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Appeal of Kadle Properties Revocable Realty Trust

Supreme Court of New Hampshire

March 10, 2017

APPEAL OF KADLE PROPERTIES REVOCABLE REALTY TRUST New Hampshire Board of Tax and Land Appeals

          Submitted: January 17, 2017

         Board of Tax and Land Appeals

          Daniel Kadle, trustee, by brief, for Kadle Properties Revocable Realty Trust.

          Thomas P. Mullins, city attorney, by memorandum of law, for the City of Keene.

          CONBOY, J.

         The 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.

         The 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.

         In 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.

         RSA 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).

         We 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.

         Our 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.

         RSA 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).

         As the 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.

         The 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 ...


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