What affidavit must be filed with a South Carolina deed, and which sample affidavits does the Department provide (per SC IL #17-13)?

Plain-English summary

This Information Letter supplies two updated sample affidavits for South Carolina's deed recording fee and supersedes SC Information Letter #15-20. When a deed is recorded, S.C. Code § 12-24-70 requires an affidavit showing the value of the realty to be filed with it. The affidavit must be signed by a responsible person connected with the transaction (who must state that connection), though the clerk of court or register of deeds may, at his discretion, waive it. For deeds that are exempt from the fee, the affidavit need not state a value but must state the reason for the exemption.

The Department provides the affidavits as a convenience for taxpayers and local recording officials:

• The first sample affidavit may be used for either taxable or exempt transfers.
• The second may be used only for exempt transfers.

Local officials may require an affidavit with additional information to meet local needs. The letter also retires an old form: affidavits that reference an "arm's length transaction" (based on a 1996 sample tied to a prior version of the deed recording fee law) are no longer valid and should not be used or accepted when a deed is filed. Finally, it updates the reference to the Department's most recent deed-recording-fee question-and-answer summary (SC Revenue Ruling #17-5).

The letter also notes that willfully furnishing a false or fraudulent affidavit is a misdemeanor, and that no affidavit is required for a deed of distribution to an estate distributee under § 62-3-907.

What this means for you

If you are recording a deed

Use the correct current sample affidavit — the first form for a taxable or exempt transfer, the second only for an exempt transfer — and state the exemption reason on an exempt transfer. Do not use an "arm's length transaction" affidavit; it is obsolete.

If you are a closing attorney or recording official

Stop accepting the old "arm's length transaction" affidavits, and be aware local offices may require extra information beyond the state sample.

Common questions

Q: What affidavit is required when recording a deed?
A: One showing the value of the realty under § 12-24-70, signed by a responsible person connected with the transaction; for exempt deeds it must state the reason for exemption instead of the value.

Q: Which sample affidavit do I use?
A: The first sample works for taxable or exempt transfers; the second is only for exempt transfers.

Q: Can I still use an "arm's length transaction" affidavit?
A: No. Those are based on a 1996 sample for a prior version of the law and are no longer valid; they should not be used or accepted.

Subject

Sample Affidavits

Source

• Landing page: https://dor.sc.gov/advisory-opinion-search
• Original PDF: https://dor.sc.gov/sites/dor/files/policies/IL17-13.pdf

Original ruling text

STATE OF SOUTH CAROLINA

DEPARTMENT OF REVENUE
300A Outlet Pointe Blvd., Columbia, South Carolina 29210
P.O. Box 12265, Columbia, South Carolina 29211

SC INFORMATION LETTER #17-13
SUBJECT:

Sample Affidavits
(Deed Recording Fee)

DATE:

August 28, 2017

SUPERSEDES

SC Information Letter #15-20

REFERENCE:

S. C. Code Ann. Section 12-24-10 (2014)
S. C. Code Ann. Section 12-24-70 (2014)
S. C. Code Ann. Section 62-3-907 (Supp. 2016)
S. C. Code Ann. Section 12-59-140(E)(6) (Supp. 2016)

AUTHORITY:

S. C. Code Ann. Section 12-4-320 (2014)
S.C. Code Ann. Section 1-23-10(4) (2005)
SC Revenue Procedure #09-3

SCOPE:

An Information Letter is a written statement issued to the public to
announce general information useful in complying with the laws
administered by the Department. An Information Letter has no
precedential value.

When recording a deed, Code Section 12-24-70 requires an affidavit to be filed with a deed and
states:
(A)(1) The clerk of court or register of deeds shall require an affidavit showing
the value of the realty to be filed with a deed. The affidavit required by this
section must be signed by a responsible person connected with the transaction,
and the affidavit must state that connection. The clerk of court or register of
deeds, at his discretion, may waive the affidavit requirement.
(2) For deeds exempt from the provisions of this chapter, the value is not
required to be stated on the affidavit, but the affidavit must state the reason the
deed is exempt from the fee.

(B) The clerk of court or register of deeds shall file these affidavits in his office.
(C) A person required to furnish the affidavit who wilfully furnishes a false or
fraudulent affidavit is guilty of a misdemeanor and, upon conviction, must be
fined not more than one thousand dollars or imprisoned not more than one
year, or both.
(D) An affidavit is not required for an instrument or deed of distribution
assigning, transferring, or releasing real property to the distributee of an estate
pursuant to Section 62-3-907 as evidence of the distributee's title.
The Department has two sample affidavits that it provides as a convenience for taxpayers and
local recording officials. (Note: Local officials may require an affidavit with additional
information to meet local needs.)
The first affidavit may be used for either taxable transfers or exempt transfers. The second
affidavit may be used only for exempt transfers. These sample affidavits are attached.
In addition, from time to time local recording officials receive affidavits that reference an
“arm’s length transaction.” These affidavits are based on a sample affidavit developed by the
Department in 1996 for a prior version of the deed recording fee law and are no longer valid.
Any affidavit that references an “arm’s length transaction” should no longer be used, or
accepted, when a deed is filed.
The purpose of this information letter is to update the reference below to the most recent
“Question and Answer Summary” of the deed recording fee (SC Revenue Ruling #17-5).
For additional information on the deed recording fee, see the following advisory opinions on
the Department’s website at www.dor.sc.gov:
SC Revenue Ruling #17-5
SC Revenue Ruling #99-2
SC Revenue Procedure #15-1

Question and Answer Summary
IRC Section 1031 – Tax Deferred Exchanges
Refund Procedures

Note: “An instrument or deed of distribution assigning, transferring, or releasing real
property to the distributee of a decedent's estate pursuant to Section 62-3-907 as evidence of
the distributee's title to the property is not a deed subject to [the deed recording fee.]” Code
Section 12-24-10(B).

2

In addition, “[a]n affidavit is not required for an instrument or deed of distribution assigning,
transferring, or releasing real property to the distributee of an estate pursuant to Section 623-907 as evidence of the distributee's title.” Code Section 12-24-70(D).
As such, the exemption is not listed on the sample affidavits. However, if a person wishes to
use and file an affidavit stating that the transaction is exempt under Code Section 12-2410(B), such person may complete the affidavit and reference this exemption and code
section.

3

STATE OF SOUTH CAROLINA ) ...................................................................................................................................... Page 1 of 2
COUNTY OF
) .......................................................................AFFIDAVIT FOR TAXABLE OR EXEMPT TRANSFERS
PERSONALLY appeared before me the undersigned, who being duly sworn, deposes and says:

1. I have read the information on this affidavit and I understand such information.
   2 The property being transferred is located at
   County Tax Map Number
   to

, was transferred by
on

, bearing
.

3. Check one of the following: The deed is
   (a)

subject to the deed recording fee as a transfer for consideration paid or to be paid in money or money’s
worth.
(b)
subject to the deed recording fee as a transfer between a corporation, a partnership, or other entity and
a stockholder, partner, or owner of the entity, or is a transfer to a trust or as a distribution to a trust
beneficiary.
(c)
exempt from the deed recording fee because (See Information section of affidavit):

(If exempt, please skip items 4 - 7, and go to item 8 of this affidavit.)
If exempt under exemption #14 as described in the Information section of this affidavit, did the agent and principal
relationship exist at the time of the original sale and was the purpose of this relationship to purchase the realty? Check
Yes
or No _____

4. Check one of the following if either item 3(a) or item 3(b) above has been checked (See Information section of this
   affidavit.):
   (a)
   (b)
   (c)

The fee is computed on the consideration paid or to be paid in money or money’s worth in the amount
of
.
The fee is computed on the fair market value of the realty which is
.
The fee is computed on the fair market value of the realty as established for property tax purposes
which is
.

5. Check Yes
   or No
   to the following: A lien or encumbrance existed on the land, tenement, or realty
   before the transfer and remained on the land, tenement, or realty after the transfer. (This includes, pursuant to Code
   Section 12-59-140(E)(6), any lien or encumbrance on realty in possession of a forfeited land commission which may
   subsequently be waived or reduced after the transfer under a signed contract or agreement between the lien holder and
   the buyer existing before the transfer.) If “Yes,” the amount of the outstanding balance of this lien or encumbrance is:
   ______.
6. The deed recording fee is computed as follows:
   (a) Place the amount listed in item 4 above here:

(b) Place the amount listed in item 5 above here:

(If no amount is listed, place zero here.)
(c) Subtract Line 6(b) from Line 6(a) and place result here: ______
7. The deed recording fee due is based on the amount listed on Line 6(c) above and the deed recording fee due is:
.
8. As required by Code Section 12-24-70, I state that I am a responsible person who was connected with the transaction
as:

Page 2 of 2
9.
I understand that a person required to furnish this affidavit who wilfully furnishes a false or fraudulent affidavit is
guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more
than one year, or both.
Responsible Person Connected with the Transaction
Print or Type Name Here
SWORN to and subscribed before me this
day of
20
Notary Public for
My Commission Expires:
Notary (L.S.):
Notary (printed name):

INFORMATION

Except as provided in this paragraph, the term "value" means “the consideration paid or to be paid in money or money’s worth for the realty.’
Consideration paid or to be paid in money’s worth includes, but is not limited to, other realty, personal property, stocks, bonds, partnership interest and
other intangible property, the forgiveness or cancellation of a debt, the assumption of a debt, and the surrendering of any right. The fair market value of
the consideration must be used in calculating the consideration paid in money’s worth. Taxpayers may elect to use the fair market value of the realty
being transferred in determining fair market value of the consideration. In the case of realty transferred between a corporation, a partnership, or other
entity and a stockholder, partner, or owner of the entity, and in the case of realty transferred to a trust or as a distribution to a trust beneficiary, “value”
means the realty’s fair market value. A deduction from value is allowed for the amount of any lien or encumbrance existing on the land, tenement, or
realty before the transfer and remaining on the land, tenement, or realty after the transfer. (This includes, pursuant to Code Section 12-59-140(E)(6), any
lien or encumbrance on realty in possession of a forfeited land commission which may subsequently be waived or reduced after the transfer under a
signed contract or agreement between the lien holder and the buyer existing before the transfer.) Taxpayers may elect to use the fair market value for
property tax purposes in determining fair market value under the provisions of the law.
Exempted from the fee are deeds:
(1) transferring realty in which the value of the realty, as defined in Code Section 12-24-30, is equal to or less than one hundred dollars;
(2) transferring realty to the federal government or to a state, its agencies and departments, and its political subdivisions, including school districts;
(3) that are otherwise exempted under the laws and Constitution of this State or of the United States;
(4) transferring realty in which no gain or loss is recognized by reason of Section 1041 of the Internal Revenue Code as defined in Section 12-6-40(A);
(5) transferring realty in order to partition realty as long as no consideration is paid for the transfer other than the interests in the realty that are being
exchanged in order to partition the realty;
(6) transferring an individual grave space at a cemetery owned by a cemetery company licensed under Chapter 55 of Title 39;
(7) that constitutek a contract for the sale of timber to be cut;
(8) transferring realty to a corporation, a partnership, or a trust as a stockholder, partner, or trust beneficiary of the entity or so as to become a
stockholder, partner, or trust beneficiary of the entity as long as no consideration is paid for the transfer other than stock in the corporation, interest in
the partnership, beneficiary interest in the trust, or the increase in value in the stock or interest held by the grantor. However, except for transfers from
one family trust to another family trust without consideration or transfers from a trust established for the benefit of a religious organization to the
religious organization, the transfer of realty from a corporation, a partnership, or a trust to a stockholder, partner, or trust beneficiary of the entity is
subject to the fee, even if the realty is transferred to another corporation, a partnership, or trust;
(9) transferring realty from a family partnership to a partner or from a family trust to a beneficiary, provided no consideration is paid for the transfer
other than a reduction in the grantee’s interest in the partnership or trust. A “family partnership” is a partnership whose partners are all members of the
same family. A “family trust” is a trust, in which the beneficiaries are all members of the same family. The beneficiaries of a family trust may also include
charitable entities. “Family” means the grantor and the grantor’s spouse, parents, grandparents, sisters, brothers, children, stepchildren, grandchildren,
and the spouses and lineal descendants of any the above. A “charitable entity” means an entity which may receive deductible contributions under
Section 170 of the Internal Revenue Code as defined in Section 12-6-40(A);
(10) transferring realty in a statutory merger or consolidation from a constituent corporation to the continuing or new corporation;
(11) transferring realty in a merger or consolidation from a constituent partnership to the continuing or new partnership;
(12) that constitute a corrective deed or a quitclaim deed used to confirm title already vested in the grantee, provided that no consideration of any kind
is paid or is to be paid under the corrective or quitclaim deed;
(13) transferring realty subject to a mortgage to the mortgagee whether by a deed in lieu of foreclosure executed by the mortgagor or deed pursuant to
foreclosure proceeding;
(14) transferring realty from an agent to the agent’s principal in which the realty was purchased with funds of the principal, provided that a notarized
document is also filed with the deed that establishes the fact that the agent and principal relationship existed at the time of the original purchase as well
as for the purpose of purchasing the realty;
(15) transferring title to facilities for transmitting electricity that is transferred, sold, or exchanged by electrical utilities, municipalities, electric
cooperatives, or political subdivisions to a limited liability company which is subject to regulation under the Federal Power Act (16 U.S.C. Section 791(a))
and which is formed to operate or to take functional control of electric transmission assets as defined in the Federal Power Act.

STATE OF SOUTH CAROLINA )
COUNTY OF
)

AFFIDAVIT FOR EXEMPT TRANSFERS

PERSONALLY appeared before me the undersigned, who being duly sworn, deposes and says:

1. I have read the information on the back of this affidavit and I understand such information.
2. The property being transferred is located at
   bearing
   County Tax Map Number
   was transferred by
   to
   .

,

on

3. The deed is exempt from the deed recording fee because (See Information section of affidavit):

If exempt under exemption #14 as described in the Information section of this affidavit, did the
agent and principal relationship exist at the time of the original sale and was the purpose of this
relationship to purchase the realty? Check Yes
or No ___
4. As required by Code Section 12-24-70, I state that I am a responsible person who was connected
with the transaction as:

_________.
5. I understand that a person required to furnish this affidavit who wilfully furnishes a false or
fraudulent affidavit is guilty of a misdemeanor and, upon conviction, must be fined not more than
one thousand dollars or imprisoned not more than one year, or both.
Responsible Person Connected with the Transaction
Print or Type Name Here
SWORN to and subscribed before me this
day of
20
Notary Public for
My Commission Expires:
Notary (L.S.):
Notary (printed name):

INFORMATION
Except as provided in this paragraph, the term "value" means “the consideration paid or to be paid in money or money’s
worth for the realty.” Consideration paid or to be paid in money’s worth includes, but is not limited to, other realty, personal
property, stocks, bonds, partnership interest and other intangible property, the forgiveness or cancellation of a debt, the
assumption of a debt, and the surrendering of any right. The fair market value of the consideration must be used in
calculating the consideration paid in money’s worth. Taxpayers may elect to use the fair market value of the realty being
transferred in determining fair market value of the consideration. In the case of realty transferred between a corporation, a
partnership, or other entity and a stockholder, partner, or owner of the entity, and in the case of realty transferred to a trust
or as a distribution to a trust beneficiary, “value” means the realty’s fair market value. A deduction from value is allowed for
the amount of any lien or encumbrance existing on the land, tenement, or realty before the transfer and remaining on the
land, tenement, or realty after the transfer. (This includes, pursuant to Code Section 12-59-140(E)(6), any lien or encumbrance
on realty in possession of a forfeited land commission which may subsequently be waived or reduced after the transfer under
a signed contract or agreement between the lien holder and the buyer existing before the transfer.) Taxpayers may elect to
use the fair market value for property tax purposes in determining fair market value under the provisions of the law.
Exempted from the fee are deeds:
(1) transferring realty in which the value of the realty, as defined in Code Section 12-24-30, is equal to or less than one
hundred dollars;
(2) transferring realty to the federal government or to a state, its agencies and departments, and its political subdivisions,
including school districts;
(3) that are otherwise exempted under the laws and Constitution of this State or of the United States;
(4) transferring realty in which no gain or loss is recognized by reason of Section 1041 of the Internal Revenue Code as
defined in Section 12-6-40(A);
(5) transferring realty in order to partition realty as long as no consideration is paid for the transfer other than the interests
in the realty that are being exchanged in order to partition the realty;
(6) transferring an individual grave space at a cemetery owned by a cemetery company licensed under Chapter 55 of Title 39;
(7) that constitute a contract for the sale of timber to be cut;
(8) transferring realty to a corporation, a partnership, or a trust as a stockholder, partner, or trust beneficiary of the entity
or so as to become a stockholder, partner, or trust beneficiary of the entity as long as no consideration is paid for the
transfer other than stock in the corporation, interest in the partnership, beneficiary interest in the trust, or the increase in
value in the stock or interest held by the grantor. However, except for transfers from one family trust to another family trust
without consideration or transfers from a trust established for the benefit of a religious organization to the religious
organization, the transfer of realty from a corporation, a partnership, or a trust to a stockholder, partner, or trust
beneficiary of the entity is subject to the fee, even if the realty is transferred to another corporation, a partnership, or trust;
(9) transferring realty from a family partnership to a partner or from a family trust to a beneficiary, provided no
consideration is paid for the transfer other than a reduction in the grantee’s interest in the partnership or trust. A “family
partnership” is a partnership whose partners are all members of the same family. A “family trust” is a trust, in which the
beneficiaries are all members of the same family. The beneficiaries of a family trust may also include charitable entities.
“Family” means the grantor and the grantor’s spouse, parents, grandparents, sisters, brothers, children, stepchildren,
grandchildren, and the spouses and lineal descendants of any the above. A “charitable entity” means an entity which may
receive deductible contributions under Section 170 of the Internal Revenue Code as defined in Section 12-6-40(A);
(10) transferring realty in a statutory merger or consolidation from a constituent corporation to the continuing or new
corporation;
(11) transferring realty in a merger or consolidation from a constituent partnership to the continuing or new partnership;
(12) that constitute a corrective deed or a quitclaim deed used to confirm title already vested in the grantee, provided that no
consideration of any kind is paid or is to be paid under the corrective or quitclaim deed;
(13) transferring realty subject to a mortgage to the mortgagee whether by a deed in lieu of foreclosure executed by the
mortgagor or deed pursuant to foreclosure proceedings;
(14) transferring realty from an agent to the agent’s principal in which the realty was purchased with funds of the principal,
provided that a notarized document is also filed with the deed that establishes the fact that the agent and principal
relationship existed at the time of the original purchase as well as for the purpose of purchasing the realty; and
(15) transferring title to facilities for transmitting electricity that is transferred, sold, or exchanged by electrical utilities,
municipalities, electric cooperatives, or political subdivisions to a limited liability company which is subject to regulation under
the Federal Power Act (16 U.S.C. Section 791(a)) and which is formed to operate or to take functional control of electric
transmission assets as defined in the Federal Power Act.