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.

 

The annual assessment appeal deadline for tax year 2019 real estate taxes just passed on August 1, 2018 for 19 of Pennsylvania’s 67 counties.  The next annual assessment appeal deadlines are as follows:

  • Berks County – August 15, 2018
  • Wyoming County – August 31, 2018

The majority (44 out of 67) of Pennsylvania’s counties have an annual assessment appeal deadline of September 1, 2018 for tax year 2019.  Those counties are:

  • Armstrong
  • Beaver
  • Bedford
  • Blair
  • Bradford
  • Cameron
  • Carbon
  • Centre
  • Clarion
  • Clearfield
  • Clinton
  • Columbia
  • Crawford
  • Cumberland
  • Elk
  • Forest
  • Fulton
  • Greene
  • Huntington
  • Jefferson
  • Juniata
  • Lackawanna
  • Lebanon
  • Lycoming
  • McKean
  • Mercer
  • Mifflin
  • Montour
  • Northumberland
  • Perry
  • Pike
  • Potter
  • Schuylkill
  • Snyder
  • Somerset
  • Sullivan
  • Susquehanna
  • Tioga
  • Union
  • Venango
  • Warren
  • Washington
  • Wayne
  • Westmoreland

The appeal deadline for Philadelphia County is the first Monday of October, which is October 1, 2018 this year.

Allegheny County is the only county that has a deadline, March 31, that is actually during the year that you are appealing. Thus, the appeal deadline for tax year 2019 in Allegheny County is March 31, 2019.

If you own or lease commercial or industrial properties in Pennsylvania, please make sure that you are aware of these appeal deadlines. Additionally, if you are not sure if you should file an appeal on your property, please contact either Paul Morcom at 717-237-5364 or Randy Varner at 717-237-5464 to determine if an appeal is warranted for tax year 2019.

The annual assessment appeal deadline of August 1, 2018 for tax year 2019 is quickly approaching for the following Pennsylvania Counties:

Adams, Bucks, Butler, Cambria, Chester, Dauphin, Delaware, Erie, Fayette, Franklin, Indiana, Lancaster, Lawrence, Lehigh, Luzerne, Monroe, Montgomery, Northampton and York.

The annual assessment appeal deadline of September 1, 2018 for tax year 2019 is on the horizon for the following Pennsylvania Counties:

Armstrong, Beaver, Bedford, Blair, Bradford, Cameron, Carbon, Centre, Clarion, Clearfield, Clinton, Columbia, Crawford, Cumberland, Elk, Forest, Fulton, Greene, Huntington, Jefferson, Juniata, Lackawanna, Lebanon, Lycoming, McKean, Mercer, Mifflin, Montour, Northumberland, Perry, Pike, Potter, Schuylkill, Snyder, Somerset, Sullivan, Susquehanna, Tioga, Union, Venango, Warren, Washington, Wayne and Westmoreland.

There are a few oddball counties that have to be different and thus the annual assessment appeal deadline for Berks County is August 15, 2018 and Wyoming County is August 31, 2018. Philadelphia County is not a specific date, but instead the annual appeal deadline is the first Monday in October. Allegheny County is the only county that has a deadline, March 31, that is actually during the year that you are appealing. Thus, the appeal deadline for tax year 2019 in Allegheny County is March 31, 2019.

Each county has its own separate set of local rules pertaining to assessment appeals that need to be navigated in order to successfully file an annual assessment appeal.  If you own or lease commercial or industrial properties in Pennsylvania, please make sure that you are aware of these appeal deadlines. Additionally, if you are not sure if you should file an appeal on your property, please contact either Paul Morcom at 717-237-5364 or Randy Varner at 717-237-5464 to determine if an appeal is warranted for tax year 2019.

The Pennsylvania State Tax Equalization Board has released the Common Level Ratio (“CLR”) real estate valuation factors for 2017.  The common level ratio is the ratio of assessed value to market value used to value properties in a particular county for property tax purposes, and is used for purposes of appealing property tax assessments.  Click on the following link A6383603 to see the 2017 CLR list.  To determine if your property is currently over-assessed – take the properties current assessed value and divide it by the CLR.  This will give you your property’s current implied fair market value.  If you know that your property’s current fair market value is for example $100,000 (based on a recent appraisal value) and the current implied fair market value is $200,000, then your property is over-assessed and an annual assessment appeal should be filed to lower your assessed value and consequently your real estate taxes.  If you have any questions regarding the CLR and how to determine if your property is over-assessed, please call Paul Morcom (717-237-5364) or Randy Varner (717-237-5464) to discuss.

 

Lancaster, Pa. – (February 13, 2018) Nissin Foods topped the list of over 5,200 Lancaster County property owners that successfully appealed their assessed values.  The Nissin plant on Hempland Road in East Hempfield Township originally had an assessed value of $15,686,900 after the county-wide reassessment and due to a successful appeal, the new assessed value is $9,390,000 – a reduction of $6,290,900.  Representing Nissin in this appeal was Paul Morcom of McNees Wallace & Nurick LLC.

Paul has more than fifteen years of experience in state and local tax litigation.  Although Paul has significant experience in all state and local taxes such as sales/use, corporate net income, franchise, PURTA, gross receipts, gross premiums, realty transfer and personal income, most of his practice focuses on real estate tax.  Paul has successfully represented clients in real estate tax matters in 28 of Pennsylvania’s 67 counties.

Paul’s other recent real estate tax successes are as follows:

●   negotiated a $5,837,000 reduction in assessed value for a retail store in Allegheny County in December 2017, saving company $233,000 of real estate taxes per year;

●   received exempt status for non-profit in Cumberland and Lancaster Counties in November 2017, saving company $2,500,000 of real estate taxes per year;

●   negotiated an $84,609,800 reduction in assessed value for an industrial property in Blair County in March 2017, saving the company $1,100,000 of real estate taxes per year;

●   negotiated an $85,862,500 reduction in assessed value for a retail store in downtown Philadelphia in August 2016 saving the company $1,150,000 of real estate taxes per year; and

●   negotiated exempt status for two properties owned by a nursing home in Montgomery County in December 2016, resulting in $981,000 of refunds for real estate taxes paid in years deemed exempt and $337,400 of tax savings per year going forward.

Paul also coauthors the leading assessment treatise in Pennsylvania – Assessment Law & Procedure in Pennsylvania, which is published by The Pennsylvania Bar Institute every two years.  Be on the lookout for the 16th Edition, which will be out in the Spring of 2018.

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McNees is a full-service law firm based in central Pennsylvania with more than 130 attorneys representing corporations, associations, institutions and individuals. The firm serves clients worldwide from offices in Harrisburg, Lancaster, State College and Scranton, PA; Columbus, OH; Frederick, MD; and Washington, D.C. McNees is also a member of the ALFA International Global Legal Network.

www.mcneeslaw.com | @McNeeslaw | LinkedIn

On September 22, 2017, Judge Idee Fox of the Philadelphia Court of Common Pleas issued orders quashing the Philadelphia School District’s 2017 reverse assessment appeals for lack of uniformity. At oral argument on September 8, 2017, Judge Fox ruled from the bench, using the recent July 5, 2017 Pennsylvania Supreme Court’s decision in Valley Forge Towers Apartments et al. v. Upper Merion Area School District, 163 A.3d 962 (Pa. 2017) as a guide, that the school district violated the uniformity clause of the Pennsylvania Constitution by only appealing commercial properties and not appealing any of the under-assessed single-family residential properties in the city for the tax year 2017.

Philadelphia was the first big arena for the Valley Forge Towers uniformity analysis to be used and the Philadelphia commercial property owners are glad to see that the court correctly applied the Supreme Court’s analysis in finding that the school district discriminated against commercial property owners by only filing 140 reverse assessments appeals on 140 of the largest commercial properties in the City of Philadelphia. All of the other school districts in Pennsylvania that have been for years systematically filing reverse assessment appeals only on commercial properties within their taxing districts should be on notice that similar rulings are on the horizon. Going forward, commercial property owners should be requesting extensive discovery regarding the school districts policies and procedures for selecting properties to appeal, and which properties were reviewed and ultimately appealed by the school district.

The Valley Forge Towers decision and the Philadelphia Court of Common Pleas ruling have now given commercial property owners the long awaited tools needed to successfully fight these school district reverse assessment appeals.

If you are subject to a school district initiated assessment appeal, please make sure your rights are protected by contacting Paul R. Morcom (717-237-5364) or Randy Varner (717-237-5464), who represent property owners in school district reverse assessment appeals throughout Pennsylvania’s 67 counties.

McNees State and Local Tax team members Randy L. Varner and Paul R. Morcom will be presenters for the Pennsylvania Bar Institute’s seminar, “Local, State and Federal Taxes Affecting Real Estate Transactions.”  This seminar will be held on September 8th in Mechanicsburg with simulcast locations across the Commonwealth.  The seminar will also be presented in Philadelphia on September 27th.  For more information go to http://catalog.pbi.org/store/seminar/seminar.php?seminar=96602.  Randy and Paul are co-authors of the Pennsylvania Bar Institute treatise, “Assessment Law and Procedure in Pennsylvania,” the leading authority on Pennsylvania property tax law for over 20 years.

 

 

The annual assessment appeal deadline of September 1, 2017 is quickly approaching for the following Pennsylvania Counties:

Armstrong                               Lebanon

Beaver                                     Lycoming

Bedford                                  McKean

Blair                                        Mercer

Bradford                                 Mifflin

Cameron                                  Montour

Carbon                                    Northumberland

Centre                                     Perry

Clarion                                    Pike

Clearfield                                Potter

Clinton                                    Schuylkill

Columbia                                 Snyder

Crawford                                Somerset

Cumberland                            Sullivan

Elk                                           Susquehanna

Forest                                      Tioga

Fulton                                      Union

Greene                                     Venango

Huntingdon                             Warren

Jefferson                                 Washington

Juniata                                     Wayne

Lackawanna                            Westmoreland

Each county has its own separate set of local rules pertaining to assessment appeals that need to be navigated in order to successfully file an annual assessment appeal.  If you have commercial or industrial properties in any of these counties that you feel are over assessed, please contact Paul Morcom (717-237-5364) or Randy Varner (717-237-5464) to help you timely appeal those properties.

The annual assessment appeal deadline of August 1, 2017 is quickly approaching for the following Pennsylvania Counties:

Adams, Bucks, Butler, Cambria, Chester, Dauphin, Delaware, Erie, Fayette, Franklin, Indiana, Lawrence, Lehigh, Luzerne, Monroe, Montgomery, Northampton and York.

Each county has its own separate set of local rules pertaining to assessment appeals that need to be navigated in order to successfully file an annual assessment appeal.  If you have commercial or industrial properties in any of these counties that you feel are over assessed, please contact Paul Morcom or Randy Varner to help you timely appeal those properties.

The Pennsylvania Supreme Court in Valley Forge Towers Apts. N, LP v. Upper Merion Area School District, 49 MAP 2016, held that the taxpayer’s complaint set forth a valid claim that Upper Merion Area School District’s appeal policy of appealing only the real estate assessments of commercial properties violates the Uniformity Clause of the Pennsylvania Constitution.

The case reversed lower court dismissals of taxpayer’s complaint and remanded the matter back to the Montgomery County Court of Common Pleas for further proceedings. The Court found “that a taxing authority is not permitted to implement a program of only appealing the assessment of one sub-classification of properties, where that sub-classification is drawn according to property type – that is, its use as commercial, apartment complex, single family residential, industrial, or the like.”

The Court noted that the Commonwealth Court has been misconstruing the two main principles articulated in Downingtown and Clifton, which are as follows:

  1. All property in a taxing district is a single class, and as a consequence, the Uniformity Clause does not permit the government, including taxing authorities, to treat different property sub-classifications in a disparate manner.
  2. This prohibition applies to any intentional or systematic enforcement of the tax laws, and is not limited to wrongful conduct.

This case is significant for taxpayer’s because it now gives them an avenue to attack school district appeals on Uniformity grounds based on the school district’s appeal policy. If it can be shown through discovery that the school district intentionally or systematically appeals only a subclass of properties then the school district appeal may be dismissed before the taxpayer has to hand over requested discovery from the school district, which may include confidential or proprietary information that the school district could use to try and increase the properties assessed value.

The Valley Forge Towers decision is a big win for taxpayers, but the battle is still far from over. There are many questions still left unanswered by the Court’s decision that still need to be answered.

If your property is appealed by a school district, please contact either Paul R. Morcom, or any member of McNees’ state and local tax group to make sure all of your rights as a property owner are protected.