First, let me remind everyone that Article 7-11 of the Massachusetts Deeds Indexing Standards states "The former practice of 're-recording' an original document to correct an error or omission is prohibited." The Registers of Deeds Association formulated this rule several years ago after a vigorous debate on the propriety of allowing already-recorded documents to be recorded again. The consensus was that even though the practice was widely allowed, the minimum that should be required was the re-execution of the document. With that as the minimum requirement, the association decided it would be better to simply require an entirely new document.
With that as background, here's the main point of this post: If a deed has already been recorded, does a re-executed version of that deed that purports to convey the property from and to the same parties for the same consideration require the payment of another excise tax? Or does the payment of the tax with the first recording suffice? My feeling was that since there was only one payment of consideration, there was only one taxable event, notwithstanding the two deeds. My rationale was that if a single deed is recorded in two registries, we only charge for the tax at the first recording.
When this topic came up at a Registers Association meeting earlier this year, many of my colleagues felt that the better practice was to require the payment of the tax on the second deed and leave it to the seller to file for an abatement of the tax with the Department of Revenue for the double payment. The thinking was that to rely solely on the assertion of the person presenting the document for recording that the tax had already been paid would create too much of a risk of fraud. While I was on vacation last week, however, this issue arose here in Lowell and we called the Department of Revenue who told us it was OK to exempt the second deed based on the first recording where the book and page number of the initial deed that contains the tax stamp for the transaction are written on the second recording. In questions of collecting excise tax, I'll go with DOR's rules.
While this issue arises only rarely, it is happening more often these days with foreclosure deeds which may have something to do with missing assignments.