United States: Illinois Appellate Court Finds Hospital Property Tax Exemption Unconstitutional

The Illinois Appellate Court has held that a statutory exemption for hospital property based on the value of the charitable services the hospital provided was unconstitutional.1 Specifically, the Court found that the exemption violated constitutional language limiting the available exemption from property tax to property used exclusively for charitable purposes.

Background

The taxpayer owned four parcels of land in Urbana, Illinois. On two of the parcels, the taxpayer's affiliate operated a hospital. The remaining parcels were used for a day care center and power plant, both of which provided services to the hospital and/or its employees. Before 2004, the four parcels were exempt from real property tax pursuant to an exemption for charitable use provided under section 15-65 of the Illinois Property Tax Code, which requires both: (i) charitable ownership of; and (ii) charitable use for the subject property. 2 In 2004, the Cunningham township assessor began assessing all four parcels of land at their full value. This assessment continued through 2011.

In response to the 2004 assessment, the taxpayer filed applications with the county board of review requesting that the four parcels be exempt for the 2004 and 2005 tax years. In 2007, the Illinois Department of Revenue denied the applications for exemption3 and the taxpayer requested an administrative hearing. In the same year, the taxpayer also filed an action in circuit court alleging that, under section 15-65, the four parcels were exempt from taxation for the 2004 through 2007 tax years. Subsequently, the taxpayer filed a similar request for 2008. Because the taxpayer simultaneously pursued both judicial action and administrative relief through the Department with respect to the same issue, questions arose as to the appropriateness of the process.

The circuit court, in response to the question of administrative process, certified particular administrative procedure questions for interlocutory appeal: specifically, the meaning of the statutory phrase "court proceedings to establish an exemption," 4 as used in section 23- 25(e) of the Illinois Property Tax Code. Addressing the issue, the Appellate Court held that, in cases in which the Department or a court of review had acted favorably on a comparable exemption claim for any other year, section 23-25(e) had effectively revived the traditional suit in equity to establish an exemption. 5 Further, the Appellate Court clarified that a taxpayer had to elect a single remedy instead of simultaneously pursuing both a judicial action and an application before the Department. Since no court had previously provided similar guidance, the Court allowed the taxpayer, on remand, to elect which remedy to pursue, and the taxpayer proceeded with the judicial challenge. 6

In its filing, the taxpayer alleged that, based on the charitable use of the property, the parcels were exempt from taxation for the 2004 through 2011 tax years. Specifically, the taxpayer claimed that the pre-existing exemptions of the four parcels were never validly discontinued. The taxpayer alternatively argued that if the local taxing authorities had authority to return the four parcels to the tax roll and force the taxpayer to re-establish its entitlement to an exemption, the legal criteria for an exemption was established based on section 15-867 or, alternatively, 15-65. 8 The taxpayer sought summary judgment that section 15-86 applied to any determination of entitlement to exemptions for the four parcels for the 2004 through 2011 tax years. 9

The trial court granted the taxpayer's motion for summary judgment and found that the parcels were exempt based on section 15-86, and issued an opinion which included a Rule 304(a) finding. Both township and county officials joined with the Department in its appeal, which resulted in this dispute.

Illinois Property Tax Exemption for Hospitals

Illinois law provides a property tax exemption for property that is owned by a charity and that is "actually and exclusively used for charitable or beneficent purposes, and not leased or otherwise used with a view to profit[.]"10 Also, Illinois offers a property tax exemption where a "charitable organization . . . uses the property exclusively for the distribution, sale, or resale of donated goods and related activities and uses all the income from those activities to support the charitable . . . activities of the owner, whether or not such activities occur on the property." 11 The charitable exemption from property tax is authorized by the Illinois Constitution. 12

In 2010, a majority of the Illinois Supreme Court held that a religiously-affiliated Illinois hospital was not entitled to an exemption from property tax because it failed to establish that it was a charitable institution. In addition, a plurality of the Court determined that the hospital failed to demonstrate that its property was actually and exclusively used for charitable purposes. 13 As explained by the Court, a charitable institution possesses the following characteristics:

  • Has no capital, capital stock or shareholders;
  • Earns no profits or dividends, but derives its funds mainly from public and private charity and holds them in trust for the objects and purposes expressed in its charter;
  • Dispenses charity to all who need and apply for it;
  • Does not provide gain or profit in a private sense to any person connected with it;
  • Does not appear to place obstacles in the way of those who need and would avail themselves of the charitable benefits it dispenses; and
  • The primary use of its property is for charitable purposes. 14

This decision raised questions about what sufficiently constitutes charitable use for property owned by charitable institutions, especially hospitals, in Illinois.

In response to this decision, in 2012, Illinois enacted legislation altering the property tax exemption qualification requirements for not-for-profit hospitals. 15 Specifically, the Illinois Property Tax Code was amended to create a new category of charitable exemption for hospitals, generally referenced as section 15-86. 16 In order to qualify for an exemption from real property taxation under that section, a hospital must provide benefits to lowincome individuals and other services that relieve the burden of government in an amount that exceeds the value of its property tax exemption. The value of this hospital property tax exemption is based on the amount of property taxes that would be due if the property were not exempt.

Appellate Court Decision

Before reaching the substantive issue regarding constitutionality, the Appellate Court addressed several crucial administrative process issues.

Appropriateness of Interlocutory Appeal

First, the Court considered whether it had jurisdiction to take the case, including jurisdiction under Rule 304(a), which is included in the Illinois Civil Appeals rules for Appeals from a Circuit Court. 17 Specifically, the Court considered whether the declaratory judgment in the trial court decision was a final judgment on a separate claim and found that, by issuing the declaratory judgment that section 15-86 applied to the taxpayer's claims for a charitable exemption for the 2004 through 2011 tax years, the trial court "did not make any actual awards." The court did not hold that any of the four parcels actually were exempt for any assessment year. Also, the taxpayer sought both declaratory and nondeclaratory relief, invoking two different statutes, in its claims, and filed its appeal in a timely manner. Thus, the Court found present all three necessary ingredients to indicate subject matter jurisdiction: a Rule 304(a) finding, a final judgment on a separate claim, and timely notices of appeal.

Administrative Process for Initially Establishing Exemption

Next, the Court considered the appropriateness of the judicial proceeding in the context of the normal administrative process for gaining property tax exemption. Specifically, the Court addressed the impact of section 23-35(e), which provides an exception from the limitations imposed on the judiciary arm with respect to granting property tax exemptions.

Generally, in order to establish an exemption for a particular parcel of real estate, a taxpayer must file an application with the appropriate board of review or appeal. 18 Based on the application, the board will make a decision which is forwarded to the Department along with a statement of facts. 19 Subsequently, the Department will determine whether the property is exempt and notify both the board and the taxpayer of its decision. 20 Upon receipt of this notification, the taxpayer, if unsatisfied, may file an application for hearing. 21

After the Department determines applicability of the exemption forwarded by the board, either party to the proceeding may file an application for hearing within 60 days after the initial decision. Upon receiving the application for hearing, the Department will reconsider its exemption decision and grant any party to the proceeding a hearing, after which the Department will again issue a notice of decision. Within 30 days after this notice of decision, any party to the proceeding may file a request for rehearing. If allowed, the Department will issue a revised decision as a result of the rehearing. Finally, the action of the Department on an application for hearing becomes final either 30 days after the issuance of a notice of decision, if no request for rehearing is made, or, if a timely request for rehearing is made, upon the issuance of the denial of the request for rehearing or upon issuance of a notice of final decision.

Generally, neither party is allowed to pursue judicial review of an exemption decision by the Department, unless the party commencing the action has filed with the Department an application for a hearing and the Department has acted upon the application. 22 In accordance with the Administrative Review Law, a judicial review may be granted. 23

After an exemption has been granted, property owners must generally file a certificate of status with the county assessor on or before January 31 of each year. The certificate must specify any changes in the ownership or use of the property. 24

In this case, recall that the taxpayer did not finish pursuing the administrative hearing process with the Department, but filed simultaneously for judicial action. For a taxpayer seeking an initial property tax exemption pursuant to section 15-86, there was no question but that the administrative process described above, including completion of the application for exemption and submission of the application to the appropriate county body, would apply. However, the exception provided in section 23-25(e) allows for judicial proceeding in instances where, for any subsequent or prior assessment year, the taxpayer obtained an exemption on the parcel on "grounds comparable to those alleged in the court proceedings." 25 In other words, a taxpayer may pursue judicial action to allege and prove that, as to the subject property, a certain set of facts existed during the assessment year in question and that substantially the same facts caused the same property to be exempt for a subsequent or prior assessment year. Unless the two sets of facts are materially different, or unless the earlier or prior exemption was applied unlawfully, logic would dictate a like exemption for the assessment year in question. Thus, the taxpayer would be entitled to proceed with the judicial challenge if the exemption allowed under section 15-86 was to be considered for all the assessment years in question.

Noting the June 14, 2012 enactment date of section 15-86, the Court found that the answer to this question was dependent on whether section 15-86 applied retroactively. Based on the adopted language enacting section 15-86, 26 the Court found it clear that the legislature intended the section to apply retroactively. Thus, the Court finally concluded its lengthy examination of the administrative appropriateness of the proceeding and reached the substantive issue of constitutionality, stating that "standing before us, blocking the hallway, is the question of whether section 15-86 violates article IX, section 6 of the Illinois Constitution. So far as we can see, the question cannot be sidestepped."

Constitutional Issue

Local government officials asserted that section 15-86 is facially unconstitutional in that it creates an exemption unauthorized by the Illinois Constitution. 27 Thus, the officials contended that the trial court should have denied the taxpayer's request for exemption. The taxpayer, in contrast, contended that: (i) section 15-86 should be construed to condition the exemption on satisfying the constitutional requirement of exclusive charitable use; and (ii) regardless of whether section 15-86 is construed to require exclusive charitable use, the township officials are unable to prove that there is no set of circumstances in which an exemption pursuant to that section would be constitutional.

Interpretation Standard

Pursuant to the plain language of the Constitution, exemption from property tax for real property owned by hospitals is based on the "exclusive" use of the real estate for the listed purpose. 28 The Court clarified that "exclusive" use generally means "primary" use for this purpose, citing consistent interpretation by the Illinois Supreme Court of the term. 29 Applying strict interpretation of an "exclusively" standard would negate legislative intent and necessarily cause "any non-exempt use of the property, however trivial and fleeting, to disqualify the property from an exemption – because 'exclusively,' if one wanted to be strict and pedantic, means 100%, not 99.99%." Also, the Court specified that this standard would require non-exempt use to be merely incidental for the exemption to apply.

Presuming section 15-86 was constitutional, the Court noted that the bestowed exemption conflicts with the Illinois Constitution. Specifically, rather than require the hospital entity to use the subject property exclusively for charitable purposes to qualify for exemption, it merely requires the hospital entity to essentially pay for its property tax exemption with certain services of equivalent value. Thus, section 15-86 does not require any charitable use of the property at all by a hospital. Rather, in essence, under section 15-86, a hospital entity can, for example, obtain a charitable exemption simply by paying subsidies to a community clinic. 30 In finding that a property owner is not effectively allowed to buy a property tax exemption, the Court determined the law to be in direct conflict with the Illinois Constitution.

No-Set-of-Circumstances Test

With respect to the challenge to the facial constitutionality of the exemption, the Court cited the Illinois Supreme Court in that "a statute is facially unconstitutional only if 'no set of circumstances exists under which the Act would be valid.'" 31 Thus, the Illinois Supreme Court has determined that so long as a situation exists in which a statute could be validly applied, a facial challenge must fail. 32

In applying this test for constitutionality suggested by the taxpayer, the Court noted three flaws: (i) the United States Supreme Court has never applied the test; (ii) the term "validly applies" is unclear; and (iii) the test turns the discussion of constitutionality on its head and, instead of applying a statutory test, requires the Court to engage in a hypothetical discussion regarding potentially valid applications of the statute. Nevertheless, the Court applied the test and determined that there was no set of circumstances under which section 15-86 is constitutional.

In conclusion, the Court relied upon the terms of article IX, section 6 of the Illinois Constitution to find section 15-86 facially unconstitutional and unenforceable. Specifically, the Court determined that the statute purports to grant a charitable exemption on the basis of an unconstitutional criterion (i.e., providing services or subsidies equal in value to the estimated property tax liability) 33 without requiring that the property be used exclusively for charitable purposes. Thus, the Court held that the trial court should have denied the taxpayer's motion for summary judgment as to application of section 15-86 to determine that the four parcels were exempt for the 2004 through 2011 tax years and reversed and remanded the case for further proceedings.

Commentary

It is interesting that the Court spent a significant amount of time in considering several administrative and procedural issues before addressing the constitutionality of the statute in question. Perhaps the Court was aware of the political implications of the decision and would have preferred to avoid addressing the substantive issue altogether, as any decision was likely to invite public interest.

With this decision striking down law purportedly enacted to bring some much-desired certainty regarding real property tax exemption to hospitals operating in Illinois, it appears that taxpayers are once again thrust back into a state of uncertainty. Prior to enactment of section 15-86, taxpayers and local officials had sparred frequently on the issue of tax exemption, ever since the charitable tax exemptions for some major hospitals were revoked in 2004. Following the Illinois Supreme Court's determination that a hospital did not qualify for a charitable property tax exemption, section 15-86 was enacted in response to that decision. The enactment of the statute was expected to provide desired certainty for hospitals by clarifying that they would be granted exemption so long as the total value of their services and activities provided to under-served populations exceeded their estimated property tax liability.

Any hospital entity currently relying upon the exemption provided by section 15-86 should examine its facts and circumstances to determine whether property tax could be assessed as a result of this decision. In the midst of Illinois's continued budget crisis, the decision could create a similar crisis for hospitals faced with significant and unexpected property tax liabilities. Because the dollars at stake are significant, both for hospital entities and taxing jurisdictions, the decision is expected to be appealed and the uncertainty to continue.

Footnotes

1 Carle Foundation v. Cunningham Township, Appellate Court of Illinois, Fourth District, Nos. 4-14- 0795, 4-14-0845, Jan. 5, 2016.

2 35 ILL. COMP. STAT. 200/15-65.

3 Based, in part, upon a recommendation of denial from the board.

4 35 ILL. COMP. STAT. 200/23-25(e).

5 Carle Foundation v. Illinois Department of Revenue, 917 N.E.2d 1136 (Ill. App. Ct. 2009).

6 The taxpayer withdrew its applications for exemption for the 2004 through 2008 tax years from the Department, although the Department had already issued formal denials. No applications for exemption were filed for the 2009 through 2011 tax years.

7 35 ILL. COMP. STAT. 200/15-86.

8 35 ILL. COMP. STAT. 200/15-65.

9 Alternatively, the taxpayer claimed the breach of a settlement agreement made in 2002 under which it had paid various local taxing bodies in return for a promise by those bodies to refrain from taking any action to challenge the taxpayer's entitlement to charitable exemptions with respect to specified properties, including the four parcels at issue.

10 35 ILL. COMP. STAT. 200/15-65.

11 35 ILL. COMP. STAT. 200/15-65(b).

12 See ILL. CONST. art. IX, § 6.

13 Provena Covenant Medical Ctr. v. Department of Revenue, 925 N.E.2d 1131 (Ill. 2010).

14 Methodist Old Peoples Home v. Korzen, 233 N.E.2d 537 (Ill. 1968).

15 P.A. 97-0688 (S.B. 2194), Laws 2012.

16 35 ILL. COMP. STAT. 200/15-86. The legislation set forth seven statutorily defined components of the benefits and services calculation. Included in the calculation are: (i) charity care; (ii) unreimbursed costs of services to low-income and underserved individuals; (iii) direct or indirect subsidies to state or local government; (iv) Medicaid and other means-tested subsidies (the legislation provides alternative methods of calculating this component); (v) "dual-eligible subsidy" (the amount of subsidy provided to the government by treating dual-eligible Medicare/Medicaid patients); (vi) relief of the burden of government related to health care (unreimbursed costs attributable to such items as emergency, trauma, burn, neonatal, and other special services, providing medical education, etc.); and (vii) any other activity by the hospital entity that the Department determines relieves the burden of government or addresses the health of low-income or underserved individuals.

17 Generally, Rule 304(a) addresses the factors necessary to proceed with an appeal if multiple parties or multiple claims are involved in the original action, but not all parties or claims are included in the appeal.

18 35 ILL. COMP. STAT. 200/15-5.

19 35 ILL. COMP. STAT. 200/16-70.

20 35 ILL. COMP. STAT. 200/8-35, 16-70, 16-130.

21 35 ILL. COMP. STAT. 200/8-35(b).

22 35 ILL. COMP. STAT. 200/8-35(b), 8-40.

23 35 ILL. COMP. STAT. 200/8-40; 735 ILL. COMP. STAT. 5/3-101 to 3-113.

24 35 ILL. COMP. STAT. 200/15-10.

25 35 ILL. COMP. STAT. 200/23-25(e).

26 As to applicability, the enacting language clarified that "the changes made shall apply to: (i) all decisions by the Department on or after the effective date . . . regarding entitlement or continued entitlement by hospitals . . . to charitable property tax exemptions; (ii) all applications for property tax exemption filed by hospitals, . . . on or after the effective date . . .; and (iii) all applications for property tax exemption filed by hospitals . . . that have not been decided by the Department before the effective date . . .." Section 90, P.A. 97-688 (2012).

27 Ill. Const. 1970, art. IX, § 6 provides "[t]he General Assembly by law may exempt from taxation only the property of the State, units of local government and school districts and property used exclusively for agricultural and horticultural societies, and for school, religious, cemetery and charitable purposes."

28 Id.

29 See, for example, Chicago Bar Ass'n v. Department of Revenue, 644 N.E.2d 1166 (Ill. 1994); Children's Development Center, Inc. v. Olson, 288 N.E.2d 388 (Ill. 1972).

30 35 ILL. COMP. STAT. 200/15-86(e)(3).

31 In re. C.E., 641 N.E.2d 345 (Ill. 1994), quoting United States v. Salerno, 481 U.S. 739, 745 (1987).

32 Hill v. Cowan, 781 N.E.2d 1065 (Ill. 2002).

33 35 ILL. COMP. STAT. 200/15-86(c).

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