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Tax Exemptions Draw Scrutiny

Owners face hidden pitfalls when applying for commercial property tax exemptions.

Municipalities are taking a hard look at real estate tax exemption applications, hoping to offset revenue losses stemming from a rash of successful assessment challenges.

It’s unsurprising that taxpayers are mounting protests in record numbers, considering the dollars at stake. Commercial real estate taxes in the Northeast are among the highest in the nation, and the high cost of living in the area compounds the financial pressure on property owners. That also explains why many property owners are seeking relief from those costs by applying for exemptions.

Most states provide an avenue which exempts religious, educational and not-for-profit entities from the payment of real estate taxes. Some states, such as Maine, limit tax exemptions to a dollar amount. Others including Rhode Island impose a property size limitation, while some states have no discernible limits on the property size or exemption amount, which is the case in New York. Despite these limitations, tax exempt applications represent a significant loss of potential tax revenue for a municipality.

To qualify for the tax exemption, each state has its own application, which must be filed with the proper agency, typically the assessor or assessment department. Many states require taxpayers to file a new application each year, along with supporting documentation.

Once submitted, there are three possible outcomes: The application may be granted in full, meaning the property is 100 percent exempt from real estate taxes; it may be granted in part, meaning only a portion of the property will receive tax-exempt status; or it may be denied.

Provided the exempt organization is operated exclusively for the purposes specified in its enabling statute, and the entire property is wholly used for its specified purpose and no profit is made by the property owner, the application should be granted. Many courts have determined that all parts of the exempt property must be used in connection with its exempt purpose to qualify for a 100 percent exemption. Any property not utilized in this respect will be placed back on the assessment roll.

If a building or portion of the property is not being used or is vacant, the property may still qualify for the exemption, provided that a clearly defined plan is in place to utilize the property in the near future for exempt purposes. Construction plans, grading of the property, renovations and the like would  satisfy this requirement.

In recent practice, these three conditions have been strictly interpreted, with municipalities seizing every opportunity to place previously tax-exempt property back on the assessment roll.

Praying for Relief

Recently, a small yet nationally recognized church of about 75 congregants in New York needed to retain legal counsel to defend its tax-exemption application. The 13-acre property was improved with a number of free standing buildings used for administration, housing for the pastor and places of worship. The church had owned the property for decades and always received a 100 percent tax exemption.

Sometime in the winter of 2015, a pipe not properly winterized burst in one of the buildings. The property flooded and sustained considerable damage. To save on renovation costs, the church and its members took on the repair of the building themselves. The church’s subsequent application for the real property tax exemption duly related this information, and as a result, the application was denied in part.

The municipality reasoned that because the building was now vacant and not being used for an exempt purpose (it could not be used while under renovation), it was no longer entitled to tax-exempt status. The taxing entity placed the property back on the assessment roll and issued a tax bill totaling more than $100,000.

The church did not have the funds to pay, and faced the distinct possibility of foreclosure and the loss of the property by tax lien sale. Negotiations by the local attorney for the reinstatement of the 100 percent tax exemption stalled. Ultimately, the church successfully challenged the partial denial in court via motion for summary judgment.

Tax-exempt Lessees

Problems can also arise when a privately owned property is leased to a tax-exempt entity seeking a tax exemption. In other words, would a taxable building be entitled to an exemption based on a lessee’s status as an exempt entity? The answer is unequivocally “no.”

New York Real Property Tax Law 420(b)(2) carves a limited exception to the above, however. If a for-profit entity that owns a property leases the entire parcel to a non-profit, the only time the property would be entitled to tax-exempt status would be if any money paid for its use is less than the amount of carrying, maintenance and depreciation charges on the property. However, the terms “carrying charge,” “maintenance charge and “depreciation charge are undefined in the statute.

Nevertheless, courts have interpreted carrying charges as outlays necessary to carry or maintain the property without foreclosure, such as insurance, repairs and assessments for garbage disposal, sewer, and water services. Amortization of mortgage principal for these purposes should be excluded from carrying charges, as should corporate franchise taxes, which are crucial to the corporation’s existence but not to the maintenance of the building. Legal expenses for the collection of rent or penalties and late fees should also be excluded.

Maintenance charges include costs to maintain and repair the property. They may not include enhancements that increase the property’s value, replacements that suspend deterioration, or changes that appreciably prolong the life of property.

Depreciation can be defined as a decline in property value caused by wear and tear, and is usually measured by a set formula that reflects these elements over a given period of useful property’s life.

Clearly, while real property tax exemptions are becoming more popular, potential applicants would be wise to contact an attorney or expert familiar with applicable statutes and case law before submitting an application for property tax exemption.

 

Jason Penighetti 217x285Jason M. Penighetti is an attorney at the Mineola, N.Y., law firm of Koeppel Martone & Leistman LLP, the New York State member of Amercian Property Tax Counsel, the national affiliation of property tax attorneys.  Contact Jason at This email address is being protected from spambots. You need JavaScript enabled to view it.

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