CINCINNATI COMMUNITY KOLLEL, APPELLANT, v. TESTA, TAX COMMR., APPELLEE.
No. 2012-0015
Supreme Court of Ohio
Submitted February 6, 2013-Decided February 13, 2013.
135 Ohio St.3d 219, 2013-Ohio-396
{¶ 1}
{¶ 2} On the merits, the kollel argues that the BTA misconstrued and misapplied
Facts and Procedural Background
{¶ 3} Cincinnati Community Kollel, an Ohio nonprofit corporation, is an institute that is devoted to the advanced study of Jewish religious texts. The kollel combines this mission with the goal оf providing educational opportunities and outreach events for the Jewish community where it is situated. According to the kollel‘s constitution, its purpose is to “provide an environment of Torah study, combining the advanced studies of the kollel staff scholars with a venue for community learning.” (Italics sic.) The kollel performs this service “in the sincere beliеf that this Institution will elevate the spirit of, and thereby enhance, the Jewish Community of Cincinnati.”
{¶ 4} The kollel sought real property tax exemptions on three parcels that it owns on Elbrook Avenue in the Hamilton County village of Golf Manor. The parcels are adjacent to each other, with each parcel containing one building. Each building is divided into twо residential apartments. The apartments are occupied by the kollel‘s “staff scholars” and their families. The staff scholars are Torah scholars who have moved to the kollel to continue their own Torah studies and to teach others in the Cincinnati community. While the staff scholars study and teach at the kollel, they and their families live rent-free in the apartment buildings.
{¶ 6} In Cincinnati Community Kollel v. Levin, 113 Ohio St.3d 138, 2007-Ohio-1249, 863 N.E.2d 147, we reversed the BTA and held that the kollel did qualify as an educational institution for purposes of
{¶ 7} On remand, the BTA found that “[t]he record supports [the kollel‘s] contention that some learning occurs at the subject property.” Cincinnati Community Kollel v. Levin, BTA Nos. 2004-K-1441 and 2004-K-1442, 2007 WL 2688699, *2 (Aug. 31, 2007). The BTA, however, found that the “principal use” of the apartments was “residential in nature.” Id. Thus, despite finding that the apartment buildings were “used in a manner not inconsistent with [the kollel‘s] mission,” the BTA dеtermined that the kollel did not qualify for an exemption under
{¶ 8} In the instant matter, the kollel sought exemptions relating to tax years 2004 through 2007 for the two apartment buildings that were at issue in BTA case Nos. 2004-K-1441 and 2004-K-1442. The kollel also sought an exemption for tax year 2004 for a third apartment building that had been purchased after the tax years at issue in the earlier case. The kollel‘s exemption claim was filed pursuant to
{¶ 10} The kollel has filed this appeal of right from the BTA‘s decision.
Analysis
I. The Issue on Appeal
{¶ 11} This appeal questions the BTA‘s interpretation and application of
{¶ 12} “(A) Real property * * * belonging to a charitable or educational institution * * * shall be considered as used exclusively for charitable or public purposes by such institution * * * if it meets one of the following requirements:
{¶ 13} “* * *
{¶ 14} “(2) It is made available under the direction or control of such institution * * * for use in furtherance of or incidental to its charitable, educational, or public purposes and not with the view to рrofit.”
{¶ 15} There is no dispute here that (1) the kollel is an educational institution, (2) the subject property has been made available under the kollel‘s direction or control, and (3) there is no view to profit. The parties agree that the sole issue presented for review is whether, under
II. Standard of Review
{¶ 16} When an appellant challenges a decision of the BTA, this court looks to see whether the BTA‘s decision was “reasonable and lawful.” Columbus City School Dist. Bd. of Edn. v. Zaino, 90 Ohio St.3d 496, 497, 739 N.E.2d 783 (2001). We “will not hesitate to reverse a BTA decision that is based on an incorrect legal conclusion.” Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino, 93 Ohio St.3d 231, 232, 754 N.E.2d 789 (2001). The BTA is also responsible for deciding factual issues, and if the record contains reliable and probative evidence
{¶ 17} Moreover, any claimed exemption from taxation “must be strictly construed, and the taxpayer must affirmatively establish a right to the еxemption.” Athens Cty. Aud. v. Wilkins, 106 Ohio St.3d 293, 2005-Ohio-4986, 834 N.E.2d 804, ¶ 8. See also
III. The BTA‘s Decision Was Unlawful and Unreasonable
{¶ 18} The kollel asserts that the BTA erred as a matter of law in construing and applying
A. The BTA‘s reliance on its earlier deсision in case Nos. 2004-K-1441 and 2004-K-1442 was misplaced
{¶ 19} In its decision and order in this matter, the BTA relied extensively on the analysis and legal conclusions set forth in its earlier decision, Cincinnati Community Kollel v. Levin, BTA Nos. 2004-K-1441 and 2004-K-1442, 2007 WL 2688699 (Aug. 31, 2007) (the “2007 remand decision“). That decision was issued after our remand order in Cincinnati Community Kollel v. Levin, 113 Ohio St.3d 138, 2007-Ohio-1249, 863 N.E.2d 147, in which we held that the kollel qualified as an educational institution for purposes of
{¶ 20} In the 2007 remand decision, the BTA expressly limited its analysis to considering whether the property at issue qualified for exemption under former
{¶ 21} We conclude that the BTA erred by relying on the 2007 remand decision when deciding the present appeal. In that earlier case, the BTA never considered whether the property at issue qualified for exemption under a separate
B. The BTA misconstrued the plain language of R.C. 5709.121(A)(2)
{¶ 22} The kollel contends that the BTA erred in requiring a minimum quantity of educational activity in order to meet the “in furtherance of” requirement set forth in
{¶ 23}
{¶ 24} The kollel sought exemption under
{¶ 25} The first rule of statutory construction requires courts to look at the statute‘s language to dеtermine its meaning. If the statute conveys a clear, unequivocal, and definite meaning, interpretation comes to an end, and the statute must be applied according to its terms. Lancaster Colony Corp. v. Limbach, 37 Ohio St.3d 198, 199, 524 N.E.2d 1389 (1988). Courts may not delete words used or insert words not used. Cline v. Ohio Bur. of Motor Vehicles, 61 Ohio St.3d 93, 97, 573 N.E.2d 77 (1991).
{¶ 26} We find that the BTA misconstrued the plain meaning of thе language set forth in
{¶ 27} Contrary to the BTA‘s apparent belief, nothing in the statutory language or case law makes residential use inimical to a finding that such use is “in furtherance of” the kollel‘s educational purposes. Historically, as the tax commissioner points out, a distinctly residential use of real property has dеfeated a charitable-use exemption claim, even when the property is used at times for charitable purposes. But this principle applies to
{¶ 28} Likewise, no requirement exists in
{¶ 29} In sum, we find that the BTA‘s interpretation of
C. The BTA‘s determination was not supported by reliable and probative evidence
{¶ 30} The kollel also challenges the evidence relied on by the BTA to support its decision. The kollel argues that the BTA cited no evidence that would support a finding that the apartment buildings were not being used in furtherance of the kollel‘s educational goals. We agree.
{¶ 31} After summarizing the testimony presented by the kollel, the BTA found that the kollel did not meet its burden of proving that the subject properties were used in furtherance of or incidental to its educational purposes. As evidence to support its decision, the BTA cited the kollel‘s tax-exemption application. Question 14 of the application asks the taxpayer to describe how the property is currently being used. The BTA found that the kollel had answered this question in the following manner: “This property was a 2-story, 4-family apartment building. The Applicant converted it into a 2-family apartment building, with one apartment on each floor. The property houses two of the Applicant‘s stаff members (scholars) and their families.” According to the BTA, the kollel‘s answer made “no mention of an educational component to the residences.” 2011 WL 6323047, *6. But the BTA overlooked the second paragraph of the kollel‘s answer, which states: “In addition to living in the apartments, the scholars, alone, and with their wives, carry on activities in their residences that are an integral part of the Kollel‘s various educational programs.”
{¶ 32} The BTA also attempted to rebut the kollel‘s evidence with a statement written in the kollel‘s posthearing brief. The BTA apparently found probative counsel‘s statement that “[t]he Kollel scholars and their families mostly use the apartments in the ordinary fashion.” Statements made by counsel are not evidence, however. See Corporate Exchange Bldgs. IV & V, L.P. v. Franklin Cty. Bd. of Revision, 82 Ohio St.3d 297, 300, 695 N.E.2d 743 (1998). And even if
Conclusion
{¶ 33} Based on the foregoing, we reverse the decision of the BTA. The BTA applied the wrong legal standard and failed to cite reliable and probative evidence to support its decision. We therefore remand the case tо the BTA to review the evidence submitted in this case and determine whether the subject property was used in furtherance of the kollel‘s educational purposes.
Decision reversed and cause remanded.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Simon Groner, for appellant.
Michael DeWine, Attorney General, and Ryan P. O‘Rourke, Assistant Attorney General, for appellee.