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Complete Home & Office Legal Guide
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Complete Home and Office Legal Guide (Chestnut) (1993).ISO
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1993-08-24
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528. Certain homeowners associations
(a) General rule. -- A homeowners association (as defined in
subsection (c)) shall be subject to taxation under this subtitle only to
the extent provided in this section. A homeowners association shall be
considered an organization exempt from income taxes for the purpose of
any law which refers to organizations exempt from income taxes.
(b) Tax imposed. -- A tax is hereby imposed for each taxable year on
the homeowners association taxable income of every homeowners
association. Such tax shall be equal to 30 percent of the homeowners
association taxable income.
(c) Homeowners association defined. -- For purposes of this section
--
(1) Homeowners association. -- The term "homeowners association"
means an organization which is a condominium management association or a
residential real estate management association if --
(A) such organization is organized and operated to provide for the
acquisition, construction, management, maintenance, and care of
association property,
(B) 60 percent or more of the gross income of such organization for
the taxable year consists solely of amount received as membership dues,
fees, or assessments from --
(i) owners of residential units in the case of a condominium
management association, or
(ii) owners of residences or residential lots in the case of a
residential real estate management association.
(C) 90 percent or more of the expenditures of the organization for
the taxable year are expenditures for the acquisition, construction,
management, maintenance, and care of association property,
(D) no part of the net earnings of such organization inures (other
than by acquiring, constructing, or providing management, maintenance,
and care of association property, and other than by a rebate of excess
membership dues, fees, or assessments) to the benefit of any private
shareholder or individual, and
(E) such organization elects (at such time and in such manner as the
Secretary by regulations prescribes) to have this section apply for the
taxable year.
(2) Condominium management association. -- The term "condominium
management association" means any organization meeting the requirement of
subparagraph (A) of paragraph (1) with respect to a condominium project
substantially all of the units of which are used by individuals for
residences.
(3) Residential real estate management association. -- The term
"residential real estate management association" means any organization
meeting the requirement of subparagraph (A) of paragraph (1) with respect
to a subdivision, development, or similar area substantially all the lots
or building of which may only be used by individuals for residences.
(4) Association property. -- The term "association property" means
--
(A) property held by the organization,
(B) property commonly held by the members of the organization,
(C) property within the organization privately held by the members
of the organization, and
(D) property owned by a governmental unit and used for the benefit
of residents of such unit.
(d) Homeowners association taxable income defined. --
(1) Taxable income defined. -- For purposes of this section, the
homeowners association taxable income of any organization for any taxable
year is an amount equal to the excess (if any) of --
(A) the gross income for the taxable year (excluding any exempt
function income), over
(B) the deductions allowed by this chapter which are directly
connected with the production of the gross income (excluding exempt
function income), computed with the modifications provided in paragraph
(2).
(2) Modifications. -- For purposes of this subsection --
(A) there shall be allowed a specific deduction of $100,
(B) no net operating loss deduction shall be allowed under section
172, and
(C) no deduction shall be allowed under part VIII of subchapter B
(relating to special deductions for corporations).
(3) Exempt function income. -- For purposes of this subsection, the
term "exempt function income" means any amount received as membership
dues, fees, or assessments form --
(A) owners of condominium housing units in the case of a condominium
management association, or
(B) owners of real property in the case of a residential real estate
management association.
531. Imposition of accumulated earnings tax
In addition to other taxes imposed by this chapter, there is hereby
imposed for each taxable year on the accumulated taxable income (as
defined in section 535) of each corporation described in section 532, an
accumulated earnings tax equal to 28 percent of the accumulated taxable
income.
532. Corporations subject to accumulated earnings tax
(a) General rule. -- The accumulated earnings tax imposed by section
531 shall apply to every corporation (other than those described in
subsection (b)) formed or availed of for the purpose of avoiding the
income tax with respect to its shareholders or the shareholders of any
other corporation, by permitting earnings and profits to accumulate
instead of being divided or distributed.
(b) Exceptions. -- The accumulated earnings tax imposed by section
531 shall not apply to --
(1) a personal holding company (as defined in section 542),
(2) a foreign personal holding company (as defined in section 552),
(3) a corporation exempt from tax under subchapter F (section 501
and following), or
(4) a passive foreign investment company (as defined in section
1296).
(c) Application determined without regard to number of shareholders.
-- The application of this part to a corporation shall be determined
without regard to the number of shareholders of such corporation.
533. Evidence of purpose to avoid income tax
(a) Unreasonable accumulation determinative of purpose. -- For
purposes of section 532, the fact that the earnings and profits of a
corporation are permitted to accumulate beyond the reasonable needs of
the business shall be determinative of the purpose to avoid the income
tax with respect to shareholders, unless the coreporation by the
preponderance of the evidence shall prove to the contrary.
(b) Holding or investment company. -- The fact that any corporation
is a mere holding or investment company shall be prima facie evidence of
the purpose to avoid the income tax with respect to shareholders.
534. Burden of proof
(a) General rule. -- In any proceeding before the Tax Court
involving a notice of deficiency based in whole or in part on the
allegation that all or any part of the earnings and profits have been
permitted to accumulate beyond the reasonable needs of the business, the
burden of proof with respect to such allegation shall --
(1) if notification has not been sent in accordance with subsection
(b), be on the Secretary, or
(2) if the taxpayer has submitted the statement described in
subsection (c), be on the Secretary with respect to the grounds set forth
in such statement in accordance with the provisions of such subsection.
(b) Notification by Secretary. -- Before mailing the notice of
deficiency referred to in subsection (a), the Secretary may send by
certified mail or registered mail a notification informing the taxpayer
that the proposed notice of deficiency includes an amount with respect to
the accumulated earnings tax imposed by section 531.
(c) Statement by taxpayer. -- Within such time (but not less than 30
days) after the mailing of the notification described in subsection (b)
as the Secretary may prescribe by regulations, the taxpayer may submit a
statement of the grounds (together with facts sufficient to show the
basis thereof) on which the taxpayer relies to establish that all or part
of the earnings and profits have not been permitted to accumulate beyond
the reasonable needs of the business.
(d) Jeopardy assessment. -- If pursuant to section 6861(a) a
jeopardy assessment is made before the mailing of the notice of
deficiency referred to in subsection (a