POLISH MISSION PROTESTS NYC REAL PROPERTY TRANSFER

UNCLAS USUN NEW YORK 000607

SIPDIS

IO/UNP: SUSAN EDMONDSON

E.O. 12958: N/A
TAGS: PREL OFDP PL KREC
SUBJECT: POLISH MISSION PROTESTS NYC REAL PROPERTY TRANSFER
TAX (RPTT)


1. (U) This is an action request. See paragraph 8.


2. (U) SUMMARY: Representatives of the Polish Mission to
the UN (PMUN) met June 16 with the NYC Commission for the UN
(NYCC) to clarify rules re Real Property Transfer Tax (RPTT)
in NY. USUN/HC was invited to attend. The PMUN is in
contract to sell a small property next week and NYC's tax
regulations stipulate that, in this case, the RPTT (a tax
normally paid by seller) must be paid by the buyer since the
PMUN is exempt from paying tax per a bilateral agreement.
The PMUN believes the transaction should be exempt and views
NYC's application of RPTT as a breach of the bilateral treaty
since, in practice, the PMUN must lower the sales price to
secure a buyer. Of greater concern is the tax implication
for a prospective sale of the PMUN's $50 MIL office building
in 2010. The PMUN warned that its government must consider
applying reciprocity toward the USG in Poland if NYC's rules
prevail. The PMUN wants USG intervention and USUN/HC advised
it to raise the matter with DOS through its Embassy in
Washington. END SUMMARY.


3. (U) On June 16, armed with a diplomatic note HC-52-09
from USUN/HC and Article 18 of the Bilateral Agreement
between the USG and Poland, the PMUN's Deputy PermRep Pawel
Herczynski, and local lawyer Jerzy Sokol protested the
application of Real Property Transfer Tax (RPTT) to the sale
of its Queens, NY property scheduled to occur the following
week. Since RPTT is a tax normally paid by the seller, Sokol
claimed the exemption is, in practice, invalid since buyers
would clearly expect to be accommodated by a reduction in
price commensurate with the tax, particularly in the current
sales market. The DPR and his lawyer stated:

- NYC position that the buyer pay the RPTT, in this
particular sale, was financially disadvantageous to the PMUN
and is clearly a breach of the spirit of the bilateral
agreement, if not the letter of it.

- The PMUN was surprised that NYC, was "trying not to obey
the bilateral agreement" since its regulations make the PMUN
pay the tax by the "back door."

- Using sales tax exemption as an example, the DPR said its
value was that the tax on the transaction itself was waived,
i.e., the merchant was not expected to pay the sales tax,
either.

- NYC's local tax regulations that RPTT must still be paid if
both parties were not exempt, was actually discriminatory.
Sales among exempt parties were a minuscule percentage of
property sales and did not apply in their current sale.

- The Bilateral Agreement is not interpreted in this way in
Warsaw and if NYC and the USG accept these terms, then the
Polish Government will consider invoking reciprocity in
Poland.


NYC on RPTT


4. (U) New York City Commission for the UN, Consular Corps
and Protocol (NYCC),part of the Office of the NYC Mayor, was
represented by Deputy Commissioner Bradford Billet and
General Counsel Linda Wayner. Wayner and Billet said the
following:

- The bilateral agreement did not state all sales
transactions of real property are exempt, but only specified
that the Polish Government was exempt to which NYC agreed.

- In the U.S., its states, cities and municipal authorities
have the power to interpret the law (in this case the
bilateral agreement). While NYC agrees that the Polish
Mission is exempt from the RPTT, payment of this tax was a
pre-condition for transfer of property and therefore must be
paid by the buyer, if the buyer is not an exempt entity.

- NYC courts had ruled that this interpretation was
consistent with the exemptions allowed.

- There are certain costs associated with doing business in
NY. Wayner cited the example of companies that might increase
the cost of leasing property to diplomats because of risks
assumed since diplomats cannot be taken to court.

- The Mayor's Office (which NYCC represents) has no
authority to change these tax regulations that were enacted
by the City's government and confirmed in court rulings
(though no specific cases involving diplomats had been heard).


- In regard to the prospective sale of PMUN property valued
at over $50 million, Wayner contemplated that the PMUN might
consider it worthwhile to set aside money for litigation on
this point since no diplomatic case had been heard in NY
courts.

USUN/HC Intervention


5. (U) MinCouns Graham stated that he was in listening mode
and would take the position of the PMUN back to Washington.

- He noted that the USG position was clear in HC-52-09 that
the PMUN was exempt from the RPTT.

- He asked, and received clarification from NYCC that the
RPTT was, indeed, a tax and NOT a service fee for registering
the transaction.

- MinCouns Graham told the PMUN that reciprocity is not
appropriate in the multilateral context in New York since
member states are treated in the same manner with exceptions
only on national security grounds.

Conclusion


6. (U) The meeting ended cordially but with no resolution.
The PMUN's DPR requested the City's position in writing and
stated that it appeared a clear breach of the intent, if not
the letter of the Bilateral Agreement. He repeated that the
Polish Government would have to consider reciprocal taxation
on USG property transactions in Poland. To the suggestion
from NYCC to litigate, he said that this was not the usual
course of action taken by the GOP.


7. (SBU) COMMENT: USUN/HC MinCouns was sympathetic to the
Polish Mission's concerns and provided information from the
NYC Finance Department's website to the PMUN, which appeared
to contain possible loopholes that the Mission's lawyer could
explore. He also advised the DPR privately to have his
Embassy discuss the matter with Washington, particularly in
regard to an upcoming $50 million sale of property. The
Polish Government appears not to be overly concerned that the
PMUN will probably be forced to reduce the sale price on the
current contract by $10K in what it sees as a "back door" tax
imposed by NYC. The GOP is concerned about the principle
involved and what is likely to happen if they sell the $50
million property in 2010. For that reason, the Poles cannot
really understand why the Department does not tell the City
to back down. USUN expects that the GOP will raise this
issue bilaterally in both Washington and Warsaw even if the
current sales transaction is completed.


8. (U) USUN seeks Department view.
RICE