Case Western Reserve University v. Tracy

Per Curiam. In its application for exemption, CWRU claimed that the University West Building and its attached parking garage should be exempted from real property taxation under R.C. 5709.12 and 5709.121. R.C. 5709.12(B), provides: “Real * * * property belonging to institutions that is used exclusively for charitable purposes, shall be exempt from taxation.” Thus, under R.C. 5709.12, property belonging to an institution and used exclusively for charitable purposes is exempt from taxation. No challenge has been raised here as to CWRU’s status as an institution within the meaning of R.C. 5709.12. Likewise, no challenge has been made to the exempt status of CWRU’s own use of the space within the University West Building. However, by its appeal, the BOE challenges the exempt status granted by the BTA to the vacant space and the space which CWRU rents to EDI and EBTC. The BOE contends that space rented by EDI and EBTC is not being used exclusively for charitable purposes. The BOE contends that neither EDI nor EBTC is a charitable or educational institution. In 1969, the General Assembly enacted R.C. 5709.121 to clarify the phrase “used exclusively for charitable purposes” as used in R.C. 5709.12. As in effect on January 1,1993, R.C. 5709.121 provided: “Real property * * * belonging to a charitable or educational institution * * * shall be considered as used exclusively for charitable * * * purposes by such institution * * * if it is either: “(A) used by such institution * * *, or by one or more other such institutions * * * under a lease, sublease, or other contractual arrangement: (C % * iji “(2) for other charitable, educational * * * purposes.” 133 Ohio Laws, Part III, 2646. In his concurring opinion in White Cross Hosp. Assn. v. Bd. of Tax Appeals (1974), 38 Ohio St.2d 199, 203, 67 O.O.2d 224, 226, 311 N.E.2d 862, 865, Justice Stern stated that the overall purpose of R.C. 5709.121 was to “declare that the ownership and use of property need not coincide for that property to be tax exempt.” [320] In the context of this case, R.C. 5709.121(A)(2) requires that (1) the property must belong to a charitable or educational institution, (2) the property must be used by the institution, or by one or more such institutions under a lease, sublease, or other contractual arrangement, and (3) the institution or other institutions must be using the property for charitable or educational or public purposes. EDI and EBTC meet the first two conditions; the third condition is disputed. In Planned Parenthood Assn. of Columbus, Ohio, Inc. v. Tax Commr. (1966), 5 Ohio St.2d 117, 34 O.O.2d 251, 214 N.E.2d 222, we held in paragraph one of the syllabus that “ ‘charity,’ in the legal sense, is the attempt in good faith, spiritually, physically, intellectually, socially and economically to advance and benefit mankind in general, or those in need of advancement and benefit in particular, without regard to their ability to supply that need from other sources, and without hope or expectation, if not with positive abnegation, of gain or profit by the donor or by the instrumentality of the charity.” In Herb Soc. of Am., Inc. v. Tracy (1994), 71 Ohio St.3d 374, 376, 643 N.E.2d 1132, 1134, we stated, “The dissemination of useful information to benefit mankind is, traditionally, charity.” Likewise, In Battelle Mem. Inst. v. Dunn (1947), 148 Ohio St. 53, 60, 35 O.O. 9, 12, 73 N.E.2d 88, 92, we stated, “Generally, the dissemination of knowledge for the edification and improvement of mankind is regarded as a charitable object.” Both EDI and EBTC receive funding from the state of Ohio through the Department of Development’s Thomas Alva Edison Grant Program (“Edison Program”). The purpose of the Edison Program, as set forth in R.C. 122.33(C), is “to provide grants to foster cooperative research and development efforts involving enterprises and educational institutions that will lead to the creation of jobs.”The grants may be “made to a public or private educational institution, department, college, institute, faculty member, or other administrative subdivision or related entity of an educational institution when the director finds that the undertaking will benefit the people of the state by supporting research in advanced technology areas likely to improve the economic welfare of the people of the state through promoting the development of new commercial technology.” R.C. 122.33(C)(1). It is abundantly clear from the testimony and evidence in this case that the • goal of both EDI and EBTC is to promote and develop emerging technologies and emerging companies in order to provide jobs for people and to strengthen the economy of the state, especially in northeastern Ohio. Both EDI and EBTC provide unique resources for entrepreneurs by providing information, knowledge, and, in the case of EBTC, sometimes even money, to aid in developing advanced technological concepts and the organizations developing these technologies. The state has chosen to help support EDI and EBTC as one of the means to [321] encourage the development of technology in Ohio in order to promote economic growth. The fact that EDI and EBTC may require that some of their aid be returned at a later time to help others is of no consequence. See Planned Parenthood, supra, paragraph three of the syllabus. We find the BTA’s determination that EDI’s and EBTC’s use of the property falls “within the gambit [sic] of charitable, educational and/or public purposes” as set forth in R.C. 5709.121(A) to be supported by the evidence and to be reasonable and lawful. However, we limit our decision as regards EDI to the administrative area occupied by it. We do not include within the exempt area the space occupied by EDI’s Incubator Program tenants, all of which are for-profit corporations. While the companies in the Incubator Program may be struggling, and may even be in a negative equity position, they are, nevertheless, for-profit corporations that are themselves subtenants of CWRU. We do not interpret R.C. 5709.121 to include within the meaning of “used exclusively for charitable purposes” real property contractually occupied by for-profit corporations whose activities are not shown to be charitable, educational, or for a public purpose. We are unable to discern any charitable, educational, or public purpose being performed by EDI’s for-profit Incubator Program tenants. We have considered CWRU’s argument that because the for-profit corporations occupy their spaces only for a few years, their use is incidental. We disagree with that reasoning. It is quite apparent from the testimony that although the time each Incubator Program tenant spends in the University West Building may be relatively short, the plan is for each tenant to be replaced by another for-profit tenant. Thus, the Incubator Program space is continuously being occupied by for-profit corporations. The time each for-profit company occupies the space is irrelevant. The important concept is that the Incubator Program tenants are using the space in the University West Building, and their use as regards exemption must be compared to R.C. 5709.121, the same as EDI and EBTC. A review of the evidence in this case does not disclose any support for a finding that the area occupied by the for-profit Incubator Program tenants is for a charitable, educational, or public purpose. The BOE’s second contention is that the vacant space in the University West Building should not be exempted under R.C. 5709.12 and 5709.121. We agree. This court has granted exemption in the past to vacant property. For instance, in Holy Trinity Protestant Episcopal Church v. Bowers (1961), 172 Ohio St. 103, 15 O.O.2d 173, 173 N.E.2d 682, we held that under R.C. 5709.07 vacant property purchased by a religious institution could be exempted, where there is tangible evidence that the property will be devoted to an exempt use. In this case, we are faced "with a different situation. When asked when plans for expansion were formed the witness from EDI responded: “Probably ’94, late ’94.” Thus, as of [322] January 1, 1993, which is the critical date for a 1993 tax year exemption, there were no plans for expansion. In addition, the testimony concerning expansion into the vacant areas was not clear as to how much space would be occupied by such expansion. Finally the cross-appeal filed by CWRU contends that the garage should be exempted. We disagree. In support of its contention, CWRU relies on Bowers v. Akron City Hosp. (1968), 16 Ohio St.2d 94, 45 O.O.2d 445, 243 N.E.2d 95, and Good Samaritan Hosp. v. Porterfield (1972), 29 Ohio St.2d 25, 58 O.O.2d 75, 278 N.E.2d 26. In Bowers, we granted tax exemption for a pay parking lot used by hospital visitors and patients. In Good Samaritan Hosp., we granted exemption from sales tax for building materials úsed in the construction of a parking garage attached to a hospital. In opposition to CWRU’s contention, the BOE cites State Teachers Retirement Bd. v. Kinney (1981), 68 Ohio St.2d 195, 22 O.O.3d 434, 429 N.E.2d 1069. In State Teachers, we denied real property tax exemption for a remote parking lot used by employees of the State Teachers Retirement Board. The BTA found that the University West Building parking garage is not generally open to the public; instead, its use is limited to CWRU employees and tenants of the University West Building. The BTA’s finding that the parking garage is not generally open to the public is supported by the testimony of the assistant treasurer of CWRU, who testified that the primary need for the garage is to provide parking for occupants of the building. In addition, a letter to the assistant treasurer states that the university lots are not public. In Bowers we granted exemption, finding that the evidence showed that “the parking lot is an essential and integral part of the hospital’s function.” Id., 16 Ohio St.2d at 96, 45 O.O.2d at 447, 243 N.E.2d at 97. In Good Samaritan we again found that the evidence showed that the parking lot was an “essential and integral part of the hospital’s function.” Id. at 29, 58 O.O.2d at 78, 278 N.E.2d at 29. The test for exemption for the University West Building parking garage is whether it is an essential and integral part of the charitable and/or educational activities of CWRU, EDI, and EBTC. However, in this case the BTA made no finding that the parking garage was an essential and integral part of the charitable and/or educational activities of the tenants of the University West Building. The BTA could not make a finding on the usage of the garage because “appellant failed to provide this Board with either a breakdown of the usage of the garage as of January 1,1993 or a means by which we could accurately project such usage as of that date.” The burden was on CWRU to present evidence to [323] support its claim for exemption. In Alcan Aluminum Corp. v. Limbach (1989), 42 Ohio St.3d 121, 123, 537 N.E.2d 1302, 1304, we stated: “[I]t is error for the BTA to reverse the commissioner’s determination when no competent and probative evidence is presented to show that the commissioner’s determination is factually incorrect.” For all the foregoing reasons the decision of the BTA granting exemption for the space occupied by EDI and EBTC for their administrative offices is reasonable and lawful and is affirmed. In addition, the BTA’s decision denying exemption for the garage and the land associated therewith is reasonable and lawful and is affirmed. The decision of the BTA granting exemption to the vacant areas of the University West Building and the areas occupied by EDI’s for-profit Incubator Program tenants is unreasonable and unlawful and is reversed. Decision affirmed in part and reversed in part. Moyer, C.J., Douglas, Resnick and F.E. Sweeney, JJ., concur. Cook and Lundberg Stratton, JJ., concur in part and dissent in part. Pfeifer, J., dissents and would affirm the Board of Tax Appeals in all respects.