Nancy Briscoe, Vice President
Eastern Panhandle Organization of Homeowners’ Associations
P.O. Box 911
Charles Town, W. Va. 25414
RE: TAXABILITY OF COMMON AREAS IN COMMON INTEREST COMMUNITIES
UNDER THE UNIFORM COMMON INTEREST OWNERSHIP ACT
Legal Log No. 15-309ds
Dear Ms. Briscoe:
This is in response to your November 18, 2015 letter to the State Tax Commissioner concerning the possible misapplication of the Uniform Common Interest Ownership Act (UCIOA) by West Virginia assessors. In your letter you state that,
Currently, in opposition to the law, common areas are separately assessed and HOAs are required to pay tax yet a second time to privately maintain their common areas, including roads, sidewalks, flood plains, recreational facilities, and clubhouses.
You request that the Tax Commissioner “alert all WV county assessors to comply with the law.”
The State Tax Department has previously addressed this issue, in several ways. The tax treatment of the common areas of communities created under the UCIOA was the subject of a presentation at the County Assessors’ annual in-service training conference conducted by the State Tax Department in May 2012. The information presented to the assessors at the conference was congruent with the current law as you stated it in your letter.
To follow up this training, in July 2012 the Property Tax Division sent a Notice to all county assessors, memorializing the information that had been presented at the conference.
In addition, Publication TSD-318, placed on the Tax Department’s website earlier this year, provides a concise summary of current State law dealing with the taxation of homeowners’ associations and common interest communities:
[http://tax.wv.govTaxProfessionals/GuidanceAndPublications/PagesTaxProfessionalsGuidanceAndPublications.aspx] THIS LINK DOES NOT FUNCTION –
THE FOUND LINK IS: http://tax.wv.gov/Documents/TSD/tsd318.pdf
We invite you and your clients to review Publication TSD-318, and would be happy to entertain any suggestions you might have on how this publication could be improved.
LEGAL DIVISION, P.O. BOX 1005, CHARLESTON, wv 25324-1 005
TELEPHONE
FAX (304) 558-8728
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It was suggested in the information that you sent to the Tax Commissioner that the solution to the perceived problem of assessors’ failure to follow the law would be to apply to the circuit court for a writ of mandamus that would compel the errant assessor’s acquiescence.
In fact, a statutory remedy already exists under W. Va. Code § 11-3-24a: if any person believes that property is being improperly taxed , that person should first file a written protest with the Assessor. If the protest is denied, the property owner or taxpayer may then request, in writing, that the question be certified to the State Tax Commissioner for a ruling which will be binding on both parties. If either party is dissatisfied with the Tax Commissioner’s ruling , the question may then be appealed to the circuit court. The initial protest may be filed any time after the assessment date of July 1; the question should be certified to the State Tax Commissioner allowing sufficient time for the Commissioner to issue a ruling by February 28 of the tax year. The Tax Commissioner’s ruling may be appealed to the circuit court within thirty days after it is received .
In the past five years, the Tax Commissioner has received just four requests for rulings on the question of the taxability of common areas in common interest communities; none since 2011. We are, therefore, unaware that the problem is endemic among the fifty-five counties, as your letter suggests. However, as you requested, our Property Tax Division is sending a reminder to all county assessors, a copy of which is enclosed, and the Department will again address the issue at next spring’s County Assessor In-service training.
In the meantime, whenever you have specific information that any county is not following the law, please bring it to our attention, so that we may contact that county’s assessor directly with a reminder.
Sincerely yours,
/s/
David Stiles, staff attorney
Encl.: letters to county assessors November 30, 2015 and July 11, 2012 (scanned)
page 2 of 2
EPOHOA Correspondence to the WV Tax Commissioner
November 18, 2015
2 pages 368 KB