Originally published on Forbes.com.
I hate to see a not-for-profit lose its property tax exemption over a simple misstep, but that is what happened to Oorah Inc with the school that it built in Lakewood, NJ. Oorah’s mission is to “reach out to Jewish families everywhere with life-enhancing learning opportunities, resources and programs – all with a warm, human touch”. Oorah is pretty substantial having spent over $14 million in 2014 and with net assets north of $40 million. The property in controversy was 1785 Swarthmore in Lakewood NJ. The property was leased to Lakewood Cheder School.
There are three requirements for property tax exemption in New Jersey. The property has to be “actually and exclusively used” for a tax-exempt purpose and the “operation and use” has to not be for profit. The town agreed that Oorah had met those two requirements. There is another requirement and that is that the exempt organization own the property. After acquiring the property Oorah had transferred it to the newly formed 1785 Swarthmore LLC.
1785 Swarthmore LLC’s purpose was “to engage in any activity within the purposes for which Limited Liability Companies may be formed pursuant to the New Jersey Limited Liability Company Act”. In other words, 1785 Swarthmore’s purpose was “Whatever”.
Disregarded For Federal Purposes Does Not Mean Disregarded For Local Purposes
Now it happens that Oorah is the sole member of Swarthmore, so for federal income tax purposes Swarthmore is a disregarded entity. Swarthmore made the argument that the term “owns” in the New Jersey exemption statute is not synonymous with “owner of record” and that since Swarthmore is a wholly owned subsidiary of a qualified organization and disregarded for federal income tax purposes, that should be good enough.
The problem is that the general rule is that all property should bear the burden of being taxed and that exemptions should be strictly construed against the party claiming the exemption. The statute requires that the qualified organization own the property not own an interest in an entity that owns the property. That the entity is disregarded for federal income tax purposes does not matter, since New Jersey courts have ruled the federal income tax standards are irrelevant to questions of real property taxation.
It is possible that if Swarthmore’s purpose had been limited in its governing document, there would have been a different result.
Notably, Swarthmore did not specifically limit its stated purposes to any extent in its Certificate of Formation. In that certificate, as we have already noted, Swarthmore’s stated purpose was very broad: “to engage in any activity within the purposes for which Limited Liability Companies may be formed pursuant to the New Jersey Limited Liability Company Act.” (Emphasis added). Hence, Swarthmore could have been formed and operated for any number of non-exempt purposes and thus has not satisfied the organizational purpose requirement under the statute.
The Assessors In Lakewood Might Be Extra Picky
It is worth noting that Oorah advisers should have been alert to be dotting their i’s and crossing their t’s as the subject of exempt Jewish properties in Lakewood, which has become one of the hubs of Orthodox Judaism, is a sensitive one. At a meeting last month the township’s assessor indicated that there are approximately 350 exempt properties such as yeshivas and synagogues in the township
A pervasive assumption is that a large portion of the property here is already off the township’s tax rolls, and that the fevered pace of new construction will further exacerbate the imbalance, placing greater strain on homeowners who do pay taxes.
Seeger is aware of that perception, but he told the seniors that the facts show otherwise.“People think it’s in the thousands,” he said after his presentation. “It’s not near the numbers they think it is.”
Some in the audience, however, were incredulous.
“That’s very hard to believe,” one woman said.
The decision actually illustrates two of Reilly’s Laws of Tax Planning. As far as the exemption being lost to a technicality, the first law states “It is what it is. Deal with it.”. Then there is the fifth law “A tax plan that ignores AMT or SALT is not much of a tax plan.”. Somebody decided that the LLC was fine to use because of it being a disregarded entity for federal income tax purposes apparently not considering that the rules might not be the same for purposes of real estate taxes.
Other Coverage
I could not find much coverage of the decision. There is a piece title Hoist on the Pertard of a General Purpose Clause by Thomas Rutledge on the Kentucky Business Entity Law blog, an indication that New Jersey is probably not the only state where something like this could happen.
The careful crafting of the purpose clause for any business entity is important.
For example, the purpose clause can impact upon the scope of the fiduciary duties binding the members/managers of an LLC. This case is another illustration of the need to carefully consider that provision and, often, if not always,forgo the use of the simple “any lawful purpose” formula.
Sorry No Free Link This Time
The decision was 1785 Swarthmore LLC v Township of Lakewood, Superior Court of New Jersey Appellate Divison Docket No. A-4701-13T4. I could not find a free link.
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