Opinion No. ( 1989 )

Mr. J.C. Whisnant, Chairman Arkansas Real Estate Commission One Riverfront Place — Suite 660 North Little Rock, AR 72114

Dear Mr. Whisnant:

This is in response to your request for an opinion concerning the real property transfer tax imposed under A.C.A. 26-60-101 et seq. The following specific question has been posed with regard to the exemption under A.C.A. 26-60-102 (10) (Supp. 1987) in connection with instruments conveying a "new home":

Does a new home under this act mean ``a newly constructed home sold to a home buyer as the first occupant of this house' or a ``first time home buyer as their new home even though the house has been previously occupied by others'?

It is my opinion, following a review of A.C.A. 26-60-102 (Supp. 1987), that previous occupation of the home is not a relevant factor in determining the applicability of the transfer tax. This Code provision states in pertinent part as follows:

The real property transfer tax imposed by this chapter shall not apply to transfers of the following:

* * *

(10) Instruments conveying a new home financed by the Federal Housing Administration or Veterans' Administration if the sale price of the home is fifty thousand dollars ($50,000) or less and the seller files with the county recorder of deeds a sworn statement by the buyer stating that neither the buyer nor the spouse of the buyer has owned a home within three (3) years of the date of closing and also stating the sale price of the home.

A.C.A. 26-60-102(10) (Supp. 1987).

The language of this Code provision does not, in my opinion, offer a basis for concluding that the term "new home" in subsection (10) refers to a newly constructed home. Nor are we aware of any other evidence of legislative intent to this effect. Subsection (10) seems to indicate, instead, that the "new home" requirement will be met through the buyer's sworn statement that neither the buyer nor the buyer's spouse has owned a home within three (3) years of the date of closing.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.