APPEAL OF KADLE PROPERTIES REVOCABLE REALTY TRUST New Hampshire Board of Tax and Land Appeals
Submitted: January 17, 2017
of Tax and Land Appeals
Kadle, trustee, by brief, for Kadle Properties Revocable
P. Mullins, city attorney, by memorandum of law, for the City
petitioner, Kadle Properties Revocable Realty Trust (Trust),
challenges the dismissal of the Trust's appeal to the New
Hampshire Board of Tax and Land Appeals (BTLA), filed after
the respondent, the City of Keene (City), denied the
Trust's application for an educational use tax exemption.
See RSA 72:23, IV (2012). We affirm.
BTLA's decision and subsequent order denying the
petitioner's rehearing motion recite the following facts.
The Trust owns property in Keene that includes an office
building. A separate, for-profit corporation, Config Systems,
Incorporated (Config Systems), rents a portion of the
Trust's office building, where it offers computer
classes. The Trust does not own or operate Config Systems,
but Daniel Kadle, in addition to serving as trustee for the
Trust, is a beneficiary of the Trust and the sole shareholder
of Config Systems.
2015, the City denied the Trust's request, pursuant to
RSA 72:23, IV, for an educational use tax exemption. The
Trust sought the exemption based upon Config Systems's
use of part of the property as a school. The Trust appealed
the City's denial of its request to the BTLA. During the
BTLA hearing on the Trust's appeal, the City moved to
dismiss the appeal. The BTLA granted the City's motion,
reasoning that the property owner, the Trust, is not a
school, and that Config Systems-the entity operating the
school which the Trust claims qualifies the property for an
exemption-does not own the property. The BTLA concluded,
therefore, that the property did not qualify for an exemption
under RSA 72:23, IV. The Trust sought reconsideration, which
the BTLA denied. This appeal followed.
chapter 541 governs our review of BTLA decisions.
See RSA 71-B:12 (2012) (providing BTLA decisions may
be appealed in accordance with RSA chapter 541); Appeal
of Johnson, 161 N.H. 419, 422 (2011). Under RSA 541:13
(2007), we will not set aside the BTLA's decision except
for errors of law, unless we are satisfied, by a clear
preponderance of the evidence, that it is unjust or
unreasonable. The BTLA's findings of fact are presumed
prima facie lawful and reasonable. RSA 541:13. In
reviewing the BTLA's decision, "[o]ur task is not to
determine whether we would have found differently than did
the board, or to re-weigh the evidence, but rather to
determine whether the [board's] findings are supported by
competent evidence in the record." Appeal of Taylor
Home, 149 N.H. 96, 98 (2003) (quotation omitted).
"Although we review the BTLA's findings of fact
pursuant to this deferential standard, we review its
statutory interpretation de novo." Appeal
of Liberty Assembly of God, 163 N.H. 622, 625 (2012)
(quotation and brackets omitted).
begin by noting that the City disputes whether Config Systems
operates a school for purposes of exemption under RSA 72:23,
IV. However, assuming, without deciding, that Config Systems
operates a school, we agree with the City that the BTLA did
not err in dismissing the Trust's appeal.
conclusion is based upon statutory interpretation. We review
the BTLA's statutory interpretation de novo.
Appeal of Town of Charlestown, 166 N.H. 498, 500
(2014). We are the final arbiters of the intent of the
legislature as expressed in the words of the statute
considered as a whole. Id. We begin by examining the
language of the statute and ascribe the plain and ordinary
meanings to the words used. Id. We interpret
legislative intent from the statute as written and will not
consider what the legislature might have said or add language
the legislature did not see fit to include. Id.
72:23 sets forth exemptions from real estate and personal
property taxation for governmental, religious, educational,
and charitable organizations. RSA 72:23 (2012). "The
burden of demonstrating the applicability of any exemption
shall be upon the claimant." RSA 72:23-m (2012). RSA
72:23, IV exempts from taxation "[t]he buildings and
structures of schools . . . organized, incorporated or
legally doing business in this state and owned, used and
occupied by them directly for the purposes for which
they are established." RSA 72:23, IV (emphasis added).
"It is clear from this language that not only must the
school be the entity which owns the property, but it must
also be the entity which uses and occupies the
property." St. Paul's School v. City of
Concord, 117 N.H 243, 258 (1977).
BTLA found, the Trust owns the property, but the Trust does
not operate the school. Even if we assume that Config Systems
operates a school, it is undisputed that Config Systems does
not own the property, and, therefore, the property does not
qualify for an exemption under RSA 72:23, IV.
Trust suggests that we have interpreted RSA 72:23, IV as not
requiring a school to own the property for which an
educational use property tax exemption is sought. The Trust
relies upon Wolfeboro Camp School, Inc. v. Town of
Wolfeboro, 138 N.H. 496 (1994), and New Canaan
Academy, Inc. v. Town of New Canaan, 122 N.H. 134
(1982). In those cases, we interpreted the meaning of the
word "school" in RSA 72:23, IV. Wolfeboro Camp
School, 138 N.H. at 497-501; New Canaan