Yorgason v. County Board of Equalization Ex Rel. Episcopal Management Corp.

714 P.2d 653, 27 Utah Adv. Rep. 14, 1986 Utah LEXIS 736

• Court: Utah Supreme Court
• Decided: February 3, 1986
• Docket: 18986
• Status: Published

Opinions

HALL, Chief Justice:

The Salt Lake County Board of Equalization, the State Tax Commission and the district court all found that an apartment building for needy elderly and handicapped families and individuals, known as St. Mark’s Tower, was exempt from real property tax because it was used exclusively for charitable purposes. The plaintiff, Salt Lake County Assessor, appeals that determination and asks that St. Mark’s Tower be placed upon the tax rolls of Salt Lake County and taxed for the tax years 1980 and following. We affirm.

Episcopal Management Corporation is a Utah nonprofit corporation organized in April 1978. The articles of incorporation state that the corporation was organized “exclusively for charitable purposes.” The articles further state that “[t]he specific charitable purpose of this corporation is the promotion of the welfare of needy elderly and handicapped families through the provision of housing for low- and moderate-income individuals who do not possess the means to furnish themselves with decent, safe, and sanitary housing.”

The property at issue here is an apartment building known as St. Mark’s Tower in Salt Lake City. The Tower consists of 98 rentable units together with common areas used for social and recreational activities, a resident manager’s apartment and several offices used by the Tower’s administration. There are no commercial businesses of any type in the building. Social programs are organized and furnished for the tenants without charge, and free counseling is offered. Volunteers take tenants grocery shopping and provide and staff blood pressure clinics, among other things. The philosophy of the Tower is to provide a total continuum of care to its tenants.

In order to build the Tower, volunteers spent approximately 1,250 person hours negotiating with the Department of Housing and Urban Development (HUD) for financing and in negotiations for the building site; in consultation during construction; and in the selection of the managing agent for the Tower. Additionally, the Episcopal Diocese of Utah spent about $1,500 for travel expenses to further the negotiations.

As a result of these volunteer efforts, HUD loaned the corporation $3,638,000 for construction of the Tower under the terms of the National Housing Act of 1959, § 202, 12 U.S.C. § 1701q (1980). The loan was secured by a mortgage payable by the corporation over 40 years. HUD sets the operating requirements of the Tower.¹

The Tower began accepting tenants on December 27,1979.² In order to be eligible to reside in the Tower, a tenant must be over 62 years of age or handicapped. Handicapped individuals cannot make up more than 10% of the tenants. As of January 1981, no tenant could have income in excess of $12,000 per year if single or $13,700 per year if married.³ At the time this action commenced, the average annual income of tenants at the Tower was $4,622.

Rent for each unit is established by HUD on the basis of fair market value for equivalent facilities in the community. In January 1981, the established rent was $433 per month per unit. This rent included all utilities except telephone. The percentage of the monthly rental paid by the tenant is based on his or her ability to pay. The tenant pays 25% of his or her gross annual income toward the rent. In 1981, the average rent paid by tenants was $96, with the highest being $199 per month. Thus, no tenant completely pays his or her own way. The difference between the rent the tenant pays and the established fair market rent is paid by HUD to Episcopal Management Corporation in the form of section 8 subsidy payments.⁴ Both operating expenses and mortgage payments are paid exclusively from the monthly rental proceeds with any excess applied to reduce the mortgage.⁵ There are no earnings over and above expenses.

HUD regulations require that nonprofit corporations financed under section 1701q of the National Housing Act enter into management contracts. Therefore, St. Mark’s Tower is managed by Danville Development Corporation, which receives as its fee 7% of the gross rents collected. The Tower also has a resident director who has a B.A. in psychology with a certification in gerontology. Policy decisions for the Tower are made by a board of directors consisting of from five to nine members, one of whom must be the Bishop of the Episcopal Diocese of Utah. The board meets once a month, and all members are volunteers serving without compensation.

Upon dissolution of the corporation, the assets of the corporation must be disposed of to benefit an exempt organization under section 501(c)(3) of the Internal Revenue Code of 1954 (organizations operated exclusively for charitable, educational, religious or scientific purposes).

In 1980, the Salt Lake County Assessor assessed and taxed St. Mark's Tower.⁶ The tax assessment on the Tower was approximately $40,000 per year. Episcopal Management Corporation sought review of that assessment before the Salt Lake County Board of Equalization, which found the Tower to be exempt from real property tax because it was used exclusively for charitable purposes within the meaning of article 13, section 2 of the Utah Constitution. The State Tax Commission and the Third District Court affirmed the ruling of the Board of Equalization. The Salt Lake County Assesor appeals, contending that the property’s use as housing for needy elderly and handicapped individuals is not exclusively a charitable one as defined by article 13, section 2, of the Utah Constitution.

Article 13, section 2 at the time of these proceedings⁷ stated in pertinent part; “The property of the state, counties, cities, towns, school districts, municipal corporations and public libraries, lots with buildings thereon used exclusively for either religious worship or charitable purposes, ... shall be exempt from taxation.”

Plaintiff contends that the use of the Tower to provide housing for needy elderly and handicapped families and individuals is not a truly charitable one and that the finding of a charitable use by both the tax commission and the district court impermis-sibly expands the language of article 13, section 2.

This Court has adopted the general rule that the language of the clause exempting property “used exclusively ... for charitable purposes” from taxation should be strictly construed.⁸ This does not mean however that purposes exclusively charitable are limited to the mere relief of the destitute or the giving of alms.⁹ In fact, what qualifies as a purpose exclusively charitable is “subject to judgment in the light of changing community mores.”¹⁰ With this in mind, a number of states have recognized that provision of low-cost housing to low-income handicapped and elderly people in a proper environment constitutes charity.¹¹

In Utah, it is the use to which the real property is put, not the nature of the owning organization, which is determinative of whether or not the property is exempt as being used exclusively for charitable purposes.¹² The test of charitable purpose is public benefit or contribution to the common good or the public welfare.¹³ It is also necessary that there be an element of gift to the community.¹⁴

In Utah County v. Intermountain Health Care, Inc.,15 the Court articulated six factors which consolidate some of the traditional factors considered by this Court and provide useful guidelines in determining whether a particular institution is using its property exclusively for charitable purposes. These are:

(1) whether the stated purpose of the entity is to provide a significant service to others without immediate expectation of material reward; (2) whether the entity is supported, and to what extent, by donations and gifts; (3) whether the recipients of the “charity” are required to pay for the assistance received, in whole or in part; (4) whether the income received from all sources (gifts, donations, and payment from recipients) produces a “profit” to the entity in the sense that the income exceeds operating and long-term maintenance expenses; (5) whether the beneficiaries of the “charity” are restricted or unrestricted and, if restricted, whether the restriction bears a reasonable relationship to the entity’s charitable objectives; and (6) whether dividends or some other form of financial benefit, or assets upon dissolution, are available to private interests, and whether the entity is organized and operated so that any commercial activities are subordinate or incidental to charitable ones.¹⁶

As can be seen from the foregoing facts and the following discussion, the Tower qualifies as a charitable use under all six of these guidelines and under the Court’s traditional analyses.

Both this state and the Congress of the United States have recognized that the community benefits from efforts made to provide adequate housing for the low-income elderly and handicapped members of our society. The Utah State Legislature has stated:

It is declared to be the policy of the state of Utah to promote the general welfare of its citizens that it is necessary to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income, in urban and rural areas. These conditions cause an increase and spread of disease and crime, and constitute a menace to the health, safety, morals and welfare of the state. It is the policy of the state of Utah to make adequate provision of housing for persons of low income, for elderly persons of low income, for handicapped persons of low income, for veterans of low income unable to provide themselves with decent housing on the basis of benefits available to them through certain government guarantees of loans for purchase of residential property, and during limited periods, housing for disaster victims. The provision of safe and sanitary dwelling accommodations at rents or prices which persons of low income can afford will materially assist in developing more desirable neighborhoods and alleviating the effects of poverty in this state. The purposes of this act are to meet these problems by providing low-cost housing for low-income persons and to encourage co-operation between political subdivisions thereby making available low-cost housing facilities in all areas of the state. It is in the public interest to utilize the broad financial resources and technical services available to government in co-operation with the ingenuity and expertise of private enterprise to alleviate this lack of safe and sanitary dwellings while stimulating local industry.¹⁷

It should be noted that the above statement of policy not only applies to actions by government, but encourages “co-operation with the ingenuity and expertise of private enterprise.”

Congress articulated a similar purpose when it passed the National Housing Act:

The Congress finds that there is a large and growing need for suitable housing for older people both in urban and rural areas. Our older citizens face special problems in meeting their housing needs because of the prevalence of modest and limited incomes among the elderly, their difficulty in obtaining liberal long-term home mortgage credit, and their need for housing planned and designed to include features necessary to the safety and convenience of the occupants in a suitable neighborhood environment. The Congress further finds that the present programs for housing the elderly under the Department of Housing and Urban Development have proven the value of Federal credit assistance in this field and at the same time demonstrated the urgent need for an expanded and more comprehensive effort to meet our responsibilities to our senior citizens.¹⁸

Congress reaffirmed these purposes in the Low-Income Housing Act:

It is the policy of the United States to promote the general welfare of the Nation by employing its funds and credit, as provided in this chapter, to assist the several States and their political subdivisions to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income and, consistent with the objectives of this chapter, to vest in local public housing agencies the maximum amount of responsibility in the administration of their housing programs....¹⁹

Undisputed testimony before the tax commission indicated that there was a very high proportion of low-income displaced elderly in Salt Lake County. This situation is due largely to the trend of converting older apartment buildings, where many elderly lived, to modern condominium complexes whose rental fees or purchase prices were well beyond the financial capabilities of individuals who had lived in the older apartment buildings for 20, 30 or even 50 years and who are on low fixed incomes. Low-cost, privately owned housing for those displaced individuals is simply not available.

It was undisputed that none of the residents of the Tower would be able to live in comparable housing to that provided at the Tower anywhere else in Salt Lake County for the amount of rent each resident paid at the Tower. In fact, many tenants of the Tower were taken from substandard housing situations, including apartments or rooms infested with cockroaches, with dirt floors, without running water or with minimal facilities.

A project such as the Tower plainly serves an important social need both to the community as a whole, for the reasons stated by the Utah Legislature, and to the individuals residing in the Tower.²⁰ Such projects are designed and operated to encourage continued activity and further development on the part of its tenants. Testimony before the tax commission affirmed that the activities provided and the continued companionship available in such projects contributed to the physical, spiritual, social and psychological needs of the elderly and handicapped tenants, many of whom tended to otherwise become increasingly isolated. Further, as the Missouri Supreme Court said in Franciscan Tertiary Province,21 such projects “help prolong life and health by reaffirming the sense that life is worth living, that society cares.”²²

In addition to the benefit provided to the community and the individuals residing in the Tower, the Tower provides a gift to the community.

First of all, Episcopal Management Corporation has made and continues to make substantial contributions of both money (defendant is responsible for the repayment of the loan made by HUD for construction of the Tower no matter what the source of income or shortfall in income; $1,500 un-reimbursed travel expenses) and services (the initiative to conceive and then follow through and build the Tower; 1,250 person hours contributed by volunteers from idea to opening; volunteer members of the Board of Directors meet monthly to set policy; continuing volunteerism at the Tower providing a variety of services to residents). Second, there is a substantial imbalance in the exchange between Episcopal Management Corporation and the tenants of the Tower. No tenant begins to pay for the total cost of renting an apartment and for the various services provided.

In Friendship Manor Corp. v. Tax Commission,23 this Court, in refusing to exempt from taxation a home for the elderly, established a test for determining what characteristics a home for the elderly would have to possess in order to be properly used exclusively for charitable purposes. Friendship Manor involved an apartment building of 228 units. Tenants in the building had to be ambulatory, and 80% of them had to be over 62 years of age. Each tenant had to be financially able to fully pay the rent established and for all services provided to them. The Manor would not accept tenants if they were not financially able to pay the rent and for all services received or if they could not maintain the standard of living required. Rents were established so that the total amount collected met all expenses plus amortization of interest and principal on the mortgage. Certain commercial businesses were also allowed to operate in the building. The Utah Supreme Court ruled that under these facts the Manor should not be exempt from taxation:

Where the senior citizen is paying for all of the services he receives and the rental of the apartments is not determined by need, but is determined by what is required to retire the principle and interest of the mortgage, together with all upkeep and operation expenses, no charitable purpose is involved. The State does not have the obligation to provide living accommodations to persons well able and willing to pay for their needs.²⁴

(Emphasis added.)

In so holding, the Court adopted what has been characterized as the “material reciprocity” test for determining whether a housing complex for elderly and handicapped people is a charitable use.²⁵ If rental payments are insufficient to cover the cost of the complex and are adjusted to reflect each tenant’s ability to pay, then a charitable exemption is available; otherwise, it is not. In the case of St. Mark’s Tower, none of the tenants are able to fully pay for their needs. The rental paid by each tenant is based on ability to pay, and no tenant begins to pay for the total cost of rental and services received.

Other jurisdictions across the country have also held that in order to qualify as an exclusively charitable organization assistance does not have to be cost-free.²⁶ An organization or institution may still qualify for a tax exemption even if some charges are made to the recipients or residents to help cover operating expenses, as long as these charges are not commensurate with the benefits provided.²⁷ The fact that subsidization of part of the cost of furnishing low-cost housing such as that provided by the Tower is by the government rather than by a private donor does not dictate a different result.²⁸

The Tower also provides a gift to the community since it lessens a government burden. Undisputed testimony before the tax commission indicated that at least eleven residents of the Tower, and probably more, would have to be in nursing homes if the Tower, together with its services and philosophy, was not available. Nursing home costs in Salt Lake County ranged between $1,000 and $1,500 per month at the time this action commenced. Those eleven-plus residents of the Tower would be totally dependent on Medicaid to pay all costs within six months of entering a nursing home. The lessening of the government’s burden from this one aspect alone, even deducting the government subsidies, more than outweighs the tax benefits that would be realized by assessing the Tower.²⁹

Additional testimony before the tax commission indicated that there were also substantial savings to the government from reduced use of food stamps, lessened medical care, reduced home delivery community services to isolated individuals, and so on. Finally, the executive director of the Salt Lake County Housing Authority testified that if the Tower did not exist, the County, in one fashion or another, would have to provide those services to the residents.

Plaintiff, however, contends that the fact that the Tower accepts government subsidies in order to operate precludes the Tower from being accorded a charitable exemption. This argument fails for several reasons. First, and most importantly, as this Court said in Friendship Manor: “It is the use to which it puts its real property which is the determination of whether or not such property is exempt.” (Emphasis added.)³⁰ The use of the property is obviously a charitable one as discussed previously.

Second, the section 8 government subsidy payments are provided to the project. Thus, those payments are like a gift or donation of any other kind except they come from the government. In both Inter-mountain Health Care and the present case, the crux is the presence or absence of material reciprocity. It is entirely irrelevant to this analysis that the government, rather than a private benefactor, chose to make up the deficit resulting from the exchange between St. Mark’s Tower and the tenants by making a contribution to the landlord, just as it would have been irrelevant in Intermountain Health Care if the patients’ income supplements had come from private individuals rather than the government.

Therefore, the fact that subsidization of part of the cost of furnishing such housing is by the government rather than private charitable contributions does not dictate the denial of a charitable exemption if the facts otherwise support such an exemption, ás they do here.

Operation of St. Mark’s Tower by the Episcopal Management Corporation clearly meets all of the tests established by this Court to determine whether or not a given property is used exclusively for charitable purposes. Therefore, we conclude that the tax commission and the district court were correct in exempting the Tower from property tax. Affirmed.

DURHAM, J., concurs.

1 .Both the Salt Lake City and the Salt Lake County Housing Authorities provide housing for the same classes of people in apartment complexes built with HUD public housing funds and operated under substantially the same requirements. Neither complex pays property taxes because the properties are owned by municipal corporations and are considered to be public property used for essential public, governmental and charitable purposes. U.C.A., 1953, § 55 — 18— 15; Utah Const, art. 13, § 2 (1968, amended 1982). A 16-story apartment complex on 21st South has agreed to pay $400 in in-lieu payments when the complex gets to a certain point in the bonded indebtedness; Phillip’s Plaza, next door to St. Mark's Tower, will pay approximately one-third of that. See U.C.A., 1953, § 55-18-27.

2 . The Tower initially accepted tenants from the waiting list established to fill vacancies at the public apartment complex operated by the county.

3 . This limit has since been reduced.

4 . United States Housing Act of 1937, § 8, 42 U.S.C. 1437f (1978).

5 . The amount of the tax assessment ($40,000) is approximately equal to the total amount taken in each year in rents plus federal subsidies. Testimony at the hearing indicated that there was no apparent source of funds to pay the tax assessment. Rent, of course, cannot be raised, and it was considered unlikely that the federal government would provide additional subsidies to pay property taxes. It was therefore uncertain where money for the tax assessment would come from.

6 . St. Mark’s Tower is exempt from federal taxes under section 501(c)(3) of the Internal Revenue Code.

7 . Article 13, section 2 was amended in 1982, effective January 1, 1983.

8 . Salt Lake County v. Tax Comm’n ex rel. Laborers Local No. 295, Utah, 658 P.2d 1192, 1194 (1983); Loyal Order of Moose No. 259 v. County Bd. of Equalization, Utah, 657 P.2d 257, 264 (1982). Accord, Utah County v. Intermountain Health Care, Inc., Utah, 709 P.2d 265 (1985).

9 . See, e.g., Bader Realty & Inv. Co. v. St. Louis Hous. Auth., 358 Mo. 747, 752, 217 S.W.2d 489, 492 (1949).

10 . Salt Lake County v. Tax Comm’n ex rel. Greater Salt Lake Recreational Facilities, Utah, 596 P.2d 641, 643 (1979).

11 . Memorial Hospital v. Sparks, 9 Ariz. App. 478, 481-82, 453 P.2d 989, 992-93 (1969); Franciscan Tertiary Province, Inc. v. State Tax Comm’n, Mo., 566 S.W.2d 213, 225 (1978); Senior Citizens Hous. Dev. Corp. v. City of Claremont, 122 N.H. 1104, 453 A.2d 1307, 1309-10 (1982); Belle Harbor Home of The Sages, Inc. v. Tishelman, 100 Misc.2d 911, 420 N.Y.S.2d 343, 345 (1979), aff’d, 81 A.D.2d 886, 441 N.Y.S.2d 413 (1981); Glass v. Oklahoma Methodist Home for the Aged, Inc., Okla., 502 P.2d 1268, 1274 (1972). See generally Annot., 37 A.L.R.3d 1191 (1971); Annot., 37 A.L.R.3d 565 (1971).

12 . Friendship Manor Corp. v. Tax Comm’n, 26 Utah 2d 227, 234, 487 P.2d 1272, 1276 (1971).

13 . Greater Salt Lake Recreational Facilities, 596 P.2d at 643. Accord Laborers Local No. 295, 658 P.2d at 1197 (Oaks, J., concurring).

14 . Intermountain Health Care, 709 P.2d at 269; Greater Salt Lake Recreational Facilities, 596 P.2d at 643.

15 . 709 P.2d at 265.

16 . 709 P.2d at 269-70 (footnote omitted). We emphasize that these factors operate as guidelines only and should not be read to be exclusive or as equally beneficial in each case.

17 . U.C.A., 1953, § 55-18-1.

18 . 12 U.S.C. § 1701r (1982).

19 . 42 U.S.C. § 1437 (1976).

20 ."Even the benefiting of a limited and identifiable class can be charitable if that result is also beneficial to the public.” (Citations omitted.) Laborers Local No. 295, 658 P.2d at 1197 (Oaks, J., concurring).

21 . 566 S.W.2d at 213.

22 . Id. at 225.

23 . 26 Utah 2d at 227, 487 P.2d at 1272.

24 . Id. at 239, 487 P.2d at 1280.

25 .Id. at 238, 487 P.2d at 1279 (quoting United Presbyterian Ass’n v. Board of County Comm’rs, 167 Colo. 485, 503, 448 P.2d 967, 976 (1968).

26 . See, e.g., Santa Catalina Island Conservancy v. County of Los Angeles, 126 Cal.App.3d 221, 236, 178 Cal.Rptr. 708, 716 (1981); Martin Luther Homes v. County of Los Angeles, 12 Cal.App.3d 205, 211, 90 Cal.Rptr. 524, 527 (1970); Michigan Baptist Homes & Div. Co. v. City of Ann Arbor, 396 Mich. 660, 670, 242 N.W.2d 749, 753 (1976); Belle Harbor Home of the Sages, Inc., 420 N.Y.S.2d at 345.

27 . See id. See also supra note 11 and cases cited therein.

28 . Franciscan Tertiary Province, 566 S.W.2d at 226.

29 . Eleven residents at S1,000 per month for twelve months adds up to a cost of $132,000. The County has taxed the Tower at approximately $40,000 per year. Government rent subsidies per year are approximately $33,026 (rent, $433, minus average rent paid by tenants, $96, X 98 units).

30 . 26 Utah 2d at 234, 487 P.2d at 1276.