Opinion
No. 32837
Decided July 16, 1952.
Taxation — Exemptions — Section 5353, General Code — Property not used exclusively for charitable purposes, when — Realty owned and occupied by American Legion post — Used by other fraternal and patriotic organizations — Not entitled to exemption.
APPEAL from the Board of Tax Appeals.
On June 7, 1950, Jerome Goldman, a taxpayer of Hamilton county, made a demand in writing on the county auditor of Hamilton county that the real property owned and occupied by the trustees of Wittstein-Middleman Post No. 524, Department of Ohio, American Legion, Inc., of Cincinnati, be placed upon the tax duplicate of Hamilton county. On June 15, 1950, the county auditor denied the demand. Goldman then appealed to the Board of Tax Appeals which ordered the property placed on the tax duplicate. The action in this court is an appeal from the decision of the Board of Tax Appeals.
The post is a corporation not for profit, organized under the laws of the state of Ohio, and is a subscribing member of the American Legion which was chartered by an act of the United States Congress. The purpose clause of the articles of incorporation of the post is as follows:
"To conduct a local unit known as a post of the American Legion, to hold title to real estate and personal property which are to be used for the pleasure, convenience and benefit of the said post, and for carrying out its patriotic, civic and social purposes; to do all things necessary and incidental to and growing out of the foregoing."
Title to the property in question is vested in several trustees or their successors for the benefit of the post. The property is located at 3800 Reading road, Cincinnati, Ohio. The main structure occupies an area of 50 by 53 feet and consists of a basement and three stories. The basement consists of four rooms of various sizes which are available for meetings, a utility room, a boiler room and a small lavatory. A portion of the first floor is occupied by the local draft board, which pays the post a rental of $75 per month, and has an assembly room. The second floor is occupied principally as headquarters for the post auxiliary. The third floor has largely boy-scout storage rooms and a room for the headquarters of the Federated Council of Jewish Women. The structure does not contain any bowling alleys, swimming pool, gymnasium or public restaurant, although kitchen facilities are available for the preparation of food and refreshments. There is located on the same lot also a garage approximately 19 by 39 feet in floor area.
In the building, semimonthly meetings are held by the post, its auxiliary holds regular meetings, and committees of both organizations conduct meetings. The Wise Center Temple Jewish Sunday School on Sunday mornings occupies practically the entire building for which the school pays the post $45 per month during the time such classes are conducted. Other organizations such as school fraternities and sororities paid the post rentals for the year 1950 in the sum of $777.75. A member of the post devotes part time as a service officer who renders aid and assistance to all veterans and their dependents in the preparation and prosecution of claims against the Veterans Administration and renders other services to veterans regardless of race, color or creed.
Various public, civic and community organizations are on occasion permitted to use the facilities of the building without charge for meetings and social endeavors. The boy scouts are given free of charge the use of the first floor of the garage for the storage of their equipment, and the use of portions of the main structure is extended without charge to organizations such as the Red Cross, Community Chest, Boy Scouts, Emergency State Patrol and Federated Council of Jewish Women.
The Board of Tax Appeals found:
"There is no evidence in the record to indicate that the real property herein involved is used exclusively for `charitable purposes' within the meaning of that term as the same is used in Section 5353 of the Ohio General Code and in the Ohio Constitution * * *. The activities of this organization appear to be no different in scope than those of American Legion posts * * *, or those of other fraternal and patriotic lodges and organizations, whose general club rooms are not entitled to tax exemption. See Wilson, Aud., v. Licking Aerie No. 387, F.O.E., 104 Ohio St. 137; East Cleveland Post No. 1500, V.F.W., v. Board of Tax Appeals, 139 Ohio St. 554; and In re Application of American Legion, 151 Ohio St. 404."
Mr. Robert A. Goldman, for appellee Jerome Goldman.
Mr. C. Watson Hover, prosecuting attorney, and Mr. Francis L. Schwegmann, for appellee George Guckenberger, auditor.
Mr. Alvin H. Rowe, for appellants.
The decision of the Board of Tax Appeals is affirmed on the authority of Goldman, a Taxpayer, v. Robert E. Bentley Post No. 50, American Legion, ante, 205.
Decision affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS and HART, JJ., concur.
STEWART, MIDDLETON and TAFT, JJ., dissent.