Tuesday, May 28, 2013

Board Finds Church Property Exempt

Excerpts of the Board's Determination follow:

Here the Petitioner contends its property is 100% exempt because it is owned, occupied and used for religious purposes. The property is comprised of two parcels: a lot located at 1116 Violet Road improved with a church building and a house; and a vacant lot located at 1433 Baldwin Street. There is no dispute that the church building is used for religious purposes. Therefore, the Board must determine if the house on the 1116 Violet Road parcel and the vacant lot located at 1403 Baldwin Street are also used for exempt purposes.

The Board first examines whether the house located at 1116 Violet Road should be exempt. Indiana Code § 6-1.1-10-21 states that a “a building that is used as a parsonage” and the “tract of land, not exceeding fifteen (15) acres, upon which a building that is used as a parsonage is situated” is exempt from property taxation if it is owned by, or held in trust for the use of, a church or religious society. Ind. Code § 6-1.1-10-21(b). To obtain an exemption for a parsonage, however, a church or religious society must provide the county assessor with an affidavit signed under oath by the church’s or religious society’s head rabbi, priest, preacher, minister or pastor at the time it applies for the exemption. Ind. Code § 6-1.1-10-21(c). The affidavit must state the parsonage is being used to house the church’s priest, preacher, ministers or pastors and that none of the parsonage is used to make a profit. Id.

According to the Petitioner’s Form 132 Petition, “31% of the property was used as a parsonage til [sic] 4/1/2011.”2 Similarly, the Petitioner’s Form 136 application for exemption states “Pastor lives in the Parsonage.” Both forms were signed under the penalties of perjury by the Petitioner’s representative. The Respondent’s representative argues that the house should not be entitled to an exemption because it is rented out to make a profit. And Pastor Kamwenji admitted that the house is currently rented out to provide income to support the ministry of Rise Up and Walk; however, he testified that the house was used as a parsonage by the pastor of Rise Up and Walk on March 1, 2011. Thus the Board finds that, as of the 2011 assessment date, the house located on 1116 Violet Road was used as a parsonage.

But it is not enough for a house to simply be used as a parsonage to receive an exemption. Indiana Code § 6-1.1-10-21(c) is clear that the church or religious society “must provide the county assessor with an affidavit at the time the church or religious society applies for the exemptions.” And this, the Petitioner failed to do. If a petitioner fails to comply with the statutory procedures for obtaining an exemption, the exemption is waived. See, e.g., Gulf Stream Coach v. State Bd. of Tax Comm’rs, 519 N.E.2d 238, 242 (Ind. Tax Ct. 1988).

The Board’s analysis, however, does not end there. Even if the Petitioner did not meet the requirements for an exemption under Indiana Code § 6-1.1-10-21(c), the building may still be exempt under Indiana Code § 6-1.1-10-16(a). For example, in State Board of Tax Comm'rs v. Wright, 215 N.E.2d 57 (Ind. Ct. App. 1966), the Court of Appeals held that personal living quarters are exempt from taxation if "incidental and necessary" for the effective welfare of the exempt religious institution. Id. at 62. In that case, cabins used for temporary housing for clergy and lay persons were exempt because the only purpose and use of the cabins was shown to be religious.

Here, the Petitioner’s representative testified that the pastor of Rise Up and Walk was living in the house as of March 1, 2011. Thus, the house was being used for a religious purpose. As such, the Board finds that the house was owned, occupied and used for religious purposes in 2011 and therefore the Board finds this building 100% exempt as well.

The Board now turns its attention to the vacant parcel, which is identified as Parcel No. 02-33-329-002-027. Although this parcel has an address of 1403 Baldwin Street, it is land bordering the church and the house located at 1116 Violet Road. The Petitioner stated on its Form 132 that the parcel was purchased along with the church for a “future additional church building,” but the application also states that “100% of the parcel is dedicated for religious purposes.”

Indiana Code § 6-1.1-10-16(d) provides that a “tract of land is exempt from property taxation if: it is purchased for the purpose of erecting a building that is to be owned, occupied, and used in such a manner that the building will be exempt under [Ind. Code § 6-1.1-10-16(a) or (b)]; and not more than four (4) years after the property is purchased, and for each year after the four (4) year period, the owner demonstrates substantial progress and active pursuit towards the erection of the intended building and use of the tract for the exempt purpose…” Thus, if the only reason the land was purchased and held by the Petitioner was for future construction, the Petitioner would have had to demonstrate “substantial progress and active pursuit” of the building. However, the evidence suggests that the Petitioner holds revivals and “outside crusades” on the property. Thus, while the property may have been purchased with some intent to expand the church building or construct additional buildings, the property is being used for religious purposes separate from any future plans to build.

Moreover, the Petitioner’s representative testified that even though the two parcels have different addresses “the whole property is just one.” And, in fact, the map attached to the Petitioner’s Petition on the 1403 Baldwin Street property makes clear that the vacant lot is the “backyard” of the church property – despite the church’s 1116 Violet Road address. See Board Exhibit A. Thus, the fact that the vacant parcel and the adjacent parcel containing the church and parsonage are separate parcels with distinct parcel numbers does not alter the intended use of the property, nor does it diminish Rise Up and Walk’s religious purpose. See Cedar Lake Conference Assoc. v. Lake Cty. Property Tax Assessment Bd. of Appeals, 887 N.E.2d 205, 208-209 (Ind. Tax Ct. 1008) (“the fact that the RV Park and the Conference Center are delimited (i.e., they are separate parcels with distinct key numbers) neither alters the manner in which CLCA used those properties nor diminishes CLCA’s religious purpose.”) Cf. Ind. Code Ann. § 6-1.1-1-8.5 (West 2000) (indicating that a “key number” is merely a tool used by assessing officials to distinguish properties from one another for various administrative purposes); see also Lesea Broad Corp. v. State Board of Tax Commissioners, 525 N.E.2d 637, 639 (Ind. Tax Ct. 1988) (stating that “innocent collateral activities and buildings essential to the furtherance of the true purposes of the corporation should not blind the court to the genuineness of the those purposes nor to the sincerity of their actual accomplishment.”) Because the vacant parcel is merely an extension of the church, the Board finds that the vacant parcel should be granted a 100% exemption as well.

Finally, although the Petitioner failed to raise the matter in hearing, in a letter attached to its Petition on the 1116 Violet Road property, the Petitioner stated that there was a misunderstanding as to the necessity of filing an exemption application because the previous owner informed the Petitioner that the property would automatically be tax exempt. The Petitioner therefore requested that the Elkhart County PTABOA” back date” the exemption to the date of purchase and refund the taxes paid.

Under Indiana Code § 6-1.1-11-4(d), an exemption application is not required if “the exempt property is tangible property used for religious purposes described in IC 6-1.1-10-21;… the exemption application referred to in section 3 or 3.5 of this chapter was filed properly at least once for a religious use; and the property continues to meet the requirements for an exemption under IC 6-1.1-10-16, IC 6-1.1-10-21, or IC 6-1.1-10-24.” Ind. Code § 6-1.1-11-4(d). “However, if title to any of the real property subject to the exemption changes or any of the tangible property subject to the exemption is used for a nonexempt purpose after the date of the last properly filed exemption application, the person that obtained the exemption or the current owner or the property shall notify the county assessor…” Id. Thus, when the Petitioner purchased the subject properties, title to the real estate changed and the Petitioner was required to properly apply for the exemption. The Petitioner’s representative admitted that Rise Up and Walk did not file an application prior to the 2011 assessment year.

An exemption is a privilege that may be waived by a person who would otherwise qualify for it. Ind. Code § 6-1.1-11-1. “If the exemption is waived, the property is subject to taxation.” Id. See Kentron, Inc. v. State Bd. of Tax Comm’rs, 572 N.E.2d 1366 (Ind. Tax Ct. 1991) (“Kentron was required to comply with the statutory procedures set forth in IC 6-1.1-10-31 and IC 6-1.1-11-1 to receive the exemption provided under IC 6-1.1-10-30(b). Failing to comply, Kentron has waived the exemption privilege as a matter of law.”) Thus, while there is no dispute that the Petitioner’s property was used for religious purposes, there is no authority that would allow the Board to simply ignore the statutory requirements cited in Indiana Code § 6-1.1-11-1 and retroactively apply an exemption to the property or refund taxes paid. Thus, the Board can only address the properties’ exempt status for the 2011 assessment year.
 
http://www.in.gov/ibtr/files/Rise_Up_and_Walk_Christian_Ministry_20-027-11-2-8-00001.pdf