Request By:
Ms. Dora N. Henry
Estill County Clerk
Courthouse
Irvine, Kentucky 40336
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney Genereal
You request our opinion as to the clerk's duty in collecting the deed tax on a master commissioner's deed.
KRS 142.050(1)(a) [Real Estate Transfer Tax] reads:
"(1) As used in this section, unless the context otherwise requires."
"(a) 'Deed' means any document, instrument, or writing (other than a will and other than a lease or easement), regardless of where made, executed or delivered whereby any real property in Kentucky, or any interest therein, is conveyed, vested, granted, bargained, sold, transferred or assigned."
The amount of the real estate transfer tax is computed on the basis of the value of the transferred property as set forth in the deed.
We assume from your letter that the master commissioner's deed merely reflects a judicial sale of jointly owned real estate for a valuable and substantial consideration. A judicial sale, effected through a master commissioner's deed, passes only the land title interests of the parties to the suit. Thus every person having any right, title, or interest in the real estate should be joined in the suit. 47 Am.Jur.2d, Judicial Sales, §§ 19 and 20, p.p. 314-315. See also
Jobe v. Hammer, Ky., App., 563 S.W.2d 740 (1978) 741. Actually a master commissioner, in a judicial sales case, in executing a commissioner's deed to the purchaser, acts as a mere ministerial agent of the court and conveys the title of the title owners, who are parties to the suit, of the real property in question. 47 Am.Jur.2d, Judicial Sales, § 1, p. 299.
KRS 142.050(8) lists the types of transfers which are exempted from the transfer tax, including partition proceedings and foreclosure proceedings. Your deputy told me by phone that the subject transaction does not involve a partition or foreclosure and is just a typical judicial sales case wherein the title interests of persons owning a joint interest in the real property are being sold.
Under the facts you have given, it is our opinion that the deed transaction is taxable under the statute, there being no applicable exception. The exception relating to deeds from the United States, this state, any city or county in this state, or any instrumentality, agency, or subdivision thereof, has no application, since this exception involves title ownership of such public agencies and a transfer thereof. Although the master commissioner executes the deed, he is only acting for the court and the actual title owners. The land in this situation is not owned by the master commissioner, or the court, or the state or some political subdivision.