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Let’s Play 20 Questions: Taxes and Audits

Let’s Play 20 Questions: Taxes and Audits

[ Blog/News ]
One thing is certain for community associations: An annual federal tax return. Another thing MAY be certain: an annual Certified Public Accountant (CPA) audit. If this is surprising to you, read on. If this is not surprising to you, read on anyway; as community associations are so unique in their tax treatment!

(Editor’s Note: This blog article first appeared in the March 2018 issue Community Associations Journal. It is a first in a two-part article. Part two will appear in the upcoming April issue.)

Let’s test your knowledge by playing “20 Questions”!

Question Mark in Talk Bubble Icon Green  Question Mark in Talk Bubble Icon Orange  Question Mark in Talk Bubble Icon Blue

Are associations required to file an annual federal tax return?

Answer Mark in Talk Bubble Icon GreenYES. Associations are required to file annually, even if they do not have taxable income. The return is required from the date of inception, even if assessments are not yet billed.

What type of tax return do associations file?

Answer Mark in Talk Bubble Icon GreenMost associations file a form 1120-H return, which is a special return for this industry. Some associations file a form 1120 return, which is the regular corporate return. This industry is unique in the tax law since most associations may “flip flop” back and forth each year between an 1120-H and an 1120. Some associations (such as commercial associations, and associations that don’t meet certain tests) are required to file an 1120 return. A few associations are considered a Non-Profit for tax purposes and file a form 990 tax return. This is rare and has stringent/narrow requirements.

Do associations pay tax?

Answer Mark in Talk Bubble Icon GreenYES. For the 1120-H return, they pay 30% tax on net “non-exempt function income.” Examples would be interest/investment income on all accounts, income from non-members (such as cell tower income or rental of an association owned unit), and “user fees” from members. For the 1120 return, Associations pay graduated corporate tax rates on net membership income and net non-membership income. These can be very complex issues, so it is always best to have an industry CPA advise on the best tax return choice and prepare the return for the association.

Is there a way to avoid tax?

Answer Mark in Talk Bubble Icon GreenIf the Association has interest/investment income, or income from non-members, other than the standard exemption available, it is difficult to avoid paying any tax. There are strategies to minimize tax. The association should work with their CPA on appropriate deductions that may be taken against the taxable income. If there is other taxable income, keep good accounting records of the potential direct expenses related to the production of income. Additionally, if the association qualifies for 1120 tax return filing, some tax rates are below the 30% “flat tax” for the 1120-H return. As noted above, the 1120 return is recommended in limited circumstances due to the requirements, and higher IRS audit risk.

What are some of the requirements to file an 1120 tax return?

Answer Mark in Talk Bubble Icon GreenIf the Association thinks they are planning on filing an 1120 tax return, they should consult with their CPA as this gets very complex, quickly. Generally, the association needs to follow strict accounting requirements including segregation of operating and reserve cash, and “fund accounting” is preferable. The Association should adopt and adhere to a budget that agrees with the reserve study, have minimal “transfers between funds”, document repayment plans for “due between funds” and be aware of the capital and non-capital items in the reserve study. They also need to have the association membership approve the “70-604” tax election.

What is the “70-604” tax election?

Answer Mark in Talk Bubble Icon GreenThis is a federal tax election only, and does not impact the books. As noted above, if the association files an 1120 tax return, the “net membership income” is taxable. The 70-604 allows the net membership income to be deferred from year one to year two. Since the 70-604 cannot be used two years in a row, this is only a deferral of tax. IF the association still has net membership income remaining at the end of year two, if an 1120 return is again filed, and no offsetting membership losses exist, the net membership income is taxable. Our firm recommends that each association approve the 70-604 each year at the annual meeting, regardless of the type of return filed. This is because it is not known (until the return filing) which form will be appropriate, and if an 1120 is necessary, the 70-604 may be needed. It also provides extra “IRS audit insurance”, regardless of the form filed each year. Again, this election is approved by the membership, not the board.

Is transferring monies to reserves the same as the “70-604?”

Answer Mark in Talk Bubble Icon GreenNo. Should be two separate motions.

When is the tax return due to the IRS?

Answer Mark in Talk Bubble Icon GreenThe return is due 3.5 months after the year end. For calendar year associations, this is April 15. There is an extension available, however any tax due must be paid by the tax return original due date.

What is an audit?

Answer Mark in Talk Bubble Icon OrangeAn independent CPA is engaged by the association to determine if the year end financial statements are materially correct, in accordance with Generally Accepted Accounting Principles (GAAP) and that adequate financial statement disclosures have been presented. The CPA should not be connected to the association in any way. “Materiality” is a matter of CPA judgment, however it means the CPA does not look at every transaction. Examples of “disclosures” would be litigation, special assessments, contingencies, FDIC limitation exceeded, and significant events occurring after year end but before the date of the Auditors’ Report.

Is our association required to have an annual audit?

Answer Mark in Talk Bubble Icon OrangeThis depends on the body of Washington law (RCW) that governs the association, and the size of the association. Please read the noted RCW for more clarification and consult your attorney if unclear.

  • “New Act” Condominiums (Created after 7/1/90 -RCW 64.34.372) Condominiums with 50 or more audits must be audited annually. Condominiums with less than 50 units have an annual audit requirement, however, there are annual waiver provisions.
  • “Old Act” Condominiums: (Created before 7/1/90) Generally, the requirements default to the New Act Condominiums provisions, however, if the governing documents require an annual audit, then an audit is required, regardless of the number of units.
  • Homeowners Associations (RCW 64.38.045) Associations with annual assessments of $50,000 or more must be audited annually, however, there are annual waiver provisions.

Additionally, there is an audit requirement for New Act Condominiums upon the legal transition from developer control. (RCW 64.34.312)

When is an audit recommended, regardless of the requirements?

Answer Mark in Talk Bubble Icon OrangeBecause the board is charged with governance of the association, they need to think through carefully whether the waiver of an audit is advised. Some of the reasons to have an audit include:

  • The CPA may also issue a “Report of Internal Control.” This contains recommendations that protect the board and association.
  • Provides significant disclosures to current and future owners.
  • Construction defect settlements.
  • Insurance proceeds/settlements.
  • Large special assessments.
  • Large construction projects.
  • Change in management companies.

If there is suspected fraud, a separate “forensic audit” may be appropriate.

What is needed in an audit?

Answer Mark in Talk Bubble Icon OrangeThe auditor will ask for the financial records and reports for both the audit year and subsequent year. If it is a new client, the auditor will ask for the financial records of the prior year end. Additionally, the auditor will also ask for governing documents, reserve studies, tax returns, budgets, and board minutes.

How long will the audit take?

Answer Mark in Talk Bubble Icon OrangeIn our firm, IF all information is provided when requested, the process is about six to eight weeks.

Who receives the audited financial statements?

Answer Mark in Talk Bubble Icon OrangeThe Auditors’ Report is addressed to the association board and membership. Other users include future owners (in the re-sale certificate) and current or possible association lenders. (The “Report of Internal Control” is addressed to the association board and management.)

What do we do if an audit discloses an issue?

Answer Mark in Talk Bubble Icon OrangeDiscuss the audit results with your management company and CPA, if you don’t understand the issue. Then, the board should discuss their plans to rectify the issue, and document this in the board minutes.

Are there more questions?

Answer Mark in Talk Bubble Icon BluePossibly, this article has raised more questions for you, than answered. Consult your association CPA, as there are numerous exceptions/details that are beyond the scope of this article.

 

Was this really 20 questions?

Answer Mark in Talk Bubble Icon BlueNo. Apparently the CPA cannot count.

By Catherine Kuhn, CPA

Owner, Cagianut & Company, CPA

Catherine Kuhn, CPA, manages the Bellevue office of Cagianut & Company, CPA, which is devoted exclusively to serving the financial needs of over 800 Community Associations in Washington. C&C has over 25 years of experience in serving Community Associations and currently has 18 employees. Prior to joining Cagianut & Company in 2006, Cathy was a partner in a large Bellevue CPA firm and served clients in various industries there for 20 years. Cathy teaches classes and writes articles for WSCAI. In addition to being “Mom” to 2 active teenagers, she serves as Treasurer of the Newport High School Girls Basketball Booster Club, and a financial volunteer for Bellevue Young Life.

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Chapter Magazine

Community Associations Journal May 2019 Issue - Cover

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May 2019

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5 Tips for Running an Association Board Meeting

5 Tips for Running an Association Board Meeting

[ Blog/News ]
Running an effective homeowner’s association (HOA) board meeting is like mastering the zipper merge. When it’s performed properly, everyone knows what they’re supposed to be doing and it looks effortless. It just takes preparation and some practice to get it right.

Whether your association is new or has been around for a while, keeping a meeting running smoothly does not happen by accident. This writer has been in the unique position of having served on the board of her association, and is also an association manager. In both aspects, there are common factors which can affect HOA board meetings. Long, noisy and chaotic meetings cause misery for boards, managers and members alike. There are ways to reduce and even avoid the dilemmas that plague HOA board meetings.

Different types of meetings will have specialized items to be addressed, but no matter what kind of meeting is being held, here are five tips to optimize meeting efficiency.

[1] Agenda

Tip 1 - AgendaJust like real estate is about “location, location, location” effective meetings must have (and stick to) an agenda. Repeat it three times if needed, but remember, “agenda, agenda, agenda.” To that end, take an extra few minutes when planning and be sure to arrange the agenda into simple items and identify which items will require a decision/vote.

Be aware of the items that may invoke passionate and long-winded discussion. This too, can be addressed via the agenda. For those who wish to speak, a time limit of two minutes is advised, and an advance directive at the beginning of the meeting to let attendees know that discussion is limited to new information on the topic.

[2] Time

Tip 2 - TimeWhen planning the meeting, be conscious of time on two levels. The time needed altogether for the meeting, and available time for the attendees. The agenda is a great tool for time management, and time goals should be stated at the outset.

While it’s great to think, “We’ll cover all the topics on the agenda to completion” the reality is, the most productive meetings will produce an action item list with tasks for future follow-up. Again, it’s about time. Some decisions require more time and information than is available at the time of the meeting, and it’s okay to note that; and table the item for further review.

[3] Venue

Tip 3 - VenueThis is an area that can have negative or positive impact on the meeting. If the meeting is scheduled for evening, be aware of travel times and potential traffic considerations for attendees getting to the venue. Give advanced thought room size, temperature and adequate seating. Overcrowded rooms can be detrimental to meeting productivity.

Another venue consideration is acoustics. Community meeting rooms with hard floors have a greater level of echo and sound bounce back. It can be managed with effective direction from the presiding officer, and limiting side conversations. Keep these considerations in mind when seeking and selecting locations for board meetings.

[4] Side Conversation

Tip 4 - Side ConversationDon’t. Just, don’t. Whether in the gallery, or at the directors’ table, side communications are distracting and disruptive to a meeting. Even if it’s topic-related, if it’s not new information to be presented on the floor, it can wait until after the meeting. If you don’t have the floor, take it out the door.

[5] "Pancake"

Tip 5- PancakeNo, not the food. (Although this writer would absolutely attend a meeting that serves pancakes.) Remember the adage, “No matter how flat you make it, a pancake has two sides.” Not everyone at a meeting will agree on how to address an issue, but it’s important to be respectful of others’ positions as members of the association. Homeowners feel passionately about their homes and neighborhood, and in that passion, can lose track of the board’s responsibility to the entire association, not just the individual. So, like a pancake, flip the situation and try to view the other side of a matter.

As the season for annual meetings comes into full swing, these tips will serve to help associations achieve meeting mastery. Now, let’s all take turns…merge out of the parking lot and head to get some pancakes with some side conversation.

By Joy Steele, CMCA

Community Manager, Trestle Community Management

Joy Steele, CMCA is a Community Manager at Trestle Community Management. A devoted community volunteer for over a decade, she has also served her Condo Association for 7+ years, both on the Board and on various committees. A member of the both the SPJ and the NSNC, Joy is a columnist and contributor to the South King Media group, and various online and print periodicals. She currently resides in Des Moines with her husband Dan and their two rescue dogs.

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Chapter Magazine

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Boundary Issues: Associations and Owners Often Face Problems Involving Damage and Repairs that Straddle or Cross Property Lines

Boundary Issues: Associations and Owners Often Face Problems Involving Damage and Repairs that Straddle or Cross Property Lines

[ Blog/News ]

A defining moment in many people’s lives is when they purchase their first home. The promise and potential as a new homeowner feels unlimited. What many don’t realize is that the issues you may face as a homeowner—or indeed as a community association— often cross property boundary lines. This article addresses several boundary issues that owners and associations frequently deal with concerning trees, surface water, fences, party walls, retaining walls and boundary lines in general.

Note that the first inquiry to make in a situation in which an improvement appears to be on a boundary line is often whether the improvement is located on one parcel or another, or whether it straddles the two. This may involve examining legal descriptions and maps, and ultimately may require hiring a surveyor. 

Boundary Lines Spot ImageBoundary Lines

Boundary line disputes are often emotionally charged matters that can last for years. The most certain way to determine “on-the-ground” boundary lines is to hire a surveyor, which can be expensive. The surveyor can map boundary lines on the ground based on surveyor stakes and the legal descriptions of the properties.

But two legal doctrines may allow people to move those boundaries based on the conduct of the people who have owned the property on either side of the line:

  1. Adverse possession
  2. Mutual recognition and acquiescence.
Adverse Possession

To establish a claim of adverse possession, the burden is on the person claiming adverse possession to prove by a preponderance of the evidence (i.e., more likely than not) that the claimant’s possession is:

  1. Exclusive
  2. Actual and uninterrupted
  3. Open and notorious
  4. Hostile

[Nickell v. Southview Homeowners Ass’n, 167 Wn. App. 42, 50 (Div. 2, 2012)]

Each of the necessary elements for an adverse possession claim must have existed for ten years. A claimant can satisfy the open and notorious element of adverse possession by showing either:

  1. That the title owner had actual notice of the adverse use throughout the statutory period
  2. That the claimant used the land such that any reasonable person would have thought he owned it

Hostility for an adverse possession claim requires that the claimant treat the land as his own as against the world throughout the statutory period.

Mutual Recognition and Acquiescence

Claims based on mutual recognition and acquiescence arguments involve purported boundary lines demarcated by things like fences and roads. The elements of mutual recognition and acquiescence include:

  1. The line must be certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.
  2. In the absence of an express agreement establishing the designated line as the boundary line, the adjoining landowners, or their predecessors in interest, must have in good faith manifested, by their acts, occupancy, and improvements with respect to their respective properties, a mutual recognition and acceptance of the designated line as the true boundary line.
  3. The requisite mutual recognition and acquiescence in the line must have continued for that period of time required to secure property by adverse possession.

[Lamm v. McTighe, 72 Wash.2d 587, 593 (1967)]

The burden of proof is on the party asserting mutual recognition to show, by clear, cogent and convincing evidence, that both parties acquiesced in the line for the same period required to establish adverse possession—10 years. [Muench v. Oxley, 90 Wn.2d 637, 641, 584 P.2d 939 (1978)]

Timber Trespass/Trees Spot ImageTimber Trespass/Trees

A common boundary dispute neighbors contend occurs when a tree located wholly on one party’s property that overhangs onto another. To cut down a tree or other plantings belonging to another without lawful authority is known as “timber trespass.” The trespassing offender is potentially subject to treble damages if it was done willfully. This means the statute allows the aggrieved party to obtain triple the damages amount suffered.

The key phrase with respect to timber trespass is “without authority.” Generally speaking, under Washington law, a landowner has legal authority to engage in self-help at his own expense and trim branches and roots that encroach upon his property. However, that does not give the landowner the right to cut down the tree on the adjacent land.

But what if the tree is located on the boundary line? The Washington State Court of Appeals addressed this issue in 2017. If a tree straddles the boundary line between two properties, the owners of each property own the tree as tenants in common and are each entitled to use, maintain and possess the tree without interfering with the other’s use of it, as set forth in the 2017 Herring v. Pelayo appellate case. The court reiterated that the common owners of the tree may lawfully trim vegetation overhanging their property, but not in a manner that the common owner knows will kill the tree.

So if you are considering cutting the branches of a tree near your property, the best practice would be to speak to the adjacent owner first if there is a chance the tree is not entirely located on your property. If there is an objection, consult a surveyor to determine the tree’s location. Since timber trespass carries such potentially stiff penalties, homeowners should proceed with caution if they are considering cutting down some or part of a neighbor’s tree.

Surface Water Spot ImageSurface Water

In parts of the Pacific Northwest, it is a way of life to deal with rain most of the calendar year. Besides making commuting difficult, rain can cause a variety of problems for homeowners and potentially their neighbors. One common example: When accumulated rain or other surface water runs off one person’s property onto another’s, causing damage.

As explained by the state Supreme Court in Currens v. Sleek, Washington law recognizes the “common enemy doctrine” with respect to surface water. Surface water is “vagrant or diffused [water] produced by rain, melting snow, or springs.” The common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit, without liability for resulting damage to a neighbor. The idea is that “surface water … is regarded as an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others.”

This seemingly counterintuitive doctrine is not absolute and has a few exceptions. First, landowners may not inhibit the flow of a watercourse or natural drain way, such as a stream or gully. Second, landowners may not collect surface water on their property, only to dispose of it on a neighbor’s land. Finally, landowners who alter flow of surface water on their property must exercise their rights with due care by acting in good faith and avoiding unnecessary damage to the property of others.

Fences Spot imageFences

Our state does not appear to have any cases that directly address maintenance of boundary fences. But across the country, it is generally understood that ownership of and responsibility for a boundary fence is determined by who “uses” the fence. A fence built on the boundary and used by only one owner, belongs to the person who built it. It does not become a “shared” fence until the neighbor actually “uses” it as his own fence. What does it mean to “use” the fence as your own fence? There are a number of definitions applied by the states:

  1. Occupancy: To “use” means to use the land right up to the fence line;
  2. Join: To “use” means to hook up your fence to the boundary fence.
  3. Enclosure: To “use” means to hook up to the boundary fence to entirely enclose your property.

By statute in our state, if someone builds a boundary fence that helps enclose a neighbor’s property, that neighbor is responsible for half of the value of the fence. [RCW 16.60.020.] (In other words, our state appears to focus on the “enclosure” aspect of the “use” concept.)

Community association and other property covenants also may provide guidance on who is responsible for fences, though such guidance is often lacking in detail. Look at the language of the covenants to help determine whether an association is in charge of fence repair and replacement—which helps ensure a uniform appearance of fences in the community—or whether it is an owner responsibility. Rarely is it a good idea for one entity to maintain one side, and another entity to maintain another, as a practical matter. More commonly, one entity repairs a shared fence with prior notice, and the two parties may ultimately split the cost.

Shared Walls Spot ImageShared Walls

Responsibility for maintenance and repair of retaining walls located on a shared boundary is somewhat counterintuitive. The general rule is that the landowner who cuts away land from the natural slope is responsible for the retaining wall. But the landowner who builds up fill behind a retaining wall—such as an uphill neighboring community who added fill to level the land to construct a parking lot— is responsible for the retaining wall. Accordingly, to figure out responsibility for a retaining wall that needs repair, a party will likely have to investigate the history of property development concerning the involved lots. If it is not possible to determine responsibility, one reasonable option is to draft an agreement regarding who will undertake the work and to split the costs: This reduces uncertainty about responsibility down the road and sets forth a procedure to follow when future repairs are needed.

Fortunately, party walls (i.e., walls between dwelling units) are often addressed in association or property covenants. Those covenants typically give either neighbor the option to fix the wall, and then the party undertaking the work may charge back. In a condominium situation, the wall may also be a common element that the association fixes as a common expense.

Conclusion

Issues involving or crossing over property lines can be contentious and time-consuming. Cooperation and compromise are often key to keeping costs down and obtaining prompt resolution. Many problems can be circumvented by providing prior notice and doing your homework to pinpoint the ownership of a boundary line improvement, and by entering into agreements ahead of time before and issue arises.

Co-Authored By Bennett Taylor, Esq.

Associate Attorney, Leahy Fjelstead Peryea

Bennett Taylor is an associate attorney at Leahy Fjelstead Peryea.  He lives in the Greenwood neighborhood of Seattle with wife Lindsay, their new daughter Sloane, and his cat, Peanut.

Co-Authored By Allison Peryea, Esq.

Shareholder Attorney, Leahy Fjelstad Peryea

Allison Peryea is a shareholder attorney at Leahy Fjelstad Peryea in Seattle, Washington. Her law firm almost exclusively focuses its practice on serving community association clients. Allison’s practice includes litigation, covenant enforcement, and general counsel assistance to clients. She is a member of the WSCAI Communications Committee and a former editor of the WSCAI Journal. She is also a humor columnist for national website Above the Law.

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May 2019

Sun Mon Tue Wed Thu Fri Sat
1
  • Communications Comm Mtg
2
  • CA Day Committee Mtg
3
4
5
6
7
8
  • Board Meeting
9
  • Managers Only Meeting
10
11
  • Tri-Cities Educational Symposium
12
13
14
  • CAI Annual Conference (Orlando, FL)
15
  • CAI Annual Conference (Orlando, FL)
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16
  • CAI Annual Conference (Orlando, FL)
17
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  • CAI Annual Conference (Orlando, FL)
19
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