Mississippi Advisory Opinions December 07, 1989: 19891207 (December 07, 1989)

Advisory Opinion Text

John E. Mulhearn, Jr., Esquire

Attorney

Board of Supervisors

P.O. Box 967

Natchez, MS 39121

Re: Exemption for Ad Valorem/Church

Dear Mr. Mulhearn:

Attorney General Mike Moore has received your letter and has assigned it to me for reply. A copy of your two letters, and the letter of the IRS and Mr. Nico Kuyt, is attached for reference.

Our understanding is that Old South Society for Vedic Life, Inc. (Applicant) has applied for a tax exemption from ad valorem taxation of real property known as Gloucester Plantation. The exemption being claimed is § 27–31–1(d) of the Mississippi Code of 1972 as a religious society. As such § 79–11–33 is also involved. Section 27–31–1(d) allows an exemption from ad valorem taxation of real or personal property belonging to “any religious society, or ecclesiastical body or any congregation thereof ... used exclusively for such society or association and not for profit; not exceeding, however, the amount of land which such association or society may own as provided in Section 79–11–33.” Section 79–11–33 sets forth the types of property a religious society may own. Only property owned under § 79–11–33 is exempt from ad valorem taxation. Central Methodist Church v. Meridian 126 Miss 780, 89 So 650 (1921) . Section 79–11–33(a) states “[e]ach house or building used as a place of worship, with a reasonable quantity of ground annexed to such building or house.” The other subsections of § 79–11–33 authorize ownership for other reasons.

The Internal Revenue Service has granted the applicant exempt status under 26 U.S.C. § 501(C)(3) which grants income tax exemptions for:

Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing or public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distribution of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

This is, ultimately, a matter that will turn on the facts of the case. As such the determination must be made judicially by the board of supervisors subject to review by a court of competent jurisdiction. See North American Old Roman Catholic Diocese v. Havens 164 Miss 119, 144 So 473 (1932) for the proper procedure for a taxpayer to follow. Our court has held that the courts, and we think this includes the board in its judicial role of determining the facts of a claim and interpreting the exemption statute, are not bound by the opinion of the attorney general, state tax commission or the Internal Revenue Service. Local Union No. 845 v. Lee County Board of Supervisors 369 So.2d 497 (1979) . The court or board of supervisors “must judicially ascertain the intent of the Mississippi Legislature in passage of § 27–31–1, and, as is often the case, such ascertainment is somewhat difficult.” Id . at 498. In general, the burden is on the taxpayer prove its right to an exemption and the exemption is strictly construed, Barnes v. Jones 139 Miss 679, 103 so 773 (1925), but “[t]here is a relaxation of the rule in the case of statutes of exemption applicable to religious and educational institutions....” Adams County v. Catholic Diocese of Natchez 119 Miss 890, 71 So 17, 19 (1916) . The proper procedure for a taxpayer to use in claiming an exemption when land has been assessed is set forth in Havens, supra. Since this office cannot determine facts, we decline to give an opinion as to whether or not a particular group is entitled to an exemption under § 27–31–1, but must leave that determination to the board and the courts.

Very truly yours,

Mike Moore Attorney General.