Sunday School Board of the Southern Baptist Convention v. Mitchell

658 S.W.2d 1, 1983 Mo. LEXIS 395

• Court: Supreme Court of Missouri
• Decided: September 20, 1983
• Docket: 64495
• Status: Published

Opinions

WELLIVER, Judge.

The question in this case is whether respondent’s Kansas City religious bookstore is operated “for purposes purely charitable” within the meaning of Mo. Const, art. X, § 6 and § 137.Í00(5), RSMo 1978,¹ so that the bookstore’s real and personal property is exempt from Jackson County ad valorem property taxes.

I

The facts are stipulated.

Respondent, the Sunday School Board of the Southern Baptist Convention, is a Tennessee not-for-profit corporation. It is governed by a board of trustees elected by the Southern Baptist Convention and operates under the rules and regulations prescribed by the Convention. Its business affairs must be conducted in accordance with the business and financial plan of the Convention. It is a tax exempt organization under I.R.C. § 501(c)(3) (1976), and contributions to it are deductible under I.R.C. § 170 (1976 & Supp. V 1981) as charitable contributions.

Respondent exists, according to its restated corporate charter, to

support the Southern Baptist Convention in its task of bringing men to God through Jesus Christ by making available Bibles, lesson courses and materials, books, audiovisuals, music and recordings, and church supplies and by fostering Christian education, Sunday Schools, and service programs which will help the churches to establish, conduct, enlarge, and improve their ministries of Bible teaching and Christian training.

Respondent is authorized by its charter to “carry on, perform, and do any other act or thing necessary” to fulfill these purposes.

In furtherance of these purposes respondent’s Bookstore Division maintains and operates a network of facilities throughout the United States for the distribution of religious literature and supplies. Among these facilities is the Baptist Book Store at 1017 Grand Avenue in Kansas City. It stocks religious literature and supplies for sale to churches, Sunday schools, and members of the general public. Approximately two-thirds of its sales are to churches and Sunday schools, and approximately one-third are to individuals. Something less than half of the items the Baptist Book Store sells are also carried by commercial retailers. The Baptist Book Store charges prices comparable to those charged by commercial retailers, except that church libraries receive a twenty percent discount.

Through the fiscal year ended September 30, 1981, the profit and loss statements of the Baptist Book Store indicated that the store had sustained significant losses for four consecutive years.² A breakdown of the figures, however, indicates that for the years 1980 and 1981, the years at issue here, the Baptist Book Store actually generated a small profit. In those years the margin contribution, the amount sales exceeded the cost of sales, was greater than the combined amounts deducted for local operating expenses and the store’s proportioned share of the Bookstore Division’s expenses. A loss appeared only after deduction of the Baptist Book Store’s proportioned share of the general and administrative expenses of the Sunday School Board as a whole.

For the years 1980 and 1981 respondent paid an aggregate of $13,612.19 in Jackson County merchants and manufacturers inventory taxes, business personal property taxes, and real property taxes under protest pursuant to § 139.031. It brought this action to recover the amount paid under protest, contending that the Baptist Book Store was exempt from such taxation because it was operating “for purposes purely charitable” within the meaning of Mo. Const, art. X, § 6 and § 137.100(5). The trial court “[found] the issues in favor of the Plaintiff and against the Defendant” and entered judgment for an aggregate of $13,612.19 plus costs. From this judgment appellant, the Jackson County Director of Revenue, appeals. We reverse.

II

Article X, § 6 of the Missouri Constitution provides that “all property, real and personal, not held for private or corporate profit and used exclusively for religious worship ... [or] for purposes purely charitable ... may be exempted from taxation by general law.” Pursuant to this constitutional authorization the legislature enacted § 137.100(5), which provides:

The following subjects are exempt from taxation for state, county or local purposes:

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All property, real and personal, actually and regularly used exclusively for religious worship, for schools and colleges, or . for purposes purely charitable and not held for private or corporate profit, except that the exemption herein granted does not include real property not actually used or occupied for the purpose of the organization but held or used as investment even though the income or rentals received therefrom is used wholly for religious, educational or charitable purposes^]

Respondent cannot, and does not, contend that the Baptist Book Store is used “for religious worship.” Its only contention is that the store is used “for purposes purely charitable” within the meaning of these sections.

A

In considering respondent’s claim for exemption we are guided by several well-established principles. Taxation of property is the rule, and exemption from taxation is the exception. Missouri Church of Scientology v. State Tax Commission, 560 S.W.2d 837, 844 (Mo. banc 1977), appeal dismissed, 439 U.S. 803, 99 S.Ct. 57, 58 L.Ed.2d 95 (1978); Midwest Bible & Missionary Institute v. Sestric, 364 Mo. 167, 174, 260 S.W.2d 25, 30 (1953). Statutes granting exemptions from taxation are to be construed strictly, but reasonably, against the party claiming the exemption. Iron County v. State Tax Commission, 437 S.W.2d 665, 668 (Mo.1968); Community Memorial Hospital v. City of Moberly, 422 S.W.2d 290, 294 (Mo.1967); Midwest Bible, 364 Mo. at 174, 260 S.W.2d at 29. Claims for exemption are not favored in the law, St. John’s Mercy Hospital v. Leachman, 552 S.W.2d 723, 725 (Mo. banc 1977); Community Memorial Hospital, 422 S.W.2d at 294, and a property owner who claims exemption bears a substantial burden to prove that his property falls within the exempted class, Missouri Church of Scientology, 560 S.W.2d at 844; St. John’s Mercy Hospital, 552 S.W.2d at 725; City of St. Louis v. State Tax Commission, 524 S.W.2d 839, 844 (Mo. banc 1976).

B

Our most recent case defining the scope of the charitable exemption is Franciscan Tertiary Province v. State Tax Commission, 566 S.W.2d 213 (Mo. banc 1978), which involved a claimed exemption on housing for the low income elderly. In Franciscan the Court, faced with two distinct, and inconsistent, lines of cases interpreting the scope of the charitable exemption, reaffirmed those cases beginning with Salvation Army v. Hoehn, 354 Mo. 107, 188 S.W.2d 826 (banc 1945), which defined a charity as

a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government.... A charity may restrict its admissions to a class of humanity, and still be public; it may be for the blind, the mute, those suffering under special diseases, for the aged, for infants, for women, for men, for different callings or trades by which humanity earns its bread, and as long as the classification is determined by some distinction which involuntarily affects or may affect any of the whole people, although only a small number may be directly benefited, it is public.

Id. at 114-15,188 S.W.2d at 830. Charity is not limited “solely to the relief of the destitute” but instead includes “all humanitarian activities, though rendered at cost or less, which are intended to improve the physical, mental and moral condition of the recipients and make it less likely that they will become burdens on society and make it more likely that they will become useful citizens.” Id. at 114, 188 S.W.2d at 880.

After arriving at this “uniform interpretation” of Mo. Const, art. X, § 6 and § 137.100(5), the Court in Franciscan proceeded to “establish criteria to be considered in all cases arising thereunder.” Franciscan, 566 S.W.2d at 219. First, the property must be “owned and operated on a not-for-profit basis” so that there can be “no profit, presently or prospectively, to individuals or corporations.” Id. at 224. The property need not always be operated at a deficit, but any profit must be “achieved incidentally to accomplishment of the dominantly charitable objective” and may not be “a primary goal of the project.” Id. See Missouri Goodwill Industries v. Gruner, 357 Mo. 647, 652, 210 S.W.2d 38, 41 (1948).

Second, the property “must be dedicated unconditionally to the charitable activity.” Franciscan, 566 S.W.2d at 224. This requirement stems from the statutory mandate that the property be “used exclusively” for charitable purposes, § 137.100(5), within the Salvation Army definition of charity, see Barnes Hospital v. Leggett, 589 S.W.2d 241, 244 (Mo. banc 1979). Third, “the dominant use of the property must be for the benefit of an indefinite number of people,” and there must also be “direct or indirect benefit to society in addition to and as a result of the benefit conferred on the persons directly served by the humanitarian activity.” Franciscan, 566 S.W.2d at 224. Cf. City of St. Louis, 524 S.W.2d at 846 (“the controlling factor is the extent to which such activity is designed to benefit the public and society in general”).

The Court thus made it clear that the language of the charitable exemption provisions “makes the use of the property the focus of the exemption” and that the “general nature of the owning organization—other than that it is not-for-profit— cannot be said to determine whether the use of the particular property is charitable or not.” Franciscan, 566 S.W.2d at 223. With these principles in mind, we turn to the facts of this case.

Ill

A number, of humanitarian activities have been found to fall within the charitable exemption. Those activities, cited with approval in Franciscan, include the operation of hospitals that are open and available to both rich and poor, Jackson County v. State Tax Commission, 521 S.W.2d 378 (Mo. banc 1975); Community Memorial Hospital; the operation of a facility to provide employment and training for the handicapped, Goodwill; the operation of a YMCA facility to house boys and young men, preferably of low income, as part of a program designed to foster in them good citizenship and Christian ideals, YMCA v. Sestric, 362 Mo. 551, 242 S.W.2d 497 (banc 1951); the provision of housing at less than cost to girls and young women, including the needy, Salvation Army; and the provision of good, low cost housing for low income persons to replace old, dilapidated property in a cleared slum area, Bader Realty & Investment Co. v. St. Louis Housing Authority, 358 Mo. 747, 217 S.W.2d 489 (banc 1949). Franciscan itself involved the provision of housing for elderly low income people at considerably less than cost.

Assuming that respondent’s religious purpose is a charitable one, we do not believe the Baptist Book Store that respondent operates is a charity in the sense in which these cases and others have consistently used that term. This bookstore is not substantially different from any other religious bookstore. It sells to all members of the general public as well as to churches and Sunday schools. The literature it sells is not purely denominational.³ Compare Sunday School Board of the Southern Baptist Convention v. McCue, 179 Kan. 1, 3-4 293 P.2d 234, 236 (1956); Berean Fundamental Church Council, Inc. v. Board of Equalization, 186 Neb. 431, 432, 183 N.W.2d 750, 751 (1971). Its sales, for the most part, are made at competitive retail prices. There is no indication that merchandise is provided to anyone at or below its cost to the bookstore. Compare Franciscan, 566 S.W.2d at 225; Salvation Army, 354 Mo. at 114, 188 S.W.2d at 830. In short, the Baptist Book Store’s operation is similar to that of other retail bookstores.

In addition, it is less than clear that the Baptist Book Store is operated entirely on a not-for-profit basis. It did lose money in 1978 and 1979. Yet in 1980 and 1981, the years for which exemption is sought here, it was profitable. After payment of its local operating expenses and its proportioned share of the Bookstore Division’s central administrative expenses, the Baptist Book Store earned $8,675 in 1980 and $8,709 in 1981. Those profits are not substantial, but they are profits.

Whether an asserted charity earns or loses money is not, of itself, dispositive. The Court pointed out in Franciscan that it is not “impermissible for the project at times or even fairly regularly to operate in the black rather than on a deficit basis.” 566 S.W.2d at 224. Any gain, however, must be “achieved incidentally to accomplishment of the dominantly charitable objective” and must be “devoted to attainment of the charitable objectives of the project.” Id. In this case the profits earned by the Baptist Book Store in 1980 and 1981 were paid over to respondent to help defray the general and administrative expenses of respondent’s overall enterprise. That overall enterprise comprises much more than just the bookstore operation.⁴ We therefore cannot say that profit “is not a primary goal of the project” or that the profits earned were “achieved incidentally.” Id. We agree with the Kansas Supreme Court, which considered a similar Baptist Book Store in Wichita, that “the most that can be said is that [respondent] is conducting a mercantile institution ... and that the profits derived therefrom are being used for religious purposes.” McCue, 179 Kan. at 7, 293 P.2d at 238.

It is not enough, however, that the profits are ultimately used for religious or charitable purposes. “[A]n exemption will not be granted covering property which houses a business operated for the purpose of gaining a profit, even though it is turned over to a parent organization to be used for what are admittedly independently religious or charitable purposes.” Franciscan, 566 S.W.2d at 224. Otherwise the exception could swallow the general rule if the profits from any enterprise, be it charitable or not, were ultimately used for charitable purposes. There must be a more significant nexus between profits earned through use of the property for which an exemption is sought and the use that is made of those profits. A business cannot compete for profit and then seek to insulate itself from taxation by claiming that its profits are used to attain a religious or charitable purpose. The

policy of exemption of religious institutions, established when they were struggling to get along, has enabled them ... to acquire large real estate holdings and to accumulate great wealth; and many of them are engaged in operating various kinds of secular businesses tax-free, in competition with other like businesses that are taxed. This development creates inequities and endangers both the churches and the state.

City of Nashville v. State Board of Equalization, 210 Tenn. 587, 611-12, 360 S.W.2d 458, 469 (1962). Competition purely incidental to effectuation of a charitable purpose does not affect the charitable nature of the enterprise, see Goodwill, 357 Mo. at 652, 210 S.W.2d at 41, but competition for profit is inimical to the charitable use of the property.

We are compelled to conclude that respondent has not sustained its “substantial burden,” Missouri Church of Scientology, 560 S.W.2d at 844, of proving that its property falls within the class of property entitled to a charitable exemption. Respondent’s property therefore is not exempt from taxation, and the judgment of the trial court must be reversed. This decision is in accord with the decisions of other courts that have considered claimed tax exemptions for religious bookstores. E.g., McCue, 179 Kan. at 6-8, 293 P.2d at 238-39; Supervisor of Assessments v. Peter & John Radio Fellowship, Inc., 274 Md. 353, 364-67, 335 A.2d 93, 99-100 (1975); Berean Fundamental Church Council, 186 Neb. at 435, 183 N.W.2d at 753; Lutheran Book Shop v. Bowers, 164 Ohio St. 359, 359-62, 131 N.E.2d 219, 219-21 (1955); Board of Publication of the Methodist Church v. State Tax Commission, 239 Or. 65, 67-70, 396 P.2d 212, 213-14 (1964); Multnomah School of the Bible v. Multnomah County, 218 Or. 19, 42, 343 P.2d 893, 904 (1959); American Sunday-School Union v. Taylor, 161 Pa. 307, 313-17, 29 A. 26, 27-28 (1894); Book Agents of the Methodist Episcopal Church, South v. State Board of Equalization, 513 S.W.2d 514, 525 (Tenn.1974).⁵

The judgment is reversed.

HIGGINS, GUNN, BILLINGS, BLACK-MAR and DONNELLY, JJ., concur. RENDLEN, C.J., dissents in separate opinion filed.

1 . All statutory references are to RSMo 1978.

2 . The statement of income and expenditures for the Baptist Book Store for the fiscal years ended in 1978 through 1981 shows the following:

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The “Operating Expenses” are those local operating expenses of the Baptist Book Store, including rent, utilities, personnel salaries, and advertising. The “Central Division Expenses” are the expenses of the Bookstore Division headquarters in Nashville, Tennessee, that are allocated to the Baptist Book Store according to the ratio of the Baptist Book Store’s sales to the total sales of the Bookstore Division. Those expenses include the Division’s personnel salaries and advertising for all stores in the region. The “General & Administrative Expenses” are the overhead expenses of respondent Sunday School Board allocated to the Baptist Book Store according to the ratio of the Baptist Book Store’s sales to the total sales of the Sunday School Board. Those expenses include the costs of payroll and accounting.

3 . We note that in the 1983 edition of the Yellow Pages the Baptist Book Store advertises ' mat it carries a wide assortment of Bibles, general and religious books, children’s books, devotional and teaching helps, comméntaries, music, recordings, visual aids, and church supplies. Southwestern Bell Telephone Co., Greater Kansas City Yellow Pages 219 (1983) (col. 1).

4 . Respondent also publishes denominational and general Christian literature and provides a number of other special services, including films, music, vocational guidance, library and recreational services, and architectural advice. Book Agents of the Methodist Episcopal Church, South v. State Bd. of Equalization, 513 S.W.2d 514, 525 (Tenn.1974). Not all aspects of respondent’s enterprise are exempt from taxation under the law of Tennessee, respondent’s principal place of business. See id. at 524-25.

5 . Three of these cases are of particular significance here. As noted above, McCue involved a similar Baptist Book Store operated by respondent in Wichita, Kansas. Book Agents dealt with property owned by respondent in Nashville. The Tennessee Supreme Court noted that “[b]ookstores of these publishing companies [operated by respondent] are non-exempt and administrative and warehouse areas which serve as the headquarters for such stores are likewise non-exempt.” Book Agents, 513 S.W.2d at 525. In American Sunday-School Union a religious society that operated a bookstore at which it sold religious literature and some secular works for a profit was denied exemption. That holding, this Court later said, “accords with the case law in Missouri.” Evangelical Lutheran Synod v. Hoehn, 355 Mo. 257, 271, 196 S.W.2d 134, 145 (1946), overruled on other grounds, Barnes Hosp. v. Leggett, 589 S.W.2d 241, 243 (Mo. banc 1979).