Timesharetalk

General Forums => Spanish Law => Topic started by: Johneb on April 26, 2016, 22:52:14

Title: Diversified Resorts Additional Management Fee
Post by: Johneb on April 26, 2016, 22:52:14
Hi.
Does anyone know if Diversified Resorts can force us, as members, to pay towards the tax they failed to pay between 2009-2103?
I've got a holiday booked in June through RCI, who said the bill is nothing to do with them, so can't help me, but Diversified have said on their invoice that if the bill is not paid within 30 days, then my points will be blocked.
Does it mean that if I don't pay up, that when I turn up on my holiday, I won't be able to use the accomodation, despite the fact that I've paid my maintenance fee and booking fee?
Title: Re: Diversified Resorts Additional Management Fee
Post by: Gordon Dickson on April 27, 2016, 09:11:45
Did you book with last years points or future points that this fee would cover. Which resort has sent you an additional fee,would be helpful to know as will effect other members.
Title: Re: Diversified Resorts Additional Management Fee
Post by: lawnmower60 on April 27, 2016, 09:53:29
I cannot see how they can claim money from you for them not paying their taxes if your resort is in the Canaries on your maintenance bill they should have added IGIC this is  I believe  their vat. Check your bill you cannot be responsible for them not paying their income tax it should come out of their  profits
Title: Re: Diversified Resorts Additional Management Fee
Post by: andycat on April 27, 2016, 16:13:19
We have also received a bill for this. It says it is a one-time Spanish tax assessment.
It appears to be a tax paid by SSB, a portion of which they are charging the Points Club
Sunset Beach is in mainland Spain.
Title: Diversified Resorts Additional Management Fee
Post by: jcorrea-lawyer on April 27, 2016, 18:30:09
Spanish tax assessment? What's that? All seems quite strange to me
Title: Re: Diversified Resorts Additional Management Fee
Post by: Johneb on April 27, 2016, 21:30:27
It's this years points. It's come from Diversified Resorts.  I've booked 2 holidays with them this year, the other is in September. These will be the last 2 holidays with them as I gave them the statutory 12 months notice last year to cancel my membership.
Title: Re: Diversified Resorts Additional Management Fee
Post by: AndyC on April 28, 2016, 08:39:00
We have also received this demand and got the same reply from RCI. Does any one know if they can actually pass there tax bill on in this way?

We purchased our RCI points at Callao gardens in Tenerife in 2008 and paid our management fee’s to Resort solutions but last year this changed to Diversified resorts we were not consulted on this, we did not received any notification of the change until the 2015 management fee arrived. We have not signed any paperwork with this new company nor have we received any new terms and conditions from them.
 
My question is are they entitled to do this, is it legal or indeed fair let alone morally right, for one company to pass on its tax bill in this way surly its their problem and not its members. Does any one have a copy of Diversified resorts terms and conditions that I could have a copy of? and finally in your collective opinion's should we pay the extra bill or dispute this with the company.

Andy



Title: Re: Diversified Resorts Additional Management Fee
Post by: andycat on May 04, 2016, 10:03:18
Has anyone got an answer? Need to know if we have to pay or can fight against this.
Title: Re: Diversified Resorts Additional Management Fee
Post by: lawnmower60 on May 04, 2016, 21:47:05
If you look at jcorrea-lawyer  posting you will see that he does not know what this tax is seeing he deals with timeshare law and he is Spanish if he does not know what the tax is I think it is just an extra charge they are putting on you maybe you should contact him and he might be able to help
Title: Re: Diversified Resorts Additional Management Fee
Post by: AndyC on May 09, 2016, 08:21:57
I have emailed the timeshareconsumerassociation.org.uk asking if the know anything about this and received this reply

"As far as we are aware they cannot pass this tax bill onto their clients however do you have a letter from them so we can look into this further and do some investigation.

Best regards
Brook
TCA administration"

I sent them a scan of our letter but as yet i have had no reply. I sent a reminder today and I will post the reply if I get one.
Title: Re: Diversified Resorts Additional Management Fee
Post by: rcoward on May 09, 2016, 09:27:16
I emailed Diversified using the email address on their letter and they claim the invoice is legal up to 2013 (see below):-

*The Advisors of the SBC, Deloitte Abogados in Madrid have confirmed that since the tax laws in Spain changed in 2013 there can be no further claim in respect of the Special Tax on Real Estate Assets of Non-Residents Organizations in the future.

They also state that FNTC have authenticated the validity:-

The Administrators of the Points Club, First National Trustee Company (FNTC) have confirmed that the surcharge made by SBC is correct and needs to be recovered from all Points Club Members as set out under clause 9.6 of the Points Club Scheme Rules. To this end, the Points Club issued an Additional Management Fee invoice to its members on the 21st April 2016, for the SBC Surcharge. All Points Club members are legally obliged to pay this Additional Management Fee.
Title: Re: Diversified Resorts Additional Management Fee
Post by: AndyC on May 09, 2016, 13:02:33
I received this reply from the timeshareconsumerassociation today


Please be advised that we have been investigating this however cannot seem to get confirmation that this does not need to be paid.


We suggest that you contact your resort directly to discuss this and request proof that this needs to be paid by members rather than the resort.

Best regards
Brook
TCA administration

I have emailed Pointsquiries at diversifiedresorts asking for clarification and hard evidence of the Tax bill plus a few other questions I am looking forward to their reply

Andy

Title: Re: Diversified Resorts Additional Management Fee
Post by: AndyC on May 18, 2016, 17:12:48
Today I received this reply from Diversified Resorts along with a copy of their terms and conditions if any one is interested in seeing them let me know.

Next Generation Points – Additional Management fee

 

Further to your enquiry, I can confirm that Diversified Resorts Next Generation Points Club (Points Club) has issued a genuine Additional Management Fee.

 

The Additional Management Fee was issued because the Points Club was formally advised by Sunset Beach Club (SBC), on the 22nd February 2016, that it had been subject to a one-time Spanish tax assessment* for the period 2009-2013. SBC issued a surcharge (special levy) on all apartments, including weeks in the Points Club, to recover their proportionate amount due to pay the tax charge.

 

*The Advisors of the SBC, Deloitte Abogados in Madrid have confirmed that since the tax laws in Spain changed in 2013 there can be no further claim in respect of the Special Tax on Real Estate Assets of Non-Residents Organizations in the future.

 

The Administrators of the Points Club, First National Trustee Company (FNTC) have confirmed that the surcharge made by SBC is correct and needs to be recovered from all Points Club Members as set out under clause 9.6 of the Points Club Scheme Rules (a copy attached). To this end, the Points Club issued an Additional Management Fee invoice to its members on the 21st April 2016, for the SBC Surcharge. All Points Club members are legally obliged to pay this Additional Management Fee.

 

Payment of the Additional Management Fee should be made in the same way as the annual fee via FNTC. The Additional Management Fee is due within 30 days of the original invoice date (21st April 2016), in accordance with the Points Club Scheme Rules.

 

If you have any further queries regarding the Additional Management Fee, please contact us by responding to the email address above.

 

Yours sincerely,

Diversified Resorts Next Generation Points Club

Title: Re: Diversified Resorts Additional Management Fee
Post by: Johneb on May 18, 2016, 23:01:37
I've had a couple of emails back from them. I want to know what they mean by "legally obliged", but all they've come back with is that they'll block my points until it is paid. However any holidays already booked won't be affected and will be honoured.
As I've given notice on my membership and used all my points up, I'm not sure if there is anything else that can do.
Can they chase me via the courts?
Title: Re: Diversified Resorts Additional Management Fee
Post by: jcorrea-lawyer on May 27, 2016, 10:02:26
To be honest I don’t see enough grounds to transfer to point members the responsibility to pay their proportional part in the SBC debt. I have had the opportunity to examine some documentation, specially a letter sent by SBS advisors, Deloitte Abogados. Form this letter is clear that SBC was inspected by the Tax Authorities. This inspection was on three main issues or taxes. 1) Special Tax on Real State Assests, 2) Non Resident Income Tax and 3) Value Added Tax. In the first case Deloitte says that "after insistently claiming ... the Tax Administration finally confirmed the no application of this Tax...". In the other two SBC was condemned to pay although it was settled for a lower amount (7million euro to 2,9).

It is important to see that the last two issues are to do with "incomes", with a business that generates incomes, whereas the first one has to do with property or possession. I understand that perhaps -and emphasize this because I am not 100% sure- you, point members, should bear the proportional part of a fine imposed by virtue of Real State Assests, because we can understand that you -members- own (although very  doubtfully), based on your points, a part in property called SBC. BUT SBC has been fined for not declaring its incomes and not applying the VAT, and this I understand it is not your business, you are not beneficiary in any sense of these incomes that went fully to whom is responsible to pay for those taxes.

Should SBC had been fined for the Real State issue perhaps members should be obliged to pay their share, but as it was fined for not declaring and paying for their incomes I don't see the reason why members should pay for that. Do they share their incomes with point members?
Title: Re: Diversified Resorts Additional Management Fee
Post by: TheDuchess on June 01, 2016, 13:06:15
Unfortunately, I saw this post after paying the additional invoice so there is nothing I can do about it now.  However, what I would like advice on, seeing that some have given notice on their Diversified points with RCI, is how do you go about giving notice and how easy was it.?

We just have points through Sunset Beach Club.

Many thanks for your help.
Title: Re: Diversified Resorts Additional Management Fee
Post by: khart on June 03, 2016, 21:25:50
So far I have not paid as I was waiting for an outcome and other feedback.
 I have had a second demand for the money and now find that not only have they blocked the 12,000 points I own with SBC but the entire balance of points which are paid through my timeshare.

No doubt I will be contacting RCI tomorrow
I am surprised there has not been more activity about  this issue on this forum.
I would appreciate any further comments or advice

KH
Title: Re: Diversified Resorts Additional Management Fee
Post by: Johneb on June 03, 2016, 22:39:46
I've also had a second invoice, as I haven't paid the demand yet. It says on the form that they will block my points if it's not paid within 30 days, which is what it said on the first one. I'm still waiting for a reply from them to see if I'm legally obliged to pay it.
Title: Re: Diversified Resorts Additional Management Fee
Post by: AndyC on June 04, 2016, 15:35:38
Thank you for all of your help and advice so far, but unfortunately I have just been on to my RCI account to find that diversifies resorts have now blocked the 80,000 points I paid over £1000 for in December 2016.
 
After some advice from a lawyer who said we should find out what legal grounds they had for passing on this tax bill he also said

 "What it is important here is to know what legal grounds do they use to justify this derivation of liability for payment on to you. This is the basic issue. You are a user of the assets through the point system. You have no property right on real estate, even less on incomes of that real estate. Who have benefitted of those incomes? That person is responsible for payment.

I am not 100% sure- you should bear the proportional part of a fine imposed by virtue of Real State Assests, because we can understand that you own (although very  doubtfully), based on your points, a part in property called SBC. BUT SBC has been fined for not declaring its incomes and not applying the VAT, and this I understand it is not your business, you are not benefited in any sense of these incomes that went fully to whom is responsible for paying the taxes on them."

Ask them this precise question and see what they answer. I think you have enough grounds to discuss the liability for payment.

So I sent off this email

--------------------------------------------------------------------------------

 
Hi,
 
I have been seeking legal advice on this matter and have been advised that the whole case and resultant additional management fee’s is due to Sunset Beach Club not declaring and paying for their incomes. I do not see any reason why we should pay for this dereliction of duty to the Spanish government on your behalf. If you were to rob a bank we would not be expected to serve your prison sentence just because we are a member of your club and this seems to be a case of attempted fraud   (a criminal offence in any country) by the Sunset Beach Club which has been found out, we as members should not be liable for your debt.
 
I have been asked to what legal grounds you use to justify this derivation of liability for payment on to us. This is the basic issue. We are a user of the assets through the point system. We have no property right on real estate, even less on incomes of that real estate. It is you who have benefitted of those incomes and you who are responsible for payment.
 
We look forward to your reply.

--------------------------------------------------------------------------------
To Which I have had no reply, we did how ever received another invoice from them. It seems they are going to ignore my email and just fall back on bullying tactics by blocking our points some 27 days earlier than the invoice shows.

Any thoughts?

Andy


Title: Re: Diversified Resorts Additional Management Fee
Post by: FoxyR on July 25, 2016, 18:46:38
I was just wondering if anyone had any further information on the issue? We haven't paid our 'extra' fees either and recently we were on holiday booked back in October last year without any consequence for not paying. If I'm honest, I have no intention on paying those fees, unless we really really have to. Y
Thanks guys!
Title: Re: Diversified Resorts Additional Management Fee
Post by: JulieJ on July 29, 2016, 13:31:05
I just joined this Forum and notice this post.  As I am a retired UK solicitor a friend asked me to help him with this letter recently.

Please note that although I am still on the roll at the SRA I no longer have a practising certificate or any professional indemnity insurance as I have retired from the profession.  My role at Spanish firm JLCA Lawyers is purely marketing as I am not qualified to advise on Spanish law.

My views in this post are given freely and willingly.   However, if you are considering acting to your detriment in reliance on them you should take formal advice from a practising UK solicitor, who will have professional indemnity insurance.


Owners of these DR points are responsible for paying ‘Maintenance Fees’ to the Seller or the Collection Agent, in this case RCI.  The initial Maintenance Fees are stated in Part C of the purchase contract, but these may change from year to year.

A separate document entitled “Maintenance Fee Explanation”, which forms part of the contract, confirms that the annual maintenance fees are set in advance and are estimated - it also confirms that in some unforeseen circumstances the estimate may not be accurate and that “an exceptional Maintenance Fee may be charged”.

So the question is whether these invoices relate to ‘an exceptional Maintenance Fee within the terms of the Scheme Rules'?

Clause 4 of the purchase contract provides that capitalised words and expressions used in the contract, such as “Maintenance Fees”, have the meanings set out in the Scheme Rules.  

“Maintenance Fees" is defined in clause 1.22 of the "Scheme Rules” as sums in respect of:
   •   the maintenance, repair, redecoration, cleaning and (where necessary) renewal or preservation of the Accommodation, Common Property or any Movables [all these terms are also defined in clause 1 of the Scheme Rules]
   •   maintaining a reserve fund
   •   the costs of utilities and insurance and other outgoings incurred in respect of the maintenance of Accommodation,
   •   the provision of services and facilities at the Resort(s), 
   •   owner’s association fees, 
   •   special levies or charges solely attributable to the Member arising from the exercise of Occupancy Rights
   •   specific services rendered as required by or at a Members’ instance or on that Member’s behalf
   •   a reasonable sum with respect to the costs of providing maintenance and equivalent services and/or and all other fees or charges payable in connection with the same

Although a lengthy definition, there is no reference to any tax assessment on a resort within the Points Club as being something that can justify an exceptional Maintenance Fee charge.  

There is no separate definition of an 'exceptional Maintenance Fee’.  In the Maintenance Fee Explanation document there is a reference to ‘exceptional Maintenance Fees’ which this relates to an adjustment to the fees having to be made to the estimated fees due to an unforeseen event.  The question is whether an unexpected tax bill is covered.  This is doubtful because tax is not one of the expenses that can be taken into account when determining the Maintenance Fees.  

You could also argue about the use of the term ‘Additional Management Fee’ in the letters and invoices - i.e. that there is no provision in the contract for charging an ‘Additional Management Fee’,  but DR could just send an amended letter and invoice using the correct terminology.  

The key point is that unexpected tax bills are not included in what you originally agreed to pay under the contract.  

Have the Scheme Rules been amended to cover unexpected tax bills?

Clause 9.6 of the Scheme Rules provides that an Affiliate (i.e. a Resort operator within the Points Club) can ‘vary the basis upon which Maintenance Fees are calculated in respect of its Resort(s)’.  The third paragraph at the beginning of the Scheme Rules, on page 3 above “Definitions”, provides that the Scheme Rules may be amended from time to time but that members will be notified in advance of any changes in accordance with provisions in the Scheme Rules.  The notice provisions are also within the Scheme Rules.

The only possible justification for the invoices might be if DR have amended the Scheme Rules (i.e. properly on notice in accordance with the third paragraph at the beginning of the Scheme Rules, on page 3 above “Definitions”) to include unexpected tax bills.  See also clause 32 of the Scheme Rules for the ways in which you ought to have been notified of any relevant changes to the Scheme Rules (clause 32 overrides the general notice provisions in clause 34).  If DR claim they have changed the Scheme Rules then you can ask for a copy of the notification that should have been sent to you at the time.

So, have you received any notice of a relevant change to the Scheme Rules since you purchased?  Assuming no change has been made, the next step is to challenge RCI/DR on how the ‘one-time Spanish tax assessment’ on Sunset Beach Club referred to in the letters falls within the definition of Maintenance Fees and justifies an ‘exceptional Maintenance Fee’. 

If they cannot satisfy you on this point you need to consider whether you are willing to pay or not, to avoid the hassle of having your points suspended and not being able to book your next holiday through RCI until this issue is resolved.  If you have already booked or have holiday plans and want to book, you may feel that the holiday you want to book is more important than arguing over this payment and you are happy to pay and be philosophical about it.  

Please note that although I am still on the roll at the SRA I no longer have a practising certificate or any professional indemnity insurance as I have retired from the profession.  My role at Spanish firm JLCA Lawyers is purely marketing as I am not qualified to advise on Spanish law.

My views in this post are given freely and willingly.   However, if you are considering acting to your detriment in reliance on them you should take formal advice from a practising UK solicitor, who will have professional indemnity insurance.
Title: Re: Diversified Resorts Additional Management Fee
Post by: AndyC on December 13, 2016, 17:16:06
This matter has very much taken a step backards in the past few months, but today we had a telephone call from a man claiming to be from RCI, on further questioning we found out he worked for FNTC who it apears manage the collection of fee's for various companies RCI and Diversified resorts included. We explained that as far a we were concerned we wanted nothing more to do with timeshare. He then said ok I will send you a surrender form whats your email address. I will then ring you back and we can go through it together. As yet no email and no follow up call. I'm not surprised,but I am a bit dissapointed. I will post more if any thing happens.

Andy