The opinion
[This opinion has been published in Ohio Official Reports at 87 Ohio St.3d 48.]
TRUE CHRISTIANITY EVANGELISM, APPELLANT, v. TRACY, TAX COMMR.,
APPELLEE.
[Cite as True Christianity Evangelism v. Tracy, 1999-Ohio-220.]
Taxation—Real property—Exemptions—Board of Tax Appeals’ determination that
a two-story, three-bedroom house on a small lot owned by an Ohio non-
profit corporation is not entitled to a charitable institution exemption is
unreasonable and unlawful, when.
(No. 98-2251—Submitted June 23, 1999—Decided October 13, 1999.)
APPEAL from the Board of Tax Appeals, No. 96-K-904.
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{¶ 1} Appellant, True Christianity Evangelism, an Ohio non-profit
corporation, seeks to exempt from real property taxation the property it owns on
Cuyahoga Falls Avenue in Akron. The real property consists of a two-story, three-
bedroom house on a small lot. The house is not open to the public, and it is not
used for public worship services. The only person using the property is Jeffrey A.
Botzko, president of appellant corporation and a minister. Botzko does not live in
the house.
{¶ 2} In addition to appellant, two other entities headed by Botzko also use
the house. One of the other entities is Kind and Decent Influence, also an Ohio
non-profit corporation. Botzko says he uses the title of that organization when he
is trying to persuade people in the music industry to live up to a higher moral
standard. The third non-profit organization headed by Botzko that uses the house
is The Sign Society for God, Christ and People. Botzko says he uses The Sign
Society when he puts his moral messages on matchbooks and on signs along
highways encouraging people to read and study the Bible and to live up to the
Bible’s standards. Botzko says the principles and goals of the organizations are the
same, but he chooses which name he will use depending on the occasion.
SUPREME COURT OF OHIO
{¶ 3} Botzko testified that in his “capacity as a minister I attempt to offer
advice to the powers that be on how I think; that I could help society so that it would
function in a more humane manner and cause more people to live up to better moral
standards.” He further testified that he uses the house “both in research and
production of literature of doing self-educating to find out what can be done and
what needs to be done.” He stated that in the winter he does creative work, while
in the summer he passes out literature at places like Blossom Music Center and the
Cleveland Coliseum. The literature is intended to influence “everyone I can, in any
way, to live up to the better moral standards of the Bible.” His goals are to “inspire,
enthuse, or to badger people into actually reading the Bible and finding out what it
says and living up to its standards.” In his literature Botzko asks for contributions;
despite distributing a hundred thousand pieces of literature, he has had only one
person send in twenty dollars. The total contributions from sources outside his
family have amounted to only about thirty-two dollars in the last five years.
{¶ 4} In his attempt to offer advice to “benefit society,” he also writes letters
to government officials trying to get them to experiment with his idea on how to
defuse hurricanes and tornadoes with explosives. He also has offered the
government his concept of a laser beam landing system for aircraft. Appellant has
not provided any grants or scholarships to anyone.
{¶ 5} Botzko keeps the books on tape and equipment that he uses to research
and produce his handout literature and audiotapes in the house. He also keeps
exercise equipment in the house, which he uses to stay in shape during the winter
for the summer days when he hands out literature. Botzko also uses the house to
store the clothing he wears when he works in the house or when he hands out his
literature.
{¶ 6} The Board of Tax Appeals (“BTA”) found that appellant was not a
charitable institution and denied the exemption.
{¶ 7} This cause is now before this court upon an appeal as of right.
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January Term, 1999
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Buckingham, Doolittle & Burroughs L.L.P. and William G. Nolan, for
appellant.
Betty D. Montgomery, Attorney General, and Phyllis J. Shambaugh,
Assistant Attorney General, for appellee.
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Per Curiam.
{¶ 8} Appellant contends that it need not be a charitable institution to
qualify for exemption under R.C. 5709.12. We agree.
{¶ 9} In its appeal to the BTA appellant sought exemption under R.C.
5709.12, contending its property was used exclusively for charitable purposes.
Appellant has made it clear that it is not seeking exemption under that portion of
R.C. 5709.07 that exempts “houses used exclusively for public worship.”
{¶ 10} The constitutional authority for the exemption of property from
taxation is contained in Section 2, Article XII of the Ohio Constitution, which
provides:
“Without limiting the general power, subject to the provisions of Article I
of this constitution, to determine the subjects and methods of taxation or
exemptions therefrom, general laws may be passed to exempt * * * institutions used
exclusively for charitable purposes * * *.”
{¶ 11} In furtherance of this exclusive power to choose the subjects and to
establish the criteria for exemption from taxation, the General Assembly has
enacted R.C. 5709.12(B), which provides in part:
“Real * * * property belonging to institutions that is used exclusively for
charitable purposes shall be exempt from taxation.”
{¶ 12} When considering a request for exemption under the portion of R.C.
5709.12(B) set forth above, the first point of inquiry must be whether the property
belongs to an “institution.”
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SUPREME COURT OF OHIO
{¶ 13} In Highland Park Owners, Inc. v. Tracy (1994), 71 Ohio St.3d 405,
407, 644 N.E.2d 284, 286, we referred to Black’s Law Dictionary (6 Ed.1990) 800,
for the definition of “institution” as:
“An establishment, especially one of eleemosynary or public character or
one affecting a community. An established or organized society or corporation. It
may be private in its character, designed for profit to those composing the
organization, or public and charitable in its purposes, or educational (e.g. college
or university).”
{¶ 14} Thus, since a corporation meets the definition of an “institution,”
appellant non-profit corporation cannot properly be disqualified from an exemption
under R.C. 5709.12(B) on the basis that it is not an “institution.”
{¶ 15} In commenting on R.C. 5709.12, in White Cross Hosp. Assn. v. Bd.
of Tax Appeals (1974), 38 Ohio St.2d 199, 203, 67 O.O.2d 224, 226, 311 N.E.2d
862, 864, Justice Stern in his concurring opinion stated, “[A]ny institution,
irrespective of its charitable or noncharitable character, may take advantage of a tax
exemption if it is making exclusive charitable use of its property.” Justice Stern
went on to point out that “[t]he legislative definition of exclusive charitable use
found in R.C. 5709.121, however, applies only to property ‘belonging to,’ i.e.,
owned by, a charitable or educational institution, or the state or political
subdivision. The net effect of this is that R.C. 5709.121 has no application to
noncharitable institutions seeking tax exemption under 5709.12.” (Emphasis sic.)
Id. While the nature of an institution seeking exemption for property under R.C.
5709.121 is relevant, the nature of the institution seeking an exemption under R.C.
5709.12(B) is not relevant. Unfortunately, the BTA went astray at this point. The
BTA determined that appellant’s “purpose is clearly to disseminate a religious
message.” The effect of the BTA’s finding that appellant was a religious institution
should have resulted in two conclusions by the BTA: (1) R.C. 5709.121 has no
application, and (2) a further determination must be made whether the appellant’s
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January Term, 1999
use of the property was “exclusively for charitable purposes.” Instead, the BTA
erroneously considered the conclusion that appellant was a religious institution “to
be dispositive of the present appeal.” In addition, the BTA also erroneously found
that appellant did not qualify for exemption under R.C. 5709.12 because it did not
qualify as a charitable institution, “a condition precedent to entitlement to
exemption under R.C. 5709.12.”
{¶ 16} However, as pointed out above, the institution need not be charitable
to be eligible for an exemption under R.C. 5709.12(B). The conclusion that a
religious institution owns the property does not foreclose the possibility that the
property is being used exclusively for charitable purposes. As we said in Highland
Park Owners, “[T]o grant exemption under R.C. 5709.12, the arbiter must
determine that (1) the property belongs to an institution, and (2) the property is
being used exclusively for charitable purposes.” 71 Ohio St.3d at 406, 644 N.E.2d
at 286.
{¶ 17} The BTA did not make the second determination required by
Highland Park Owners. Therefore, we remand this matter to the BTA to determine
whether appellant’s use of the property is “exclusively for charitable purposes.”
Because this court is not a trier of fact de novo, it is confined to its statutorily
delineated duty (R.C. 5717.04) of determining whether the board’s decision is
“reasonable and lawful.”
{¶ 18} Accordingly, we find the decision of the BTA to be unreasonable
and unlawful, and, therefore, we reverse and remand this matter to the BTA for
final determination consistent with this opinion.
Decision reversed
and cause remanded.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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