Enslen, 060518 ALAGO, AGO 2018-34

Docket Nº:AGO 2018-34
Case Date:June 05, 2018
Honorable John E. Enslen
AGO 2018-34
No. 2018-034
Alabama Attorney General Opinion
State of Alabama Office of the Attorney General
June 5, 2018
         Honorable John E. Enslen          Probate Judge of Elmore County          Post Office Box 10          Wetumpka, Alabama 36092          Probate Judges - Deed Tax - Fair Market Value - Recordation of Instruments - Elmore County          Absent official knowledge regarding the fair market value of a subject property, a probate judge shall accept the valuation provided on the Real Estate Sales Validation Form.          If, after receiving a conveyance document for recording, the probate judge has such knowledge of a subject property establishing that a misrepresentation was made in bad faith on the form, then the judge may collect the correct amount of tax and applicable penalty in section 40-22-1(h) of the Code of Alabama.          Dear Judge Enslen:          This opinion of the Attorney General is issued in response to your request.          QUESTION          (1) After accepting the conveyance document for recording based on the information in the RT-1 form, does the probate judge have authority to conduct his own independent investigation into the fair market value of the subject real property?          FACTS AND ANALYSIS          Recordation tax is imposed on instruments offered for recording that convey an interest in property under section 40-22-1 of the Code of Alabama. Ala. Code § 40-22-1 (Supp. 2016). The statute merely provides that the tax is based on the "value" of the property conveyed. Ala. Code § 40-22-l(c) (Supp. 2015). This Office has long stated that "value" means fair market value. Opinion to Honorable Frank H. Riddick, Probate Judge of Madison County, dated August 1, 1991, A.G. No. 91-00346.          In 2012, the Legislature amended section 40-22-1. The requirement of a form to furnish certain proof to be used in calculating the tax was added as subsection (c) as follows:
(c) . . . [A]ny instrument presented for record pursuant to this section shall be accompanied by proof of the actual purchase price paid for the property or if the property has not been sold, proof of the actual value of the real or personal property which is the subject of the instrument being recorded. The Department of Revenue shall develop a form which shall be used for attesting to the actual value or actual purchase price of the

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