Corporations Should Not Own Real Estate in Massachusetts

When a corporation sells real estate in Massachusetts there is the always the concern of whether there will be a three year, inchoate lien on the real estate. Under Massachusetts General Law Chapter 62C, Section 51:

At least five days prior to the sale or transfer. . . of all or substantially all of the assets situated in the commonwealth of a domestic or foreign business corporation, except in cases where a waiver shall be given as hereinafter provided, the corporation or any person in interest shall notify the commissioner in writing of the proposed sale or transfer, and of the price, terms and conditions thereof, and of the character and location of the assets and cause to be filed with the commissioner all such tax returns as may be necessary to determine the taxes due and to become due and payable to the commonwealth to and including the date of such sale or transfer, and shall pay to the commonwealth all such taxes owing to said date of sale or transfer. . . In the event of a failure to notify the commissioner and so to file such return or returns and pay such taxes at or before the time of such sale or transfer, the commonwealth shall have for its exclusive benefit a lien upon all of the assets of the corporation in the commonwealth effective immediately prior to such sale or transfer to the extent necessary to satisfy said taxes. Said lien shall terminate not later than three years after the date of said sale or transfer and until such termination may be enforced under and in accordance . . . .

If the real estate is not substantially all of the assets of the corporation in Massachusetts, you can just put a statement in the deed: “This deed is not a sale of all or substantially all of the assets of the corporation in the Commonwealth of Massachusetts.”

But if that is not true and the sale of the real estate is all or substantially all of the assets of the corporation in Massachusetts, you need to get a waiver of the tax lien.

You can apply for a Certificate of Good Standing or Tax Compliance from the Massachusetts Department of Revenue. But the process can take weeks, if not months, for the DOR to issue the certificate.

It is quick and easy to set up a single member limited liability company to take title to the property. The corporation can be that single member.

Leave a Reply