304: Board Chats - Complexities of Membership Deposits w/ Van Tengberg

Speaker 1: 0:01

Hey everyone, welcome back to Boar Chats here on Private Club Radio, brought to you by our friends. Concert Golf Partners is a boutique owner-operator of upscale private golf and country clubs nationwide. Since 2011, concert Golf has helped over 30 clubs elevate their member experience while gaining financial freedom. So in this episode we are going deep on membership refunds when I get to chat with Van Tenberg, partner over at Foley and Lardner. Van is a seasoned tax lawyer and golf industry expert, and this episode is all about diving deep into the world of private club membership deposits, the intricacies in how they have evolved over time. Did you know that membership deposits in private clubs started as a tax loop for developers? What? And now it's a selling point for clubs and a significant revenue source. So we go over that and plenty of other things in this episode. Some of my takeaways are, you know, just in general, the changing landscape of golf clubs, because it's not just about golf anymore. We have a lot of changing demographics, increasing demand for family-friendly experiences and that's all influencing club policies and, as a result, clubs have to adapt their policies and their offerings, even considering the shift towards non-refundable memberships, because it's putting a lot of clubs in trouble. We talked about the complexities of refundable and non-refundable membership, and the courts have ruled that clubs can't change these obligations the fine line to tread, and clubs need to handle it with care, and we also go over solutions for this issue as well. This is a very complex topic in a very complex field with a lot of moving parts, but we're going to break it down and you're going to learn a lot and have a really fun conversation listening to me and my friend Van. So let's get started with this episode of Board Chats here on Private Club Radio, brought to you by our friends, concert golf partners, and this is all about membership refunds.

Speaker 2: 2:17

I am a recovering tax lawyer by trade. I have a master's of law in taxation. I'm a real estate lawyer and back in 1985, I started working in the golf industry working on golf clubs and things like that Just developed a love and a passion for that and it ended up becoming a large portion of my practice and what ways do you help clubs?

Speaker 1: 2:44

What are some of your favorite ways to help clubs?

Speaker 2: 2:48

There's probably two or three different ways that it comes up. One is obviously straight acquisition or disposition of a golf club. Very similar to other assets real estate assets except that a golf club is a going business. So, in addition to selling the real estate, you're also selling a going business, or you're buying a going business, depending on what you're doing. Number two is membership programs. We spend quite a bit of time structuring and restructuring membership programs, which is obviously one of the topics we'll talk about today. Those are 10 amount to leases and office buildings. They are the revenue source for the private club, so they're extremely important and you want to make sure that you are doing what you can to structure it so that it's beneficial to the members. That gives you the freedom that you need to operate and make changes as circumstances dictate. A third way would be unique situations, which could include financing, refinancing, restructure, redeployment. There are so many different things. Many clubs are redeploying their assets, converting certain things to residential use, that type of thing. It covers the entire gambit of even environmental matters, whatever it may be. Those are the three main areas that I focus on.

Speaker 1: 4:16

And this is why I love, peter. I love when things get niched down so much. You brought it up. Today we're going to talk about refunds and membership, which is obviously it's something, but who would think there is this much to unreal. So I'm going to let you take a little bit of the lead, just as a basic starting point what legal ramifications? How do we even start this? Because this is just fascinating though. So maybe, yeah, go ahead, I'll let you start it from here and then we'll have that.

Speaker 2: 4:58

It's actually rather humorous how it all started. Many years ago, many, many, many years ago call it 30 plus years ago the industry figured out that if you know, when you joined a private club you paid kind of an initiation fee or deposit, you paid an amount to join the club and then you paid monthly or annual dues. Let's just start with that basic concept. Well, somebody figured out and a lot of people believe it goes back to Bob Edmond, senior at Club Corp it figured out that when you pay that money to join the club, should that be taxable or non-taxable? So there it is. That's the genesis of it. So what they figured out was, if you call it a deposit and make it refundable at the end of a certain period of time, you as the developer of this golf club didn't pay income tax on it because it was a deposit, not a fee. And so all of a sudden the world changed and the industry took off and everybody figured out that if you write, if you pay a deposit, a membership deposit, which is refundable at the end of a certain period of time, you could collect that money, and it was 10 amount to an interest-free loan that you had the benefit of the money, you didn't pay any interest on it and, most importantly, you didn't pay tax on it because it wasn't income, because it was a deposit. United States Supreme Court even looked at the case and said yeah, this is Indianapolis Power and Light case. This is 10 amount to what you pay a utility company when you sign up and get utilities and therefore it's a deposit, provided certain conditions are met. So that's where this whole thing started and for the next 20, 25 years, every developer who built a private club structured a membership deposit program in order to get the benefit of all the income, pay no tax on it and, as I said, it was basically tantamount to a 30 year interest-free loan. That's how this whole thing started. Yep, wowza, yeah. So if you want me to go, keep going. I will Fast forward, yeah, fast forward, fast forward, 25 years later, before the third. Most of these things were structured as a 30 year refundable deposit. So let's just understand what it means. You join a club, you play golf for 30 years. You pay your dues, whether they're monthly, annual, whatever it is. At the end of 30 years assuming you're still there big assumption you get back what you originally paid. You don't get back all those annual dues or monthly dues or your charges for a cheeseburger or guests fees that's gone, but you get back the basic amount you pay. That becomes 100% refundable at the end of a certain period of time, very, very attractive. So all of a sudden you go out and if you're the private club, you're marketing these memberships and you say you can join. You pay let's pick a number $25,000. That's just a lot of money 25 years ago. You pay that At the end of 30 years you're going to get all that money. Ok, well, all of a sudden that becomes very attractive, it becomes a selling point. And all of a sudden clubs can charge even a higher amount because they're saying at the end of this period of time you get all that money. Clubs love it because guess what? Not taxable, no interest free. It's better than getting a loan from a bank and theoretically that membership would be worth more money in 25 years. That $25,000 membership 25 years later is $100,000 or $150,000. So you've made an arbitrage gain on that money that you never paid tax or interest on. That was the theory. Well, the problem was well what happens if somebody wants to get out of the club before 30 years. They want to resign, which, by the way, statistically is a very high amount of people. They don't stick around 30 years in a private club. You've got to do something. So you structure the program. What they did was they structured the program. So if you resign, you go on a waiting list and generally the waiting list was based upon a resale formula which says we, the club, sell, let's say, four memberships and then we'll take one off the waiting list and resell it and you can have a refund of all or a designated portion of what you paid. Usually it was a portion, usually it was, let's say, 80% and the club kept the difference as a triastrophe. Once again, home run for the club. They sold four memberships, they've refunded one and they did it at a discount. It's a win-win-win. They'll have some taxable gain at that point because the debt was extinguished but at the same time it was a win-win. So in theory, 25 years ago that was the most incredible model. Everybody did it and again, a lot of people credit Bob Dedman of Club Corp with coming up with it and implementing it. It took the industry by storm. So here we are, 25, 30 years later and most buyers, most of the big boy buyers, do not want that to deal with that membership deposit because, guess what? Now those are starting to come due and it shows up as a liability on the books of the club that's got to be paid, exactly right. So they're looking at the financials and on the balance sheet it shows membership deposit refund liability blank million dollars, absolutely payable at the end of a period of time. Absolutely, you've got to pay, it's got to be paid. So you buy the club. All of a sudden you're buying that. So astute, smart buyers are buying, saying I'll buy your club. But it's not worth what you think it's worth because you've got this membership deposit refund liability that I as a buyer have to pay. You never paid tax on it. It's a debt that I'm assuming, and the value of the club, just like a mortgage debt, the value of the club that I'm going to pay you is worth less than what you think it's worth. That's how we got to where we are.

Speaker 1: 11:35

And I'm assuming it's probably becoming a bigger problem than we realized.

Speaker 2: 11:43

It's become a massive problem. In fact, most astute buyers will not buy a club until it is clean. They don't want to do these deposits anymore. Most buyers are buying clubs and they want to buy clubs based on solid cash flow and they don't want that liability on the books. That's the astute buyer. Now there are many, many astute buyers that say I'll buy it subject to that Price is massively discounted. And then they go in and they figure out how in the world do I work through that amount and try and get that result? And that's where an entire industry has been developed on. How do you deal with that membership deposit refund liability?

Speaker 1: 12:27

Do the changing of the current demographics impact that strategy at all? For clubs Like, does that become ingrained in any way?

Speaker 2: 12:37

Yeah, yeah, that is a very, very good question. The modern club member does not want to pay this massive amount of money with the hopes of getting it back in 30 years. In other words, if they're sitting there looking at, do I pay $150,000 for a private club membership and I'll get it back 30 years from now, or can I pay $25,000? It's a one-time fee, it's gone and I'll just play golf, pay my dues and I'm happy. They almost always choose the latter, which is the non-refundable fee, not the deposit. And so, demographically and culturally, that's what they're doing. They don't want to sink all that money into a private club membership. In fact, many clubs there are exceptions, of course, the very fine clubs are not interested in these. You know, most members are not interested in putting out hundreds of thousand dollars for that private club membership. Golf is different now than it was back then. They want a club, they want the, you know. They want the food and beverage. They want the fun, kind of like top golf. They want to have fun. They don't want to sink, you know, hundreds and hundreds of thousand dollars. The old adage, it's not your father's private club it holds true. Again, there are exceptions, but the large chunk of people want to play. They want it to be family friendly, they want it to be, you know, for the spouses, for the children. They want it to be fun and go have fun casual clothes. Don't tell me I can't bring my cell phone. And don't tell me I've got to put out $250,000 to join your club. They don't want to do it, they don't want to deal with it. So yes, the long answer the demographics have changed.

Speaker 1: 14:34

Are there? My brain's just going mile a minute. Are there like legal, like law is so far from me because I try to stay in my lane so much, but what like? I'm assuming that there's legal implications when a club has to like, can a club alter the membership return policy, like so how, like, what's going on there, like what kind of things can clubs do? Or what sort of excuse me, what sort of options are there?

Speaker 2: 15:06

Okay, very good question. The answer is no, it's a debt. Clubs try it. They say look, our membership plan says that we can modify it in any way. However, the courts that have weighed in on this say you, club, if you agreed to pay that, that is a debt. You do not have the right to unilaterally alter that and change the economics of the deal. There are some things around the edge you might be able to fiddle with a little bit and get away with it. Maybe instead of four to one, it's five to one or those kinds of things. There's different things you can do, but the bottom line is it is a debt, it is an obligation and while you may be able to change a lot of things in your membership plan or your bylaws, such as t-time priority you know, do use things like that that refund obligation is tantamount to a promissory note that you owe and you cannot unilaterally modify it. So when you're a buyer and you're coming in to buy this club, you're looking at it going I can't change what the deal was. That is the deal. I have to live with it. So then you have to put your creative hat on and come up with all kinds of different ways how you can manage that liability, how can you condense it, reduce it, repackage it, restructure it so that it's something that you can live with and run and operate this club, and that's where the entire industry of trying to deal with this has come about.

Speaker 1: 16:45

So can clubs change Like so can if a club is going this direction, can they stop having like membership refund? Like how does that work Then? What outcome? Cause obviously there's gonna be situations where I'm assuming some clubs, they can't fiscally maintain what's going on between inflation, the refund, everything else going on. What options do they have? Like how do clubs they have to look at it?

Speaker 2: 17:18

Let's sort of divide this up into two categories. Let's do worst case scenario and then options, and the options could be whether it's the existing club or it's the new buyer coming in to buy the club. Let's do number one. First worst case scenario. Could the club file bankruptcy and wipe out the membership deposit, refund liability? The answer is yes. Think again. It is a debt, it is a liability and the club could file a bankruptcy, could go through a chapter seven, which is liquidation, could go through a chapter 11, which is restructure Very, very complex. Have clubs done that? Yes, they have. Are there implications to it? Yes, there are. But they can do it and they can't wipe it out. But let me tell you there is a price that you pay when you do it, but it can be done. Have clubs done it? Yes, I'm very familiar with one club. They wiped out about a hundred million dollars worth of membership deposit refund liability. Now, under the tax code, you take that hundred million and you reduce your basis in your club. But it's. You know that cancellation of debt is not taxable and bankruptcy, but you have to reduce your basis in all your assets. So if you paid a hundred million for this property and you now reduce that basis by a hundred million, that means you have zero tax basis and when you sell, everything's gained. So there's a price to pay. There's ways you can deal with it. So that's worst case scenario. Call it Armageddon, call it Scorched Earth, whatever you want to call it. It has been done. Are there other ways, less drastic, to whittle down package restructure? Yes, there are. There are a variety of clubs that go through a number of different things trying to figure out how to minimize this membership depository liability. Here's a couple examples they go approach the members and say this is due, this obligation's due in blank number of years, instead of us paying that in X number of years. We'll pay you something right now and it goes away. Or we will give you credits on food, beverage dues, other things, to make that go away. Voluntary, absolutely no liability or obligation. They can just say yes or no, and some clubs do that. Other clubs go through a restructuring of their program because, remember, all they used to offer were these refundable memberships that have the membership deposit from liability and they realize we can't offer those anymore. So we're going to start offering non-refundable memberships. And then the members say well, wait a minute, if you're not offering those refundable memberships, that four-to-one thing that you have is how you're going to have to count the non-refundables towards the four-to-one and we get a refund, and that becomes a very much of a problematic thing. So clubs have to figure out how to distinguish between the refundable and the non-refundable. Big deal, big, big, big deal. Other things are when buyers step in, they offer different kinds of packages. For example, they may come in and offer a voluntary refund policy saying we'll run dual tracks. You can go ahead and get your refund the way you're supposed to get it, but we'll also do something because we're going to sell these non-refundables and we'll run both tracks concurrently. And whichever way you get your refund first, that's great. If you don't want to do it, you don't have to. Other buyers come in and say to the seller we'll buy your club, but we don't want that liability. You keep it, believe it or not, that's happened. And some sellers go forward and sell and they keep the liability because, remember, they got the money, they never paid tax on it. So they're looking up saying you know, I've gotten the time, value, money, benefit, I'll pay it. And they end up paying it when the 30 years is up or if there's been a reissuance and resale and there's all kinds of mathematical formulas for dealing with that. Other buyers studied the documents very carefully and try to figure out. Is there a formula in there that says these people have to be members for all 30 years to get the refund? Now there's smart, really really smart clubs back in the day structured it that way and said, yeah, we'll give your money back in 30 years, but you've got to be here all 30 years. You don't get to resign, get your reissuance and then sit around and wait till the end of 30 years. So there's just a lot of different. Those are all examples of things you do to try to whittle that down and get that reduced down. There are tax, business, economic consequences to everything, but those are the quiver of arrows that you have to try and work through those issues.

Speaker 1: 22:39

Are there any issues or challenges or anything when you bring in nonrefundable memberships?

Speaker 2: 22:49

Yeah, mainly the one I mentioned earlier, which is, hey, the four to one is the big one. And people say, wait a minute, you sold four nonrefundables. You're not even offering and selling refundables. How's my four to one ever going to get satisfied? That's the big one, that is the biggest one. You've got to figure that out. And there are cases federal cases that say if you offer a refundable and a nonrefundable membership and they're exactly the same, other than the refundable nature of it, that's the same membership and you have to count that towards your four to one. So think about the guy who bought the club at the membership at 100,000. He's entitled to 100,000 and now you're selling nonrefundable memberships for 20,000 on a four to one basis. You sell four of them, you have 80,000, but you owe 100,000. You've got negative arbitrage. So you've really got to be careful on that.

Speaker 1: 23:52

That just clicked, then there we go. A little bit slower there, but I was finally coming around. There we go.

Speaker 2: 24:00

No, no, that's the issue. You don't want negative arbitrage, because your NOI gets hammered when that happens, not to mention the implications of it.

Speaker 1: 24:13

Are there any other scenarios that can happen from any and all of this happening?

Speaker 2: 24:19

Yeah, there is a lot of things that go on, sort of collateral damage, if you will. The entire membership can revolt. There are class action lawsuits that have come up where all the members have gotten together and filed a class action saying all the things you've done are this, you owe us this, you've destroyed this. It's a mess, it's absolutely a mess. So, yes, class action lawsuits have been filed and there's usually a settlement. But remember, it's not just the lawsuit, it's the bad blood, it's the bad feelings that emerge at clubs. So your sophisticated clubs, your sophisticated buyers, are walking a very tight rope of saying we're going to solve and pay that debt, but here are some other options. Or here's how we're going to trim it and package it and make it workable. And it's doable, it is absolutely doable. Everybody in the industry knows that the refundable membership is, by and large, dead. Now again, there are some clubs where that's all there is, but most people know that that's just not what the market. The market wants nonrefundable, less expensive, for the reasons we talked about. So a lot of people just say, yeah, I realize I'm never going to see that again. That's fine, but not everybody does, and that's when you have problems. So you've got to walk a tight rope to make sure you take care of people and treat them fairly.

Speaker 1: 25:44

Yeah, because especially nowadays, with how quick things I don't want to say explode, because that's you know but whether it's good or bad, how quickly it goes around, and whether it's a chapter 7, 11 or a class action club, I can't imagine how that would just destroy the reputation of even new members coming in. Like I know, if I was looking at a club and I looked and you know, at some point I saw like just the words chapter 11 or 7 and class action loss. They're like ooh yeah, I almost want to dip my toes in this Right?

Speaker 2: 26:17

Well, you definitely do have a lot of people have a second look and question what they're doing, want to know what's going on. However, these things can get worked out, they can get solved, and it takes time. Again, you just have to. People have to. There has to be a balance between being fair at the club and the members being understanding and fair as well. You know as to what's realistic in the world, because not everything the world's changed and not everything is exactly as it was. So you have to. Everybody's got to try to be fair and you can get to a solution and work it out.

Speaker 1: 26:55

What are some unique solutions? You've seen clubs work out that you know, maybe in a stalemate situation or something, but they came up with a really cool or unique solution.

Speaker 2: 27:08

I think I've seen the gambit a lot of some of the things I mentioned. I've seen clubs do a lot of different things. Number one when they have that deposit liability and let's say they don't have you've got to be here for 30 years you go to the members and who are on the resign list and waiting, as well as to those who haven't resigned and they're still members because, remember, they're still paying members of the club. You go to them and you try to figure out an economic package that works for them and that's fair. It goes to the heading of what we talked about earlier. Maybe there's a dues credit, maybe there's F&B credit, maybe there's retail credits, maybe there's a payment of some kind now which, again, time value of money. That amount is a lot less than you'd get at the end of 30 years, but it's still fair. You just try to work away that liability and get it down to where it's something, because it doesn't do anybody good to sit on a resign waiting list, waiting years and years and years and years to get out of the club and only to get who knows what they're going to get. You try to come up with something that's fair and reasonable, that works for everybody. That's been one of the most others have done. What I talked about the dual track membership where we're selling, we'll pay you this when we sell enough of these non-refundables, that kind of thing. There are a host of methods. There's things called Dutch auctions, where you say, well, you go out and offer a certain amount to wipe out the liability and the first 10 people that take it 10 members get it. They get this. There's different ways of doing it. You just have to come up with the right formula based on your club and your demographic.

Speaker 1: 29:00

I was just going to say I'm sure you can. Especially nowadays, you can probably get a lot more creative than how you used to might be able to. I think people also appreciate creative solutions. That's not just black and white, but because they hopefully realize every situation, every club, every membership, everything is a little bit different. Even though it might not be the best option, at least they're coming up with some solutions and some ways to keep the ball moving forward instead of trying to stop it dead in its tracks.

Speaker 2: 29:31

That's actually very interesting. What you just said. You're right. You're 100% right. When you, as a club, are open and transparent with the members and you say this is what we're dealing with, we need to work through this, the results are so much better than the club that is a closed door, there's no communications, nobody knows what's going on, there's a lack of trust. If you open the, if you, somewhat, are transparent and let them know what's going on and say we need to work something out. Fair, open lines of communication, ask questions. We didn't we, the club, didn't change the market. The market changed. We inherited this. This is what we're dealing with. How can we work together to solve it? It's amazing. People are good by and large and they want to work with people that treat them fairly and that are open and transparent with them. Great results when you do that.

Speaker 1: 30:31

To me it just seems. So I don't want to say obvious, but because we're looking at it from a different angle. But I think that's almost what's needed because if they are facing this imbalance between financial instability it sounds like in some rocky membership satisfaction. You need that open line of communication because clearly there's that imbalance. If the club's having financial troubles, probably satisfaction there's going to be some things that are not being taken care of. Just having that open and communication, which has been a common theme throughout a bunch of past episodes anyway, which is funny, which is just keeping that barrier down, people willing to be open and chit chat and just be open to different ideas and suggestions.

Speaker 2: 31:18

You're 100% right. Most members of private club they just want to play golf, they want to have a great club, they want to have a really nice place. They're proud to bring their family, their friends, their guests, their business colleagues, and you know what. They don't want all this drama. They don't, and so you'd be surprised. You opened the door on some of this stuff and all of a sudden, other conversations, as you alluded to come in. You guys haven't redone the teas and greens. The fairways are not being over seeded. The place looks like hell. When's the last time you did F&B or your FF&E upgrade? And we need to expand the kitchen. It's amazing, when you start working through things, you can come up with solutions, because people don't want to deal with the problems. They want a great club and they want it to be what they thought it was. Frankly, if you work together, you can come up with the right answer. And so you're 100% right, denny. 100% right, I think. Denny, the most important thing I can tell people is don't ignore this. If you're buying a club, you've got to deal with it. If you're selling a club, you've got to deal with it. If you own a club and you have it, you've got to deal with it. Look, if you just have a daily fee, golf course, you know and this isn't irrelevant but if you have a private club, this is a reality. You can't pretend it doesn't exist because sooner or later it's going to come back and bite you and you need to be proactive on the front end and start figuring out what you're going to do to solve this. And that's understanding your liability, understanding your options, understanding your members and making a commitment that you're going to deal with it and treat everybody fairly. If you just think it's going to go away or you can just bulldoze your way through it, good luck with that.

Speaker 1: 33:16

Well, and I think the people who don't see it that way are the reasons why we have board chats and this, and that is, they don't see the bigger picture. It's not always about you and what you want. You have to kind of swallow the ego a little bit and go all right, it's not, you know, whether it's a board meeting, whatever. I know I don't care about tennis, I care more about golf, but I still have to be open and willing to take in the information and look and go okay, the membership down the road is going to need it. Whatever it is, I think it's at least in the same aspect, just looking at it and going okay, it's not about me right now, I really don't care. I'm going to be retiring in two years, but the club still has to go. It's less to maintain. We're so going to have members. You know, have this. You know, start taking care of it now, because it is only going to get worse.

Speaker 2: 33:59

Yes, exactly. And again, remember there's a handful of private clubs in the country that can really do this. Remember, it's not, this isn't evil, this is actually genius the membership deposit, refund, liability but there's really only a handful of pretty high-end clubs that can really do this and really do it well, and those are. That's great and it works for them. But the problem is this thing got deployed to all levels of private clubs and it doesn't work. At a lot of private clubs it just doesn't work. So you got to figure out how to get out of it. But hey, you know what? Let's not be, you know? I mean, they got the money. They didn't pay tax on it, Interest-free loan. It's not the end of the world, you just have to deal with it.

Speaker 1: 34:44

There's worse problems to have. I mean it's still a big problem, but I mean there's harder ones to have to deal with. Yeah.

Speaker 2: 34:50

Yeah, yeah, exactly.

Speaker 1: 34:54

Thank you so much for being on. I really appreciate you bringing on some knowledge here and opening the curtain a little bit on this. This is crazy stuff.

Speaker 2: 35:03

Good stuff, my pleasure.

Speaker 1: 35:06

I'm going to chat with you and we'll talk again. Hope you all enjoyed that episode. I know I did. Van was so much fun to talk to, so much valuable information and insight and I really did not realize how big of an issue it could be for some clubs. So if this is something that you might be struggling with, might be working through with your club, or if you are looking for a unique solution, set up a confidential phone call with our friend Peter Nanula from Concert Golf Partners. If you don't know Concert Golf, they are a boutique club hospitality company that invests their own capital to fund projects, build new amenities, pay off all club debt and ensure that member assessments are a thing of the past. What the best thing since Life Spread? Concert Golf offers an expert approach that revitalizes your club through renovations and impactful projects, while maintaining your club's culture, From preserving the golf course conditions to training the weight staff and paying off debt. Concert does it all. Until next time, catch you on the flippity flip.