WRC North Fork Heights, Inc. v. Board of Assessment Appeals

917 A.2d 893, 2007 Pa. Commw. LEXIS 65

• Court: Commonwealth Court of Pennsylvania
• Decided: February 20, 2007
• Status: Published

Opinions

OPINION BY

Judge SMITH-RIBNER.

The Court of Common Pleas of Jefferson County upheld the denial by the Appeals of Jefferson County (Board of Appeals) of the request for real estate tax exemption sought by WRC North Fork Heights, Inc. (WRC). The following questions are presented in this appeal: (1) whether the trial court erred by requiring WRC first to satisfy the judicial test for exemption delineated in Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985) (HUP), rather than deciding only whether WRC satisfied the specific statutory test for exemption as a federally subsidized housing provider under Section 204(a)(3) of The General County Assessment Law (Assessment Law), Act of May 22, 1933, P.L. 853, as amended, 72 P.S. § 5020-204(a)(3); (2) if not, whether the trial court erred by requiring WRC to show that it satisfied the judicial test in HUP and its progeny rather than criteria in the Institutions of Purely Public Charity Act (Charity Act), Act of November 26, 1997, P.L. 508, 10 P.S. §§ 371-385; and (3) whether it erred in concluding that WRC did not satisfy the HUP test.

I

WRC operates a fifty-six-unit, low-income housing facility for the elderly known as North Fork Heights in Brookville. WRC appealed its assessment to the Board of Appeals asserting entitlement to exemption under Section 204(a)(3) of the Assessment Law, which the Board of Appeals denied. Before trial on WRC’s appeal to the trial court, the parties stipulated that WRC participates in the United States Department of Housing and Urban Development (HUD) Section 202 Program of Housing for the Elderly or Handicapped under the Housing Act of 1959, 12 U.S.C. § 1701q, as amended (Section 202 Program). The Section 202 Program provides a capital advance to finance construction of a housing project and periodic operating subsidies to fill the gap between the cost of elderly housing and the rent that low-income residents can afford, with the capital advance functioning as an interest-free loan on which no payments are due so long as the housing meets program requirements for the next forty years. Under the program 100 percent of WRC’s units must be occupied by elderly or handicapped persons who qualify for and receive federal subsidies, and the units are so occupied.

WRC is continually monitored by HUD to assure compliance with program requirements, and every month WRC submits a Housing Owner’s Certification & Application for Housing Assistance Payments to HUD. WRC’s articles of incorporation prevent any net earnings from inuring to the benefit of or being distributed to any of its members, officers, directors or other individuals. Frances Coons, President and CEO of WRC’s parent company WRC Senior Services, testified that WRC helps residents access medical, social, emotional and spiritual services necessary to meet their needs.

The trial court noted that the Pennsylvania Constitution establishes the framework for entitlement to real estate tax exemption. Article VIII, Section 2 of the Constitution provides in part as follows: “(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.” The trial court also quoted the amendment to Section 204(a)(3) of the Assessment Law, which was added by Section 1 of the Act of December 14,1992, P.L. 886:

any charitable organization providing residential housing services in which the charitable nonprofit organization receives subsidies for at least ninety-five per centum of the residential housing units from a low-income Federal housing program shall remain a “purely public charity” and tax exempt provided that any surplus from such assistance or subsidy is monitored by the appropriate governmental agency and used solely to advance common charitable purposes within the charitable organization....

WRC claimed that it met the requirements of Section 204(a)(3) and that it therefore was automatically deemed to be a “purely public charity” and did not have to satisfy the five-prong test for exemption under the Charity Act.

The trial court cited the decision rendered by the Supreme Court in Community Options, Inc. v. Board of Property Assessment, Appeals and Review, 571 Pa. 672, 813 A.2d 680 (2002), for the proposition that the question of whether an entity is a “purely public charity” under the Constitution is a question that must be addressed before the question of whether it meets statutory qualifications for exemption. The five-prong test for determining whether an entity is exempt under Article VIII, Section 2(a)(v) as a purely public charity was provided in HUP as follows:

[A]n entity qualifies as a purely public charity if it possesses the following characteristics.

(a) Advances a charitable purpose;

(b) Donates or renders gratuitously a substantial portion of its services;

(c) Benefits a substantial and indefinite class of persons who are legitimate subjects of charity;

(d) Relieves the government of some of its burden; and

(e)Operates entirely free from private profit motive.

HUP, 507 Pa. at 21-22, 487 A.2d at 1317.

The Board of Appeals contended that WRC did not meet the second and fourth prongs of the HUP test. The trial court concluded that the evidence did not show that WRC donates or renders gratuitously a substantial portion of its services; rather, all of the residents pay rent that is then subsidized by the federal government. Furthermore, WRC was not abating government costs and did not meet the fourth prong as well. As to the fourth prong, this Court had stated: “ ‘Tax exempt status is properly reserved for organizations which abate government costs, not for those who perform government responsibilities as independent contractors.’ ” Community Options, Inc. v. Board of Property Assessment, Appeals and Review, 764 A.2d 645, 650-651 (Pa.Cmwlth.2000) (quoting Community Service Found., Inc. v. Bucks County Board of Assessment and Revision of Taxes, 672 A.2d 373, 376 (Pa.Cmwlth.1996)), rev’d in part, 571 Pa. 672, 813 A.2d 680 (2002). Accordingly, the trial court ordered that WRC was not entitled to tax exemption.¹

II

WRC first contends that the trial court misapplied the test for entitlement to real estate tax exemption for federally subsidized housing providers by effectively and improperly declaring the statutory test contained in the 1992 amendment to Section 204(a)(3) of the Assessment Law to be unconstitutional. WRC asserts that it is a charitable organization, and its Articles of Incorporation state that it is organized exclusively for charitable and educational purposes, with power to provide elderly and handicapped persons with housing facilities and services to meet their social and emotional needs. The parties stipulated that all of WRC’s units are occupied by individuals receiving federal subsidies, and WRC introduced confirming Certification Forms for 2004; thus the requirement under Section 204(a)(3) that ninety-five percent receive federal subsidies is met. They also stipulated that HUD continually monitors WRC for its Program compliance. Finally, Susan Schmader, Director of Finance for WRC Senior Services, testified that any surplus that WRC might experience would be rolled back into the organization or, if at certain levels, would be subject to HUD disposition.

WRC argues that the legislature is authorized by the Constitution to exempt federally subsidized housing from real estate taxation. Implicit in the Article VIII, Section 2(a) authority for the legislature to exempt institutions of “purely public charity” is the ability of the legislature to define that term. WRC cites School Districts of Deer Lakes and Allegheny Valley v. Kane, 463 Pa. 554, 345 A.2d 658 (1975), for the proposition that interpretive language placed on the Constitution by the legislature in the course of enactment of statutes is entitled to great weight. In Heller v. Depuy, 2 Pa.Cmwlth. 196, 277 A.2d 849 (1971), this Court held that the legislature had the authority to define “public utilities” in Article VIII, Section 4, which it did in a former act relating to public utility realty tax; the addition to the usual definition was seen as binding upon all, including the courts. In addition, the Supreme Court has recognized that “[t]he constitution does not, of itself, exempt any property; it merely permits the legislature to do so within certain limits.” Donohugh’s Appeal, 86 Pa. 306, 309 (1878). There is a presumption that the legislature does not intend to violate the Constitution. Section 1922(3) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(3). According to WRC, to disregard the test under Section 204(a)(3) of the Assessment Law would be a de facto determination that the 1992 amendment was unconstitutional.

WRC urges the Court to accept its view that the enactment of the 1992 amendment to Section 204(a)(3) of the Assessment Law overruled all case law requiring federally subsidized housing providers to meet a “judicial test,” i.e., the HUP test, for exemption. In Four Freedoms House of Philadelphia, Inc. v. City of Philadelphia, 443 Pa. 215, 279 A.2d 155 (1971), the Supreme Court concluded that a nonprofit corporation created by labor unions to provide low-cost housing for the elderly, which constructed a facility with 100 percent financing from Section 202 of the Housing Act of 1959, with age and income criteria and rents less than commercial rates, with officers and directors serving without pay and with no power to accumulate a profit, was entitled to exemption. In 1985 the Supreme Court established the “HUP test.”

In 1987 the Supreme Court decided G.D.L. Plaza Corp. v. Council Rock School District, 515 Pa. 54, 526 A.2d 1173 (1987). The facility at issue, financed through the Section 202 Program, provided residential housing to persons at least sixty-two years of age, with limited incomes and assets. The facility received monthly housing payments from the federal government to make up the difference between costs and rent. This Court had applied the HUP test and concluded that the facility met the first, third and fifth prongs but that it did not meet the second and fourth. The Supreme Court on appeal stated that this Court may have erred in overlooking findings as to the extent of services provided and overestimating the degree to which an institution must relieve the government of some of its burden. It distinguished Four Freedoms House because there the mortgage repayment was accomplished solely through payments of rents at less than market rates. In G.D.L. Plaza the Supreme Court noted that Section 204(a)(3) of the Assessment Law requires an entity to be “founded, endowed, and maintained” by public or private charity. In that case, all operating costs not covered by rents paid by tenants were borne by federal government subsidies. The' Section 202 mortgage loan program and the housing program pursuant to Section 8 of the Housing Act of 1937, as amended, 42 U.S.C. § 1437f, were perceived as a design to encourage nonprofit corporations to undertake the work of increasing housing supply without assuming financial risk. Exemption was denied.

WRC emphasizes that the cases above were decided before the 1992 amendment to Section 204(a)(3) of the Assessment Law. WRC asserts that the legislature for many years failed to define “purely public charity” and that the courts filled the void, as in the HUP case. Although acknowledging that the Supreme Court has ultimate authority to interpret the Pennsylvania Constitution, WRC also states that the Supreme Court has recognized that Article VIII, Section 2 is not self-executing but requires legislative standards for implementing tax exemptions. WRC’s central contention is that through the 1992 amendment to Section 204(a)(3) the legislature exercised its constitutional power and chose to codify real estate tax exemption law and to provide a definition of “purely public charity” in the context of federally subsidized housing providers. WRC submits that the courts’ role is limited to determining whether the statute was passed pursuant to constitutionally delegated authority and consistent with constitutional requirements for valid legislation. Alternatively, if a five-part test must be applied, it should be that set forth in the Charity Act, adopted in 1997 as an exercise of the legislature’s constitutional authority. The Act approved the categories outlined in the HUP test and is in many ways a codification of it, although the Act provides more objective and measurable criteria to evaluate satisfaction of the five elements.

Finally, WRC maintains that the trial court erred in concluding that it does not meet the five-part test for exemption as a purely public charity. WRC contends that whether it donates or renders gratuitously a substantial portion of its services should have been evaluated under the Charity Act. Section 5(d)(l)(iv), 10 P.S. § 375(d)(l)(iv), specifies:

Financial assistance or uncompensated goods or services to at least 20% of those receiving similar goods or services from the institution if at least 10% of the individuals receiving goods or services from the institution either paid no fees or fees which were 90% or less of the cost of the goods or services provided to them, after consideration of any financial assistance provided to them by the institution.

Section 5(d)(l)(v), 10 P.S. § 375(d)(l)(v), specifies “Uncompensated goods or services which in the aggregate are equal to at least 5% of the institution’s costs of providing goods or services.” WRC argues that the evidence shows that all residents pay fees less than WRC’s cost to operate, so more than twenty percent pay fees that are ninety percent or less of the cost to WRC. Also, the total of rents plus federal subsidies, it asserts, is ninety percent or less of the institution’s costs. Its IRS form for fiscal year 2002-2003 showed total revenues of $291,231 and total expenses of $405,271. The difference of $114,040 is uncompensated goods or services, although the Board of Appeals points out that WRC claimed $121,673 in depreciation for that year for a positive net cash flow of $7633.

There is no dispute that WRC benefits a substantial and indefinite class of persons who are legitimate subjects of charity. WRC states that it relieves government of some of its burden by providing housing that the government would have to provide, directly or indirectly or by assuring that a similar institution exists, see Section 5(f)(1), 10 P.S. § 375(f)(1), and it receives, on a regular basis, payments from the federal government for housing services that are less than the full costs for providing those services. See Section 5(f)(3), 10 P.S. § 375(f)(3); Lutheran Home at Topton v. Schuylkill County Board of Assessment Appeals, 782 A.2d 1 (Pa.Cmwlth.2001) (stating that a facility which subsidized rents of some residents and maintained a policy of keeping residents on after their assets ran out relieved government of some of its burden). WRC operates free from profit motive.

The Board of Appeals responds that the trial court properly applied the five-prong HUP test in determining that WRC was not entitled to exemption. The Board argues that the second prong was not met as the evidence at trial shows that residents pay rent, and the difference between that and fair market value is then paid to WRC by a subsidy through the Section 202 Program. The only other testimony was that WRC helps residents access services for their medical, social and emotional needs, with no testimony as to the extent of such help or even if it is provided without charge. Regarding the fourth prong, the Board of Appeals cites G.D.L. Plaza Corp., where the entire funding of the project was derived from rents paid by residents and federal government subsidies, and it states that in Community Options, Inc. the Supreme Court ruled that the amount of charitable contributions that are made to an entity seeking tax exemption is “crucial” in the analysis of whether it relieves government of some of its burden, and the evidence here shows that WRC receives no charitable contributions.

The Board of Appeals disputes WRC’s contention that it is exempt from real estate taxes simply because it meets requirements of Section 204(a)(3) of the Assessment Law. This Court held in its decision in Community Options, Inc. that an entity seeking tax exemption must first be measured by the constitutional language before the question of whether it meets a statutory exemption may be reached, which was reaffirmed unequivocally by the Supreme Court.

Regarding WRC’s assertion that the trial court should have applied the test from the Charity Act, the Board of Appeals contends that this issue is waived because WRC did not present it to the trial court, which noted WRC’s claim that it was not required to satisfy the test under that Act. Issues not raised in the trial court are waived and cannot be raised for the first time on appeal. Pa. R.A.P. 302(a). Nevertheless, the Supreme Court’s decision in Community Options, Inc. applied the HUP test to determine an exemption issue well after the Charity Act became effective. If the issue is not waived, the Board argues that WRC did not meet the statutory tests it cited because they require proof of the costs of goods or services rendered, and WRC offered no proof of its costs in assisting residents to access services.²

Ill

The Court first addresses the contention of WRC that the trial court erred by requiring it to meet the HUP test before any statutory test, including that in Section 204(a)(3) of the Assessment Law, may be considered. The Supreme Court has been entirely consistent on this issue. In Community Options, Inc., the trial court held that the institution would not qualify for an exemption under the HUP test for 1996 and 1997, but it would qualify under the Charity Act for 1998 and later years. The Supreme Court pointedly held: “An entity seeking a statutory exemption for taxation must first establish that it is a ‘purely public charity’ under Article VIII, Section 2 of the Pennsylvania Constitution before the question of whether that entity meets the qualifications of a statutory exemption can be reached.” Community Options, Inc., 571 Pa. at 676, 813 A.2d at 683 (citing G.D.L. Plaza; HUP). The Supreme Court first concluded that the entity involved there qualified as a “purely public charity” under HUP, and then it considered whether it met the requirements of the Charity Act.

The Supreme Court has never endorsed disregarding the constitutional analysis under HUP and proceeding solely under a statute to determine whether an entity seeking tax exemption is a “purely public charity,” and this Court may not endorse such an approach here whether under Section 204(a)(3) of the Assessment Law or under the Charity Act. In School Districts of Deer Lakes and Allegheny Valley the Supreme Court reiterated that a legislative interpretation of the Constitution is entitled to great weight but that it cannot be conclusive upon the courts in deciding cases because judges no less than legislators are sworn to uphold the fundamental law. Cases such as Heller and Ray v. Commonwealth, 442 Pa. 606, 276 A.2d 509 (1971), do not involve legislative interpretations of constitutional terms definitively interpreted by the High Court.

Upon its review of the record, the Court agrees with the Board of Appeals that WRC waived its contentions regarding compliance with requirements of the Charity Act because it did not present them to the trial court. Nonetheless, WRC’s vague testimony that it assists residents in accessing help with medical, social, emotional and spiritual needs, with no attempt to quantify the costs incurred by WRC, could not meet the specific requirements regarding donations stated in that Act. In terms of the HUP analysis, the record lacks evidence that WRC donates or renders gratuitously a “substantial portion” of its services.

As to the fourth prong of the HUP test, the Court is convinced that WRC’s facility is not like that in Four Freedoms House, where rents lower than market rate were charged and the entity did not rely on government subsidies to make up the difference. Further, in Community Options, Inc., where a private entity established group homes for mentally retarded persons, the Supreme Court stated that, although operational funding was largely provided by the government, the acquisition and renovation of housing for occupancy by persons with severe disabilities in residential neighborhoods was done without government funding. Government would have to add real estate, staff and training to accommodate these residents, and in fact the entity provided services that the government was not capable of providing. No similar circumstances exist in regard to WRC as simply a Section 202 Program housing provider.³

Based on clearly defined legal principles enunciated by the Supreme Court, this Court is compelled to conclude that the trial court did not err in its consideration of WRC’s real estate tax exemption case. Accordingly, the Court affirms the order of the trial court.

ORDER

AND NOW, this 20th day of February, 2007, the order of the Court of Common Pleas of Jefferson County is affirmed.

1 . This Court’s review of a trial court’s order in a real estate tax exemption appeal is limited to determining whether the trial court abused its discretion, committed an error of law or made findings unsupported by substantial evidence. In re RHA PA Nursing Homes, 747 A.2d 1257 (Pa.Cmwlth.2000).

2 . National Church Residences of Mercer County, PA, appellant in the case docketed at No. 102 C.D. 2006 and listed for argument at a later time, filed a Motion for the Court to Take Notice of Related Appeal, representing that its case involves virtually identical issues and requesting that the Court take notice of its appeal and the briefs filed therein. The Court granted the motion by order of October 5, 2006 and has reviewed the briefs filed in that appeal as well.

NCR Mercer represented that the facts in its case are similar in that it owns and operates a federally subsidized housing development pursuant to Sections 202 and 8 of the Federal Housing Act, known as Buchanan Manor, and the strictly regulated nature of housing pursuant to these programs results in their looking, and acting, virtually the same. NCR Mercer raises similar arguments to those of WRC. It asserts that the constitutional analysis employed by the trial court in that case to reject the claim for real estate tax exemption (the trial court relied primarily upon G.D.L. Plaza) is contrary to the 1992 amendment to Section 204(a)(3) of the Assessment Law and provisions of the Charity Act.

NCR Mercer contends that the trial court erred when it concluded that NCR Mercer does not donate or render gratuitously a substantial portion of its services. In this regard NCR Mercer notes that earlier cases had established that services need not be provided entirely free of charge, and HUP itself stated that there was no magical percentage to determine if an amount donated was “substantial”; rather, "[i]t must appear from the facts that the organization makes a bona fide effort to service primarily those who cannot afford the usual fee.” HUP, 507 Pa. at 19 n9, 487 A.2d at 1315 n9. NCR Mercer maintains that it meets the donation criterion because it makes such a bona fide effort, and its residents pay less than twenty-five percent of actual costs. Appellees Mercer County Board of Assessment Appeals and Mercer County note that NCR Mercer’s own evidence demonstrated that it is the federal government that is subsidizing the residents, with NCR Mercer serving only as a conduit.

NCR Mercer further argues that the trial court erred in concluding that it does not relieve government of some of its burden. NCR Mercer notes that government historically has provided housing for the elderly. Further, it is obligated to provide safe, affordable housing to the poor, elderly and handicapped, under statements of policy in statutes such as Section 2 of the Housing Authorities Law, Act of May 28, 1937, P.L. 955, as amended, 35 P.S. § 1542 (noting the acute shortage of decent, safe and sanitary housing and providing for the creation of housing authorities). NCR Mercer was organized to provide housing for low-income elderly residents and suggests that if Buchanan Manor did not exist, the Commonwealth would have to “pick up the slack” for the housing itself. In G.D.L. Plaza, the Supreme Court stated that by undertaking the construction and day-to-day management of the complex and directly serving the needs of its residents, G.D.L. obviated the need for the government to do so. Separately, NCR Mercer argues that the trial court erred by failing to apply the presumption adopted in Section 6 of the Charity Act, 10 P.S. § 376, that a purely public charity possessing an exemption from sales and use tax complies with the criteria set forth in Section 5. The Pennsylvania Department of Revenue consistently has granted NCR Mercer exemption from sales and use taxes, and the trial court should have applied a presumption in its favor.

Appellees argue that the trial court correctly relied upon G.D.L. Plaza because there, as here, all of the facility’s operating costs were covered by the federal subsidy, including real estate taxes. Amicus County Commissioners Ass’n of Pennsylvania stresses the finding of the trial court that NCR Mercer operates on a "zero-based” budget, which anticipates that annual revenues will equal annual expenditures and that HUD requires NCR Mercer to submit a budget forecasting expenses including anticipated real estate taxes.

3 . The dissenting opinion relies heavily on the Supreme Court’s conclusion that the entity in G.D.L. Plaza met the HUP test. The dissent acknowledges, however, that G.D.L. Plaza is difficult to parse because the Supreme Court first determined that the entity was a “purely public charity” under the HUP test but then denied exemption for failure to satisfy the requirement of Section 204(a)(3) of the Assessment Law that it be "founded, endowed, and maintained by public or private charity.” The more recent case of Community Options, Inc. is clearer.

As noted above, Community Options, Inc. plainly mandates that an entity must first establish that it is a "purely public charity” under Article VIII, Section 2 of the Constitution before the question of whether it meets the qualifications of a statutory exemption can be reached. At the end of Community Options, Inc. the Supreme Court referred to the municipality’s argument on cross-appeal to this Court that because the entity did not meet the HUP test it was not necessary to consider whether it met the statutory definition, with which this Court agreed. Community Options argued to the Supreme Court that this Court ignored the definition of purely public charity in the Charity Act and did not give the legislature due deference. It is that argument that the Supreme Court decided it "need not reach" because the Supreme Court had rejected this Court’s application of prior Commonwealth Court precedent to conclude that Community Options did not meet the HUP test. The Supreme Court's clear holding is that the HUP test does “trump” the Charity Act.