68. Our HOA received notice for delinquent tax owed by the developer on our common area and we were told if it wasn’t paid our common area would be sold at a tax auction – can our common area really be sold because of delinquent tax?

Reference WV Code §36B-1-105 Separate titles and taxation.
(c) Any portion of the common elements for which the declarant has reserved any development right must be separately taxed and assessed against the declarant, and the declarant alone is liable for payment of those taxes.

Contact your county assessor for a resolution to the issue. If that fails, you will most likely need to retain legal counsel – to avoid obvious conflict of interest do not to use the same law firm as the developer/declarant. The burden of proof is typically on the challenger, in this case the HOA – research and gather all relative documentation. In some cases HOAs have paid the tax to prevent the auction tax sale. Do not give up.

Also review: Taxation of Homeowners’ Associations & Common Interest Communities TSD-318

TIP: Each county recording office is a gold mine of archived facts. We suggest your HOA build a paper-trail timeline demonstrating events prior to, during and after receipt of the tax invoice. Retain duplicate copies of documentation and maintain a log of the HOA’s time & dates expended for research with the name & contact information of those assisting the HOA’s efforts. IMPORTANT:  pass records onto new board members – transparency is key to success.

Attorney for WV State Tax Commissioner, Office of Tax Appeals
1012 Kanawha Blvd. E., Suite 300
Charleston, WV 25301
Tel.: (304) 558-1666
Fax: (304) 558-1670
Email: wvota@wv.gov