I. Introduction:

Recently enacted legislation, An Act Relative to Community Preservation ("the Community Preservation Act") requires Registers of Deeds to collect surcharges on most fees. These surcharges will be dedicated to the Community Preservation Trust Fund. Similar surcharges must also be collected by the Assistant Recorder with respect to filings for registered land. The purpose of the Community Preservation Fund, as stated in the legislation, is "the acquisition, creation and preservation of open space, the acquisition, creation and preservation of historic structures and landscapes and the creation and preservation of community housing." The Community Preservation Act gives the Commissioner of Revenue authority to promulgate rules and regulations to effect the purposes of the act. See St. 2000, c. 267, §§ 1, 8, and 17. (1)

II. Surcharges:

Effective Date: The effective date is December 13, 2000. The Community Preservation Act surcharges are mandatory and, where applicable, must be collected by the Register or Assistant Recorder at the time an instrument is left for recording, filing or deposit. The surcharge does not apply to instruments received by the Register or Assistant Recorder prior to December 13, 2000, even if the documents are processed on or after December 13, 2000.

Registry Fees Subject to $20.00 Surcharge: Generally, all recording fees (2) are subject to a $20 surcharge, except as provided in Sections C and D below. These include, but are not limited to, fees for recording deeds or conveyances, mortgages, mortgage discharges, plans, U.C.C. financing statements filed with the registry, (3) and other U.C.C. filings, including, but not limited to termination statements, (4) assignments of security interests, (5) and releases of collateral filed with the registry. (6) If multiple recording fees are charged for one document, e.g., the registry charges three recording fees for an instrument assigning three mortgages, a surcharge is due on each separate fee collected. (Note that per page charges for additional pages are not subject to the surcharge, as provided in Section D.)

Registry Fees Subject to a $10.00 Surcharge: Recording a municipal lien certificate.
Registry Fees Not Subject to Surcharge: Recording a declaration of homestead (7) and recording any instrument for which there is no fee or a fee is not collected, including Massachusetts tax liens, (8) Massachusetts child support liens, (9) and Massachusetts medical assistance liens. (10) Registry fees for recording additional pages, photostatic copies, abstract cards, additional square feet for oversized plans, (11) and entering marginal references. Recording federal tax liens and releases of such liens. (12)

Assistant Recorder Fees Subject to $20.00 Surcharge: Generally, all fees (13) for registering, filing or entering with respect to registered land are subject to a $20.00 surcharge, except as provided in Sections F and G below. If multiple fees are charged for registering, filing or entering one document, e.g., the Assistant Recorder charges three fees for a mortgage covering three separate parcels of land, a surcharge is due on each separate fee collected.
Assistant Recorder Fees Subject to $10.00 Surcharge: Registering, filing or entering a municipal lien certificate.

Assistant Recorder Fees not Subject to Surcharge: Fees for additional lots shown on plans, indexing instruments recorded while a petition for registering is pending, additional certificates of sewer assessments, old age assistance liens, duplicates, and photocopies.

Statutory Authority
: The Community Preservation Act, § 8 provides:
The fees of the registers of deeds, except as otherwise provided, to be paid when the instrument is left for recording, filing or deposit shall be subject to a surcharge of $20. The fees for so recording, filing or depositing a municipal lien certificate shall be subject to a surcharge of $10. The surcharges shall be imposed for the purposes of community preservation. No surcharge shall apply to a declaration of homestead under chapter 188. No surcharge shall apply to the fees charged for additional pages, photostatic copies, abstract cards, additional square feet for the filing and recording of plans or for additional or required marginal references.
The fees of the assistant recorder, except as otherwise provided, to be paid when the instrument is left for registering, filing or entering with respect to registered land shall be subject to a surcharge of $20. The fees for so registering, filing or entering a municipal lien certificate shall be subject to a surcharge of $10. The surcharges shall be imposed for the purposes community preservation. No surcharge shall apply to a declaration of homestead of chapter 188. No surcharge shall apply to the fees charged for additional lots shown on plans, for indexing instruments recorded while a petition for registering is pending, for additional certificates of sewer assessments, for old age assistance liens, for duplicates and for photocopies.

Discussion of Law
:

Fees of the Registers of Deeds are generally set in G.L. c. 262, § 38, and Land Court fees pertaining to registered land are contained in G.L. c. 262, § 39. Generally, all such fees are subject to Community Preservation Act surcharges, except as specifically provided in the new legislation, e.g., recording a declaration of homestead and certain miscellaneous charges are not subject to the surcharge. For the reasons discussed below, there is also no surcharge due on instruments that are recorded without a fee, or federal tax liens.

In some instances, maximum fees to be collected by the registry are set by other provisions of the General Laws. For example, fees for the recording of U.C.C. financing statements are capped at $10.00 and fees for other U.C.C. filings such as termination statements, assignments of security interests, and releases of collateral are capped at $4.00. See footnotes 3, 4, 5, and 6.

The Supreme Judicial Court has described a "fee" charged by a state agency as an amount "charged in exchange for a particular governmental service which benefits the party paying the fee," and "collected not to raise revenue but to compensate the governmental entity providing the services for its expense." See Emerson College v. City of Boston, 391 Mass. 415, 424-425. In contrast, the surcharges imposed by the Community Preservation Act are segregated in a separate state administered trust fund dedicated to the benefit of cities and towns. Because the surcharges are unrelated to the services performed in recording and indexing instruments, they are not "fees". Imposition of the surcharge in addition to a recording fee does not change the fee or raise it beyond a maximum fee established by the General Laws.

The General Laws provide that some instruments may be recorded without payment of a fee, for example, Massachusetts tax liens, child support liens, and medical assistance liens. In those situations, there is no registry fee within the meaning of the Community Preservation Act on which to impose a surcharge and no surcharge is due.

A fee of $5 is imposed by G.L. c. 36, § 24 for the filing of a notice of federal tax lien. No surcharge may be imposed on this fee. Since the surcharge is intended to raise revenues for the Community Preservation Trust Fund, rather than to defray registry costs or regulate a class of persons, it is considered a tax under federal common law. See, e.g., San Juan Cellular Phone Co. v. Public Service Comm'n, 967 F.2d 683, 685 (1st Cir. 1992); Hexom v. Oregon Department of Transportation, 177 F.3d 1134, 1137 (9th Cir. 1999). No tax may be imposed upon the United States without its consent. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819) (federal government immune from state taxation).

Frederick A. Laskey,
Commissioner of Revenue

November 17, 2000
TIR 00-12

Footnotes:

1 To be codified as G.L. c. 44B.

2 See G.L. c. 262, § 38, as amended by St. 2000, c. 267, § 17.

3 G.L. c. 106, § 9-403 (5).

4 G.L. c. 106, § 9-404.

5 G.L. c. 106, § 9-405.

6 G.L. c. 106, § 9-406.

7 G.L. c. 188.

8 G.L. c. 151A, § 16.

9 G.L. c. 119A, § 6.

10 G.L. c. 118E, § 34.

11 On plans larger than 14" x 9 1/2", the registry charges $3.00 for each additional square foot or any part thereof. G.L. c. 262, § 38.

12 G.L. c. 36, § 24.

13 See G.L. c. 262, § 39 as amended by St. 2000, c. 267, § 17.