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Board of County Comm'rs of Kay County v. Federal Housing Finance Agency

United States Court of Appeals, District of Columbia Circuit

June 13, 2014

BOARD OF COUNTY COMMISSIONERS OF KAY COUNTY, OKLAHOMA, APPELLANT
v.
FEDERAL HOUSING FINANCE AGENCY, AS CONSERVATOR FOR FEDERAL NATIONAL MORTGAGE ASSOCIATION AND FEDERAL HOME LOAN MORTGAGE CORPORATION, ET AL., APPELLEES. UNITED STATES OF AMERICA, INTERVENOR

Argued May 12, 2014.

Page 1026

Appeal from the United States District Court for the District of Columbia. (No. 1:12-cv-01283).

Warren T. Burns argued the cause for appellant. With him on the briefs was Terrell W. Oxford. Jonathan W. Cuneo and Larry D. Lahman entered appearances.

Michael A.F. Johnson argued the cause for appellees. With him on the brief were Howard N. Cayne, Dirk C. Phillips, Michael J. Ciatti, Merritt E. McAlister, Michael D. Leffel, and Jill L. Nicholson.

Tamara W. Ashford, Principal Deputy Assistant Attorney General, U.S. Department of Justice, Gilbert S. Rothenberg, Jonathan S. Cohen, and Patrick J. Urda, Attorneys, were on the brief for intervenor United States of America in support of appellees.

Before: HENDERSON and MILLETT, Circuit Judges, and SENTELLE, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge SENTELLE.

OPINION

Page 1027

Sentelle, Senior Circuit Judge :

The Board of County Commissioners of Kay County appeals the district court's dismissal of its complaint seeking a declaratory judgment that the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac), along with the Federal Housing Finance Agency (FHFA) as their conservator, violated state law by failing to pay Oklahoma's documentary stamp tax (the " Transfer Tax" ). The district court held that all of the entities were exempt from the tax pursuant to their statutory charters, 12 U.S.C. § § 1452(e), 1723a(c)(2), 4617(j)(1)-(2). We affirm the district court. We hold that the statutes exempt the entities from all state and local taxation, including Oklahoma's Transfer Tax, and that the Transfer Tax does not constitute a tax on real property such that it falls into the real property exceptions from the exemptions. Finally, we hold that Kay County has forfeited its argument that the exemptions represent an invalid exercise of the Commerce power.

BACKGROUND

Fannie Mae and Freddie Mac are federally-chartered, privately-owned entities currently under the conservatorship of the FHFA. Pursuant to 12 U.S.C. § § 1452(e), 1723a(c)(2), and 4617(j)(1)-(2), each of these entities is " exempt from all taxation . . . imposed by any State [or] county . . . except that any real property of the [corporation or Agency is] subject to [such taxation] to the same extent . . . as other real property . . . ." Oklahoma imposes a documentary stamp tax on sales of real property. 68 Okla. Stat. Ann. § 3201. The tax is known as a " Transfer Tax," and is measured by the value of the property conveyed. Id. It attaches at the time a deed is executed and delivered to a buyer, and must be paid by the seller before the deed will be accepted for recording. Id. § § 3203-04.

Kay County filed against Fannie Mae, Freddie Mac, and the FHFA (the " Entities" ), seeking a declaratory judgment that they were not exempt from the Transfer Tax, along with damages in the amount of Transfer Taxes purportedly due and owing by the Entities. The complaint alleged that the Entities " ...


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