Maui Ocean Club Back Taxes

[MikeM132]

Anybody have any idea of liability for the back tax issue in the recent report from MOC? I am wondering specifically about liability for those of us who did not own MOC for the years Hawaii is claiming were underpaid. I don't feel recent owners should pay for taxes not paid in prior years, but you never know with real estate or Marriott. If this were happening here, I believe MOC's accounting firm would be sued and the taxes paid out of their "errors and omissions" insurance.

 

[MOXJO7282]

Did you just receive some type of correspondence on this? This is the first I'm hearing of this. Please provide more info if possible.

 

[sdtugger]

I received the annual GM letter with the accounting statements in it yesterday. The letter discloses that the HI tax authorities audited MOC and levied penalties and interest as well as demanding taxes for prior years. The most troubling part of the letter is the part that says that Marriott has been paying for the defense of the audit and the back taxes. But, the board of directors recently hired their own attorneys. That doesn't sound good. The bottom line appears to be that Marriott has paid one type of back tax already (presumably including the penalties and interest). However, the other type of back tax has been appealed. Not sure why the Board felt the need for its own attorneys at this point. Let's hope that either we win the appeal or Marriott agrees to cover the costs. I was not an owner for the years in question. But, I can't imagine how they'd try to chase down the owners for those years now.

 

[Dave M]

But, I can't imagine how they'd try to chase down the owners for those years now.

They wouldn't even if they could. Just like your personal residence, real estate taxes attach to the property. If the property is sold, the new owner becomes responsible for the all taxes - both current and delinquent. In this case, the HOA is responsible, unless Marriott pays some of it, and whatever costs the HOA incurs get divided up among all current owners.

 

[MikeM132]

Dave; these did not sound like real estate taxes. It sounds (from the letter) like some kind of business profit tax. The real estate tax is apparently not in question.

 

[Dave M]

There is no way a prior owner can be held accountable. Thus, even though my details might have been a bit off, my answer is the same. Current owners pay, if Marriott doesn't.

 

[Lawlar]

Sue Marriott and HOA

They wouldn't even if they could. Just like your personal residence, real estate taxes attach to the property. If the property is sold, the new owner becomes responsible for the all taxes - both current and delinquent. In this case, the HOA is responsible, unless Marriott pays some of it, and whatever costs the HOA incurs get divided up among all current owners.

I would argue that Marriott and the Board are negligent for failng to pay the correct amount of taxes and collecting it from the prior owners. If they can't collect from prior owners then the new owners shouldn't be penalized for the failure of Marriott to do what it was supposed to do.

I also question why Marriott didn't disclose this possible liability to new buyers.

[I hope this is a small amount in controversy.]

 

[Dave M]

The Board is responsible for accuracy, unless it can be proven that Marriott is responsible. Boards make mistakes sometimes just like we do. And it might well be that there was an honest difference of opinion as to how much was owed. That's common with many tax matters. That still comes back to the current owners, unless there was clear negligence.

 

[Lawlar]

Create a Reserve?

The Board is responsible for accuracy, unless it can be proven that Marriott is responsible. Boards make mistakes sometimes just like we do. And it might well be that there was an honest difference of opinion as to how much was owed. That's common with many tax matters. That still comes back to the current owners, unless there was clear negligence.

If the Board believed there was a possibility that additional taxes might be owed, shouldn't the Board have collected the taxes from the owners and held those monies in a trust fund until the dispute was resolved?

Doesn't Marriott have a duty to inform prospective purchasers that there might be an additional tax to pay because of a pending tax challenge?

 

[taffy19]

I would argue that Marriott and the Board are negligent for failng to pay the correct amount of taxes and collecting it from the prior owners. If they can't collect from prior owners then the new owners shouldn't be penalized for the failure of Marriott to do what it was supposed to do.

I also question why Marriott didn't disclose this possible liability to new buyers.

[I hope this is a small amount in controversy.]

Nothing is small once attorneys are involved but I blame the HDOT here and not the Marriott. It is clear to me that the State of Hawaii doesn't like the timeshare developers on Maui or any other island as they are taxing us double already in Maui and now in Kauai too. We should all stay home one year and see what it does to their economy and they may treat us better after that when we come back again.

Hawaii needs the tourist so why are they treating us so poorly? They do it because we have no vote so they can and timeshare people have to come back because we have our "investment" (money) there with our timeshare purchase. I hope the Marriott will win the appeal but I doubt it. Government always wants more money and they will get it no matter what. They will find a reason!


For anyone who is interested, here is the copied text from the letter. Lots of positive news too in this letter.

As your Management Company, we would like to inform you that the state of Hawaii is currently auditing Maui Ocean Club Vacations Owners Association (the "Association"). In connection with this audit and with the consent of the Association Board of Directors (the "Board"), we have been working with the Hawaii Department of Taxation ("HDOT") in providing information to HDOT on behalf of the Association.​

HDOT has challenged both the General Excise Taxes ("GET") paid by the Association for the years 2004, 2005 and 2006 and the Net Income Taxes ("NIT") paid by the Association for 2006, and has levied additional GET and NIT against the Association for those respective periods, as well as penalties and interest. The method for calculating the tax has remained the same since the formation of the Association. The accounting procedure was established after consultation with the State and a Certified Public Accountant specializing in taxes at the time of inception. The Board strongly disagrees with the current administration's interpretation of the law and its application.​

To date, Marriott has paid for all legal and other expenses (both internal and external) associated with the HDOT's audit of the Association, and have also paid the NIT assessments levied against the Association, with the Board's consent. At present, all GET assessments against the Association have been appealed to the Hawaii Tax Appeal Court (the "Appeals").​

In order to avoid any potential real or perceived conflict of interest between Marriott and the Association, the Board has recently been advised, and has engaged separate legal counsel for the Association to proceed with the Appeals. Notwithstanding this, Marriott will continue to work with the Board in an effort to limit the impact of the assessments to the Association.​

A question for Dave. How can timeshare owners of the Lahaina tower be responsible for these fees if the tower wasn't even built yet during the years of the dispute? I believe the tower opened in June 2007. Imagine if the Napili tower owners would be lumped in to this dispute too and have to pay also? The tower isn't even open yet! I wonder if they will end up with the same association board too?

Can they really make us pay fees that incurred in 2004/5 and 6 when we didn't existed? We pay higher association fees too but there is a full kitchen so that is fair or justified. We have no idea how much the fees will be as they didn't mention that.

 

[GaryDouglas]

How bad is bad?

So, what is the magnitude of the dispute?

 

[GaryDouglas]

Some answers...

...Marriott .... have also paid the NIT assessments levied against the Association...

Although I didn't get the dollar amount, I have found out that this means that besides paying the tax, it also means it stopped the interest and penalties from accruing while the case is litigated, which may be final in the 3rd quarter of 2009. Marriott currently does not anticipate any special assessments to the owners.