In January 2014, the Monroe County (PA) Court of Common
Pleas stripped recently awarded HUP status from a not-for-profit
student housing corporation affiliated with East Stroudsburg
University ("ESU"). As the record in East Stroudsburg
Area School District v. Monroe County Board of Assessment
Appeals reflects, ESU formed the not for profit
corporation, University Properties, Inc. ("UPI"), to
construct, operate, and maintain student housing for ESU. ESU
provided UPI a long-term lease on real estate owned by ESU, a
requirement UPI needed to secure financing for the
project.
UPI secured financing, demolished two existing, traditional student
dormitories on the real estate, and constructed two more modern
suite-type buildings ("Suites"). The Suites contain
substantially more beds than the prior dormitories making ESU
more competitive in attracting students. Housing at the Suites is
restricted to ESU students, and the Suites also contains other ESU
ancillary uses like the campus police headquarters.
UPI sets rates at the Suites to meet its expenses, with debt service the primary expense . The Suites' rates are higher than ESU's traditional dormitory housing, and importantly, UPI does not provide financial assistance to students based on need. However, UPI does provide free housing plus a stipend for resident advisors and directors valued at $288,000 per year. UPI also made donations to ESU totaling an aggregate $775,000 for 2012 and 2013. UPI testified that it further provides subsidies to the extent ESU requires students to reside at the Suites when the lower price dormitory housing is not available. However, UPI failed to produce evidence quantifying the amount of that particular subsidy at trial.
UPI received a tax exemption for tax year 2013 but the East
Stroudsburg School District ("School District") appealed
that exemption to the Trial Court. At trial, the Parties conceded
that UPI satisfied four of the five elements of the traditional HUP
test, which is the constitutional test for whether an
organization qualifies for a tax exemption as a purely private
charity. The School District, however, contested that UPI did not
donate or render "gratuitously a substantial portion of its
services."
The trial court agreed.
Relying on an unreported opinion of the Commonwealth Court,
CHF-Kutztown LLC v. Berks County Board of Assessment
Appeals, the Trial Court found that neither the provision of
free services to resident advisors (which the Trial Court
characterized as a management expense) nor the donation of surplus
revenue to ESU demonstrated that UPI donated or rendered
gratuitously a substantial portion of its services. Rather, the
Trial Court held that the focus of this prong should be on whether
the Suites provided subsidies to ESU students who did not have the
financial resources to pay for housing at the Suites. Because UPI
failed to produce any quantifiable evidence on this point, the
Trial Court concluded that UPI did not satisfy the HUP test and
stripped UPI of its not-for-profit standing.
This case has been reported in the Legal Intelligencer
and may spur more challenges to the HUP status of not-for-profit
entities created to address student housing shortages at
traditional exempt institutions.
This article is presented for informational purposes only and is not intended to constitute legal advice.