Greentree Community Church v. Jake Zimmerman, Assessor St. Louis County

November 10th, 2015

State Tax Commission of Missouri

GREENTREE COMMUNITY CHURCH,	)	Appeal No.	14-10976 (24M443155)
	)		14-10977 (24M443144)
Complainants,	)
v.	)
	)
JAKE ZIMMERMAN, ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI, Respondent	)

ORDER AFFIRMING HEARING OFFICER DECISION

UPON APPLICATION FOR REVIEW

On November 10, 2015, Senior Hearing Officer John Treu, entered his Decision and Order (Decision) setting aside the decision of the St. Louis County Board of Equalization.

HOLDING

Upon review of the entire record, the Commission affirms the Hearing Officer Decision that the property is exempt under Section 137.100(5), RSMo.

Standard Upon Review

A party subject to a Decision and Order of a Hearing Officer with the State Tax Commission may file an application requesting the case be reviewed by the Commission. The Commission may then summarily allow or deny their request. The Commission may affirm, modify, reverse or set aside the decision. The Commission may take any additional evidence and conduct further hearings.

History

On November 10, 2105, Senior Hearing Officer John Treu entered his Decision and Order (Decision) setting aside the assessment by the St. Louis County Board of Equalization.

Respondent timely filed his Application for Review of the Decision. Complainant timely replied. The Application for Review raised the following points:

(1) The Decision of the Hearing Officer is erroneous, arbitrary, capricious, unreasonable and is contrary to Missouri law because the Complainant failed to meet its burden of proof of substantial and persuasive evidence to establish actual and regular use of Subject Property for exempt purposes under Section 137.100 RSMo for tax year 2013.

(2) The Hearing Officer improperly applied the standards outlined in Abbot Ambulance, Inc v. Leggett, 926 SW2d 92, 96 (Mo. App. 1996) when there was insufficient evidence in the record to support a conclusion that there was actual use of Subject Property.

(3) The Hearing Officer improperly applied Rollings v. Shipman, 341 S.W. 3d 777 (Mo App 2011) by applying equitable ownership principles to ownership by a private, for-profit LLC.

History of the Property

September 25, 2012: Greentree Community Church (Church) entered into a Commercial Sale Contract with Gunhay Kirkwood, LLC (Seller) for the purchase of the subject properties.

December 14, 2012: IPX Development 129, LLC was formed to act as an exchange accommodation title holder (“EAT”) to effectuate a reverse 1031 exchange for the Church.

December 19, 2012: An Assignment of Sale Contract, along with a Notice to Seller was entered into between the Church, Seller, and the EAT.

December 21, 2012: Church and the EAT executed a Qualified Exchange Accommodation Agreement (“QEAA”) Such obligated the EAT to convey the subject property to the Church, while the Church was obligated to convey certain relinquished property to the EAT. The EAT had no right to sell the subject property to any other individual or entity other than the Church.

December 21, 2012: Seller executed a general warranty deed to the EAT

December 21, 2012: Church and the EAT entered into a lease agreement regarding the subject properties. Under such lease the Church was i) given the rights to make additions, alterations and improvements to the subject properties, ii) was required to obtain property, casualty and liability insurance on the subject properties, and iii) was responsible for all maintenance and repairs to the subject properties. The Church agreed to pay $1.00 monthly rent.

December 21, 2012 to January 1, 2013: The Church undertook predevelopment activities;

February 20, 2013: The subject properties were conveyed to the Church pursuant to the terms of the QEAA in order to complete the reverse 1031 exchange.

Burden of Proof

Exemptions should be narrowly construed against the claimant and that any deviation from the statutory and constitutional requirements for property to be deemed exempt is strictly construed in favor of taxation. Iron County v. State Tax Commission, 437 SW2d 668 (1968) “The law disfavors claims for exemption from taxation. The substantial burden of establishing the property falls within the exempted class is on the person claiming exemptions under the referenced constitutional and statutory provisions. To prevent the curtailing of the purpose and intended scope of a tax exemption, the tax exemption statute is to be strictly but reasonably construed.” Twitty v. State Tax Commission of Missouri, 896 SW2d 680, 684 (Mo. App SD 1995) Accordingly, in order to prevail, Complainant must demonstrate by substantial and persuasive evidence, that it is entitled to an exemption.

Substantial evidence is that evidence which, if true, has probative force upon the issues, i.e., evidence favoring facts which are such that reasonable men may differ as to whether it established them, and from which the Commission can reasonably decide an appeal on the factual issues. Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo 1959) Persuasive evidence is that evidence which has sufficient weight and probative value to convince the trier of fact. The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief. Brooks v. General Motors Assembly Division, 527 SW2d 50, 53 (Mo.App. 1975)

Exemptions

Properties which can be exempted from taxation are set out within our Constitution and the statutes enacted to enforce that Constitution, to wit:

“. . .all property, real and personal, not held for private or corporate profit and used exclusively for religious worship, for schools and colleges, for purposes purely charitable, . . .may be exempt from taxation by general law but any such law may provide for approximate restitution to the respective political subdivisions of revenues lost by reason of the exemption. All laws exempting from taxation property other than the property enumerated in this article, shall be void.”[1] Article X, Section 6, Mo. Const. of 1945

In support of this Constitutional provision, the Legislature has enacted Section 137.100, RSMo which provides in relevant part:

(5) 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, education or charitable purposes;

Religious Purpose

In order for a property to be exempt from taxation for religious purposes, the following test must be met:

(1) The primary and inherent use of the property is for “religious worship”. “Religious worship” embodies as a minimum requirement a belief in a Supreme Being and references the rituals, customs, and practices required or believed necessary to carry out the faith’s belief in its Supreme Being; and

The property is owned and operated on a not-for-profit basis.

CSCEA v. Nelson, 898 S.W.2d 547, 549 (Mo. banc 1995); Missouri Church of Scientology v. State Tax Commission, 560 S.W.2d 837, 842 (Mo. banc 1978); Temple Emanuel v. Morton, STC #88-11774.

Use

For a property to be exempt, the primary and inherent use of the property must be for “religious worship”. “Religious worship” embodies as a minimum requirement a belief in a Supreme Being and references the rituals, customs, and practices required or believed necessary to carry out the faith’s belief in its Supreme Being. The Church was not being used for religious worship on January 1, 2013; however, the Church was preparing the property for future worship. Missouri Courts have held that property held in anticipation of exempt use is sufficient to fulfill the requirement.

The lead case on property held in anticipation of an exempt use is Abbott Ambulance, Inc. v. Leggett, 926 S.W.2d 92 (Mo.App. E.D. 1996). The issue in the Abbott case was whether “unoccupied land owned by a charity which is in the early stages of development for construction of a headquarters building and maintenance garage that will be used for charitable purposes when completed is being ‘used exclusively for purposes purely charitable’ and thus exempt….” Id., at 93. Abbott acquired the land in July of 1991 for the sole purpose of erecting a headquarters facility on the land. The tax date in question was January 1, 1992. “By January 1, 1992, Abbott had, among other things, (1) entered into a Grading Agreement with Midland Equity, Inc. dated July 23, 1991 for site preparation and grading of the property; (2) negotiated and executed a Letter of Intent dated December 19, 1991 with Webbe Corporation, a design-build construction contracting firm, for the design and construction of the Headquarters facility on this property; and (3) moved substantial amounts of earth on the property pursuant to the Grading Agreement, which was approximately 30% performed or completed as of the January 1, 1992 assessment date.” Id., at 94.

The court stated that “…[c]onstruction and other activities in preparation for the rendition of charitable services are either charitable uses or they are not; the imminence of the rendition of charitable services is immaterial.” Id., at 96. Accordingly, the court found that “from the outset Abbott’s actual use of the property has been for construction and, ultimately, operation of the property as a headquarters facility and garage maintenance center for its ambulances. Activities essential to accomplishment of that purpose were underway prior to the assessment date. There is not a scintilla of evidence that Abbott held the property for investment purposes or had even considered any other use. It is conceded that Abbott’s use of the property since construction was completed qualifies for exemption. Abbott’s use of the property in constructing the facility as a prerequisite to such use should likewise be considered a charitable use.” Id., at 94 (emphasis supplied).

The Respondent takes issue with the evidence presented as to the activities in preparation for the religious activities. Respondent cites lack of receipts or contracts. Particular exhibits are not required to establish the entity is preparing the property for future worship. The Hearing Officer found that testimony of Michael Porter to be substantial and persuasive to establish the preparation for the immediate construction of a church and use for religious purposes. His testimony included that the Church had engaged in activities even before the contracts for purchase were completed. The Church had met with engineers, architects, soil specialists, and city officials and continued the process until the construction of the Church was complete in 2015. Whether actual ground had been broken for the construction of the church on January 1, 2013 is not controlling.

Ownership

The subject property, although not specifically owned by the Church on January 1, 2013, was for all intents and purposes the property of the Church. The Church contracted for the purchase of the property in September 2012. An exchange accommodation titleholder was formed to effectuate a reverse 1031 exchange on behalf of the church. The church was i) given the rights to make additions, alterations and improvements to the subject properties, ii) was required to obtain property, casualty and liability insurance on the subject properties, and iii) was responsible for all maintenance and repairs to the subject properties. The owner of the subject properties on January 1, 2013 was merely holding the subject properties for the Church to afford itself of applicable IRS provision beneficial to it.

In Rollings v. Shipman, 341 S.W.3d 777 (Mo Ct App 2011), property was leased to the school district for a period of ten years after which the property would become the property of the school district. The school district had the right to sublease, remodel, or modify the property. The school district was obligated to maintain the property and obtain insurance coverage. The Court found that the school district was the equitable owner of the leased property as the lease was merely a tool to effectuate the purchase of the property. An equitable owner is the owner for tax exempt determinations. The Court’s decision was based upon the “second element of Franciscan test [which] requires that the property at issues [be] ‘owned and operated on a non-profit basis.’ In other words, the property ‘must be dedicated unconditionally to the charitable activity in such a way that there will be no profit, presently or prospectively, to individuals or corporations.”

The term “ownership” has no fixed, definite meaning for taxation purposes. Thompson-Stears-Roger v. Schaffner, 489 SW2d 207, 215 (Mo. 1973) Owner includes one who has dominion or control over a thing. The Courts found that an owner for tax purposes was one that retained sufficient rights and duties regarding the property. An Assignment of Sale Contract, along with a Notice to Seller was entered into between the Church, Seller, and the EAT on December 19, 2012. The purpose of the activities on December 19, 2012 was to carry out the purpose of the reverse 1031 exchange. A reverse 1031 exchange allowed the Church to acquire the subject property. The QEAA (Qualified Exchange Accomodation Agreement) only lasts 180 days. Such agreement assigned all right, title and interest in the subject properties. All obligations of the Sale Contract remained with the Church. From September 25, 2012 forward, the Church had exclusive control, possession and right to use of the subject properties

CONCLUSION

There is no evidence or contention that Greentree Community Church held or used the subject properties for investment purposes. This is also no question that Greentree Community Church was the sole user of the property as of January 1, 2013 and throughout such year and that they were the sole entity entitled to the subject properties use during such period.

ORDER

The Decision and Order of the Hearing Officer, including the findings of fact and conclusions of law therein, are AFFIRMED and incorporated by reference, as if set out in full, in this final decision of the Commission.

Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the mailing date set forth in the Certificate of Service for this Order.

If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts unless disbursed pursuant to Section 139.031.8, RSMo.

If no judicial review is made within thirty days, this decision and order is deemed final and the Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.

STATE TAX COMMISSION

Bruce E. Davis, Chairman

Randy Holman, Commissioner

Victor Callahan, Commissioner

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 12^th day of April, 2016, to: Complainants(s) counsel and/or Complainant, the county Assessor and/or Counsel for Respondent and county Collector.

Jacklyn Wood

Legal Coordinator

Contact Information for State Tax Commission:

Missouri State Tax Commission

301 W. High Street, Room 840

P.O. Box 146

Jefferson City, MO 65102-0146

573-751-2414

573-751-1341 Fax

[1] Article X, Section 6, Mo. Const. of 1945.

State Tax Commission of Missouri

GREENTREE COMMUNITY CHURCH	)
	)
Complainant	)
	)
v.	)	Appeal No. 14-10975
	)	Appeal No. 14-10976
JAKE ZIMMERMAN, ASSESSOR	)	Appeal No. 14-10977
ST. LOUIS COUNTY , MISSOURI	)
	)
Respondent	)

DECISION AND ORDER

HOLDING

Decisions of the County Board of Equalization sustaining the assessments made by the Assessor regarding exemption for 2013 are SET ASIDE as to Appeals 14-10976 and 14-10977. Complainant presents substantial and persuasive evidence demonstrating the property should be exempt from taxation for tax year 2013. At the beginning of the Evidentiary Hearing the parties stipulated to the exempt status of the property set forth in Appeal 14-10975 in 2013 and therefore, such property is Ordered Exempt for tax year 2013.

Complainant is represented by Jeffrey Igou.

Respondent is represented by Stephanie Hill.

This case is decided by Senior Hearing Officer, John Treu based upon all exhibits provided by Complainant and Respondent, as well as the Written Direct Testimony presented by the respective parties.

COMPLAINANT’S EXHIBITS

A	Articles of Incorporation for Greentree
B	Commercial Sales Contract
C	Articles of Organization for IPX
D	Assignment of Sales Contract from Greentree to IPX
E	Qualified Exchange Accommodation Agreement
F	General Warranty Deed from Gunhay to IPX
G	Lease from IPX to Greentree
H	General Warranty Deed from IPX to Greentree and Recorder of Deeds Document
I	BOE Decision of 12/18/2014
WDT	Michael Porter

RESPONDENT’S EXHIBITS

1	Petition for Exemption
2	Notice of Hearing B00235492
3	Notice of Hearing 24M443155
4	BOE Decision 2014
5	Field Inspection Report 24M443144
6	Field Inspection Report 24M443155
7	General Warranty Deed form IPX to Greentree
8	General Warranty Deed from Gunhay to IPX
9	Field Inspection Report B00235492
WDT	Joseph Craven, Betty Coleman & Robert Brisko

ISSUE

Complainant appeals, on the grounds of exemption, the decisions of the St. Louis County Board of Equalization, which sustained the Assessor’s determination of taxation of the subject properties for 2013. The Commission takes these appeals to determine whether or not the property should be exempt from taxation for tax year 2013.

The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

FINDINGS OF FACT

Jurisdiction. Jurisdiction over these appeals is proper. Complainant timely appealed to the State Tax Commission from the decisions of the St. Louis County Board of Equalization as to the exempt status of the properties for 2013.
Characteristics of Complainant. Complainant is a Missouri Not-For-Profit Corporation in Missouri (Ex. A). It is recognized by the Internal Revenue Service as tax exempt under Section 501(c) (3) of the Internal Revenue Code (Ex. A).
Complainant’s Purpose and Operation. The purpose of the subject properties was for the continued worship of God through the establishment of a permanent church building.
Background Facts. The following establish the background of the purchase and utilization of the subject property, including certain agreements solely utilized for IRS tax purposes:
a) Greentree Community Church entered into a Commercial Sale Contract with Gunhay Kirkwood, LLC for the purchase of the subject properties on September 25, 2012.
b) On December 14, 2012, IPX Development 129, LLC was formed to act as an exchange accommodation title holder (“EAT”) to effectuate a reverse 1031 exchange for Greentree.
c) An Assignment of Sale Contract, along with a Notice to Seller was entered into between Greentree Community Church, Gunhay Kirkwood, LLC and the EAT on December 19, 2012. This was done to carry out the purpose of the 1031 exchange. Such agreement assigned all right, title and interest in the subject properties. All obligations of the Sale Contract remained with Greentree Community Church.
d) Greentree Community Church and the EAT executed a Qualified Exchange Accommodation Agreement (“QEAA”) on December 21, 2012. Such obligated the EAT to convey the subject property to Greentree Community Church, while Greentree Community Church was obligated to convey certain relinquished property to the EAT. The EAT has no right to sell the subject property to any other individual or entity other than Greentree Community Church.
e) Gunday Kirkwood, LLC executed a general warranty deed to the EAT of December 21,
f) Greentree Community Church and the EAT entered into a lease agreement on December 21, 2012 regarding the subject properties. Under such lease Greentree Community Church was i) given the rights to make additions, alterations and improvements to the subject properties, ii) was required to obtain property, casualty and liability insurance on the subject properties, and iii) was responsible for all maintenance and repairs to the subject properties. Greentree Community Church agreed to pay $1.00 monthly rent.
g) After December 21, 2012, Greentree Community Church undertook predevelopment activities; although the specific beginning date of such activities, if any, from December 21, 2012 up to and including January 1, 2013, is unclear.
h) On February 20, 2013, the subject properties were conveyed to Greentree Community Church pursuant to the terms of the QEAA in order to complete the reverse 1031 exchange.
i) From September 25, 2012 forward, Greentree Community Church had exclusive control, possession and right to use of the subject properties
Board of Equalization Exemption Request. On April 25, 2014 the St. Louis County Board of Equalization received the request of IPX Development 129, LLC and Greentree Community Church for exemption from taxation for tax year 2013.
Exempt Status for 2014. On December 18, 2014, the St. Louis Board of Equalization granted exempt status to Greentree Community Church for tax year 2014. The St. Louis Board of Equalization specifically denied exemption for tax year 2013.

Burden of Proof

Although a taxing statute is construed strictly against the state, an exemption statute is strictly construed against the one claiming the exemption. State ex rel. Union Electric Co. v. Goldberg, 578 S.W.2d 921, 923 (Mo. banc 1979). In order to prevail, Complainant must demonstrate by substantial and persuasive evidence, that it is entitled to an exemption. Substantial evidence is that evidence which, if true, has probative force upon the issues, i.e., evidence favoring facts which are such that reasonable men may differ as to whether it established them, and from which the Commission can reasonably decide an appeal on the factual issues. Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). Persuasive evidence is that evidence which has sufficient weight and probative value to convince the trier of fact. The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975). Respondent has no obligation to submit any evidence. It is solely Complainant’s burden of proof to meet.

Statutory Exemptions

Properties which can be exempted from taxation are set out within our Constitution and the statutes enacted to enforce that Constitution, to wit:

In support of this Constitutional provision, the Legislature has enacted Section 137.110, RSMo, which provides in relevant part:

The following property shall be exempt from taxation:

Religious Purpose

In order for a property to be exempt from taxation for religious purposes, the following test must be met:

The property is owned and operated on a not-for-profit basis.CSCEA v. Nelson, 898 S.W.2d 547, 549 (Mo. banc 1995); Missouri Church of Scientology v. State Tax Commission, 560 S.W.2d 837, 842 (Mo. banc 1978); Temple Emanuel v. Morton, STC #88-11774.

DECISION

Complainant has presented substantial and persuasive evidence to meet its burden to demonstrate its qualification, as owner and its use, as an exempt property for tax year 2013.

Use

Complainant’s evidence clearly demonstrated the subject property at issue was intended to further it in its religious mission. Even if Greentree Community Church was not actually using the subject properties for worship on January 1, 2013 and throughout such tax year, Missouri Courts have held that property held in anticipation of exempt use is sufficient.

The overwhelming evidence, including the highly credible testimony of Michael Porter establishes that Greentree Community Church took multiple actions, prior to January 1, 2013 to get the proverbial “ball rolling” for the construction of a church. They entered into multiple contracts/agreements. Whether actual ground had been broken for the construction of the church is not controlling.

Ownership

The subject property, although not specifically owned by Greentree Community Church on January 1, 2013, was for all intents and purposes the property of Greentree Community Church. Greentree Community Church contracted for the purchase of the property in September 2012. An exchange accommodation titleholder was formed to effectuate a reverse 1031 exchange on behalf of the church. The church was i) given the rights to make additions, alterations and improvements to the subject properties, ii) was required to obtain property, casualty and liability insurance on the subject properties, and iii) was responsible for all maintenance and repairs to the subject properties. The owner of the subject properties on January 1, 2013 was merely holding the subject properties for Greentree Community Church to afford itself of applicable IRS provision beneficial to it.

CONCLUSION

There is no evidence or contention that Greentree Community Church held, used or used the subject properties for investment purposes. This is also no question that Greentree Community Church was the sole user of the property as of January 1, 2013 and throughout such year and that they were the sole entity entitled to the subject properties use during such period.

ORDER

The taxable status for the subject properties as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for tax year 2013, is SET ASIDE. The Clerk is hereby ORDERED to change the taxable status to “exempt” for tax year 2013.

Application for Review

A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision. The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous. Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.

Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo

Disputed Taxes

The Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.

Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED this 10th day of November, 2015.

STATE TAX COMMISSION OF MISSOURI

John Treu

Senior Hearing Officer

Delivery or Notice was made via mail, email, fax, or personally on November 10th, 2015 to the following Individuals of this Decision/Order/Holding

Jeffrey Igo, Attorney for Complainant, jigou@bcbslaw.com

Sarah Hill, Attorney for Respondent, SLHill@stlouisco.com

Mark Devore, Collector, collector@stlouisco.com

Genevieve Frank, Clerk, gfrank@stlouisco.com

Jake Zimmerman, Assessor

Jacklyn Wood

Legal Coordinator

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