Tax — real estate transfer fee

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United States Court of Appeals For the Seventh Circuit

Civil

Tax — real estate transfer fee

The state and its counties cannot levy a tax on sales of real property by Fannie Mae and Freddie Mac.

“The appellants argue that the statutory term ‘all taxation’ does not include excise taxes. The appellees reply that ‘all’ means ‘all’ (unless explicitly qualified, as by ‘all except,’ which is what the Fannie Mae statute does with real property taxation). That isn’t always true, however; often there are implicit exceptions. If a sign reads ‘All vehicles must be out of the park grounds by 8 p.m.,’ this doesn’t necessarily include police cars and other public safety vehicles. See H.L.A. Hart, ‘Positivism and the Separation of Law and Morals,’ 71 Harv. L. Rev. 593, 606–07 (1958). But the taxation provision in the Fannie Mae statute is not comparable. It says ‘all taxation … except’ taxes on real property, and having carved an express exception for one type of tax Congress could be expected to make an express exception for any other type of tax that it wanted state and local governments to be permitted to levy on Fannie.”

Affirmed.

13-1558, 13-1559, 13-1611 & 13-2739 DeKalb County v. FHFA

Appeals from the United States District Court for the Northern District of Illinois, Kapala, J., Posner, J.