter, the parties to the transaction are relieved of any obligation to pay the tax, file a return, or withhold the tax imposed by this chapter. If the property qualifies as “land” under subsection 10002(a) of this chapter, but an exclusion is claimed under any of the remaining subsections of section 10002, the parties to the transaction must still comply with the obligations to pay, file, and withhold, as specified under this chapter. (Added 1973, No. 81, § 8. eff. May 1, 1973; amended 1983, No. 59, § 9, eff. April 22, 1983; 1991, No. 186 (Adj. Sess.), § 32, eff. May 7, 1992; 1995, No. 53, § 6, eff. April 20, 1995; 2019, No. 71, § 17, eff. Jan. 1, 2020.)

• § 10007. Withholding at source; payment

  (a) The buyer or transferee of any land held by the seller or transferor for less than six years shall withhold 10 percent of all consideration paid to the seller or transferor for such land, including 10 percent of all partial payments made pursuant to installment sales under section 10008 of this title. At the time any payment is made to the seller or transferor, the amounts withheld shall be remitted to the Commissioner of Taxes.

  (b) Within 30 days of the sale or exchange of land, for which withholding is required under this section, the seller or transferor shall file a return with the Commissioner of Taxes setting forth the amount of the tax due pursuant to section 10003 of this title and the amount withheld by the buyer or transferee pursuant to subsection (a) of this section. The seller shall either remit with the return the balance of the tax due or make claim for a refund. Any refund not made by the Commissioner within 45 days of receipt of a valid claim shall accrue interest at the rate established pursuant to section 3108 of this title. For good cause shown and upon conditions set by him or her, the Commissioner may extend the time for filing the return and paying the tax required by this chapter.

  (c) Notwithstanding either subsection (a) or (b) of this section, the seller or transferor may, in advance of the sale or exchange, pay the tax imposed by this chapter or obtain a written ruling from the Commissioner of Taxes that no tax is due under this chapter. In either case, the Commissioner shall certify to the seller or transferor that such payment has been made or that no tax is due. Upon receipt by the buyer or transferee of such certification from the seller or transferor, the buyer or transferee shall not be required to withhold under subsection (a) of this section.

  (d) All taxes required to be paid or withheld under this chapter shall constitute a personal debt of the person liable to pay or withhold the same to the State of Vermont to be recovered in an action on this statute.

  (e) An action may be brought to recover the amount of the taxes to be paid or withheld in the manner prescribed for recovering amounts owed for taxes under chapter 151 of this title. The amount of taxes to be paid or withheld shall be a lien in favor of the State of Vermont upon all property and rights to property, whether real or personal, belonging to the person liable for the tax or for the withholding. The lien shall be enforced in the manner prescribed by section 5895 of this title. (Added 1973, No. 81, § 8, eff. May 1, 1973; amended 1993, No. 49, § 21, eff. May 28, 1993; 1999, No. 49, § 67, eff. June 2, 1999.)

• § 10008. Installment sales

  (a) As used in this section, “installment sale” means sale or exchange of land as defined in section 10004 of this title for which the total tax due under this chapter is greater than $2,000.00 and in which the parties agree in advance that payments shall be received by the seller or transferor in more than one installment on a date or dates other than the date of closing. A sale financed by a mortgage, deed of trust, or other financing arrangement in which the seller or transferor is paid in full on the date of the sale or exchange shall not be considered an installment sale. A lease-purchase agreement under which any part of the rental payments constitute a portion of the purchase price of the land shall be considered an installment sale, and for the purposes of this chapter, the end of the holding period with respect to the sale or exchange shall be determined as of the date of the agreement.

  (b) Notwithstanding any provision of law to the contrary, the tax under this chapter on any installment sale shall be due within 30 days of the date of payment of each installment paid to the seller or transferor. However, except for the first installment, the seller or transferor may elect to file his or her return as part of his or her Vermont income tax return for any year in which subsequent installments are paid or due and to pay the balance of such tax as part of such income tax; provided that, if the seller or transferor elects to file annual returns, no interest shall accrue on any withholding as provided by subsection 10007(b) of this title.

  (c) In an installment sale, the total amount of taxes due under this chapter shall be the amount that would have been due had the total purchase price been paid on the date the sale or exchange took place. The amount of taxes due on each separate installment, including the first installment, shall bear the same proportion to the total amount of taxes due as the amount of that installment bears to the total consideration. (Added 1973, No. 81, § 8, eff. May 1, 1973.)

• § 10009. Administration of tax

  (a) The Commissioner of Taxes shall administer and enforce this chapter and this tax. The Commissioner may adopt, amend, and withdraw reasonable rules to assist such administration and enforcement.

  (b) All the administrative provisions of chapter 151 of this title, including those relating to the collection and enforcement by the Commissioner of the withholding tax and the income tax, and of chapter 103 of this title, including those relating to interest and penalty charges, shall apply to the tax imposed by this chapter. (Added 1973, No. 81, § 8, eff. May 1, 1973; amended 2009, No. 1 (Sp. Sess.), § H.46, eff. June 2, 2009; 2021, No. 105 (Adj. Sess.), § 601, eff. July 1, 2022.)

• § 10010. Criminal penalties

  (a) Any person who willfully defeats or evades or attempts to defeat or evade the tax imposed by this chapter shall be imprisoned not more than one year or fined not more than $10,000.00 or five times the amount of the tax defeated or evaded or attempted to be defeated or evaded, whichever is larger, or may be both thus imprisoned and fined. A corporation or other taxable entity not being a natural person shall be subject to the fine provided by this section.

  (b) Any officer, employee, director, trustee, or other responsible person of a corporation or other taxable entity, and any other person, who counsels, aids, abets, participates in, or conceals the defeat or evasion of tax, or the attempt thereat, shall be subject to the penalties of subsection (a) of this section.

  (c) [Repealed.] (Added 1973, No. 81, § 8, eff. May 1, 1973; amended 2017, No. 73, § 31, eff. June 13, 2017.)

• § 10011. Exception

  Notwithstanding sections 10001 and 10003 of this title, in the case of a sale or exchange of land to an organization that qualifies under 26 U.S.C. § 501(c)(3) and also meets the “public support” test of 26 U.S.C. § 509(a)(2), if one of the stated purposes of the organization is to provide affordable housing and if the land will be held for this purpose for at least six years following the sale, then one-half of the tax otherwise imposed under this chapter shall be due. If the land is not held for affordable housing purposes for at least six years following the transfer, the tax that would have been due from the seller or transferor shall become due from such organization for that portion of the property not so held. In cases coming within this section, the Commissioner may require the seller or transferor to file a land gains tax return at the time of the sale or exchange, in order to establish the amount of tax that will become the tax liability of such organization in such case. (Added 1989, No. 222 (Adj. Sess.), § 41, eff. May 31, 1990.)