Consumer Credit Counseling of Springfield v. Rick Kessinger, Assessor Greene County

May 23rd, 2017

IN THE STATE TAX COMMISSION OF MISSOURI

CONSUMER CREDIT COUNSELING OF SPRINGFIELD, MISSOURI, )  
  )  
              Complainant, )  
  )  
v. ) Appeal No. 16-33000
  )  
RICK KESSINGER, ASSESSOR )  
GREENE COUNTY, MISSOURI, )  
              Respondent. )  
  )  

 

DECISION AND ORDER

HOLDING

The decision of the Greene County Board of Equalization (BOE) sustaining the assessment made by Rick Kessinger, Assessor, Greene County, Missouri, (Respondent) is AFFIRMED.  Consumer Credit Counseling of Springfield, Missouri, (Complainant) did not present substantial and persuasive evidence establishing that the subject property is exempt from ad valorem taxation under Article X, Section 6, of the Missouri Constitution for tax year 2016.

Complainant appeared by counsel Kenneth P. Reynolds.

Respondent appeared personally and by counsel Aaron Klusmeyer.

Case heard and decided by Senior Hearing Officer Amy S. Westermann (Hearing Officer).

ISSUE

Complainant appealed Respondent’s ad valorem taxation of the subject property on the ground that the subject property qualified for exemption in 2016 because Complainant, a not-for-profit Internal Revenue Service Section 501(c)(3) organization, used the property for educational and charitable purposes.  Complainant did not challenge the assessed valuation of the subject property.

FINDINGS OF FACT

  1. Jurisdiction. Jurisdiction over this appeal is proper.  Complainant timely appealed to the State Tax Commission (STC) from the decision of the BOE.
  2. Evidentiary Hearing. The issue of exemption was presented at an evidentiary hearing on February 17, 2017, at the Greene County Historic Courthouse, 940 North Booneville Avenue, Springfield, Missouri.
  3. Identification of Subject Property. The subject property is a one-story office building located at 1055 S. Campbell, Springfield, Greene County, Missouri.  The property is identified by parcel number 1326113019.  (BOE Notice of Decision; Exhibit H)  Complainant was using the subject property to store office equipment on January 1, 2016.  (Exhibit H)   
  4. Assessment. Respondent’s appraised value of the subject property was $190,800, classified as commercial property, as of January 1, 2016.
  5. Board of Equalization. The BOE sustained Respondent’s appraised value of the subject property at $190,800.
  6. Complainant. Complainant is a not-for-profit organization recognized as exempt from federal income taxation under IRS Section 501(c)(3).  (Exhibit A)
  7. Complainant’s Evidence. Complainant offered the following Exhibits:
Exhibit A Nonprofit/Tax Exemption Status Letter from the IRS
Exhibit B Copy of Missouri Revised Statute Section 137.100.1(5)
Exhibit C Copy of emails from the Assessor’s office discussing whether the property is being used as investment property
Exhibit D Lease Agreement between Complainant and Catholic Charities of Southern Missouri
Exhibit E Memorandum of Understanding between Complainant and Catholic Charities of Southern Missouri
Exhibit F Letter acknowledging that the tax-exempt status on the property is being reinstated as of January 1, 2017
Exhibit G Pictures
Exhibit H Written Direct Testimony of Joe Stokes, Chief Operating Officer of Complainant

 

Mr. Stokes testified that he is the Chief Operating Officer for Complainant.  Mr. Stokes testified that Complainant purchased the subject property in 2006 following Congress’ enactment of the Bankruptcy Reform Act (also known as the Bankruptcy Abuse Prevention and Consumer Protection Act).  Complainant needed the subject property to house staff members to provide education and counseling services to individuals filing for bankruptcy. The subject property received ad valorem tax exempt status from 2007 to 2014.  Mr. Stokes testified that Complainant is a not-for-profit entity that used the subject property to provide bankruptcy counseling and financial education services to individuals in need.  Mr. Stokes testified that Complainant experienced a “drop-off” in counseling sessions in 2012 to 2013.  Mr. Stokes testified that Complainant had moved its employees from the subject property to another location in late 2012, which resulted in the loss of storage space at the other location.  Consequently, Complainant used the subject property to store its surplus office equipment.  Complainant subsequently determined that it no longer needed the subject property and decided to sell it, but the property did not sell.  Mr. Stokes testified that Complainant leased the subject property to Catholic Charities of Southern Missouri (Catholic Charities) in May 2016 “for a far lesser amount than its true rental value . . . $600 per month” and that Catholic Charities and Complainant refer clients to each other.  (Exhibit H)  Mr. Stokes specifically testified that Complainant referred clients in need of housing assistance to Catholic Charities and that Catholic Charities referred clients with high amounts of unsecured debt in need of financial education and counseling to Complainant.  Mr. Stokes testified that the subject property had been used only to provide Complainant’s counseling services, to store Complainant’s equipment, and then leased to Catholic Charities.  (Exhibit D, E, and H)

On cross-examination, Mr. Stokes testified that Complainant did not file an appeal for tax year 2015 but filed an appeal for tax year 2016.  Mr. Stokes testified that the subject property was a satellite facility to Complainant’s overall operation and that Complainant had offered no counseling services at the subject property in 2015 or 2016.  Mr. Stokes testified that 11 employees had worked out of the subject property prior to its closing in 2012.  Mr. Stokes testified that he had transferred the employees to Complainant’s other location for efficiency when the need for bankruptcy education and counseling dropped off in 2012.  No services were offered at the subject property after the employees were transferred to the other location.  Mr. Stokes testified that Complainant had left behind office furniture, a refrigerator, a table, a reception counter, and miscellaneous items at the subject property when Complainant ceased providing counseling services there.  Mr. Stokes testified that the subject property had been listed for sale in late 2012 or early 2013 and was on the market on January 1, 2016.  Mr. Stokes testified that Complainant had begun leasing the subject property to Catholic Charities in May 2016.  Mr. Stokes testified that, as of the date of the evidentiary hearing, the subject property was not on the market.  Mr. Stokes further testified that Complainant would sell the property only if a buyer would accommodate Catholic Charities.  Mr. Stokes testified that the sole purpose of the subject property as of January 1, 2016, was to store Complainant’s personal property and equipment.

Respondent renewed earlier objections to Exhibits A, C, D, E, F, and H on hearsay and relevance grounds.[1]  Following argument by the parties, the Hearing Officer allowed Complainant to offer its exhibits and reserved ruling on their admissibility until the entry of the Decision and Order in the case.  After full consideration of the exhibits and Respondent’s objections in the context of the whole record, Respondent’s renewed objections to Exhibits A, D, E, and H are overruled and those exhibits are received into the record to be given the weight deemed appropriate in light of all of the evidence.  Respondent’s renewed objection to Exhibit C is sustained because no evidentiary foundation was laid for that exhibit, which consists of out-of-court statements of Mr. Stokes and Robert Jaudes, a representative of Respondent, and no exception to the hearsay rule applies.  Respondent’s renewed objection to Exhibit F is sustained because that exhibit is not relevant to the issue of whether the subject property should be exempt from ad valorem taxation for 2016.  Respondent did not object to Exhbit G, which was received into the record.

  1. Respondent’s Evidence. Respondent offered the following Exhibits:
Exhibit 1 Written Direct Testimony of Joe Durnall
Exhibit 2 Photograph of Exteriopr of Subject Property (8/27/14)
Exhibit 3 Photograph of Storage Closet in Building on Subject Property (12/28/15)
Exhibit 4 Photograph of Refrigerator/Table in Building on Subject Property (12/28/15)
Exhibit 5 Photograph of Office Chairs in Building on Subject Property (12/28/15)
Exhibit 7[2] Written Direct Testimony of Robert Jaudes
Exhibit 8 Section 137.100 RSMo
Exhibit 9 STC Decision and Order, Community Housing Improvement and Preservation v. Giles (Feb. 22, 1985)
Exhibit 10 Mo. Church of Scientology v. State Tax Comm’n., 560 S.W.2d 837 (Mo. banc 1977)
Exhibit 11 STC Decision and Order, First Church of the Nazarene v. Waybill (Dec. 17, 2013)
Exhibit 12 STC Decision and Order, Estate of Leroy W. Harris v. Muehlheausler (June 5, 2008)
Exhibit 13 STC Decision and Order, Saint Margaret Mary Alacoque Catholic Church v. Morton (Jan. 6, 1989)
Exhibit 14 Letter from Mr. Stokes to Greene County Collector, dated Dec. 30, 2015
Exhibit 15 Email from Mr. Stokes to Respondent’s representative, dated Feb. 1, 2016
Exhibit 16 Email from Mr. Stokes to Respondent’s representative, dated Jan. 22, 2016
Exhibit 17 Email from Mr. Stokes to Clerk of BOE, dated July 15, 2016
Exhibit 18 Letter from Mr. Stokes to Clerk of BOE, dated June 16, 2016

 

During the evidentiary hearing, Respondent withdrew Exhibts 1, 2, 3, 4, 5, 7, 14, 15, 16, 17, and 18.  Respondent asked the Hearing Officer to take judicial notice of Exhibits 8, 9, 10, 11, 12, and 13.  Complainant did not object to Exhibits 8, 9, 10, 11, 12, and 13, which were received into the record.  Respondent did not offer any additional evidence.

  1. Taxation of the Property.   Complainant’s evidence was not substantial and persuasive to establish that the subject property qualifies as exempt from ad valorem taxation under Article X, Section 6 of the Missouri Constitution on January 1, 2016.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.  The Hearing Officer shall issue a decision and order affirming, modifying, or reversing the determination of the Board of Equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.  Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo

Presumption In Appeal

There is a presumption of validity, good faith and correctness of assessment by the BOE.  Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958).   This presumption is a rebuttable rather than a conclusive presumption.   The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the BOE’s valuation is erroneous and what the fair market value should have been placed on the property. Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

Exemptions

Taxation of property is the rule and exemption from taxation is the exception.  United Cerebral Palsy Ass’n of Greater Kansas City v. Ross, 789 S.W.2d 798, 799 (Mo. banc 1990).  Tax exemptions are not favored in the law, and statutes granting exemptions are to be strictly, yet reasonably, construed against the one claiming the exemption. Missouri Church of Scientology v. State Tax Commission, 560 S.W.2d 837, 844 (Mo. banc 1987), State ex rel. Union Electric Co. v. Goldberg, 578 SW2d 921,923 (Mo. Banc 1979).  A property owner who claims the exemption bears a substantial burden to prove that his property falls within the exempted class.   United Cerebral Palsy Ass’n of Greater Kansas City, 789 S.W.2d at 799.

Under Missouri law, 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, are exempt from taxation for state, county or local purposes.  Section 137.100(5) RSMo (2013).

Under the three-pronged Franciscan test, a Complainant claiming exemption from property taxation must prove that (1) the subject property is actually and regularly used exclusively for purposes purely charitable; (2) the property is owned and operated on a not-for-profit basis; and (3) the dominant use of the property must be for the benefit of an indefinite number of people and must directly or indirectly benefit society generally.  United Cerebral Palsy Ass’n of Greater Kansas City, 789 S.W.2d at 801, citing Franciscan Tertiary Province of Missouri, Inc. v. State Tax Commission, 566 S.W.2d 213 (Mo. banc 1978).  Complainant’s failure to prove any single element is sufficient for denial of exemption.  See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003); Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991).

The actual use of the real property is the controlling factor in a determination of whether or not the real property is exempt from taxation.  Franciscan Tertiary Province of Missouri, Inc., 566 S.W.2d at 224.  The dominate use of the property must be for the benefit of an indefinite number of people, for the purpose of “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.”  Id.

Discussion

Here, the ultimate question is what was the the actual dominate use of the subject property on January 1, 2016.

The key phrase from Section 137.100(5) applicable to these facts is whether Complainant was using the subject property “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 . . . .”  The evidence established that Complainant’s surplus office equipment was stored in the subject property because the equipment was either not needed or would not fit into Complainant’s other location.  The subject property was not being used by anyone other than Complainant.  The subject property was not earning any income for Complainant.  However, the subject property was not “actually used or occupied for the purpose of the organization,” i.e., to provide bankruptcy and financial education and counseling services.  On the contrary, Complainant admitted that it had moved its employees and its counseling services out of the subject property in late 2012.

There is no dispute that Complainant is a not-for-profit charitable organization engaged in providing bankruptcy education and counseling services.  However, it is of no consequence that the subject property was listed for sale as of January 1, 2016, or that Complainant leased the subject property to Catholic Charities in May 2016.  The law requires the STC to review the use of the subject property as of the relevant tax date.  In this case, as of January 1, 2016, Complainant actually and regularly used the subject property to store its surplus office equipment.  Although one could reasonably conclude that this use of the subject property supports Complainant’s not-for-profit organization, this specific use of the subject property is not for a purely charitable purpose.  Furthermore, as of January 1, 2016, the use of the subject property was for the benefit of Complainant, not for the benefit of an indefinite number of people and not to directly or indirectly benefit society generally.

Consequently, the subject property is not exempt from ad valorem taxation for tax year 2016.

 ORDER

The assessed valuation for the subject property as determined by the BOE for the subject tax day is AFFIRMED.

Application for Review

A party may file with the Commission an application for review of this decision within 30 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.  The 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 Greene 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 23rd day of May, 2017.

STATE TAX COMMISSION OF MISSOURI

Amy S. Westermann

Senior Hearing Officer

 

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 23rd day of May, 2017, 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]Prior to the date of the evidentiary hearing, Respondent filed his objections and a motion to strke Complainant’s exhibits on the ground that Exhibit H, Mr. Stokes’ written direct testimony, violated 12 CSR 30-3.060(1) and, therefore, failed to lay a foundation for and did not authenticate Exhbits A through G.  Respondent further alleged that Complainant’s Exhibits D, E, and F should be excluded as irrelevant and immaterial.  Complainant filed its responses.  The Hearing Officer overruled Respondent’s objections and motion to strike; ordered Complainant to re-file a complete and accurate version of Mr. Stoke’s written direct testimony in order to comply with 12 CSR 30-3.060(1); and found it premature to exclude Complainant’s Exhibits A through G without the benefit of any other evidence that might be offered at the evidentiary hearing.  Complainant thereafter re-filed Mr. Soke’s written direct testimony.  At the start of the evidentiary hearing, Respondent renewed his objections and motion to strike.

[2] Respondent did not offer Exhibit 6, which was a copy of the lease between Complainant and Catholic Charities.