62 Op. Att'y Gen. 251 (1973)
 
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Wisconsin Attorney General Opinions

13 November 1973

Real Estate   Criminal Law   Taxation
Section 77.27, Stats., is violated when value
is intentionally falsified on a Wisconsin
Real Estate Transfer Return.

Falsely declaring a transfer as a sale when
it is in fact a gift does not constitute a
violation of Section 77.27, nor will it
support the issuance of a false swearing
complaint under Section 946.32, Stats., but
it may constitute a gift tax avoidance in
violation of Section 72.86(6), Stats.

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R.M. GONYO,
District Attorney, Green Lake County

You have requested my opinion as to whether a
false declaration on a Wisconsin Real Estate
Transfer Return preprared [prepared] pursuant
to Section 77.22, Stats., constitutes a
violation of Sections 77.27 and/or 946.32,
Stats. (1971).

As I understand the facts you provide, a
grantee or his agent signed the required
declaration on a Wisconsin Real Estate
Transfer Return (Department of Revenue Form
PE-500 R. 2-73) stating that a $10,000 sale
occurred, when in fact, no consideration
passed between the parties.

The requisite $10 fee pursuant to
Section 77.22, Stats., was paid.

The declaration on Department of Revenue Form
PE-500 R. 2-73, which the grantee or his
agent must sign, reads as follows:

   I (we) declare under penalty of law,
   that this return (including any
   accompanying schedule) has been examined
   by me (us) and to the best of my (our)
   knowledge and belief, it is true,
   correct and complete.

It is my opinion that the "penalty of law"
referred to in the above declaration is
to be found primarily, albeit not
exclusively, in Section 77.27, Stats.

The nature of the declaration will not
support the issuance of a criminal
complaint under the false swearing
statute, Section 946.32, Stats.

The Real Estate Transfer Fee statute,
Subchapter II of Chapter 77, Stats., Section
77.21, et seq., was enacted in 1969.

Chapter 154, Section 216m, Laws of 1969.

The Department of Revenue advises that the
law was designed to fulfill the informational
void left by the repeal of the federal real
estate documentary tax stamp system.

The federal stamp system provided state
departments of revenue with a readily
available market index for equalizing
assessments.

When the federal stamp requirements were
repealed in 1967, Wisconsin and other states
began considering transfer tax systems to
serve the same purpose.

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Although a relatively small fee is assessed
to defray administrative costs (10 cents for
each $100 of value transferred), the
underlying purpose of the statute is to
accumulate accurate sales information for
equalization purposes. Consequently,
Section 77.27, Stats., provides:

   "Any person who intentionally falsifies
   value on a return required to be filed
   under this subchapter may for each such
   offense be fined not more than $1,000 or
   imprisoned in the county jail not more
   than one year, or both."

The operative words of the above
section are, of course,

   "intentionally falsifies value"

Value is defined in Subsection 77.21(3) of
Section 77.21 as:

   "Value" means:

   (a)  In the case of any conveyance not a
        gift, the amount of the full actual
        consideration paid therefor or to
        be paid, including the amount of
        any lien or liens thereon; and

   (b)  In case of a gift, or any deed of
        nominal consideration or any
        exchange of properties, the
        estimated price the property would
        bring in an open market and under
        the then prevailing market
        conditions in a sale between a
        willing seller and a willing buyer,
        both conversant with the property
        and at prevailing general price
        levels.

I read Section 77.27 as being limited in
purpose to guaranteeing the integrity of
the information the Department of Revenue
receives in terms of value transferred.

It would not seem to apply to a situation
where the grantee accurately stated the value
transferred, but falsely identified the
transfer as a sale.

The grantee's declaration on the return is
not limited, however, to the verity of the
value of the transfer stated thereon.
 He declares that he has examined the form
and to the best of his knowledge it is

   " true, correct and complete."

This, of course, raises the issue of whether
a return stating actual value but otherwise
intentionally untrue constitutes a false
swearing.

By definition, an essential element of common
law false swearing is a willful oath or
affirmation on a matter as to which a person
could be legally sworn, administered by a
person legally authorized to administer
oaths.

70 C.J.S. Perjury Section 3.

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In keeping with the general definition, each
of the subsections of Wisconsin's false
swearing statute, Section 946.32, Stats.,
defining various forms of false swearing,
includes the words:

   "under oath or affirmation"

By comparison, a declaration is normally
defined as an unsworn or out of court
assertion of fact. See 26 C.J.S.
Declarations.

A 1932 Attorney General's opinion, although
not precisely on point, discusses the
distinction between a sworn oath or
affirmation and a bare declaration.

The opinion cites
United States v. Mallard,
40 F. 151 (1889),
as follows:

   "The underlying principle evidently is
   that whenever the attention of the
   person who comes up to swear is called
   to the fact that the statement is not a
   mere asseveration, but must be sworn to,
   and, in recognition of this he is asked
   to do some corporal act, and does it,
   this is a statement under oath. . . ."

   (40 F. 151-152)

The declaration made on a Wisconsin Real
Estate Transfer Return is not sworn to before
an officer authorized to administer oaths.

Therefore, it is not swearing within the
ambit of Section 946.32, Stats.

Accordingly, I conclude that a false
declaration on a Wisconsin Real Estate
Transfer Return will not support a criminal
complaint under Section 946.32.

This is not to say, however, that the
reprehensible act of intentionally making
a false declaration on a required return
need necessarily go unchallenged.

The facts you provide suggest that the
signatory's motive for falsely identifying
the transfer as a sale may have been to
avoid a gift tax assessment pursuant to
Subchapter IV of Chapter 72, Stats.

Attempting to evade the gift tax is a
criminal offense under Section 72.86(6).

The language of that subsection seems to be
broad enough to support a complaint based
on an intentionally falsified Wisconsin
Real Estate Transfer Return for
purposes of gift tax avoidance.

RWW:CAB

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