2019-09-12 01:30:00

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When Palmer Square, LLC recently wanted to sell its apartment building at 4121 Palmer Park Circle East in Columbus, it went through all the usual hoops that most homeowners are familiar with: it executed a purchase contract with the buyer, Manhattan Real Estate Partners, LLC, it ordered an inspection, and it obtained title insurance. 

But selling the property outright would have cost $65,000 in conveyance fee taxes, and annual property tax would bump up an additional $309,000 dollars per year, with the property now valued at the agreed to purchase price of $35.25 million instead of the auditor’s value of $24.5 million.

So instead, Palmer Square formed Palmer House Borrower, LLC. That new business received the property at 4121 Palmer Park Circle and its mortgage. Then it technically sold the business, and not the property. Conveyance tax due to Franklin County: $0. 

Palmer Square is one of hundreds of such property deals taking place throughout the state of Ohio every year, and they are legal. To take a look at their potential cost, over the past 10 months, the Ohio Center for Investigative Journalism gathered millions of property records and matched them with mortgage records to see how much undervaluations cost taxpayers, particularly small business owners.

Since many businesses are sold without borrowing money, for example by swapping stock or properties, calculating the full cost is not possible without looking at the finances of each company. But based on public records, LLC property sales currently cost the median Franklin County commercial business property owner an average of at least $4,893 per year, up to $65,642 in Hilliard.

In Warren County, the median commercial property owner paid an average of $9,490 extra per year, up to $146,732 extra in Harlan Township. 

In Cuyahoga County, the median commercial property owner paid an average of at least $2,928 more, up to $31,736 more in Richmond Heights.  

The property LLC loophole hits taxpayer wallets three ways.

1. The state loses out on conveyance taxes, the fees that property owners pay when they sell a property and hand over a deed. Depending on the county, property sellers have to pay $1 to $4 per $1,000 of property value- but not if they are technically only selling the business that owns the property. In Cuyahoga County, for example, public tax records show that only 779  businesses valued at $1 million or more have paid a conveyance tax since 1976.  

2. The property LLC loophole changes the tax bills of other taxpayers, particularly small business owners, who as a consequence pay a higher proportion of property taxes. 

Warren County auditor Matt Nolan said he was most concerned about not knowing the market price of large property sales, because then his whole tax base becomes skewed. 

“If you just look at it on its face, it does looks like an increase to raise taxes. It’s not. For certain people I guess it would. But it would decrease taxes for most Ohioans, because we would properly value these commercial/industrial properties,” he said. 

3. Out-of-wack property values also change how taxes are assessed to build new public facilities. So, for example, if a fire department needs to build a new fire station, the county auditor looks at current property values to determine the amount of taxes that need to be raised from everyone in that district in order to pay for it. 

Thirteen states and the District of Columbia have addressed the issue of business real estate sales in one form or another (Florida, Delaware, Illinois, Maryland, Maine, Michigan, New Jersey, New York, Pennsylvania, Washington, Vermont, Connecticut, California). Most require that businesses pay a conveyance tax when the controlling ownership of a business changes hands between unrelated parties.  

In Ohio, however, the measure hasn’t generated much steam. Last year, the County Auditors’ Association of Ohio circulated a draft bill but not a single legislator offered to sponsor it. This year, Mike Skindell, a Democratic representative in the Ohio House, drafted an amendment to the budget bill in an effort to regulate real estate taxes.

“I saw it as a tax avoidance measure, these LLC loopholes. They’re avoiding paying real estate transfer taxes, they’re avoiding paying higher property taxes. And it hurts our schools,” Skindell said. 

But the Finance Committee Chairman’s office declined to include the amendment in the proposed budget bill. 

Though the government loses money over time, unknown entity sales make the biggest impact on the bottom line of small commercial property owners.

Property tax rates are set based on the amount that a given levy needs to raise and the value of property on the books. So for example, if the amount of taxable value doubled in a district, that would cut the property tax rate in half.

Ohio has two county property tax rates. One is for commercial properties, and the other is for residential and agricultural properties. So if a large commercial property is undervalued, Ohio still collects that tax money—from other properties. Owners of small commercial properties, whose property values are harder to obscure, then end up paying more than they would in a transparent system. 

True property tax values are often an emotional issue. Market rates are determined by what a hypothetical buyer would pay, and then property owners pay a percentage of that in actual dollars. For example, in the past economic downturn, property owners sued Cuyahoga County, claiming that their tax rates didn’t go down enough. To get the most conservative estimate, Eye on Ohio looked only at recent actual sales to calculate the cost to property owners.

Technically anyone can go to a Board of Revision to contest a property value, though in practice it’s usually school districts, who get the lion’s share of property taxes.

“There’s a number of reasons for having the entity transfers, but clearly one of the major reasons is that the schools across the state have been extremely aggressive in picking up all deed transfers of commercial property where the sale has been higher than the value on the tax duplicate and have been filing with the board of revision to get that increased. So this is a way to not disclose the sales price to the public,” said Robert Weiler, a commercial real estate appraiser in Columbus for over 50 years. 

“Sometimes you have a situation where the entity might have a whole bunch of properties. Suppose you’re buying the Panera on High Street. I’m just making this up – you’re buying the Panera on High street. And maybe the guy has 20 Paneras. And you’re just buying the one on Broad and High. Then you might have him or her take that one property and transfer it to one of their own entities, a separate entity. So that the buyer comes along and buys the entity. But the whole purpose, scheme as it were, is so that you don’t have to file a deed.”

On September 10, the Supreme Court of Ohio will hear oral arguments in the Palmer House LLC case. Representatives of Palmer House did not respond to repeated requests for comment, though in court documents it has contested the mortgage value as the true value of the property. 

Ohio has 31 other exemptions to the Conveyance Tax besides transfers between businesses, such as gifts of land within a family, or a transfer involving the government or a nonprofit. Officials don’t keep statistics on the reason for exemption. 

Small business owner Sonya Staffan, 56, of Lebanon, Ohio, bristled at the thought of avoiding the tax. She owns a canning business, a retail outlet and a rental house which she says she has considered unloading. 

“We’ve thought about selling it and then buying an equal or greater property in Michigan for retirement but the conveyance tax is exactly why (we can’t),” Staffan said.

This investigation was made possible via a grant from the Pulitzer Center for Crisis Reporting. 

Read or Share this story: https://www.cincinnati.com/story/news/2019/09/11/commercial-property-sales-loophole-costs-small-business-owners-thousands/1995223001/



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