In In Re: Consolidated Appeals of Chester-Upland School District and Chichester School District v. Board of Assessment Appeals of Delaware County, 633 C.D. 2017 (12/27/18), the Commonwealth Court (“Court”) vacated the trial court’s April 27, 2017 Order ruling that Chester-Upland School District and Chichester School District (“Appellants”) may not consider the presence of an outdoor advertising sign on a property when determining its fair market value for the purposes of a real estate tax assessment.

The Consolidated County Assessment Law (“CCAL”) excludes signs and sign structures from real estate taxation as follows:

No sign or sign structure primarily used to support or display a sign shall be assessed as real property by a county for purposes of the taxation of real property by the county or a political subdivision located within the county or by a municipality located within the county authorized to assess real property for purposes of taxation, regardless of whether the sign or sign structure has become affixed to the real estate.

53 Pa. C.S. § 8811(b)(4).

On appeal to Court, Appellants acknowledged that a billboard and the structure that supports it are not to be considered as part of an assessment of property pursuant to Section 8811(b)(4), but the sign-and-sign-structure exclusion does not preclude assessment of the land on which a billboard sits and the consideration of income derived from a lease of that land for the purpose of erecting and operating a billboard.

The Court found that Section 8811(b)(4), like other exclusions of that subsection, plainly requires by its text only that the physical billboard sign and the structure that supports the sign be excluded from the valuation, but this provision does not have any effect on a taxing authorities valuation of the land and other non-excluded or non-exempt taxable real estate situated on that land.

The Court looked to Tech One Associates v. Board of Property Assessments, Appeals and Review of Allegheny County, 53 A.3d 685 (Pa. 2012) to determine that when real estate is subject to a long-term lease, the portions of the property subject to a leasehold interest cannot be disregarded in valuing the property.

Accordingly, the Court held that the trial court erroneously interpreted the sign-and-sign-structure exclusion of Section 8811(b)(4) to foreclose any consideration of any potential income that a property owner may receive from the placement of a billboard on the property in arriving at a fair market value. Thus, the Court remanded the matter back to the trial court for further proceedings consistent with its holding.

Please contact Paul Morcom (717-237-5364) or Randy Varner (717-237-5464) if you have any questions regarding this decision.

Nonprofit entities that own Pennsylvania real property are under relentless attack from local taxing jurisdictions regarding the exempt status of property used for charitable purposes, and thus must be ever vigilant in fighting back to either maintain a property’s exempt status or gain exempt status for a newly built or acquired property.

To be successful, nonprofit entities need to fully understand the constantly evolving landscape of the real estate tax “purely public charity” exemption in Pennsylvania.

A summary of the current legal standard for Pennsylvania’s “purely public charity” exemption:

To qualify for an exemption from tax as a “purely public charity,” an entity must meet both constitutional and statutory requirements. Mesivtah Eitz Chaim of Bobov, Inc. v. Pike Cnty. Bd. of Assessment Appeals, 44 A.3d 3 (Pa. 2012).

First, an entity must prove it is a “purely public charity” under Article VIII, Section 2(a)(v) of the Pennsylvania Constitution, which provides:

(a) The General Assembly may by law exempt from taxation:

…

(v) Institutions of purely public charity, but in the case of any real property tax exemptions only that portion of real property of such institution which is actually and regularly used for the purposes of the institution.

CONST. art. VIII, § 2(a)(v).

Unfortunately, the Pennsylvania Constitution does not define the term “purely public charity.” For over a hundred years the courts in Pennsylvania were left to determine what was a “purely public charity.” In 1985, the Pennsylvania Supreme Court decided Hospital Utilization Project v. Commonwealth, 487 A.2d 1306 (Pa. 1985) (commonly known as “HUP”), which set forth the following five criteria that an organization must satisfy to be considered an “institution of purely public charity:”

1. Advance a charitable purpose;
2. Donate or render gratuitously a substantial portion of its services;
3. Benefit a substantial and indefinite class of persons who are legitimate subjects of charity;
4. Relieve the government of some of its burden; and
5. Operate entirely free from private profit motive.

This five-prong test for “purely public charity” status has become known as the “HUP test.” All five-prongs must be met. If an organization does not meet just one prong, it is not a “purely public charity,” and thus its property is not entitled to a tax exemption. By satisfying the HUP test, the applicant demonstrates that it meets the minimum constitutional qualifications for being an appropriate subject of a tax exemption.

Once the Constitutional HUP test is satisfied, an entity seeking a “purely public charity” exemption must satisfy the five statutory requirements of the Institutions of Purely Public Charity Act, codified at 10 P.S. §§ 371-385 (“Act 55”). The purpose of Act 55 was to legislatively clarify the five-point test for exemption adopted by the HUP test in a way that would eliminate inconsistent application of standards by providing uniform grounds for exemption. 10 P.S. § 372(b).   However, the Pennsylvania Supreme Court in Mesivtah Eitz Chaim of Bobov, Inc. v. Pike Cnty. Bd. of Assessment Appeals, 44 A.3d 3 (Pa. 2012) held that before ever getting to Act 55’s test, an institution must pass constitutional muster by clearing the five-prong HUP test. Thus, instead of replacing the HUP test, Act 55 just became another test a charitable organization must satisfy to qualify for tax exemption.

Finally, an entity must also prove it merits an exemption under the applicable county assessment law. The Consolidated County Assessment Law, 53 Pa.C.S. § 8812, provides tax exemptions for second class A through eight class counties, which accounts for 65 of the 67 counties in Pennsylvania. Exemptions for first class (Philadelphia County) and second class (Allegheny County) counties are still governed by the General County Assessment Law, 72 P.S. § 5020-204.

Accordingly, an entity will be considered a “purely public charity” and its property will be exempt from real estate taxes only after it satisfies the five criteria of the HUP test, the five criteria of Act 55 and the specific criteria in each relevant county assessment law .

Current “Purely Public Charity” Exemption Landscape in Pennsylvania:

The current landscape for the “purely public charity” exemption in Pennsylvania is filled with landmines. The local taxing jurisdictions (schools, municipalities and counties) in Pennsylvania are looking for revenue sources wherever they can find them with the ever-increasing pension issue, shrinking tax bases and rising administration costs. Thus, taxing jurisdictions are appealing “purely public charity” exempt property classifications at an alarming rate with a “nothing to lose attitude.”

The heavy burden to prove it is entitled to exemption is on the organization seeking exemption. Four Freedoms House of Philadelphia, Inc. v, Philadelphia, 279 A.2d 155 (Pa. 1971 ). This principle is not overruled even if the taxing authority is seeking to remove the exemption from the exempt realty. School District of City of Erie v. Hamot Medical Center, 602 A.2d 407 (Pa. Cmwlth. 1992). Accordingly, the cards are affirmatively stacked in favor of the taxing jurisdictions because an organization seeking exemption only must not satisfy one of the criteria under the HUP test, Act 55 or the county assessment law to not be considered a “purely public charity.”

Since the HUP decision was handed down in 1985, many charitable institutions have lost their exempt status because the appellate courts took a strict application of the mandated criteria. When Act 55 was enacted, the appellate courts took a more liberal approach of the mandated criteria at the expense of the taxing jurisdictions. However, the appellate courts have now gone back to a strict application of the mandated criteria since Mesiztah Eitz Chaim held that an institution must pass constitutional muster by satisfying the HUP test before ever getting to Act 55’s test.

Accordingly, recent case law coming out of the appellate courts regarding the “purely public charity” exemption is very inconsistent and relies heavily on the facts of each specific case. These inconsistencies have led to nonprofit entities having to expend considerable financial resources to fight for “purely public charity” exemption – resources that could be used instead for furthering the nonprofit entity’s charitable mission.

Payment in Lieu of Taxes:

In recent years, many nonprofit entities are entering into a payment in lieu of taxes agreement (“PILOT”) with the taxing jurisdictions in order to forego the costs and risks of litigation as to whether or not it is a “purely public charity.” Unfortunately, taxing jurisdictions in Pennsylvania are using every means possible to pressure nonprofit entities into entering these types of agreements in order to forego costs of litigation. Specifically, taxing jurisdictions have been known to use the media (i.e. television, social media or newspaper) to call out a nonprofit entity for seeking exempt status on a property and thus removing much needed tax revenues from a struggling school district or municipality. There have also been instances where taxing jurisdictions have publicly announced what one nonprofit entity was paying in a PILOT with the expectation that another nonprofit entity seeking a PILOT would agree to pay the same amount.  Undoubtedly, a PILOT will have an adverse financial impact on nonprofit entities that agree to pay them, and as stewards of tax-exempt donor funds, nonprofit entities may be coerced into making payments that do not necessarily fall within its particular charitable purpose. Consequently, nonprofit entities must walk a fine line between being “good corporate citizens” and fulfilling its charitable mission.

The one main advantage to a PILOT is that they are contracts between the nonprofit entity and the taxing jurisdiction and thus could be structured in any way that the parties agree. Accordingly, a PILOT should be looked at with an “outside the box” mentality. A PILOT doesn’t have to be exclusively about money changing hands from the nonprofit entity to the taxing jurisdiction. In fact, a nonprofit entity can donate its services or facilities in exchange for the taxing jurisdiction not disputing its tax-exempt status.

One of the main issues when dealing with a PILOT is whether the property at issue is a newly created property that could now be taxed or is one that was taxed and could now be nontaxable. A PILOT should be easier to agree to when dealing with a property that was never taxed and could now possibly be taxed because the taxing jurisdictions were never financially dependent on any tax revenue from that property. It is a whole other ball game when a large taxable property is sold to a nonprofit entity and could possibly be deemed exempt going forward because the taxing jurisdictions need to figure out how to fill that budget gap. In these instances, I find that a stepped down payment plan works best so that the taxing jurisdictions can adjust their budgets accordingly going forward.

There has not been a lot of litigation regarding PILOTs in Pennsylvania. However, a recent Commonwealth Court decision upheld a trial court order granting a petition to enforce a PILOT agreement. In re Appeal of Springfield Hosp., 179 A.3d 632 (Pa. Cmwlth. 2018). The relevant facts in that case were as follows: taxing authorities sought to impose property taxes upon a nonprofit entity that operated a hospital after the health campus was expanded to include medical office buildings, a sports club and a parking garage which the taxing authorities asserted were not entitled to an exemption. The matter was resolved through the parties entering into a PILOT agreement. The PILOT agreement specified that the hospital and its successors and assigns would not be subject to real property tax so long as the existing hospital building is used solely for hospital purposes by the taxpayer, or by another tax-exempt entity. When the property was sold to a for-profit entity, the taxing authorities sought to impose property tax effective on the date of transfer.

The trial court found, and the Commonwealth Court agreed, that the plain language of the PILOT agreement provided that the property would become taxable on transfer to a non-exempt entity. The Commonwealth Court further found that making the assessment of taxes effective as of the date of transfer under the PILOT agreement did not violate the tax assessment day rule as the change in taxation is not pursuant to a reassessment. The rationale being that the parties agreed in the PILOT that tax was due on the property when and if the property was not owned by a hospital that was exempt from federal taxation.

This decision is troublesome because the rule in Pennsylvania (the tax assessment day rule) has always been that if a property is tax exempt on the day of assessment, it remains tax exempt for the entire year. Accordingly, if a property is tax exempt on January 1, it is exempt until December 31. Likewise, if a property is taxable on January 1, it is taxable until December 31. The rationale being that the taxing jurisdictions could budget accordingly if they knew that a property was taxable or nontaxable the entire year, instead of only part of the year.

Pursuant to this decision, nonprofit entities should be careful how they address the sale of an exempt property in a PILOT. Because a PILOT is a contract, the parties to a PILOT can agree that a property will be taxable January 1, the year after the property is sold to a for-profit entity. Thus, ensuring a for-profit buyer certainty of future local real estate tax liabilities that potentially could help close the sale.

Conclusion:

In sum, nonprofit entities need to be vigilant in understanding the “purely public charity” exemption laws in Pennsylvania to properly contest increased scrutiny on their properties from local taxing jurisdictions. Additionally, nonprofit entities need to be creative when negotiating PILOT terms with a taxing jurisdiction and should come to the negotiation table with an “outside the box” mentality.

Please contact Paul Morcom, Esq. at 717-237-5364 or Randy L. Varner, Esq. at 717-237-5464 if you have any questions regarding the “purely public charity” exemption or PILOTs in Pennsylvania.