Attorney General Opinions

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

In late 1997, the church purchased 48.2 acres of land in Ashburn at the corner of Leesburg Pike and Route 641. The property is zoned for office use and is buffered from the nearest residential community. The church had intended to begin the development and construction process on the property when the development plans, local government approvals, and financing were finalized.

In the spring of 2000, the church began the predevelopment process of hiring a survey/engineering team, a legal team, and an architect. The church has had preapplication discussions with Loudoun County but has not made formal application to the county to proceed with construction.

The church currently uses the church property to operate a summer camp; to organize athletics and youth recreational activities, such as softball and other outdoor sports; to conduct religious worship services on special occasions; and to hold special events, such as picnics, "family fun days," and Easter egg hunts.

Section 58.1-3617 provides that "[a]ny church, religious association or religious denomination operated exclusively on a nonprofit basis for charitable, religious or educational purposes is hereby classified as a religious and charitable organization." § 58.1-3609(A) provides for a tax exemption by classification for the property owned by the organizations described in § 58.1-3617. Property tax exemptions are strictly construed.⁴ Exemptions to taxation are strictly construed against the party claiming the exemption.⁵ The classification set forth in § 58.1-3617 is applicable to The Community Church. The property of the church, therefore, is entitled to an exemption when used for its intended church purposes.

This Office previously has rendered opinions regarding tax exemptions for property held by charitable organizations that remained unused and has determined that such property is not tax exempt.⁶ In this case, the property is not developed, but the initial development process has started with the hiring of consultants and the production of development plans. The property is also being used on an occasional basis for church services and other church-related activities. This Office consistently has determined that whether property in question is used exclusively for charitable, religious or educational purposes is necessarily a factual matter for determination by the commissioner of the revenue.⁷

Your question requires a determination of fact that is reserved to the commissioner of revenue or other appropriate taxing official.⁸ Specifically, the commissioner of the revenue or other taxing official must determine whether the activities described are sufficient for the exemption to apply. While the commissioner of the revenue or other appropriate taxing official makes this determination in the first instance, a taxpayer may challenge any such determination. Generally, taxpayers assessed with local taxes may protest an assessment (1) within three years of the last day of the tax year in which the tax is assessed, (2) within one year of the tax assessment date, or (3) within one year from the date the Tax Commissioner makes a final determination under § 58.1-3981,⁹ whichever is later.¹⁰ Attorneys General consistently have declined to render official opinions when the request involves determinations of fact rather than questions of law.¹¹ I am, therefore, unable to render an opinion regarding whether the activities you describe are sufficient for the exemption under § 58.1-3609 to apply.

¹Va. Code Ann. § 58.1-3606 (Michie Repl. Vol. 2000).

²Id. § 58.1-3607 (Michie Repl. Vol. 2000).

³See id. tit. 58.1, ch. 36, arts. 2-3, §§ 58.1-3606 to 58.1-3622 (Michie Repl. Vol. 2000).

⁴Id. § 58.1-3609(B) (applying to post-1971 exemptions). Property tax exemptions that were in place prior to July 1, 1971, are construed liberally. See 1973-1974 Op. Va. Att’y Gen. 356, 357.

⁵See Westminster-Canterbury v. City of Virginia Beach, 238 Va. 493, 501, 385 S.E.2d 561, 565 (1989).

⁶E.g., 1987-1988 Op. Va. Att’y Gen. 599, 600 (noting that unused property of Prince William Hospital Corporation is not exempt from real estate taxation as long as it remains undeveloped and unused).

⁷See id.; see also Op. Va. Att’y Gen.: 1998 at 138 (medical center owned by hospital corporation); 1984-1985 at 372, 373 (church property used for Easter sunrise services and recreational activities); 1973-1974 at 357, 358 (church property used for nursery schools).

⁸Other provisions in the Virginia Code provide for an official other than the commissioner of the revenue to make real estate assessments. See, e.g., Va. Code Ann. §§ 58.1-3260, 58.1-3261, 58.1-3271 (Michie Repl. Vol. 2000) (appointment of assessors and board of real estate assessors and appraisers in cities and counties); id. §§ 15.2-519, 15.2-617 (Michie Repl. Vol. 1997) (department of finance director under county executive form and county manager forms of government, respectively).

⁹Section 58.1-3981 pertains to correction of an erroneous local tax assessment by the commissioner of the revenue or other tax official performing the commissioner’s duties.

¹⁰Va. Code Ann. § 58.1-3984(A) (Michie Repl. Vol. 2000).

¹¹See op. no. 01-118 to Michael M. Collins, Alleghany Co. Att’y (Apr. 12, 2002), available at http://www.vaag.com/media%20center/Opinions/01-118.htm; 1997 Op. Va. Att’y Gen. 195, 196 & n.8.