Printed from StreetEasy.com at 03:42 AM, Oct 26 2014
Talk » Sales » Discussing 'Co-Op Flip Tax'

Co-Op Flip Tax
SAVE    RSS

70 comments

I found an apartment that I am considering putting an offer on and discovered that there is a 20% flip tax (20% of the profit is due to the coop when the owner sells). That seems pretty obnoxious to me, though the selling broker states this is normal and is offset by a low maintenance. Is this normal or should it be a red flag to me? Thanks for your input.

Well include it in the negotiations, basically take that amount off from your bid or tell the seller to pay it.

I should have specified. The seller pays the "tax." It isn't a concern for me as far as an additional cost in buying the place, but when I would sell the apartment I would owe 20% of my profit.

Ignored comment. Unhide

This is not common arrangement. Perhaps it isn't unheard of (although in my experience I haven't come across this arrangement), but the FAR more common flip tax is 1-3% of sales price to be paid by seller to the coop at closing. 3% is on the very high side. 2% is quite common and should be considered 'tolerable.' 1% is a relative bargain.

Some buildings attempt to truly make it a flip oriented fee by decreasing the amount owed in direct relationship to the amount of time the seller owned the apartment; thus, a higher fee would be owed if the shareholder resells in the first two years, less in the first 5 years, dwindling down to nothing or much less by 10 years, etc. I'm not aware of any coops that take capital improvements into account and add that amount to the basis cost that the shareholder paid for the unit. This is understandable since bickering over what was spent and whether it was a capital improvement is not something any board would want to get involved with. Some buildings base the fee as a percentage of "profit" calculated by sale price minus shareholder's purchase price. There are variations on all these themes.

The most common arrangement is a flat %-age of sales price to be paid by seller. 20% of profit sounds awfully steep to me if you hold for the long run or in a bull market. For now, I guess that deal would be a bargain for a couple of years.

when the mkt was strong, the buyer would typically pay the flip tax (assuming it was the flat % of sale type). I would assume that now this has reversed, and the seller pays it. (I understand that technically the seller pays it, but during the bull mkt the buyer covered it). Is that true?

Sorry, printer. Strongly disagree. Even in the bull market, a seller attempting to push the flip tax onto the buyer was considered greedy and it was a kind of classless, potentially deal-busting move. Coops impose the fee on the seller in every case I'm aware of. If the seller tried to shift that to the buyer, there was usually blow-back and the seller almost invariably agreed to take on the fee. I'm sure there are exceptions, but as a rule, in any market, the fee is paid by the seller.

The flip tax calculated off the sale price will be insult added to injury for those who have to come out of pocket on the sale price. Writing one check to the bank and another check to the coop ought to be nice.

Ignored comment. Unhide

I have heard of 20% of profits once before. Ours is 3% of gross which is pretty obscene if you ask me. Maintenance hasn't gone up in 8 years though so I guess there's a tradeoff.

Is this an income-limited building? I've heard of a high percentage of profit flip tax in that context.

1) Not all flip taxes are legal, but people in general don't challenge the Coop Boards on them. To institute a flip tax solely by Board vote, it has to be specifically mentioned ("contemplated') in the offering plan. In addition, there are buildings which have flip taxes which violate the rule that Coops can only have one class of stock.

2) For Coops which have Flip taxes based on profit, 20% is not TOTALLY unusual. The problems with flip taxes based on profit are that a) to some they are non-existent and others they are egregious. If you have no profit, you pay zero, if you bought in 1992 and sold in 2008, a 20% of profit might start to look like 20% of total sales price; and b) how do you calculate profit? if you allow for deductions for improvements, there are too many ways to come up with inflated figures. If you don't, then you are essentially adding 20% on to anyone's renovation costs and discouraging people from improving or even maintaining their units.

3) The "cleanest" flip tax is a "dollar per share". All other forms run the risk of somehow creating multiple classes of stock. While this is a stretch for simple "percent of sales price" calculations, when buildings differentiate based on how long someone has held the unit, or any other criteria, they clearly run the risk of being deemed to have created multiple classes of stock because they are discriminating against certain shares as opposed to certain other shares.

4) "Flip taxes" were instituted with the idea that people who bought at insider prices (at least some of whom had left the building before conversion but were still "holding on" to get their bargain) and immediately sold or "flipped" their contracts/units at large profits. they were seen somewhat as interlopers an the buildings saw taking part of their profit as "fair". But then Coops got hooked/addicted to flip tax $ and kept them on to generate excess income. It's easy to get away with because you "get" people on their way out, and very few people focus on it while they are owning (especially since they are reaping the benefits while staying on and someone ELSE is paying the flip tax).

Personally, I am against flip taxes: if you need a certain amount of money to run your building, set your maintenance and assessments at the level which supports it. Flip tax income can bite any Coop in the ass, just like anyone addicted to anything: I am quite certain that this is the case for almost all the Coop in Cooperative Village down on Grand Street, and other ex-Mitchell-Lama Coops which went private and instituted huge flip taxes. You get used to the money coming in, and when sales slow down and/or prices come down, you "fix" isn't around any more and you find yourself in a financial bind, usually at the worst of times.

When financing gets tight, banks in the past have deducted the amount of the flip tax from what they were willing to lend (if you "need" 20% equity to "protect" the bank, if the bank has to foreclose and re-sell they will have to pay the flip tax, so they need that much more equity for the same amount of "protection").

Ignored comment. Unhide

30_yrs wrote: 1) Not all flip taxes are legal, but people in general don't challenge the Coop Boards on them. To institute a flip tax solely by Board vote, it has to be specifically mentioned ("contemplated') in the offering plan.

I've never heard that before. Can you point me toward a source?

Flip tax must be in the bylaws.

I wonder if that "20% of profit" would include being reimbursed for "20% of loss." In theory, it should be.

Ignored comment. Unhide

stevejhx: same question to you: what is source for the claim that flip tax must be in bylaws?

My last coop sought legal counsel on issue and decision was bylaws allowed board to impose flip tax without shareholder vote. Decision was based not on an explicit grant of power to board for a flip tax and indeed there was no explicit mention of such a fee in the bylaws. Decision board had the power was based instead on a combination of catch-all provisions in the bylaws and silence on the point in other sections.

I'm curious is 30 yrs or stevejhx can point me toward a source addressing what bylaws are required to say if board is to have authority to impose the fee without a vote.

Ignored comment. Unhide

That sounds like an income-restricted building. And, the whole idea of "profit" is extremely lame- you have to keep receipts for everything over the years to adjust your cost basis? That's crazy!
My building is going to vote on a flip-tax in our next meeting, but it's going to be based on shares, which makes sense. I can see the argument for a tax based on sales price, too. But combining the words "20%" and "profit" into the same sentence seems like something is wrong with that building.

If you are not keeping your receipts to calculate your cost basis, you are asking for trouble. The capital gain deduction on the sale of a residence is limited, exists at the whim of congress, and has changed from time to time even over the past decade. It also applies only if you have lived in the residence for 24 of the preceeding 60 months. You have no idea today what the circumstances or tax laws will be when you sell next year or in ten years, so keep those receipts.

"In virtually all cases, Mr. Cholst said, imposing a flip tax requires amending the proprietary lease. Doing that, he said, generally requires the consent of two-thirds to three-quarters of the shareholders."

http://www.nytimes.com/2003/04/13/realestate/your-home-imposing-flip-taxes-in-a-co-op.html

"A SETBACK: The FeBland Case
In December, 1985, a crucial flip tax case, Febland v. Two Trees Management Co., ultimately helped to set the stage for today's common use of the flip tax. When Mr. FeBland challenged his building’s flip tax, the Court upheld his position, determining that the board could institute a flip tax only if this power was specifically stated in the proprietary lease; however, if that flip tax wasn’t not perfectly proportional, each shareholder would most likely be treated in a different manner. The court ruled that by not treating all shareholders equally, the flip tax in question violated a basic concept of New York Business Corporate Law (the BCL). "

http://www.cnyc.coop/code/newsletters/2002autumn/aut02_008fliptaxes.html

Thank you all for your comments. Some info based on your questions:

No the building is not income restrictive. The building set up this "tax" as a way to discourage people from buying and selling quickly so that the building has relatively stable occupants.

Yes the percentage is 20% not 2.0%.

I am really a bit hesitant as I think this is a bit obscene. I do admit the maintenance is lower than most coops in the area and the fee includes all utilities and it is a doorman building.

I hadn't considered how the cost of renovations in affected by the flip tax. Thanks for pointing that out.

if the price is right and you are fairly sure that you will be in the apartment for the long haul, it sounds like it would be worth it. having low maintenance that already includes utilities is a huge plus.

let's say that your maintenance is $200 less than typical and the electric bill is average of $100 per month, you'll be saving $3600 per year. after 10 yrs, it adds up.

not sure if 20% is before or after costs. say you buy for 1,000,000 and sell for 1,200,000(almost 4% annual increase) in five years, your 200,000 profit would be reduced by the following estimates:
sell
broker 6% 72
lawyers 3
bldg fees 2
filing fees 1
nys,nyc transfer taxes 21

BUY
attorneys including bank 3
filing fees 1
bldg fees 2
mansion tax 10
bank fees 1

sub total before flip 116

if condo mtge tax on 800000 22

sub before flip 138

net gain before flip 62

if flip on gross gain 40

if flip on net gain 13

pretty eye opening when you put in numbers!

orpheus12 - obviously I don't know for sure, but I would tend to think that the coop with this policy is looking to get 20% of the $200,000 - simplest, and most lucrative calculation for them. And it would also be important to know, ahead of time, if improvements/renovations are factored into owner's base cost.

having utilities included is not such a big deal - many buildings have that (which also leads to wasteful use of electricity)

"The building set up this "tax" as a way to discourage people from buying and selling quickly so that the building has relatively stable occupants."

The fee you describe does not achieve the above-stated goal. It is counter-productive to the goal. Under the arrangement you describe, a short-term shareholder selling after, say, 6-12 months, would quite possibly have 0% profit on the sale. A shareholder in the building for 20 years, on the other hand, would be killed by the fee. Granted, someone buying an estate sale and reno'ing the place and immediately selling it would pay the 20% fee and the stated purpose of the board in instituting the fee would be achieved, but this "solution" catches more dophins than tuna in the tuna net it would seem. It is a rather sloppy way of discouraging short-term holding and encouraging long-term stability. Basically, every long term holder would be hit by the fee--how does this encourage long term holding?

If this is truly what board intended, it says to me the board doesn't really think things through in a very sophisticated way and the coop is one I'd likely not be happy in if this is how it is run. If you really want to discourage short term owners, then you have a fee that gets reduced as time passes and eventually dwindles to nothing--you don't impose a fee that INCREASES over the time one holds the unit.

I just moved out of a coop with a flip tax that's 10% of profit - only the legal and broker costs of buying and selling subtracted. As I had been there 18 years, I did well - and so did they - the building got a new elevator out of it. In the 18 years we never had an assessment, kept the maintenance low, and did nice things like a beautiful roof deck - all capital expenses came from flip tax money. Someone else who sold at the same time as me had no profit and paid no flip. If you intend to live in the building a long time, I think the benefits outweigh the cost.

"I've never heard that before. Can you point me toward a source? "
"I'm curious is 30 yrs or stevejhx can point me toward a source addressing what bylaws are required to say if board is to have authority to impose the fee without a vote."

The first big case on flip taxes (which we really should be referring to as "transfer fees" because that is the legal phrase you'll find used) was Febland v. Two Trees Management Co in 1985. The court ruled that (basically) you could only have "dollar per share" flip taxes under NY BCL which required only one class of stock and that charging based on anything else would create 2 classes of stock (also see 330 West End Apartment Corporation vs. Kelly.). However, this turned the Coop world on it's head since many (?most?) flip taxes were not done this way. The NYS Legislature was quick to react to the ruling and passed amended the Section 501 (c) of the Business Corporation Law by enacting the Chapter 598 of the Laws of 1986. The amendment authorized the corporations to charge the flip tax not only on the basis of a per share but also on the basis of other methodologies used by cooperative corporations, but "only if the cooperative's maintenance charges, general assessments pursuant to a proprietary lease, and voting, liquidation or other distribution rights are substantially equal per share".

("With respect to corporations owning or leasing residential premises and operating the same on a cooperative basis, however, provided that maintenance charges, general assessments pursuant to a proprietary lease, and voting, liquidation or other distribution rights are substantially equal per share, shares of the same class shall not be considered unequal because of variations in fees or charges payable to the corporation upon sale or transfer of shares and appurtenant proprietary leases *********that are provided for in proprietary leases*******, occupancy agreements or offering plans or properly approved amendments to the foregoing instruments.").

However, in 2008, there was a ruling which threw a bit of a monkey wrench into the mix: Andrew Weigel vs. 30 West 15th Street Owners Corp. The judge ruled that "the cooperative … was allowed to impose the transfer tax by properly amending its bylaws as there was nothing in the proprietary lease or offering plan which prohibited the imposition of a transfer tax or was inconsistent with the imposition of a transfer tax.". this really flew in the face of both prior ruling and what most Coop Attorney had accepted as what the law was. now, as far as I know, FeBland is still the controlling case since it went all the way thru Appeals, whereas I don't think Weigel did. A number of other cases seem to be odd or misinterpretations of the new law, notably Quirin vs 123 Apartments Corp., Zilberfein vs Palmer Terrace Co-op Inc. and Mogulescu, et al. vs 255 West 98th Street Owners Corp..

There is a lot of disagreement about all of those cases in the legal community, so it's not really possible for me to spell out (i.e. I'm being lazy). But I hope I've given enough info to lead you where you want to go to investigate your questions (or ask some more and I'll see if i can answer)

30yrs: from your overview, it does seem the laws on what transfer fees are allowable are somewhat muddled and the state of things as fluid as whatever the most recent case is. I think, as usual, Stevejhx does a disservice in making statements that don't reflect the grayness of the law in practice, and instead he attempts to distill and state a hard and fast rule from the muddy area despite the reality of how it all plays out.

Litigation over the fee is extremely rare and the likelihood a building will be challenged is low since the cost of suing the coop by a seller would likely exceed any fee owned or at the very least drag on so long it wouldn't be worth it.

For most people entering a coop, you know what you are getting and if the fee is not acceptable you don't buy there. For those living in a coop that imposes the fee or changes what it is, it is hard to imagine a situation that would make it worth it to fight the coop in the courts.

Bottom line: coop board can do whatever the heck it wants in terms of transfer fees, notwithstanding the typically flawed legal opinions of Stevejhx in terms of how things operate in practice.

"Litigation over the fee is extremely rare and the likelihood a building will be challenged is low since the cost of suing the coop by a seller would likely exceed any fee owned or at the very least drag on so long it wouldn't be worth it."

I can tell you from personal experience this is correct. Not only have there been several cases where I bought and sold Coops where it was pretty damn clear that the sale was exempt from flip taxes, but it wasn't worth the risk and cost to sue, but I know of lots (100's?) where foreclosing banks were DOUBLE CHARGED flip taxes because the Coops wanted to cal it 2 sales - 1 to the bank and one to the eventual buyer - and even the banks didn't want to litigate over it.

However, I would still caution Coop boards to do things the "right way" because you never know when enough sales get done and a group of ex-shareholders gets together and gets some attorney who has no other workload to take the case on contingency and all of a sudden you've got a million dollar case, which is more than worth it for some above noted attorney to work on. In addition, unless it's one specifically carved out in the 1986 amendment to the BCL , I'd still avoid anything which looked like it was creating difference classes of stock (like your situation with different flip taxes depending on how long you are in the building).

30yrs wrote:" I would still caution Coop boards to do things the "right way" ..."

Absolutely. The problem here is determining what "the right way" is. As I described above, my former coop got legal counsel to provide an opinion which in the end was that certain by law and proprietary lease provisions essentially reserved to the board through catch-all clauses certain powers upon which the documents were silent--including the imposition of a flip tax without shareholder approval. In the coop's view (and the view of most shareholders, fwiw) the imposition of the fee was proper and soundly based upon legal counsel and therefore imposed by doing things "the right way."

A plaintiff's attorney may well have come to a different conclusion. And a court may have come to a third opinion. Reality of many legal areas is that there is room for interpretation so doing things "the right way" isn't so easily defined. Certainly obtaining legal opinion from counsel before acting is very wise and insurance policies may actually require a board to do so in some situations in order for the coverage to apply should something go wrong.

So long as flip taxes remain within the realm of reasonableness in terms of the how equitably they are imposed and how large a bite they take, I personally believe they are preferable to raising maintenance (a true value-killer in terms of apartment resales) or special assessments. They are imposed at a time that out of the three (maint, assessm'ts, flip tax) the transfer fee hurts the least and the benefit to the greater coop community is tremendous.

I have never found that a flat fee of 2% or less to be paid by a seller has ever deterred a serious buyer from going ahead with a purchase out of concern that in the future s/he would have to pay such a fee upon resale. On the other hand, I've seen plenty of people walk upon seeing above-average maintenance fees or a nasty history of costly and regularly imposed special assessments.

Money has to come from somewhere. Flip tax/transfer fee seems as good or better a place as any.

Flip taxes are just another way of saying "fuck you" to departing co-op owners.

The dollars are used for the same thing as maintenance and assessments, maintenance and fixing the building etc. It is just a way to overcharge one co-op owner for what all should be paying for.

The good news is all of those co-ops that depended on flip taxes are going to be screwed, big-time, as the volume and value of transactions have plummeted. Look for above average maintenance increases to come in those buildings. They deserve it for overcharging departing co-op owners.

Even better is 30 years scenario, where some bad ass lawyer starts suing boards for refunds, then they are doubly screwed.

Kylewest, your lawyer was wrong, the court case was clear, you needed a vote to implement a flip tax.

While I understand what you are saying about raising mtc vs transfer fees, let me propose an alternate situation (and one which is occurring right now in more than a handful of Coops). instead of raising the mtc at 2% per year every year, a Coop imposes a flip tax which due to high sales volume brings it the same amount of money so they don't raise the mtc at all for 10 years. then, due to market conditions, both sales volume and numbers fall precipitously and flip tax $ fall to near zero for 2 years. The Coop must now raise mtc 15 to 20% to make up for the flip taxes it no longer collects and the mtc increased it forewent because it was picking up so much income from flip taxes. Now which Coop looks more solid to buyers? the units end up with the same mtc, but in one case it was a steady increase at 2% a year and in another it was flip taxes and then a huge 20% increase in one year. That's teh problem with relying on flip taxes for operating expenses: they are no steady income stream and you never know what you are actually going to receive. As i said before, Coops tend to get addicted to them and then going cold turkey can have the usual effects of doing so on any "drug". So i would caution that if you're going to impose flip taxes, use them for capital improvements rather than operating budget, because you can always either forestall the capital work or charge an assessment ( which is sort of like a flip tax to all shareholders at the same time).

As I think I said in another discussion a while back, I'd love to sit in on the Board meetings at the Coops in Cooperative Village where you have a) a strong need for capital improvements in several buildings, b) artificially low mtc as a holdover from being Mitchell-Lama taken private, c) a large group of shareholders who really don't have the ability to deal with EITHER increased mtc or assessments, d) a history of spending large $ buying units rather than letting them trade to outsiders, e) a HUGE drop in sales volume and thus transfer fees, which were HUGE in terms of percentage of transaction $.

modern, I've no idea why it is, in your view, "good news" that any coop would now "be screwed." Why wish difficulties on anyone? Kind of odd approach to life. Why so angry?

30yrs: I hear what you are saying. But a prudent coop may set aside a percentage of all flip taxes to the reserve fund and use the remainder for capital expenses. Depending upon a variable source of income for operating expenses seems irresponsible. I

It strikes me that since virtually no one looking at coops walks away from a coop purchase because of a <2% flip tax, the coop is throwing money away by not imposing one. Of course, prudent fiscal decisions need to be made with the money raised. Using the money for operating expenses when the source is variable and can go from feast-to-famine in a year seems silly and a poor way to run a coop. The boards I am familiar with use the fees for capital improvements and beefing up reserve funds essentially in lieu of special assessments or at least to minimize special assessments. It seems a very reasonable approach to me.

Ignored comment. Unhide

I think flip taxes are evil, that is why it is good news if co-ops have to stop using them.

Anyway you look at it, it is taking shared building costs and dumping them on departing sellers (including some selling at a loss who still have to pay). Fuck 'em, right?

modern, you view this in a very narrow way. The seller you refer to benefitted, potentially for many many years, from lower maintenance and fewer/lower special assessments as a result of the coop using flip taxes to finance capital expenses, and/or to build reserves for a rainy day among other things. By doing so, the board not only kept out of pocket expenses of all shareholders lower, but also enhanced everyone's property values since low maint and few special assessments attract buyers whereas a reasonable flip tax has not been shown to negatively impact values in any discernible way. Thus anyone selling ostensibly is going to get a higher price for the unit as a result of a prudently imposed and utilized transfer fee.

Having thus benefited from the transfer fee as much as any other resident while living there, it seems unfair to complain of the fee only when the benefit is to no longer be enjoyed. It's childish. It is like the 4 year old who happy enjoys the toys of other children who are willing to share them but suddenly finds it offensive when asked to share his own toys. The seller you refer to who may be underwater and unhappy about not extracting every cent possible from a sale; nevertheless, she benefited from the transfer fee and it is now simply time to pay the piper--there's no surprise or anything underhanded. What's fair is fair. It isn't like the board used the money to buy a new fleet of BMWs for themselves.

Other arrangements may be preferable to someone like yourself, but that doesn't make one "evil" as you say and another heavenly. They are simply variations on how to run a coop and many reasoned approaches exist without any one being the right one. I'm sorry for you for whatever happened to you or whatever difficult circumstances you find yourself in now, but you have not laid out any cogent explanation of why a flip tax is inherently unfair.

I have never paid a flip tax, my objection is by its very nature it distributes building costs unevenly among shareholders. I don't think that is fair, you do. Difference of opinion.

Overall building costs are the same with or without a flip tax. I think what you are saying is that buyers are stupid and don't realize low maintenance buildings may overcharge them when they sell with a flip tax, so that overall cost of maintenance is not as low as they thought. So they paid more for a building where their overall cost of maintenance is the same as a lower cost building, since the buyers are math-challenged.

"30yrs, I'm not aware of your point d) ... do you mean the coop itself paid cash for market units, ala condo first-refusal rights? If so, why?"

Down in Cooperative Village, many of the Coops have been buying units they thought were being sold even slightly below market. They have BOTH the usual Coop right to approve a sale AND Right of First Refusal. Many times it was because of an overinflated "ego" about what units "should" be selling for in the building.

What do they do with the units they buy?

Ignored comment. Unhide

There are actually relatively few Coops which make up Cooperative Village:
Amalgamated
Hillman
Seward Park
East River

Each of these is made up of several buildings (although I'd argue Amalgamated isn't really. Amalgamated is also the most different in terms of a lot of things: year built, architecture, height, flip tax and other policies, went straight o full market pricing after going private instead of interim price caps ), so you've got about 4500 units altogether.

Ignored comment. Unhide

Threads like this are what I come to Streeteasy for. Answered question I had and took it to next level and beyond.

Comment removed.

It's a shame that so much of the nonsense on these boards chased 30 Yrs. off, though he answers the bat-signal when we need him.

ali r.

"Threads like this are what I come to Streeteasy for. Answered question I had and took it to next level and beyond. "

I was thinking the same thing, and was then a little disappointed to see that all those informative replies came from the 2-years-ago portion of the discussion. Makes me want to load up Page 500 of the talk archives and just browse around and see what else everyone was talking about back then.

I have found a wealth of information in these old discussions through the "search" function. It seems like the the experts really enjoyed high level discussions with each other in the earlier days of the site, and I am thankful that SE has the archives and the search feature. So great for a novice like myself to be able to read this genuine back and forth among experts. I would love SE to put together a "greatest hits" section of the "talk archives." That alone is worth the $10/month for whatever period of time non-experts such as myself are focused on doing their own research.

Ignored comment. Unhide
Ignored comment. Unhide
Comment removed.
Ignored comment. Unhide
Comment removed.
Ignored comment. Unhide
Comment removed.
Ignored comment. Unhide
Comment removed.
Ignored comment. Unhide
Comment removed.
Ignored comment. Unhide
Comment removed.
Comment removed.
Ignored comment. Unhide
Ignored comment. Unhide
Comment removed.
Ignored comment. Unhide
Comment removed.
Comment removed.

It would seem that it is mostly the greyed out posters (and a very few others) who think they "have a lot to offer".

And as has been often pointed out, anyone who wishes to see what the greys post can simply "ungrey" them.

Comment removed.
70 comments

Add your comment

 

Categories:

Rentals (2,735)
Market (1,456)
Neighborhoods (570)
Boards (264)
Renovation (1,750)
Anything (2,348)
Sales (22,886)
Developments (578)
Financing (479)
Schools (102)
Brokers (346)
Services (477)