You may or may not have heard that the IRS has asked The Villages to pay back about $355 million in loans it has received through the use of tax free bonds (a.k.a CDD’s…if you own my book you know what I’m talking about…there is a whole chapter devoted to this topic) to pay for the development and construction of just about everything in The Villages.
Golf courses, town centers, recreation facilities, and more were all built using this money. About the only thing the money wasn’t used for is to build the homes that are in The Villages. In addition the IRS wants nearly $3 million in back taxes.
While this type of arrangement is perfectly legal under Florida’s Special Districts laws (there are more than 500 other special districts in Florida), the IRS is challenging the legality of how closely the special districts are controlled.
While it’s still too early to tell how this will all play out and what will happen, you can follow the latest developments made by OVDP lawyers right here by following the links to various articles and forum threads about this topic.
Timeline and articles about this topic:
The Villages Homeowner’s Association (VHA) and The Villages Daily Sun proclaim “District Prevails in IRS Finding”, and “Analysis of IRS appraisal vindicates developer, district” …
But the Property Owner’s Association (POA) says “not so fast”.
Wait, huh? Here’s what’s going on.
According to the POA, the IRS specifically is looking at three things:
1. Is the VCCDD, the Issuer of the Bonds under investigation, a qualified issuer of tax exempt bonds?
2. Did the Series 2003 facilities acquisition price reflect the fair market value of the assets? (Basically did the district pay a fair price for the facilities or did they overpay.)
3. Were the Bond proceeds used for an essential governmental function or do the nature of the facilities acquired with the Bonds result in private business use, and hence are these Bonds Private Activity Bonds?
So what brought on the headlines proclaiming victory?
The IRS submitted its Appraisal Reviews with Opinion of Value for the above, and the tax attorney for the District completed an analysis of same which shows that the value the IRS places on the properties (Item #2 above) exceeds what the District actually paid for the facilities.
(You can download a copy of these documents from the IRS Appraiser and the District’s attorney here.)
Which sounds like a win, but as we are reminded by the POA above, this is only 1/3 of the equation.
Unfortunately, I don’t think the results of this analysis is reason enough to break out the champagne and cigars just yet.
IRS preliminary ruling: Villages government not legitimate under tax codes (Part 1 of 2)
Villages government plays waiting game in IRS dispute over bonds (Part 2 of 2)
Recently representatives the IRS Tax Exempt Bond Enforcement Division advised that the IRS is inclined to take the position that a special district is not a political subdivision for purposes of Section 103(a) of the Internal Revenue Service 1986, a determination that could potentially be troublesome for the Village Center Community Development District (VCCDD) should the IRS stick to that position.
After learning this, a meeting was held between VCCDD reps and IRS reps, which resulted in the VCCDD being requested to prepare further analysis of Florida Statute Chapter 190, applicable case law, and information pertaining to the hundreds of Special Districts that have issued tax exempt bonds in the State of Florida in addition to Special Districts throughout the country… which is pretty much what they’ve been doing for the last several months.
One bright spot for VCCDD though came in the form of a letter that the National Association of Bond Lawyers sent to the IRS, stating that taking such a position “could substantially undermine the market for Special District bonds, a long-standing form of financing utilized by a wide range of issuers in many States.
The Villages developer Gary Morse is taking this fight to D.C., as he recently hired Washington lobby shop Cardenas Partners. The firm’s head Al Cardenas, is a former chairman of the Florida Republican Party and current chairman of the American Conservative Union. He also advised Mitt Romney’s campaign this year, as well as in 2008, so one can assume Morse knows him well enough to trust his help in this matter.
According to Muckety.com and a Cardenas Partners’ filing with the Senate, Morse will pay Cardenas to represent him on tax issues, and lists The Villages’ areas of concern as “Community Development Districts and IRS interpretations.”
The District issued an IRS update in July stating that they recently supplied the IRS’ Area Counsel updated responses and information at the end of June and beginning of July.
You can read the full response here: http://districtgov.org/images/IRSupdates/20120718_165420.pdf
The most important thing to note is the Florida State Attorney’s office seems to have thrown their support behind the District by issuing an opinion that the Center District, just like all other CDD’s, should be treated as a political subdivision under Florida law.
The IRS contends that the Center District should not be treated as a political subdivision for federal tax purposes. The Center District and the IRS also remain at odds over the valuation of the properties purchased with the bonds.
Bloomberg publishes an article about Gary Morse – Much of the article focuses on the IRS investigation of the tax-exempt bonds Morse used to build much of The Villages.
Florida Governor Rick Scott Launches Probe to Examine Special Taxing Districts
The most recent technical review from the IRS contained what the Center District calls “significant flaws” which will result in more discussion.
The Villages has sent the IRS another “Request for Technical Advice”. You can read the 21-page letter, which gives some great background information as to ownership and operation of The Villages, on the District website at: http://districtgov.org/images/IRSupdates/20110614%20-%20IRS%20Update.pdf
Last year, the District sent the IRS a request for a “Technical Advice Memorandum” (TAM) to spell out the facts of the case (as the IRS sees it). We know that since that time, a new IRS agent has taken over the case, so this may be one reason why it has taken so long to receive a response.
The current agent did finally respond to the District’s TAM in March. But according to officials representing the District, the TAM from the IRS was “full of misinformation” and contained facts and statements that had nothing to do with the issues at the center of the dispute.
In early April the attorney for the District sent the IRS a letter outlining the mis-stated facts and asking for the IRS to consider dropping their inquiry.
You can read a more in-depth article on these most recent developments in the May edition of the POA Bulletin at: http://www.poa4us.org/bulletins_files/bulletin201105.pdf
The proposed IRS settlement was ignored/rejected and led to complaints about the agent working the case. The agent in turn accused The Villages of trying to intimidate him and hinder his investigation.
The original agent assigned to the case has been promoted. A new agent out of the Charlotte, NC field office was assigned to the case, and after less than 6 months working the case has also been promoted.
“Villages CDDs Get Proposed IRS Settlement – TopRetirements.com June 2, 2009
“What Ifs” for The Villages in IRS Fight – Orlando Sentinel Commentary May 31, 2009
Pay off $355 million, IRS tells The Villages – Orlando Sentinel May 30, 2009
What’s worse for The Villages – the IRS or the media? – Orlando Sentinel Commentary May 30, 2009
Bond Issue Today $355 Million Due
The Villages and The IRS
The Villages Under IRS Investigation – Leisureville USA September 11, 2008
Photo Credit: jdanvers on flickr