The deadline for filing a real estate tax assessment appeal for the 2024 tax year is fast approaching in Allegheny County.  The deadline is April 1, 2024.  The Common Level Ratio for 2024 is 54.5%.

Allegheny County is the only county out of the 67 counties in Pennsylvania whereby you appeal the assessed value when the assessed value is already effective.

If you have any questions about appealing your real commercial property in Allegheny County, please contact Paul Morcom (717-237-5364).

On January 10, 2024, the Commonwealth Court held in NHL Players Ass’n v. City of Pittsburgh, (No. 1150 C.D. 2022) that the City of Pittsburgh’s Facility Tax — a unique tax on nonresidents who use a sports stadium or arena (“Facility”) to engage in an athletic event or other performance — violated the Pennsylvania Constitution.

The Local Tax Enabling Act (“LTEA”), a state statutory act, permitted the City of Pittsburgh (“City”) to impose the Facility Tax in a flat dollar amount or up to 3% of the income attributed to a nonresidents’ usage of the facility.  The City imposed a 3% Facility Tax by ordinance.

By contrast, residents, including those earning income at a City Facility, did not pay the Facility Tax, but instead paid a 1% local Earned Income Tax (“EIT”) to the City and a 2% tax to the School District. Nonresidents performing work in the City, but not earning income at a Facility, also paid a 1% EIT, but were prohibited from paying a tax to the School District by law.

The NHL Players Association, the MLB Players Association, the NFL Players Association, and various individuals, filed a civil complaint against the City, alleging in part that the Facility Tax ordinance (importantly, not the provision of the LTEA authorizing the ordinance) violated the Pennsylvania Constitution.  Specifically, the complaint alleged that the ordinance violated the Uniformity Clause, which states that “all taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax.”  The trial court agreed that the tax violated the Uniformity Clause, because nonresident athletes paid a 3% Facility Tax while resident athletes only paid a 1% EIT.

On appeal, the City argued that the tax burden on both residents and nonresidents working at a Facility is 3% — residents pay a 1% EIT and a 2% School District tax, and nonresidents pay the 3% Facility Tax.  The City further argued that the trial court should have severed the unconstitutional language in the ordinance by removing the word “nonresident” and replacing it with “individual.”

But the Commonwealth Court disagreed.

The Court held that the Facility Tax ordinance violated the Uniformity Clause.  The Court concluded that the tax burdens were not equal because the City has effectively imposed a 3% EIT on nonresidents, but imposed a 1% EIT on residents, who derive income from a Facility.  According to the Court, the 2% School District tax paid by residents was not relevant, because such a tax could not be imposed on nonresidents.  Nothing argued by the City justified different treatment between the two classes of taxpayer.

The Court further held that the unconstitutional language could not be severed from the ordinance.  Replacing the word “nonresident” with “individual” would impose the Facility Tax on residents.  The LTEA, however, authorizes a Facility Tax on nonresidents only.  According to the Court, the LTEA did not allow expansion of the ordinance to impose tax on residents because the LTEA specifically stated that, if the LTEA authorizing provision were found unconstitutional, nonresidents would simply be required to pay EIT.  Therefore, the Court invalidated the ordinance.

Local taxes are often complicated and frequently overlooked.  Such taxes are not necessarily permissible simply because they are authorized by the state legislature.  Taxpayers should not automatically assume that they are subject to every tax and should carefully consider their local tax liabilities.

If you have any questions about this Decision or any local tax matter, please feel free to contact Adam Koelsch (717-237-5305) or any member of the McNees State and Local tax team.

On October 16, 2023, the Pennsylvania Supreme Court granted Tower Health’s Petition for Allowance of Appeal related to the Montgomery County hospital property. The Supreme Court is going to address the following two issues on appeal:

  1. Whether the Commonwealth Court erred by holding that Pottstown Hospital, LLC, offered substantial executive compensation based upon the financial performance of the institution, thereby precluding it from establishing that it was operating entirely free from private profit motive to qualify as a purely public charity entitled to real estate tax exemption under the standard set forth in Hospital Utilization Project v. Commonwealth (“HUP”), 487 A.2d 1306, 1317 (Pa. 1985).
  2. Whether the operation of entities related to Pottstown Hospital, LLC, is relevant to a determination of whether it qualifies as a purely public charity under the HUP test.

Tower Health’s Supreme Court brief and reproduced record are due on December 27, 2023. We will keep you updated as this very important case for nonprofit organizations seeking real estate tax exemption in Pennsylvania makes its way through the Pennsylvania Supreme Court.

On December 5, 2023, the Pennsylvania Supreme Court issued an Order denying Tower Health’s Petition for Allowance of Appeal related to the three Chester County hospital properties. Accordingly, the Chester County hospitals are all taxable for real estate tax purposes pursuant to the Commonwealth Court’s affirmance of the trial court’s determination that Tower Health was not an institution of purely public charity. Unlike the Montgomery County hospital appeal, the Commonwealth Court actually dismissed all three Chester County appeals because all of the issues on appeal were waived for failure to comply with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. Thus, the Chester County appeals contained procedural issues that I am sure the Supreme Court did not want to address.

Please contact Paul Morcom, Esq. at 717-237-5364 or Adam Koelsch, Esq. at 717-237-5305 if you have any questions regarding the “purely public charity” exemption in Pennsylvania.

Now that the 2024 tax year August 1 annual assessment appeal filing deadline has passed for 26 counties in Pennsylvania, the appeal deadlines for the remaining 41 counties are as follows:

August 15


August 31


September 1


October 2 (First Monday in October)


April 1, 2024 (usually March 31, but falls on Sunday)


If you have any questions or concerns about filing an annual assessment appeal for any of the above-listed counties, please contact Paul R. Morcom, Esquire at 717-237-5364 to discuss.

* Tioga County is going through a countywide reassessment for tax year 2024, so the filing deadline is 40 days from the Notice of Reassessment mailing date.

In a long-awaited decision, the Pennsylvania Supreme Court recently held in Synthes USA HQ, Inc. v. Commonwealth, 11 MAP 2021, that service providers were required to apportion receipts based on the location where the customer received the benefit of the service (“Benefit-Received Method”) under Pennsylvania’s “costs of performance” (“COP”) statute in effect prior to 2014.  The Court also ruled that the Office of Attorney General (“OAG”), which represents the Commonwealth in tax appeals, is permitted to take independent positions, and is not bound to act merely as a “mouthpiece” for the Department of Revenue (“DOR”).  In addition to the majority opinion in the case, there was a concurring opinion (dealing only with the legal representation issue) and a concurring and dissenting opinion (dissenting from the majority’s interpretation of the COP statute). 

Prior to 2014, Pennsylvania’s COP statute required receipts from the sale of services to be sourced to the location of the “income-producing activity.”  Where the “income-producing activity” was performed in multiple states, the receipts were required to be sourced to the state in which the greatest proportion of the “income-producing activity” was performed, based on “costs of performance.”  Neither the tax statute nor the Department’s regulations defined “income-producing activity” or “costs of performance.”  The OAG took the position that the COP statute required that service receipts be sourced based on the location where the taxpayer produced the service, while the DOR asserted that the “income-producing activity” occurred where the customer received the benefit of the service. 

The OAG contended that the terms “income-producing activity” and “costs of performance” plainly referenced the service provider rather than the customer.  The OAG also noted that the statutory language applicable to the sourcing of receipts from sales of services was “remarkably different” from the language sourcing receipts from sales of tangible personal property to where the “property is delivered or shipped to a purchaser.”  The OAG further argued that the statutory adoption of market-based sourcing for services in 2014 demonstrated a change in legislative intent, rather than a “clarification” of the prior language in the COP statute addressing the sourcing of receipts from sales of services. 

The DOR argued that “income-producing activity” is “fulfilled, accomplished, or completed when and where the customer receives the benefit of the service.”  In addition, the DOR emphasized that its position should be entitled to deference because it is the agency tasked with implementing the COP statute.

After noting that colorable arguments can be made that the “income-producing activity” occurs either where the service is produced or where the customer receives the service, the Court upheld the Benefit-Received Method advocated by the DOR.  The Court’s decision was based primarily on an analysis of the purpose of the sales factor, which is “to give weight to the states that provide the market for the taxpayer’s products.”    

While the Court technically did not base its interpretation of the COP statute on deference to the DOR’s position, it did refer to the parties’ agreement that the DOR had “utilized the Benefit-Received Method as a ‘consistent and deliberate policy and practice’” in its discussion of the background of the case.  The Court also concluded that its support of the DOR’s application of the Benefit-Received Method “has the added benefit of providing continuity for taxpayers as the Department’s consistent application of destination sourcing for similarly situated taxpayers prior to 2014 will continue for taxpayers in 2014 and after.”  That potential deference to the DOR’s interpretation of the COP statute is significant because the DOR had never published any formal guidance regarding its interpretation of the COP statute prior to 2014 and, as noted in the amicus brief filed by Allianz of America, there was some question as to whether the DOR had, in fact, “consistently” applied the Benefit-Received Method when interpreting the COP statute. 

With respect to the OAG’s role in tax appeals, the Court concluded that the OAG represents the “Commonwealth,” separately from the DOR, and therefore can advocate  an interpretation of a tax statute that differs from the DOR’s interpretation.  The Court stated:  “While the Attorney General regularly represents the Department, it is not merely the Department’s law firm.  Instead, the Pennsylvania Constitution designates the Attorney General as the ‘chief law officer’ for the Commonwealth as a whole, accountable directly to the Pennsylvania voters, and independent of the Governor and the Commonwealth agencies.” 

Even though the OAG is permitted to take an independent position that may differ from the DOR’s position, the Court did not find that the OAG has exclusive control of tax appeals.  Rather, the OAG concurrently represents both the “Commonwealth” and the DOR in a tax appeal unless a conflict develops between the positions advocated by the OAG, on behalf of the Commonwealth, and by the DOR.  If a conflict develops and the OAG does not authorize the General Counsel’s Office to supersede it in the litigation, there may be separate representation of the Commonwealth and the DOR, with the Commonwealth represented by the OAG and the DOR represented by its own counsel.  Procedurally, this would occur by the DOR intervening in the appeal.  In practice, it is relatively rare for the OAG to take a position contrary to the DOR’s position in a tax appeal. 

If you have questions regarding this case, please contact Sharon Paxton, Esquire (717-237-5393), or any member of the McNees State and Local Tax team.

On February 10, 2023, in a much-anticipated group of Opinions, the Pennsylvania Commonwealth Court (“Court”) held that four separate Tower Health hospitals (one in Montgomery County and three in Chester County) did not qualify as institutions of purely public charity and thus, the hospitals were not entitled to real property tax exemptions for the 2018 through 2021 tax years.

Relevant Background

In 2017, Reading Health System, n/k/a Tower Health, LLC (“Tower Health”), purchased several for-profit hospital facilities from Community Health Systems (“CHS”), a for-profit entity, in Montgomery and Chester Counties.  Tower Health, a nonprofit 501(c)(3), created separate LLCs (Chester Hospitals and Montgomery Hospital) to run each of the purchased hospital facilities as nonprofit entities.  Those LLCs were:  Pottstown Hospital, LLC (“Montgomery Hospital”); and Brandywine Hospital, LLC, Jennersville Hospital, LLC and Phoenixville Hospital, LLC (“Chester Hospitals”).

Chester Hospitals and Montgomery Hospital filed real property tax exemption appeals for the 2018 tax year in their respective county.  The Montgomery County Board of Assessment Appeals (“Montgomery Board”) granted Montgomery Hospital real property tax exemption as a nonprofit entity for tax years 2018 through 2021.  However, the County of Chester Board of Assessment Appeals (“Chester Board”) denied Chester Hospitals real property tax exemptions for tax years 2018 through 2021.

The Pottstown School District appealed the Montgomery Board decision to the Court of Common Pleas of Montgomery County (“Montgomery trial court”).  After a de novo trial, the Montgomery trial court granted the real property tax exemption for Montgomery Hospital. 

Likewise, Chester Hospitals appealed the Chester Board decisions to the Court of Common Pleas of Chester County (“Chester trial court”).  After a de novo trial, the Chester trial court denied the real estate tax exemptions for Chester Hospitals. 

The Court reviewed the Montgomery trial court decision and record, and reversed the trial court’s order granting the real property tax exemption for Montgomery Hospital[1].  Additionally, in a surprise plot twist, the Court reviewed the Chester trial court decision and record, and instead of affirming the Chester trial court’s order denying real property tax exemption for Chester Hospitals, the Court dismissed Chester Hospitals’ appeals because all the issues on appeal were waived[2].  The Court could have ended its Chester Hospitals opinions on the waiver issue, but for some unknown reason, the Court proceeded to provide a complete analysis of the exemption criteria to show Chester Hospitals that they would not have satisfied all of the criteria necessary to be deemed an institution of purely public charity anyway.

Relevant Issues

Although there were numerous issues raised on appeal to the Court, I think the following are the two relevant issues addressed by the Court:

  1. Entitlement to Real Property Tax Exemption; and
  2. Standing for tax year 2018.

Entitlement to Real Estate Tax Exemption

In order to qualify for an exemption as an institution of purely public charity, an entity must first meet the five constitutional requirements set forth in Hospital Utilization Project v. Commonwealth, 487 A.2d 1306 (Pa. 1985), know as the HUP test.  After satisfying the five parts of the HUP test, an entity must then also satisfy the five statutory requirements of the Institutions of Purely Public Charity Act, commonly known as Act 55[3].  Once all ten prongs of the HUP test and Act 55 are satisfied, the entity must also comply with any additional and not inconsistent requirements of the relevant county assessment law.  Moreover, the party seeking a tax exemption has the burden of proving its entitlement to the exemption. 

In these appeals, the Court held that Montgomery Hospital and Chester Hospitals did not “operate free from private profit motive,” which is one of the five HUP test criteria.  Specifically, the Court concluded that tying 40% of executive compensation bonus to financial performance of each hospital was sufficiently substantial to indicate a private profit motive.  The Court looked to In re Dunwoody Village, 52 A.3d 408 (Pa. Cmwlth. 2012) for guidance, where it found that a nursing home did not operate free from private profit motive because the CEO’s maximum incentive bonus was 24% of salary and the chief financial officers was 18-19%.

Additionally, the Court found that Tower Health charged Montgomery Hospital and Chester Hospitals “exorbitant” management and administrative fees that grew exponentially from year to year and none of the hospitals “studied the charges to determine whether the administrative and management fees were fair or reasonable for the services provided” by Tower Health.   Thus, the Court concluded that Montgomery Hospital and Chester Hospitals failed the requirements of the HUP test.

The Court could have ended its analysis right there because it concluded that one of the prongs was not met – operates entirely free from private profit motive.  However, the Court found that Chester Hospitals failed the “gratuitous services” prong of the HUP test and also failed the requirements of Act 55 because Chester Hospitals’ financial evidence failed to use GAAP accounting for calculations as required by 10.P.S. § 375(f)(3).  The Court agreed with the Chester trial court that Chester Hospitals failed to show the amount of gratuitous services it provided because Chester Hospitals did not provide information concerning whether patients receiving free, discounted, or reimbursed services actually had the ability to pay the full costs.  The Court noted “[a]lthough inability to pay is not expressly part of the HUP test, it was recognized as relevant to gratuitous services in St. Margaret Seneca Place[4].”

Standing for tax year 2018

The Montgomery trial court concluded that Montgomery Hospital had standing to seek tax exemption for tax year 2018 because it was the equitable owner pursuant to the pending asset purchase agreement and was therefore an aggrieved person.  Conversely, the Chester trial court concluded that Chester Hospitals did not have standing to apply for 2018 tax exemptions because neither Chester Hospitals nor Tower Health was the record owner of the properties at issue at the time the exemption applications were filed.

Although the exemption appeals for tax year 2018 for Montgomery Hospital and Chester Hospitals manifested because of the same purchase agreement between Tower Health and CHS, the trial courts came to two different conclusions regarding standing for tax year 2018.

Fortunately, the Court expounded on the statutory “any person aggrieved” language found in 53 Pa.C.S. § 8844(c)(1) and held that Montgomery Hospital and Chester Hospitals had standing for tax year 2018 because “the owner of a property who may feel aggrieved [for tax assessment purposes] includes not only the registered owner of the real estate, but also an equitable owner or owner of a taxable interest in the property.”  The Court noted “if [Montgomery Hospital] was forced to wait until it has record ownership of the properties, the window for seeking a tax exemption for tax year 2018 would have passed, even though [Montgomery Hospital] would have had legal title during that entire tax year.”

Key Takeaways

The trial courts from two adjoining counties reached two completely different outcomes using essentially the same facts and law, thus showing how convoluted and problematic this area of the law really is when trying to advise nonprofits in general.  If there was ever an area of law that should be black and white – this should be it – but clearly isn’t.  Keep in mind, nonprofits have charitable missions that benefit the public as a whole.  Every dollar that a nonprofit brings in the door should be used to accomplish its charitable mission, not fight over exempt status.  However, the nonprofits in Pennsylvania have to spend their limited resources deciphering a set of rules that are very fact specific, open to interpretation and grey at best, on top of having the “heavy” burden of proving entitlement to exempt status.

The taxing districts will undoubtedly smell the “blood in the water” caused by these Court Opinions and a new wave of taxing district appeals fighting current exempt nonprofit hospital property and other exempt nonprofit properties will ensue, much like after the HUP decision in 1985. 

Accordingly, nonprofits at the very least need to:

  • Review all executive compensation, with a specific eye on all bonus structures as they relate to financial performance of the nonprofit entity.
  • Analyze the reasonableness of all management and administrative fees charged by any parent or operating entity, similar to a transfer price study done for Federal and State income tax purposes.
  • Understand the HUP test, Act 55 and relevant county assessment law.
  • Be willing to entertain or enter into “payment in lieu of taxes agreements” commonly referred to as PILOT Agreements with taxing districts.

Please contact Paul Morcom, Esq. at 717-237-5364 or Adam Koelsch, Esq. at 717-237-5305 if you have any questions regarding the “purely public charity” exemption in Pennsylvania.

[1] Pottstown School District v. Montgomery County Board of Assessment Appeals et. al., 1217 C.D. 2021 (2/10/23).

[2] Brandywine Hospital, LLC v. County of Chester Board of Assessment Appeals et. al., 1279, 1280, 1283 and 1284 C.D. 2021 (2/10/23), Jennersville Hospital, LLC v. Chester County Board of Assessment Appeals, et. al., 1282 and 1286 C.D. 2021 (2/10/23) and Phoenixville Hospital, LLC, v. Chester County Board of Assessment Appeals, et. al., 1281 C.D. 2021 and 1285 C.D. 2021 (2/10/23).

[3] Codified at 10 P.S. § 371 et seq.

[4] St. Margaret Seneca Place v. Bd. of Prop. Assessment, Appeals & Rev., 640 A.2d 380 (Pa. 1994).

The deadline for filing a real estate tax assessment appeal for the 2023 tax year is fast approaching in Allegheny County.  The deadline is March 31, 2023.  Normally, you would only be able to appeal the assessment for the 2023 tax year, however, because of the shenanigans with Allegheny County manipulating the Common Level Ratio for 2022, the County is allowing property owners to also file an assessment appeal for the 2022 tax year before March 31, 2023. This is truly and unprecedented event.

Commercial property owners that have been adversely affected by COVID 19 should be taking a close look at their assessed values for 2022 and 2023 and possibly filing assessment appeals for the 2022 or 2023 tax years, or both.   The new Common Level Ratio for 2022 is 63.53% instead of the bogus 81.1%. Additionally, the Common Level Ratio for 2023 is 63.6%.

Allegheny County is the only county out of the 67 counties in Pennsylvania whereby you appeal the assessed value when the assessed value is already effective.

If you have any questions about appealing your real commercial property in Allegheny County, please contact Paul Morcom (717-237-5364).

This past summer under the Inflation Reduction Act, Congress enacted new Internal Revenue Code (“Code”) Section 4501, which imposes an excise tax on certain corporate redemptions or repurchases by a corporation of its own stock. Essentially, Section 4501 only applies to “Covered Corporations”, which more or less translates to corporations whose stock is publicly traded. The excise tax is calculated at 1% of the fair market value of the stock repurchased (the “Excise Tax”).

Interestingly, the Excise Tax is not limited solely to redemptions under Section 317(b) of the Code. Rather, the Excise Tax also applies to “transactions economically similar” to Section 317(b) redemptions and purchases from special affiliated corporations. Given the broad wording in the statute, many practitioners were concerned as to whether this new Excise Tax would apply to reorganizations under Section 368 or spin-offs under Section 355. The short answer? It depends.

Thankfully, on December 27, the IRS issued Notice 2023-02 (the “Notice”), which not only confirms the U.S. Treasury Department intends to issue proposed regulations under Section 4501, but also provides initial guidance on the Excise Tax’s application to other transactions. While the Notice offers some much-welcomed clarification, the answer, however, will vary on a case-by-case basis, even when the same Code section applies to two different transactions.

In the context of certain tax-free reorganizations and spins, corporations who furnish cash to shareholders in exchange for fractional shares will not trigger the Excise Tax, so long as: 1) the shareholder receiving the cash did not separately bargain for the consideration, 2) the payment was carried out for the sole purpose of administrative convenience, and 3) the amount of cash received does not exceed the value of one full share of stock. The Notice also makes clear that the new Excise Tax does not apply to deemed redemptions as well, such as those occurring pursuant to section 304 transactions. Liquidations under sections 331 and 332, generally will not be regarded as repurchases, so long as it is a complete liquidation.

However, as mentioned above, the statute also provides that the excise tax can also apply to transactions similar in economic substance to a redemption. Section 3.04(a) of the Notice gives what is (for now) an exhaustive list of such transactions:

  • Acquisitive reorganizations where the target corporation’s shareholders exchange their target corporation stock pursuant to the reorganization;
  • Certain recapitalizations under Section 368(a)(1)(E);
  • F reorganizations where the transferor corporation’s shareholders transfer their stock back to the corporation;
  • Split offs where the distributing corporation exchanges shares of controlled or boot with its shareholders in exchange for its own stock; and
  • Liquidations that are not complete liquidations as defined in the Section 331 regulations.

As with any initial guidance, the Notice may only be relied upon until the Treasury issues the proposed Section 4501 regulations. Practitioners with publicly traded clients contemplating transactions economically similar to a repurchase but not yet on the list above, may want to consider carrying them out before the new regulations are promulgated in the event the Treasury expands its list to other economically similar transactions.

If you have any questions, please feel free to contact Justin Abodalo (717-237-5362).

On September 27, 2022, the Pennsylvania Department of Revenue (“DOR”) issued a revision of Personal Income Tax Bulletin 2006-07 (the “Bulletin”), which confirms that recent Pennsylvania legislation reversed longstanding caselaw that disallowed deferral of gain recognition for like-kind exchanges. Under Act 53 of 2022, the Commonwealth now conforms with section 1031 of the Internal Revenue Code (“IRC 1031”) for Pennsylvania income tax purposes.

Under general income tax principles, when property is sold for a profit, the seller must pay tax on the gain recognized from the sale. IRC 1031 provides an exception to this general principle, however, when two parties exchange similar or “like-kind” real property that is used for business or held as an investment. For example, if Party A owns Building 1 and Party B owns Building 2, rather than selling the buildings and having to pay tax the year the sales occur, A and B can exchange the buildings to one another and defer the gain recognition and tax owed.

The DOR’s Bulletin provides that like-kind exchanges will now be given similar treatment in Pennsylvania for tax years beginning after December 31, 2022.

However, the Bulletin also makes clear that this deferral of gain applies only in the context of income tax. Pennsylvania taxpayers who engage in like-kind exchanges after 2022 will still be required to pay sales and use tax and transfer taxes, as applicable, for each transfer.

This is noteworthy because under IRC 1031, a like-kind exchange does not have to occur simultaneously if certain requirements are met (“Deferred Exchanges”). Said differently, taxpayers can acquire the replacement party before divesting the relinquished property, and vice versa, yet still qualify for IRC 1031’s tax-deferred treatment. Sometimes an additional party, such as a Qualified Intermediary or Exchange Accommodation Titleholder, can help facilitate like-kind exchanges (a “Facilitating Party”).

Use of Deferred Exchanges, Facilitating Parties, or both can be very useful for taxpayers interested in divesting old property and acquiring new property via a like-kind exchange, but cannot find a counterparty to conduct an exchange with.

Returning to our example, with A and B. Suppose A was not interested in Building 2, but B wanted to acquire Building 1. Through careful planning and implementation, A and B could conduct a Deferred Exchange with a Facilitating Party (“FP”) where A and B divest Buildings 1 and 2, respectively, to FP. Then, FP conveys Building 1 to B. FP continues to hold title of Building 2 until A finds desirable replacement property. This can still qualify as a like-kind exchange under IRC 1031, and now, the Bulletin.

Now suppose C owns Building 3 but wants to divest it in order to acquire Building 2. Under the right circumstances, FP can help structure an exchange where C transfers Building 3 to FP and FP transfers Building 2 to C, all the while still qualifying for tax-deferred treatment under IRC 1031. Also, if A wanted to acquire Building 3 from FP, this could possibly qualify as well upon satisfying particular requirements.

As mentioned above, Pennsylvania conforms to IRC 1031 only for income tax purposes. The Bulletin explains sales and use taxes and transfer taxes would still apply to scenarios with multiple transfers, such as the one described above. This further necessitates the use of careful planning with skilled professionals for anyone who is contemplating a like-kind exchange.

If you have any questions regarding like-kind exchanges for Pennsylvania income tax purposes, please contact any member of the McNees State and Local tax team to discuss.

In In Re: Appeal of the Coatesville Area S.D., et al., Nos.1130 & 1161 C.D. 2018 (Pa. Commw. Ct. Aug. 19, 2022), the Commonwealth Court decided cross-appeals of a taxing school district and a property owner regarding the owner’s entitlement to an exemption from real estate taxes as an institution of purely public charity on a parcel containing a preserved historic building.

The parcel at issue contained a 120-year-old building that originally served as the corporate headquarters for a steel company, which was the first producer of boiler plate in the United States.  The current owner, Huston Properties, Inc., is a 501(c)(2) non-profit corporation, wholly owned by a 501(c)(3) charitable trust, that was organized and operated “exclusively to hold property, collect income therefrom, and turn the entire income, less expenses, over to the . . . [t]rust . . . ,” which would receive all funds from the owner if it were liquidated.  The owner had received the property — which was entered in the National Register of Historic Places and located in a locally recognized historic district — under a deed restriction that the property “be used as a site of an office building and otherwise only for purposes consistent with the preservation and conservation of said tract of land as a historic structure.”  The owner had adhered to those restrictions.  The owner’s expenses on the property consistently exceeded its income by a yearly average of $39,000, with rents from tenants not covering operating expenses, and therefore requiring subsidies from the trust.  The tenants consisted of for-profit and non-profit entities (including a museum and a community band), with some of the non-profits paying only nominal or no rent.  The nonprofits rented approximately 89% of the usable space in the building.  All revenues received were used for the maintenance and preservation of the property.

The owner had applied for the purely public charity exemption to the assessment board, which granted a partial exemption of 72%.  The school district and the city appealed to the trial court, challenging the partial exemption.  A complicated series of appeals and remands followed, including an appeal on a procedural issue to the Pennsylvania Supreme Court, with the matter eventually returning to the Commonwealth Court on cross-appeals between the school district and the owner.  There, the school district argued that the trial court erred in concluding that:  (1) owner did not satisfy the requirements to be considered an institution of purely public charity set forth in Hospital Utilization Project v. Com., 487 A.2d 1306 (Pa. 1985) (“HUP”) and 10 P.S. § 375 (“Act 55”); (2) the property was precluded from a charitable tax exemption under the Consolidated County Assessment Law, 53 P.S. § 8812(b)(1)-(2); and (3) the record did not support a 72% partial exemption on the property.  The owner merely argued that it was entitled to a full (100%) charitable exemption on the property.

The Commonwealth Court held that the owner satisfied all four of the disputed prongs of the overlapping HUP/Act 55 tests.

First, the Court concluded that the owner “advanced a charitable purpose.”  The owner had preserved and maintained the building as a historic structure, which, contrary to the school district’s argument, is a purpose recognized as important and beneficial to the public and advances educational, moral, and social objective under the Environmental Rights Amendment (Pa. Const. art. I, § 27) (ERA) and the Pennsylvania History Code, 37 Pa.C.S. § 102.  Furthermore, contrary to the school district’s argument, the owner’s purpose was not to generate income for the trust as an unrelated business entity, because the deed restrictions required the building to be used consistent with is preservation as a historic structure, and because the property was consistently operated at a loss, requiring subsidies from the trust.

Second, the Court concluded that the owner “[d]onated or renders gratuitously a substantial portion of its services,” by providing for the preservation of a historic structure at a consistent loss.  Contrary to the school district’s argument, the Court concluded that nothing in Act 55 requires that goods and services be “tangible” to determine whether a substantial portion of them have been donated or gratuitously rendered.

Third, the Court concluded that the owner “benefitted a substantial and indefinite class of persons who are legitimate subjects of charity.”  The property was accessible to members of the general public through a museum and a community band, and its historic and architectural features could be viewed and appreciated by the general public.  Contrary to the school district’s argument, nothing required that the tenants be legitimate subjects of charity or that the entire property be open to entry by the public in order to qualify.

Fourth, and lastly, the Court concluded that the owner “relieved the government of some burden.”  Relying on Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, 714 A.2d 397 (Pa. 1998), the Court recognized that a government burden may be either “obligatory or discretionary in origin,” and that the Commonwealth had voluntarily assumed the burden of preserving historic structures, as evidenced by the rights to “preservation of the natural, scenic, historic and esthetic values of the environment” in the ERA and the legislative policies for mandating and funding historic preservation in the Pennsylvania History Code.

The Court also concluded that the property was not precluded from a charitable tax exemption under the Consolidated County Assessment Law.  The property satisfied 53 P.S. § 8812(b)(1) — allowing exemption, except for property from which any income or revenue is derived other than from recipients of the bounty of the institution or charity — because the rent-paying tenants benefited from the owner’s preservation activities, in that the rents were insufficient to cover the costs to maintaining the property, which were subsidized by the trust.  The property also satisfied 53 P.S. § 8812(b)(2) — requiring actual and regular use by the owner — because the record showed that the owner maintained its office in the building.

Finally, the Court concluded that the property should be 100% exempt because, just as in Alliance Home of Carlisle v. Board of Assessment Appeals, 919 A.2d 206 (Pa. 2007), the income-producing portion of the property subsidized the charitable component, in that the rents offset some of the expense of preserving the property and the property was operated at a deficit.

This Decision represents an example of the more liberal interpretation the Commonwealth Court has given to public charity exemption for so-called “cultural institutions” than the school districts have been willing to concede.

If you have any questions about this Decision or any state tax matter, please feel free to contact Adam Koelsch (717-237-5305) or any member of the McNees State and Local tax team.