Hancock v. Prestonsburg Industrial Corp.

365 S.W.3d 199, 2012 WL 1450119, 2012 Ky. LEXIS 35

• Court: Kentucky Supreme Court
• Decided: April 26, 2012
• Docket: 2010-SC-000376-DG
• Status: Published

Opinions

Opinion of the Court by

Justice SCHRODER.

The single issue in this tax case is whether the Prestonsburg Industrial Corporation (PIC) is a charitable organization under section 170 of the Kentucky Constitution, which exempts “institutions of purely public charity” from paying ad valorem taxes. We opine that PIC’s real property is not tax exempt under section 170 of the present Kentucky Constitution, reversing the Court of Appeals and remanding for further proceedings consistent with this opinion.

PIC was founded in 1968 by a group of local businessmen, as a private, nonprofit corporation, to attract business and industry to Prestonsburg for economic development.¹ To accomplish this goal, PIC would buy property, make improvements, and then sell the property to various businesses, all for the betterment of the community through growth and industry. The profits were rolled back into PIC for additional purchases and improvements.

In 2001, PIC purchased a 100-acre parcel from the City of Prestonsburg for $1.00 and a portion of the proceeds after a resale by PIC. After the purchase, the Floyd County Property Valuation Administrator sought to tax the property. PIC claimed it was tax exempt under section 170 of the present Kentucky Constitution, and filed for tax exemption from the Kentucky Revenue Cabinet.² Revenue denied the application and PIC appealed to the Kentucky Board of Tax Appeals (KBTA).³ KBTA concluded that the property was not tax exempt by finding that PIC was not a governmental body or agency and that, under section 170 of the Kentucky Constitution, in order to be exempt from taxes “the property must belong to a public entity and must be used for public purposes.”

PIC appealed to the Floyd Circuit Court, which reversed the KBTA and found the property tax exempt. The court reasoned that because PIC was a charitable organization and the land was used for public purposes, it was therefore tax exempt under Kentucky Constitution section 170. On appeal to the Court of Appeals, that court opined that in order for the property to be exempt from taxation under section 170 of the Kentucky Constitution, the land had to be public property used for public purposes or PIC had to be a purely charitable organization. The court found PIC was a private corporation and the land was not public property. Nevertheless, the court concluded that PIC was a purely charitable organization and thus exempt from taxation, as the test applied by the Court of Appeals for the exemption was whether the activities reasonably bettered mankind. Our Court accepted discretionary review to determine whether PIC is a purely charitable organization under the Constitution and thus exempt from ad valorem taxes.

Section 170 of the present Kentucky Constitution exempts from taxation, “institutions of purely public charity,” and the real estate they own. We are being asked to consider a non-traditional definition of “institutions of purely public charity,” namely, whether economic development for job creation can qualify a private, nonprofit corporation as an institution of purely public charity.⁴ The Kentucky Constitution, section 170, provides, among other things, that “institutions of purely public charity” shall be exempt from taxation. As a general principle, such provisions granting tax exemption must be strictly construed, as it is a well-settled principle that taxation is the rule and exemption the exception. Banahan v. Presbyterian Housing Corp., 553 S.W.2d 48, 51 (Ky.1977).

Our predecessor Court has held that the word “purely” as used in this section modifies “charity.” Iroquois Post No. 229 v. Louisville, 309 S.W.2d 353, 355 (Ky.1958). By interpreting “purely” as a modifier of “charity,” the Court has limited the tax exemption to organizations that are “wholly altruistic in the end to be attained, and that no private or selfish interest should be fostered under the guise of charity.” Preachers’ Aid Soc. v. Jacobs, 235 Ky. 790, 32 S.W.2d 343, 344 (1930).

According to our case law, “charity” includes activities which reasonably better the condition of mankind. Commonwealth ex rel. Luckett v. I. W. Bernheim Found., 505 S.W.2d 762 (Ky.1974). Consistent with Bemheim, in Banahan this Court reaffirmed that the test for determining whether a “charity” is entitled to such an exemption was still the test as announced in Iroquois Post: “First, the institution must itself be a charity and the income from its property must be used to further its charitable purpose; secondly, the property must be employed for a purely charitable purpose.” Banahan, 553 S.W.2d at 51 (quoting Iroquois Post, 309 S.W.2d at 354). Moreover, Banahan also endorsed the rule announced in Iroquois Post that in order for property to be employed for a purely charitable purpose, “charity must actually be dispensed there or it must provide ‘necessary quarters for an organization whose prime aims and functions ... [are] of an actively charitable nature.’ ” Banahan, 553 S.W.2d at 51 (quoting Iroquois Post, 309 S.W.2d at 355). Despite the Appellees’ arguments to the contrary, nothing in Bemheim or Bana-han purports to overrule any precedent regarding the legal meaning of the terms “charity” or “purely public charity.”⁵

Although a design to achieve goals beneficial to the community is common to all charitable purposes, it does not follow that all such designs constitute a “purely public charity” as defined under section 170 and our case law. Our predecessor Court has previously stated that a resulting increase in commercial activity is no more than an incidental benefit to the public, and an enterprise incidentally benefitting the public would not entitle that enterprise to a tax exemption as performing a public purpose. Barbour v. Louisville Bd. of Trade, 82 Ky. 645 (1885). Moreover, the Court has determined that an organization fails to qualify as a “purely public charity” for the purpose of tax exemption when the charitable outcome is merely incidental and the organization’s principal activities center around promoting the interests and gratifying the wishes of its own membership. Iroquois Post, 309 S.W.2d at 355.

The distinction between a charitable institution and an organization which has incidental charitable benefits was highlighted in a case involving whether a hospital was a “charitable institution.” Univ. of Louisville v. Hammock, 127 Ky. 564, 106 5.W. 219 (1907). In that case, our predecessor Court explained that even though physicians at the hospital did a “great deal of charitable work,” the hospital was not a “charitable institution” as the real purpose in establishing the hospital was to make the university more attractive to prospective students and to increase enrollment (and thus, tuition received) by offering instruction and clinical experience in a hospital setting.⁶

In the case before us, PIC has argued that it is a purely public charity because of expected indirect effects on the local economy and tax base in the form of job creation and commercial development. We disagree. This Court notes at the outset that the Appellees have not cited any Kentucky case which purports to find that a private, nonprofit organization, whose purpose is commercial or economic development with possible incidental job creation, is a “purely public charity” entitled to tax exemption under section 170.⁷ Although our predecessor Court has previously suggested, in a case involving eminent domain, that the elimination of unemployment could constitute a “public purpose,” Industrial Dev. Auth. v. E. Kentucky Reg’l Planning Comm’n, 332 S.W.2d 274, 277 (Ky.1960); this Court has gone on to note that there is not a single Kentucky case which equated either “public purpose ” or “public benefit ” to “charitable use” or “public use.” City of Owensboro v. McCormick, 581 S.W.2d 3, 5 (Ky.1979).

PIC’s actual activities involve developing and marketing commercial property, activities which primarily serve and benefit the buyers or customers of PIC. In this regard, there is no evidence that PIC’s buyers/customers would qualify as persons or organizations in need of charity or general public assistance.⁸ Neither is PIC claiming to actually create jobs, but rather it claims only the incidental benefit of bringing in new businesses, which may potentially create jobs.

Moreover, the members of PIC consist of local members of the business community, whose own interests would arguably be served by an increase in commercial and economic development in the area. Along these lines, a nonprofit organization formed by businessmen to “assist in the development of the City ... as a means to attract business and industry ...”⁹ cannot be said to be a “charitable institution,” as its purpose is to make the city more attractive to businesses.

Applying the Iroquois Post test, the evidence does not establish that PIC is a purely public charity or that its property is employed for a purely charitable purpose. Although “charity” is broader than activities that merely “fulfill basic human needs,” Bernheim, 505 S.W.2d at 763, it is clear by the evidence of record that PIC’s activities are inconsistent with a “purely public charity” as its activities are not, for the above reasons, “wholly altruistic in the end to be attained ... [so] that no private or selfish interest should be fostered under the guise of charity.” Preachers’Aid Soc., 32 S.W.2d at 344. Simply stated, commercial and economic development are the promotion of business interests and not, therefore, indicative of actions of a purely public charity.

For the foregoing reasons, the opinion of the Court of Appeals is reversed and the matter remanded to the Floyd Circuit Court to enter an order consistent with this opinion.

MINTON, C.J.; ABRAMSON, CUNNINGHAM, NOBLE, and VENTERS, JJ„ concur. SCOTT, J., dissents by separate opinion.

1 .Per the articles of incorporation, PIC was to be formed as a 501(c)(3) corporation whose primary purpose was "to advance the educational, civic, social, commercial, and economic interest of the City of Prestonsburg and the general welfare and prosperity of its tributary territory ... [and] to operate exclusively for religious, charitable, scientific or educational purposes for people residing in the [Prestonsburg] area_” PIC ultimately decided to obtain a certificate as a 501(c)(4) corporation; however, this distinction is not significant for the purpose of the present matter.

2 . Now known as the Department of Revenue, Finance and Administration Cabinet, Commonwealth of Kentucky.

3 . Originally, PIC conferenced the assessment with the PVA and then appealed to the Floyd County Board of Assessment Appeals (KRS 133.120), neither of which could decide the exemption question, only the assessment of $50,000.00, which was not being contested.

4 . Many of the objectives and goals of PIC could be achieved through KRS 154.28-010 through 154.28-140, as an industrial park foundation, but as PIC admitted during the oral argument, it was trying to get more done by avoiding the regulations that accompany industrial parks.

5 . In fact, in its holding that charity is "broader than relief to the needy poor and includes activities which reasonably better the condition of mankind,” the Court in Bemheim remarked that there was no contradictory prior case law. Thus, the argument cannot be made that Bemheim was a departure from, or otherwise broadened, prior interpretation of the term "charity.” 505 S.W.2d at 763-64. Likewise, Banahan reaffirmed the test for determining whether a charity was entitled to an exemption as the test announced in Iroquois Post, 309 S.W.2d at 354, and Commonwealth ex rel. Luckett v. Grand Lodge, 459 S.W.2d 601, 602 (Ky.1970).

6 . See also Gray St. Infirmary v. City of Louisville, 65 S.W. 11 (Ky.1901).

7 . In contrast, two Kentucky Attorney General opinions had concluded that such an industrial organization would not be entitled to such a tax exemption. See OAG 63-1107; OAG 62-1172. A third Attorney General Opinion, OAG 84-169, concluded that the test for such an exemption was that: (1) the corporation or institution must itself be a charity and the income from its property must be used to further its charitable purpose, (2) the property must be employed for a purely charitable purpose, but that it is sufficient that the ultimate effect of the use of the property is to accomplish the charitable purposes of the institution, (3) a profit corporation or institution is not a public charity, and (4) the charity must be extended only to the Commonwealth of Kentucky and its people.

8 . See also Bower Hill Civic League v. Bd. of Prop. Assessment, 207 Pa.Super. 122, 215 A.2d 305 (1965), a decision arising out of the intermediate appellate court of Pennsylvania, which although not binding authority, persuasively explains that even when an organization is nonprofit and administered by volunteer (unpaid) members, profit motive is nonetheless determined by whether such organizations are engaged in a commercial venture in competition with others engaged in similar businesses.

9 . See Appellee’s Brief at 2-3.