dissenting. The issue before the Court is to determine whether or not Appellee’s property in question is entitled to exemption from ad valorem taxes under the Arkansas Constitution, which states in pertinent part: “The following property shall be exempt from taxation: . . . buildings and grounds and materials used exclusively for Public Charity.” Ark. Const., art 16, § 5(b).
The uncontested facts before the Court are that Opportunities, Inc., is a valid, charitable, nonprofit corporation and has been at all times pertinent hereto. Opportunities acquired the realty in question exclusively for nonprofit, charitable purposes; constructed the apartment complex with the intent to further their charitable, nonprofit goals; and have in fact exclusively operated the complex only in furtherance of their charitable, nonprofit goals. Opportunities has lost approximately $500,000 in their elderly housing project associated with the property in question, but have managed to survive. The findings by the Trial Court clearly so hold beyond a reasonable doubt. Tax cases of this type are to be reviewed by the Court de novo and the factual findings of the trial court are to be upheld unless clearly erroneous. City of Little Rock v. McIntosh, 319 Ark. 423, 892 S.W.2d 462 (1995).
The real issue is whether or not Article 16, § 5(b) of the Arkansas Constitution prohibits a charitable, nonprofit corporation that charges a base fee for its services from receiving an ad valorem tax exemption. I find no such prohibition. In my opinion, it is in furtherance of the State’s goals to allow a charitable organization using property exclusively for charitable purposes to receive tax exemption, even if a minimum fee is charged for its services. Many charitable projects could not survive, or would never get started, if their services were not at least partially self-supporting. An obvious way to determine if a project (such as Appellee’s elderly housing project) will work is to run projections, proformas, etc. as the business world does routinely and determine what it will take to make the project work. The minimum fee might be premised to follow the old adage that one cannot help those who will not help themselves, or it might just be pure economics. Either way, the bottom line is that the property is used exclusively for charitable purposes, and the elderly housing project has existed as such for years. Did the framers of the Constitution prefer that if a charity was not financially strong enough to offer its services free that it should not exist? If the Appellee cannot afford to give its housing for free, should they just close down and put the elderly on the streets? I do not think so. In Appellee’s situation, it seems that they have shown that if they charge each elderly tenant a minimum fee, their elderly housing project works. They make up the difference in costs with regular contributions from charity. They have donated $500,000 to the property in losses, but the project goes on.
In Hot Springs School District v. Sisters of Mercy of Female Academy of Little Rock, Ark., 84 Ark. 497, 106 S.W.2d 954 (1907), the Supreme Court cited with approval the case of Pennsylvania Hospital v. Delaware County, 169 Pa. 305, 32 Atl. 456, quoting the Court as follows: “Property which is used directly for the purpose, and in the operation of charity, is exempt, though it may also be used in a manner to yield some return and thereby reduce the expenses.”
In Sebastian County Equalization Board v. Western Arkansas Counseling and Guidance Center, Inc., 296 Ark. 207, 752 S.W.2d 755 (1988), the Court reaffirmed the pertinent part of Sisters of Mercy by stating: “We held that the paying patients would not destroy the concept that the hospital was being used exclusively for charitable purposes. ...”
In Sloan v. Voluntary Ambulance Service, 37 Ark. App. 138, 826 S.W.2d 296 (1992), the Court of Appeals was required to determine if an assessment fee on each household in the county where the ambulance service operated disqualified the service from being considered an “Institution maintained and operated wholly as public charity” under the Arkansas Workers’ Compensation Act, Ark. Code Ann. § 11-9-102(3)(A)(iii) (1987). Although this was not an ad valorem tax case, the principle is the same. In Sloan, the Court stated, “We do not think the fees paid to VAS by EMSD prevent, as a matter of law, VAS from being an institution maintained and operated ‘wholly’ as a public charity. . . .” Id. at 142, 826 S.W.2d at 298.
So, where does the idea come from that a public charity’s property used exclusively for public charity is not entitled to an exemption from ad valorem taxes as a matter of law because it charges a minimum fee for its services? The idea has grown case by case because one of the factors often cited as supporting the Court’s findings that the property in question was entitled to exemption was that the charity offered its services free if someone couldn’t pay. However, none of the cases has clearly held that this was an indispensable element that, in effect, was a matter of law under the Arkansas Constitution. We should not now so hold. Even the Appellant acknowledges that this is really the only issue in this case.
Accordingly, I hold that the facts show beyond a reasonable doubt that the property in question has been, and is being, used exclusively for charitable purposes, and the fact that a minimum fee is charged for its services does not, and should not, prohibit the property in question from being exempt from Miller County ad valorem taxes.
I would affirm the lower court’s ruling.
Chief Justice Arnold joins in this opinion.