Q&A: To Flip, or Not to Flip the Tax

Q Our 60-unit, self-managed co-op changed its bylaws about ten years ago to allow parents to sublet from their children and vice versa. The bylaws were changed with the condition that the flip tax would continue with any transfer of the apartment. The owners are claiming there is no change in ownership or tax status since the apartment is staying in the hands of a member of the same family. Is this legal and should we continue to require a flip tax transfer for the subtenants even if they are related? Any advice would be most appreciated.

—Brooklyn Shareholder

A According to John Van Der Tuin, a partner at Balber Pickard Battistoni Maldonado & Van Der Tuin, PC in Manhattan, “Your question touches upon both “sublets” between generations, and upon “transfers” subject to a “flip tax.” As with most such issues, the specific terms of your cooperative’s bylaws and proprietary lease

pertaining to subletting and to transfer taxes must be consulted to provide an answer.

“In general, a “flip tax” or “transfer tax” refers to a fee that is imposed upon the transfer of shares and assignment of the proprietary lease of the cooperative corporation, rather than upon a subleasing of the apartment. The transfer tax must be set forth in the proprietary lease and should also be set forth in the bylaws of the corporation. It would not generally be thought of as applicable to a sublease, although a cooperative could also provide in its proprietary lease for a fee to be charged as a condition of subleasing of an apartment. If your cooperative permits subleases by parent-owners to children or by

children-owners to parents, without requiring review and approval by the cooperative board, this permission would not, in and of itself, also then permit an assignment of shares and proprietary lease from parent to children, or vice versa, without payment of any transfer tax. To determine whether a transfer tax is due, you must look at the lease and bylaw provisions that impose the transfer tax to determine whether any categories of transfers, such as parent-child, are exempt.”

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