Yorgason v. County Board of Equalization Ex Rel. Episcopal Management Corp.

ZIMMERMAN, Justice:

concurring separately.

I join in the majority opinion, but add several observations.

I agree that the six variables set out in Utah County v. Intermountain Health Care, Utah, 709 P.2d 265 (1985), are useful in focusing on the general factors relevant to a determination of the presence or absence of a gift, the critical element in deciding whether a charitable exemption is available. However, for the purposes of determining whether a housing project has demonstrated the presence of a gift and, therefore, qualifies for the exemption, I consider the fact-specific analytical framework set forth in Friendship Manor Corp. v. Tax Commission, 26 Utah 2d 227, 487 P.2d 1272 (1971), to be of more use.1

In Friendship Manor, this Court held that although the property in question, a housing project, was operated on a nonprofit basis, it was not used exclusively for charitable purposes because the landlord did not confer a gift upon both the public and the tenants.2 See Friendship Manor Corp. v. Tax Commission, 26 Utah 2d at 239, 487 P.2d at 1280; cf. Salt Lake Lodge No. 85 v. Groesbeck, 40 Utah 1, 8-9, 120 P. 192, 194 (1911), overruled on other grounds, Loyal Order of Moose, No. 259 v. County Board of Equalization, Utah, 657 P.2d 257 (1982). Even without reference to the six-factor analysis of Utah County, Friendship Manor provides ample guidance for determining whether St. Mark’s Tower meets this two-pronged gift test.

*662The first aspect of the gift test requires that the project in question confer a gift upon the tenants. As the Chief Justice notes, the Court in Friendship Manor found that this element of the test was not met because the exchange between the landlord and the tenants could be characterized as one in which there was “material reciprocity”: the landlord experienced no out-of-pocket losses because each tenant had to carry his or her full share of the costs of running the project. Although nothing in the opinion indicates that the rents charged by the not-for-profit landlord were less than the rents the tenants would have had to pay in similar for-profit residences, the tenants presumably realized some economic benefit by reason of the fact that the rent did not include an increment that otherwise would have been necessary to provide the owners with a profit. However, even if the tenants did pay less than they would have paid elsewhere, the opinion does not suggest that such an economic benefit would be sufficient to satisfy the element of gift to the tenants that is necessary for an exemption. This seems reasonable. The mere forgoing of a profit ought not be enough to qualify one for the charitable exemption. For an exchange to lack “material reciprocity,” it must result in a material flow of wealth or equivalent to the recipient. Cf. 26 Utah 2d at 238-39, 487 P.2d at 1279-80.

The second prong of the gift test is that there must be a gift or benefit to the public. The statement in Friendship Man- or that “[t]he state does not have the obligation to provide living accommodations to persons well able and willing to pay for their needs,” 26 Utah 2d at 239, 487 P.2d at 1280, amounted to a finding that the state had not received any benefit or “gift” from the operation of the project because absent the project, the tenants would not have been objects of public charity.

The conclusion to be drawn from Friendship Manor and the cases upon which it relied is that both prongs of the gift test are satisfied where property is used by a nonprofit entity to provide housing for the poor under circumstances where there is a lack of material reciprocity between the tenants and the landlord. The unequal exchange of value provides the necessary element of gift to the recipient,3 and the provision of decent housing for those unable to pay for it confers a benefit on the state. In the present case, these criteria are obviously satisfied, as the Chief Justice ably documents.

The dissenters take the position that this case is not distinguishable from Utah County, from which they dissented also, and that if the hospitals in Utah County could not qualify for the exemption, then St. Mark’s Tower cannot either. I think they misperceive what Utah County held.

First, the dissent argues that there is no difference between the medicare payments made to the hospitals and the subsidy paid to St. Mark’s Tower. The majority in Utah County took the medicare payments into account in determining that there was no lack of material reciprocity between the hospitals and their patients; if the federal subsidy to St. Mark’s Tower is considered, there is also no lack of material reciprocity between the Tower and its tenants.

The dissent ignores the nature of the material reciprocity requirement of Friendship Manor, which was used by the Utah County Court. See 709 P.2d at 269, 274. It does not weigh all the monies received from all sources, on the one hand, and the cost of the services provided, on the other, and determine that a gift occurs only when the result is a net material flow of wealth to the recipient. Such a test would be useless because it could not be satisfied by any viable charitable entity. Only those entities that could demonstrate a fatal hemorrhaging of assets and their candidacy for sure bankruptcy could show a lack of material reciprocity. By looking rather *663narrowly at the transactions between the provider of goods or services and the recipient, the test seeks to identify those making a gift to individuals. If those exchanges are classic arm’s-length market transactions in which a roughly equal exchange occurs, then there is no gift. On the other hand, if the transactions are not market transactions but result in a material flow of wealth to the recipient, then a gift is present and the provider has met one aspect of the test for charity. Under this view of the material reciprocity test, the medicare subsidies in Utah County were properly considered in determining whether that test was met, while the subsidy to the Tower should be excluded from any such analysis.

When a person receives an income supplement from any source that can be used in the open market to pay for services from any number of providers, and an exchange of money and/or the supplement for services takes place, the supplement should be included in determining whether there is material reciprocity in the exchange. The provider is willing to furnish the service for money and does not care whether the recipient’s ability to pay comes from a steady job, a rich uncle, a charitable foundation, or an income supplement provided by the government. To exclude the income supplement from consideration would be to ignore a relevant factor in the decision of the provider to serve that particular recipient. The medicare payments in Utah County come within this analysis.

The subsidy received by St. Mark’s Tower is distinguishable. When a person does not have an income supplement that can be discretionarily spent in the market, the only element of exchange he or she brings to a transaction with a provider of services is his or her personal assets. If the person is unable to pay the full cost of the services and the provider is nonetheless willing to furnish them, then the provider has conferred a gift upon the individual recipient sufficient to satisfy Friendship Manor and Utah County. This is the classic way charities operate. Obviously, if the provider is to continue to operate in this manner, someone must make up the asset drain that results from such transactions, yet that fact certainly does not bar the presence of a gift, as I am sure the dissenters would acknowledge. If the government, rather than a private benefactor, chooses to make up the deficit by a contribution to the provider, that does not alter the character of the exchange between the provider and the recipient. It also does not change the charitable character of the use to which the provider’s property is being put. The exemption should be available.

The second argument advanced by the assessor and adopted by the dissent to defeat the exemption is that there is no gift to the public. The dissent contends that the Salt Lake County taxpayers’ financial burden of caring for the poor who are elderly and handicapped has not been lessened by the activities of St. Mark’s Tower because there has been a simple “shifting [of] financial burden from local and state government to the federal government.” This position is without merit for several reasons.

First, it seems clear that financially, Salt Lake County residents, as local and state taxpayers, benefit financially from St. Mark’s Tower. As the Chief Justice notes, there is ample record evidence to support the proposition that the property taxes lost by reason of St. Mark’s Tower’s exemption would not have been sufficient for the county or the state to provide, equivalent housing and services for the Tower’s tenants.

Second, the assessor and the dissent assume that before the public benefit prong of the gift test can be satisfied, a detailed financial analysis must be made to determine whether the granting of a property tax exemption produces a net financial gain for the taxpayers of the governmental entity in question: absent a net gain, the exemption should be unavailable. As I understand the argument of the assessor and the dissent, to show a net financial gain would require proving that the public entity could not have furnished services equiv*664alent to those provided by the charity for an amount equal to or less than the revenue lost by reason of the exemption. And in performing this analysis, any subsidies provided the charity by any governmental entity would be excluded from consideration.4 To my knowledge, no such net financial gain test has ever been applied in Utah before, although we have certainly used language suggesting that a financial gain is presumed to result from traditional charitable activities directed to those who would otherwise be a public burden. See, e.g., Salt Lake Lodge No. 85, B.P.O.E. v. Groesbeck, 40 Utah 1, 8, 120 P. 192, 194 (1911), quoted in Loyal Order of Moose, No. 259 v. County Board Equalization, Utah, 657 P.2d 257, 261 n.l (1982). Indulging in such a presumption is reasonable, especially when dealing with an entity performing a function such as providing housing to the poor, a classic charitable activity under any definition of the word. But I see no good reason to accept the dissent’s suggestion that instead of a presumption, we should require detailed proof of financial benefit before awarding any charitable entity a property tax exemption.

Brief reflection demonstrates the unworkability of the “net financial gain” test seemingly advocated by the dissent. First, it would be very difficult in most cases to determine whether the government could have performed a charity’s work for the same or less than the amount the government lost by reason of the charity’s tax exemption. Few charitable entities could be sure from year to year that the net gain calculus would entitle them to a property tax exemption. Moreover, this test would hit hardest those performing charitable works primarily throügh the use and occupancy of real estate having a high value, such as housing projects. Second, excluding the amount of any governmental subsidies from the net gain calculation would add additional year-to-year uncertainties regarding the availability of an exemption, for it is common knowledge that many such entities receive some governmental support and that the amount of support varies from year to year, depending on the vagaries of governmental budgets and policies.

The uncertainties the net financial gain standard would introduce into the exemption question would have devastating financial consequences for charitable enterprises because the outcome of the analysis would be difficult to predict in advance. An entity’s property might be exempt one year and taxable the next, with the consequence that its costs of operation could fluctuate wildly from year to year, depending upon whether it had to pay property taxes. Certainty in financial planning is what these entities need, and that cannot be secured if the availability of a property tax exemption is dependent upon the vagaries of each year’s funding sources and the assessor’s determination of whether government could perform the same service for less.

For the foregoing reasons, I join in the Court’s holding that St. Mark’s Tower is entitled to the property tax exemption provided in article XIII, section 2 of the Utah Constitution.5

. The majority in Utah County took its articulation of the six-factor analysis from a Minnesota Supreme Court case. However, as the majority opinion in the instant case implicitly acknowledges, the considerations those six factors are designed to take into account do not appear to be substantially different than those this Court has traditionally canvassed in deciding whether the use to which institutions within a certain category put their property renders the property tax-exempt. See, e.g., Parker v. Quinn, 23 Utah 332, 338-39, 64 P. 961, 962 (1901); William Budge Memorial Hospital v. Maughan, 79 Utah 516, 523, 3 P.2d 258, 261 (1931); Youth Tennis Foundation v. Tax Commission, Utah, 554 P.2d 220, 221 (1976); Salt Lake County v. Tax Commission, Utah, 596 P.2d 641, 643 (1979); Salt Lake County v. Tax Commission, Utah, 658 P.2d 1192, 1197-99 (1983) (Oaks, J., concurring).

The six-factor analysis may be useful to this Court in determining whether any particular category of institutions qualifies for a property tax exemption, e.g., hospitals or housing for the poor. However, if the six factors are used as Utah County suggests — as guidelines only, with the liberty to accord different factors different weight and without requiring that all of them be satisfied — they may be of limited utility in determining whether any specific piece of property used by an institution within one of those categories is entitled to an exemption unless reference is also made to specific facts of cases dealing with analogous institutions. This, I take it, is the reason for the Chief Justice's focus on Friendship Manor. In my opinion, tax assessment bodies would be well advised to review any particular claim in light of the facts of cases decided by this Court that deal with property owned by institutions within that same general category and that are not at odds with the restrictive approach to the charitable exemption taken in our recent decisions, such as Loyal Order of Moose, No. 259 v. County Board of Equalization, Utah, 657 P.2d 257 (1982), and Utah County. Of course, in those areas where there is no case law, decisions may have to be based on general principles. However, even in such situations they should not rely solely on an abstract analysis of Utah County's six factors, but should also consider the role each of those factors has played in our pre-Utah County cases.

. This two-pronged gift requirement is phrased somewhat differently in the Chief Justice’s opinion, to wit: a need for ‘‘public benefit or contribution to the common good or the public welfare” and a "gift to the community.” Judging by how the Chief Justice has used his test, there appears to be no significance to the difference in the terms we use. His language is taken from prior cases; mine is an articulation of what I consider to be the substance of the test currently used by this Court and applied in Friendship Manor.

. Utah County is in no way inconsistent with Friendship Manor or with the result in this case. The hospitals in Utah County failed to affirmatively demonstrate the absence of material reciprocity between the hospitals and any significant percentage of their patients. This failure of proof was fatal to their claim of exemption. 709 P.2d at 269, 274.

. The Chief Justice, by responding to this argument in his discussion of public benefit, might be seen as implicitly accepting its premises. However, I do not so read his opinion.

. I assume that all the property in question is used exclusively for charitable purposes because every person in St. Mark’s Tower is participating in an exchange that lacks material reciprocity. An issue not raised or dealt with in Utah County and also not raised here is whether all the property of an institution qualifying for the constitutional exemption can be exempted from property taxation if only some of the transactions between the institution and the recipients of goods or services lack material reciprocity. Loyal Order of Moose, No. 259 v. County Board of Equalization, Utah, 657 P.2d 257 (1982), reinstated the rule of Parker v. Quinn, 23 Utah 332, 64 P. 961 (1901), that separate parts of a building used for exclusively charitable purposes may be exempted even if other parts are used for noncharitable purposes; however, if the building is jointly used for charitable and a more than de minimis amount of noncharitable activity, then the exemption is entirely lost. 657 P.2d at 263-64.

The rule in Parker will create obvious problems under today's decision and under Utah County. Although it might appear relatively easy for a housing project of mixed use with long-term tenants to qualify under Parker be*665cause each room could be labeled charitable or noncharitable based upon the status of its occupant, difficulties would be encountered by any institution where physical facilities are used in common by recipients of charity and by those paying in full. Examples that come to mind are common areas in mixed-use housing projects and most of the facilities of a mixed-use hospital. The rigid rule of Parker was adopted in a different environment and almost certainly will have to be modified if different types of institutions devoting similar proportions of their resources to charity are to be treated similarly.