BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF )

CHEYENNE LEADS, INC., FROM )

A VALUATION DECISION OF THE ) Docket No. 2007-52

LARAMIE COUNTY ASSESSOR )

2007 PROPERTY VALUATION )

FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER

APPEARANCES

Dale W. Cottam and Amanda M. Gundlach, Hirst Applegate, P. C., appearing on behalf of Cheyenne LEADS, Inc. (LEADS or Taxpayer).

Mark T. Voss, Laramie County Attorney, appearing on behalf of Brenda Arnold, Laramie County Assessor (Assessor).

STATEMENT OF THE CASE

This matter is before the State Board of Equalization (State Board) as the result of a request by the Laramie County Board of Equalization filed May 17, 2007, pursuant to Rules, Wyoming State Board of Equalization, Chapter 2, § 36, that the appeal by Cheyenne LEADS, Inc., of the Assessor’s denial of its request for tax exemption as a charitable and benevolent association be certified to the State Board for its consideration as the finder of fact rather than as an intermediate level of appellate review. Wyo. Stat. Ann. § 39-11-102.1(c). Compare Rules, Wyoming State Board of Equalization, Chapter 2 and Rules, Wyoming State Board of Equalization, Chapter 3. Laramie County Board of Equalization v. Wyoming State Board of Equalization, 915 P.2d 1184, 1188 (Wyo. 1996); Union Pacific Railroad Company v. Wyoming State Board of Equalization, 802 P.2d 856, 859 (Wyo. 1990). The State Board granted certification by order dated May 21, 2007. The appeal of the Taxpayer is before this Board the same as an initial appeal pursuant to Rules, Wyoming State Board of Equalization, Chapter 2.

A hearing before the Board consisting of Chairman Alan B. Minier, Vice Chairman Thomas R. Satterfield, and Board Member Thomas D. Roberts, pursuant to order dated September 6, 2007, and modified November 20, 2007, was held January 10 and 11, 2008.

JURISDICTION

Within 30 days after the date or postmark date of an assessment schedule, whichever is later, objections to local assessments must be filed with the county assessor indicating why the assessment is incorrect. Wyo. Stat. Ann. §39-13-109(b)(i). The Taxpayer’s assessment schedules were mailed March 19, 2007. The Taxpayer filed its appeal on April 17, 2007. The Taxpayer’s appeal was timely.

CONTENTIONS AND ISSUES

LEADS identified thirteen issues of fact:

1. Is LEADS funded primarily through donations?

2. Does LEADS operate at a loss without taking into account donations?

3. Does LEADS utilize its land for non-commercial purposes?

4. Is LEADS’ purpose, and the ownership and development of its land, primarily for the benefit of citizens of the State of Wyoming?

5. Did Wyoming citizens authorize tax dollars to be spent for economic development efforts?

6. Does LEADS lessen the burden of government to care and advance the interest of its citizens?

7. Is economic development a process, the creation of an environment in which communities and their citizens prosper and improve their quality of life?

8. Are LEADS’ members motivated by a willingness to do kindness, good will, or a disposition to do good, the support of public works, and the relief of public burdens?

9. Do contributions by LEADS’ members support public works and activities of public importance and wide-spread social value such as roads, water and sewer infrastructure, and the strengthening of the community?

10. Are benefits conferred by LEADS available to an indefinite number of persons in Wyoming?

11. Do LEADS’ efforts help protect the economic and social stability of the state of Wyoming?

12. Has LEADS been effective in fulfilling its mission?

13. Will LEADS be less effective in fulfilling its mission if it is not granted a tax exemption?

[Cheyenne LEADS’ Summary of Remaining Issues of Fact and Law and Exhibit Index, pp. 1-2].

The Assessor identified two factual issues as mixed questions of law and fact:

1. Is LEADS’ property eligible for tax exemption?

2. Did members of LEADS receive pecuniary gain from the organization?

[Laramie County Assessor’s First Supplement to Preliminary Statement, section II].

LEADS identified six mixed issues of fact and law, and one ultimate issue of law:

1. Is economic development a public purpose?

2. Is promoting economic development a traditional and long accepted function of government?

3. Is protecting the economic and social stability of the State of Wyoming a legitimate state objective?

4. Is creating new jobs and reducing unemployment an objective of the State of Wyoming?

5. Is economic development the creation of an environment in which communities and their citizens prosper and improve their quality of life?

6. Are LEADS, and the companies and organizations it directly assists, inseparable parts of a single, integrated charitable entity?

7. Whether Cheyenne LEADS qualifies as a benevolent or charitable organization under Wyo. Stat. Ann. §39-11-105(a)(xxvi) and Wyoming Department of Revenue, Ad Valorem Tax Exemption Standards, Ch. 14, § 11, and therefore is exempt from taxation.

[Cheyenne LEADS’ Summary of Remaining Issues of Fact and Law and Exhibit Index, pp. 2-3].

The Assessor identified two issues of law:

1. Whether LEADS’ property met the criteria for tax exemption pursuant to Wyo. Stat. Ann. §39-11-105(a)(xxvi) and the provisions contained in Chapter 14 of the DOR Regulations, entitled “Ad Valorem Tax Exemption Standards.”

2. Whether LEADS has satisfied its burden and overcome the presumption in favor of taxation provided by case law and Chapter 14 of the DOR Regulations, entitled “Ad Valorem Tax Exemption Standards.”

[Laramie County Assessor’s First Supplement to Preliminary Statement, section II].

Although the Board will address most of the issues of fact and law raised by the parties, we believe the ultimate issue is best framed as:

Did vacant property, held by LEADS in a business park for the purpose of attracting new business investment, meet the criteria for tax exemption stated in Wyo. Stat. Ann. §39-11-105(a)(xxvi), and pertinent Rules of the Department of Revenue?

We will conclude LEADS’ property did not meet the criteria.

FINDINGS OF FACT

1. The taxpayer in this case is the Cheyenne-Laramie County Economic Association for Development Strategies, or Cheyenne LEADS (“LEADS”). [Cheyenne LEADS’ Preliminary Statement; Exhibit 105, p. HA 26]. LEADS is a private, nonprofit corporation. [Id.] As stated in its articles of incorporation and by-laws, LEADS was formed for the following purposes:

a. To attract new businesses to Cheyenne and Laramie County;

b. To provide for the retention and expansion of existing businesses in Cheyenne and Laramie County;

c. To make provision for resources necessary to the formation of new businesses in Cheyenne and Laramie County;

d. To facilitate coordination and communication among economic development organizations, both public and private, within Cheyenne and Laramie County;

e. To build, with the assistance of other public or private organizations, community support for economic growth and to encourage an awareness of the interrelationships of economic growth and improvement in the quality of life throughout Cheyenne and Laramie County;

f. To manage the efforts of the Corporation through a consistent and systematically applied program, executed by professionals who do not rely on volunteers for its day to day operation, and sustained by funding which is both substantial and predictable.

[Exhibit 105, p. HA 26; Exhibit 106, pp. HA 31-32; Transcript Vol. I, pp. 37-38].

2. LEADS is governed by a Board of nine Directors drawn from its membership [Exhibit 105, p. HA 27], and six Ex-Officio Directors representing the City of Cheyenne, Laramie County, the Cheyenne-Laramie County Economic Development Joint Powers Board, the Greater Cheyenne Chamber of Commerce, the Cheyenne Regional Airport, and eastern Laramie County. [Exhibit 106, p. HA 37]. A Chief Executive Officer (CEO), serving at the pleasure of the Board, has “general charge of and control over the day-to-day operations of” LEADS. [Exhibit 106, p. HA 40].

3. LEADS depends upon dues-paying members for operating resources; these dues are supplemented by grants, contracts, and local civic donations. [Exhibit 105, p. HA 27; Exhibit 106, pp. HA 32-34; Confidential Exhibit 108; Exhibits109, 110, 114, 115, 117, 124, 125, 129; Confidential Exhibit 160]. LEADS has no capital stock, and no provision for distribution of dividends. [Exhibit 105, p. HA 27]. If LEADS dissolves, it must distribute its remaining assets to a qualified nonprofit organization, preferably with the same purposes as LEADS itself, or to the City of Cheyenne and Laramie County. [Exhibit 105, p. HA 27]. LEADS rents office space; its principal asset is land held for the advancement of its purposes. [Confidential Exhibit 108].

4. The Internal Revenue Service recognizes LEADS as tax exempt under Section 501(c)(6) of the Internal Revenue Code. [Transcript Vol. I, pp. 78-79; Exhibits 103, 104, 107].

5. Randy Bruns is CEO of LEADS. [Transcript Vol. I, p.33]. Although LEADS is a private business, it works closely with governmental entities and other organizations interested in economic development. [Transcript Vol. I, p.34]. It focuses on the creation of primary jobs, or jobs for which the income predominantly comes from outside Cheyenne and Laramie County, because such jobs bring new dollars to the community. [Transcript Vol. I, pp. 34-35]. LEADS’ 2006 Annual Report states that it has assisted in the creation of nearly 4000 new primary jobs, and assisted in the creation of 3000 additional jobs stimulated by primary job growth. [Transcript Vol. I, p. 35; Exhibit 102, p. HA 123].

6. LEADS and its corporate predecessor worked for many years before finding a successful model for recruiting new business to Cheyenne and Laramie County. [Transcript Vol. I, pp. 40-44]. The key episode involved promoting the development of a property in bankruptcy. A prospective business posed three simple questions about property acquisition: do you own the land so you can sell it to us; is it zoned; does it have water and sewer? [Transcript Vol. I, pp. 40-41]. When LEADS did not answer in the affirmative, the transaction failed. The prospect was not interested in assurances that these difficulties could be managed. [Transcript Vol. I, p.41].

7. With the assistance of Cheyenne Light Fuel & Power, LEADS later acquired 917 acres of the land in bankruptcy. [Transcript Vol. I, p.42]. LEADS was then able to “cobble together” dollars to provide infrastructure. [Transcript Vol. I, p.43]. After successfully using the resulting Cheyenne Business Parkway to recruit two major companies, the model for recruiting new business was in place. [Transcript Vol. I, pp. 43-44].

8. LEADS has learned that a company seeking to relocate or expand will start by identifying twenty or thirty possible communities within a geographical area. [Transcript Vol. I, pp. 49-50]. The company then begins to winnow down the list of potential sites; the company typically comes into contact with LEADS during the winnowing process. [Transcript Vol. I, p. 50]. LEADS staff tries to develop a conversation with the company that allows LEADS both to identify the company’s needs, and to remain in conversation as the list is pared down to two or three candidate communities. [Transcript Vol. I, p. 50]. Available property is “a big draw,” something the representatives of the company “can talk to their site selection team about.” [Transcript Vol. I, p. 50]. In the end, the selection is driven by how well the competing areas can meet the needs of the company. [Transcript Vol. I, pp. 50-51].

9. LEADS has recruited fourteen businesses to its business parks, out of nearly fifty successful recruiting efforts. [Transcript Vol. I, p. 51].

10. LEADS believes the best asset an economic development group can have is available properties, whether they are available “commercially or in public or private hands.” [Transcript Vol. I, p. 56].

11. LEADS has assured a disciplined approach to the disposition its business park properties by adopting confidential General Guidelines for the Selling or Discounting [of] LEADS Property. [Transcript Vol. I, pp. 54-55, 152; Confidential Exhibit 138]. We find the confidential nature of the guidelines is not breached by disclosing that the guidelines include a systematic approach for determining whether LEADS will provide “an incentive by reducing the cost of land below fair market value including in certain cases, the donation of the land.” [Confidential Exhibit 138, p. HA 1256; Transcript Vol. I, p. 56 (no part of the hearing transcript was designated confidential); for examples of results of policy, see infra, ¶ 28]. The key consideration is the creation of new primary jobs. [Transcript Vol. I, p. 57]. If there are no primary jobs, LEADS will not make the land available for sale. [Transcript Vol. I, p. 57].

12. Tucker Fagan was Chief Executive Officer of the Wyoming Business Council (Business Council). [Transcript Vol. II, p. 325]. Fagan recounted how state policy evolved into alignment with the LEADS model. [Transcript Vol. II, pp. 325-331]. State policy places a high priority on working through community development organizations with “shovel-ready” assets. [Transcript Vol. II, pp. 330-331, 347]. An interested company commonly begins its inquiries at the state level with a description of physical facilities that would fill a need. [Transcript Vol. II, p. 338]. However, “the sale occurs” at the level of the local community. [Transcript Vol. II, p. 339]. Without LEADS, the Business Council could not accomplish its economic development mission [Transcript Vol. II, p. 341], because successful economic development depends on the successful interplay between the Business Council and local entities. [Transcript Vol. II, pp. 339-342].

13. Since 2003, the Business Council has provided financial assistance to communities to implement local plans. [Transcript Vol. II, p. 347]. The Business Council insists on a rigorous review of the local planning process before it commits state funds. [Transcript Vol. II, pp. 331,335]. When evaluating community capacity, the Business Council looks to three component parts: “leadership, allocation of resources and a plan, and then execute on that plan.” [Transcript Vol. II, p. 352].

14. After LEADS recruited a Lowe’s distribution center in 2001 [Exhibit 145, p. HA 1315], the largest tracts in its Cheyenne Business Park were occupied. [Exhibit 158]. In 2003, consultants for an undisclosed company approached LEADS seeking property which exceeded the capacity of the existing business park. [Transcript Vol. I, p.59].

15. As a result, LEADS acquired an option to purchase the south half of an agricultural property west of Cheyenne; however, the project of the undisclosed company went on hold after LEADS did so. [Transcript Vol. I, p. 60]. On December 24, 2003, LEADS nonetheless acquired an entire section of 620 acres from the property owner. [Transcript Vol. I, pp. 60, 197-198; Exhibit 505]. The property was generally located between Interstate 80 on the south, Highway 210 (Happy Jack Road) on the north, and Highway 222 (Round Top Road) on the east. The northern portion included land which had previously been platted and zoned. [Transcript Vol. I, pp. 59-60, 111-112, 181; Exhibit 122, p. HA 247; Exhibit 159].

16. LEADS was able to manage the purchase price with the assistance of a civic fund-raising effort, Progress and Prosperity. [Transcript Vol. I, pp. 62-63; Confidential Exhibit 160]. A necessary part of the plan was to sell a parcel of ten acres in the northeast corner and a parcel of twenty acres in the southeast corner to reduce the overall purchase expense. [Transcript Vol. I, pp. 61-62, 147-148]. The overall purchase price of $2,000,000 was eventually offset by $752,000 realized from the sale of the two corner parcels. [Transcript Vol. I, pp. 107, 118, 145, 201].

17. The Assessor criticized the manner in which LEADS arranged and consummated the sale of the two parcels. LEADS offered the parcels to LEADS members and member organizations known to have an interest in real estate. [Transcript Vol. I, pp. 66-67; Exhibits 139, 140, 141, 518]. Although LEADS rejected an initial offer, it accepted a later offer from the same party. [Exhibits 522, 523, 524]. A Purchase and Sale Agreement was exchanged between LEADS and Eastland, LLC; Bradley Graham, managing partner for purchaser Eastland, acknowledged LEADS’ acceptance on May 13, 2004. [Exhibit 524].

18. The closing of the sale of the two parcels was contingent on approval of an interchange at the junction of Interstate 80 and Highway 222. Due to delays in that approval, the parties twice extended the date of closing. The second and final deadline was March 31, 2006. [Exhibits 525, 527].

19. While the sale of the two parcels was pending, Wal-Mart committed to a location in the property LEADS had acquired. On March 1, 2005, Laramie County entered into a contract with Wal-Mart Stores East, LP, to facilitate Wal-Mart’s plans to locate and construct a distribution center. [Exhibit 126]. On March 17, 2005, LEADS entered into a confidential Memorandum of Understanding with Wal-Mart Stores, East, LP for occupation of a substantial portion of the southern area of the property now known as the North Range Business Park. [Confidential Exhibit 516]. LEADS publicly announced that Wal-Mart had selected Laramie County for its new distribution center on March 18, 2005. [Exhibit 112].

20. Bradley Graham of Eastland was elected to the LEADS Board in April, 2005. [Transcript Vol. I, pp. 133-134]. On or about May 18, 2005, Graham notified Bruns that Eastland had assigned its interest in the corner properties to Westcom Properties, LLC; Graham represented that he was both the Managing Member of Eastland and the managing partner for Westcom. [Exhibit 528]. The sale of the corner properties from LEADS to Westcom closed on July 13, 2005. [Exhibit 529].

21. Graham subsequently appeared as the Commercial Associate Broker in advertisements offering the northeastern corner property for sale for $1,365,000, and offering the southeastern corner property for sale for $4,256,000. [Exhibit 531].

22. While the sale of the corner properties was pending, LEADS pursued the steps necessary to consummate the plan to create the North Range Business Park. The zoning was changed to light industrial in April, 2004. [Exhibit 521]. The North Range Business Park was formally surveyed in November, 2004, and after receiving the necessary government approvals, the County Clerk recorded LEADS’ dedication of the industrial park on July 7, 2005. [Exhibit 506]. A Declaration of Covenants, Conditions, and Restrictions was recorded on September 22, 2005. [Exhibit 506]. A second filing of the dedication was recorded on November 4, 2005. [Exhibit 506].

23. On February 26, 2004, Laramie County applied to the Wyoming Business Council for a Business Ready Communities grant of $1,500,000 to construct a sanitary sewer line from Cheyenne’s west city limits to the business park. [Exhibit 113, p. HA 70]. In subsequent months, LEADS secured formal support for the sewer main from the City of Cheyenne and the Cheyenne Board of Public Utilities. [Exhibit 127]. The Wyoming Business Council approved the application in April, 2005. [Exhibit 113]. An implementation contract between Laramie County and LEADS for the full $1,500,000 of the grant became effective May 9, 2005. [Exhibit 114]. Under a separate agreement, the City of Cheyenne provided LEADS $1,500,000 to meet the local match obligations of Wyoming Business Ready Communities grants. [Exhibit 123]. The stated purpose of City Contract #4856 was to provide financial assistance “for construction of necessary infrastructure within the North Range Business Park, and furnishing water and sewer services under a User’s Agreement with LEADS.” [Exhibit 123, p. HA 248].

24. Laramie County executed a contract with LEADS to develop roads in the North Range Business Park on November 4, 2005. [Exhibit 124]. The term of the contract was August 9, 2005 to September 26, 2006. [Id.]. The face amount of the contract was $500,000. [Id.].

25. As part of the procedures for Business Ready Communities grants, as required by Wyo. Stat. Ann. § 9-12-601(f), the Wyoming Attorney General prepared a formal opinion for the Wyoming Business Council dated June 16, 2005. [Exhibit 117]. The stated purpose of the opinion was to review Laramie County’s project for legality “particularly in relation to Article 16, Section 6 of the Wyoming Constitution.” [Exhibit 117]. Among other things, Article 16, Section 6 generally prohibits the state and any county from making donations to “any individual, association or corporation….” [Exhibit 117]. LEADS accounted for this constitutional prohibition when formulating policy for disposition of land in its business parks. [Transcript Vol. I, pp. 56-57].

26. The Attorney General’s opinion includes this contemporary Business Council summary of the project:

Project Summary: Laramie County proposes to construct water and road infrastructure within the new 500+ acre industrially zoned North Range Business Park and to the site of a future Wal-Mart Distribution Center. (Grant funds will not pay for infrastructure within the 146-acre Wal-Mart site.) Wastewater infrastructure to the site was the basis for a prior [Business Ready Communities] grant awarded to Laramie County in June 2004. (That application was submitted prior to statutory changes to the BRC program allowing for multi-year phased projects. In essence, the current proposal is “Phase 2” of development of the business park.) Besides facilitating the anchoring of the business park by the Distribution Center, the infrastructure will open up some 17 additional lots ranging in size from 10 to 100 acres to be owned by Cheyenne LEADS. Based on the history of the existing Cheyenne Business Parkway, Cheyenne LEADS expects the North Range Business Park to house between 5,000 and 7,000 jobs at full build-out. In addition to work funded by Cheyenne LEADS, Laramie County, and Business Ready Communities, WYDOT will construct a new interchange to serve the North Range Business Park within the next few years.

Business Background: The Wal-Mart Distribution center will supply grocery operations at its discount stores, super centers, and neighborhood markets in the Wyoming, Colorado, and Nebraska states. The mechanized distribution center will create over 250 jobs in its first year of operation and projects job creation by year three at 450. The company will invest approximately $60M in taxable real and personal property as part of this project. The expected starting hourly wage for the majority of positions created will [be] between $11 and $13 an hour.

[Exhibit 117, p. HA 151; see also Exhibit 508].

27. The Attorney General concluded the project met statutory and constitutional requirements for its legality based on a three part test: an adequate public purpose existed; adequate consideration was exchanged; and statutory authority existed. Regarding the second test, the Attorney General’s opinion noted, “[t]he Colorado Supreme Court has stated its constitutional limitation does not prohibit the state or a political subdivision from transferring public funds to a private company or corporation if the state or subdivision receives consideration in return. City and County of Denver v. Qwest Corp., 18 P.3d 748, 758 (Colo. 2001).” [Exhibit 117, pp. HA 150]. In applying the second test, the Attorney General stated:

Second, adequate consideration must be exchanged. With the construction of the infrastructure in Laramie County, the North Range Business Park will attract new businesses and the city and the local economy will receive the benefits outlined above. This proves to be adequate consideration.

[Exhibit 117, pp. HA 152].

28. The record demonstrates the direct financial consideration LEADS received in exchange for some of its parcels was “de minimis,” and fairly characterized as a donation. [Transcript Vol. I, pp. 196-197]. For example, Wal-Mart paid LEADS $1,000 for its parcel in the North Range Business Park. [Transcript Vol. II, p. 375]. By the time of the hearing, the Assessor’s valuation for the Wal-Mart land was “a little over $2 million.” [Transcript Vol. II, p. 376]. Another example appears in the footnotes to the LEADS 2006 Annual Report:

On October 10, 2003, an unrelated entity accepted an option to purchase land with an appraised value of $610,000 from the Corporation for approximately $305,000 with an additional incentive which offers the land for $30 if the unrelated entity meets certain employment goals within five years. Based upon management’s assessment of the probability of the unrelated entity achieving the employment goals, the Corporation has accrued an expense for business economic incentives of $401,000, the cost of the land.

[Exhibit 102, p. HA 134]. Bruns says that in every case the businesses in LEADS’ business parks have paid less than market value, although in some cases they have paid substantial sums. [Transcript Vol. I, p. 197].

29. We have no reason to criticize the terms on which LEADS granted its land to Wal-Mart or other businesses. A competing locality was offering land to Wal-Mart for free. [Transcript Vol. I, pp. 63-64].

30. The record demonstrates the benefits to Cheyenne and Laramie County from successful recruiting. Richard O’Gara testified as an expert economist with extensive experience in Cheyenne and Laramie County. [Transcript Vol. II, pp. 236-243]. O’Gara prepared a formal report which focused principally on LEADS experience recruiting the Lowe’s Distribution Center. [Transcript Vol. II, pp. 251-254; Exhibit 145].

31. O’Gara demonstrated that the economic impact of Lowe’s was aligned with effects predicted by Wyoming Business Council modeling when Lowe’s was recruited. [Transcript Vol. II, pp. 254-270; Exhibit 145]. From an initial total of 263 jobs in 2002, Lowe’s had created 950 direct jobs, 257 supplier jobs, and 75 consumer jobs – a total of 1,282 jobs – by 2006. [Exhibit 145, p. HA 1315]. The model estimated property taxes to rise from $10,073 in 2002 to $423,363 in 2006; actual property taxes for the same period rose from $8,659 to $346,823. [Exhibit 145, p. HA 1316]. Direct and indirect sales taxes peaked during the initial year of construction, but reached a grand total of $4,288,152 for 2002 through 2006. [Exhibit 145, p. HA 1317]. The direct and indirect contribution of Lowe’s to the gross domestic product of Laramie County rose from $19,994,749 in 2002 to $104,472,567 in 2006. [Exhibit 145, p. HA 1319].

32. O’Gara stated that from an economic standpoint, LEADS’ land in the North Range Business Park is “an idle resource.” [Transcript Vol. II, p. 320]. It is “not producing a good or service.” [Transcript Vol. II, p. 321]. In his view, LEADS held the property to make it productive as “commercial property to where it will generate jobs, it will produce some good or service,” and generate personal income and taxes. [Transcript Vol. II, pp. 321-322].

33. Wal-Mart held a grand opening for its Distribution Center on March 22, 2007. [Exhibit 137].

34. By early 2007, LEADS management had noticed that taxes on its property had begun to increase dramatically. [Transcript Vol. I, p. 53]. On January 16, 2007, LEADS filed a tax exemption application with the County Assessor. [Exhibit 502]. The exemption listed sixteen vacant properties in the North Range Business Park. [Exhibit 502].

35. The application explained how the property was used:

This property is used in the community interest for the public purpose of economic development by a non-profit association. It is used in the recruitment of businesses or the expansion of business to Laramie County that result in job creation or significant investment. It is not used for the purpose of private gain or commercial business.

[Exhibit 502].

36. The application rested on this explanation of statutory authority:

Cheyenne LEADS, or properly the Cheyenne - Laramie County Corporation for Economic Development, is a benevolent association constituted as a public benefit non-profit corporation under Wyoming law. The public benefit purpose of the organization includes the development of real estate for the purposes of economic development. Wyoming State Statute 39-11-105(a)xxvi provides for the exemption of property of secret, benevolent and charitable societies or associations, to the extent that it is not used for private profit nor primarily for commercial purposes.

[Exhibit 502].

37. On March 19, 2007, the Assessor sent LEADS Assessment notices for the sixteen parcels, showing location, acreage, fair market value as of January 1, assessed value, and estimated tax for each parcel:

Location	Acres	Fair value	Assessed value	Tax (est.)
Lot 1, Block 1	29.06	581,200	55,214	3,644
Lot 2, Block 1	104.84	2,096,800	199,196	13,147
Lot 1, Block 2	11.15	223,000	21,185	1,398
Lot 2, Block 2	11.65	233,000	22,135	1,461
Lot 3, Block 2	12.15	243,000	23,085	1,524
Lot 4, Block 2	12.26	245,200	23,294	1,537
Lot 1, Block 3	11.15	223,000	21,185	1,398
Lot 2, Block 3	12.66	253,200	24,054	1,588
Lot 3, Block 3	14.40	288,000	27,360	1,806
Lot 4, Block 3	12.01	240,200	22,819	1,506
Lot 1, Block 5	39.17	783,400	74,423	4,912
Lot 2, Block 5	28.76	380,351	36,133	2,385
Lot 2, Block 4	12.97	171,528	16,295	1,075
Lot 3, Block 4	20.69	273,625	25,944	1,716
Lot 4, Block 5	30.13	602,600	57,247	3,778
Lot 4, Block 1	9.95	199,000	18,905	1,248
Total	373.00	$ 7,037,104	$668,476	$44,123

[Exhibit 502 (listing parcel numbers in the tax exemption application); Exhibit 504 (which lists the parcels in the above order); see Exhibit 159 for location of parcels].

38. LEADS had other vacant properties located in its first business park, the Cheyenne Business Parkway. [Exhibit 158]. It did not request tax exemption for those properties but planned to do so if successful in this case. [Transcript Vol. I, p.46].

39. Brenda Arnold is the Laramie County Assessor. [Transcript Vol. II, p. 369]. On March 7, 2007, Arnold denied the LEADS application for a tax exemption. [Exhibit 143; Transcript Vol. II, p. 371]. Arnold described the process she used to reach her decision. In doing so, she noted that her description of the lands as “commercial vacant” generally follows the nomenclatures associated with annual reports the county assessors must submit to the State Board of Equalization. [Transcript Vol. II, pp. 394-395; Exhibit 504; Rules, State Board of Equalization, Chapter 5, §§ 3(a)(iii), 6(a)(i), 6(a)(ii)(B), (D), (E), (F)]. We find that Arnold’s description of the properties as commercial vacant has no direct bearing on whether LEADS used its business park properties for commercial purposes.

40. Arnold first turned to the property taxation exemption statute, Wyo. Stat. Ann. § 39-11-105, and found nothing that supported approval of the application. [Transcript Vol. II, p. 371]. She then turned to Chapter 14 of the Rules of the Department of Revenue. [Transcript Vol. II, p. 371]. She did not feel that either the ownership or the use of the property fell within any of the provisions of the Rules. [Transcript Vol. II, p. 372]. For example, she noted there is a specific statutory exemption for property of the Wyoming Business Council, but nothing that “spells out the work of LEADS or the use of these properties.” [Transcript Vol. II, p. 396]. Further, specific exemptions related to governmental purposes do not include economic development. [Transcript Vol. II, p. 397]. She failed to find clear guidance in case law or in an attorney general’s opinion. [Transcript Vol. II, p. 372].

41. Arnold affirmed that none of the evidence presented by LEADS at the hearing of this matter had changed her opinion. [Transcript Vol. II, p. 373]. Arnold specifically noted she follows a presumption that property is taxable unless specifically exempted by law. [Transcript Vol. II, pp. 374, 399]. She reiterated that she could find nothing in law or statute that pertains to the functions of LEADS or the properties for which the exemption was requested. [Transcript Vol. II, p. 374]. In the end, she believes the legislature is responsible for determining that activities like those of LEADS should be exempted, and the legislature has not done so. [Transcript Vol. II, pp. 399-400]. She expressed concern about the correct treatment of a private firm holding vacant shovel-ready land, even though the firm may not be an economic development entity. [Transcript Vol. II, pp. 405-406].

42. Arnold found no anomaly in the possibility that a local government making grants to, or contracting with, LEADS may indirectly pay property taxes. [Transcript Vol. II, p. 402]. Property not used for a governmental purpose is not exempted from taxation even if owned by a governmental entity. [Transcript Vol. II, p. 402. She is correct on this point. In re Deromidi, 45 P.3d 1150, 1154 (Wyo. 2002)]. She cited the Archer research station and Belvoir grazing as examples in Laramie County. [Transcript Vol. II, p. 402]. Further, because property taxes are distributed to a variety of taxing entities including the state, community colleges, municipalities, fire districts, and special districts [Transcript Vol. II, p. 378], government entities owning properties are not simply paying taxes to themselves. [Transcript Vol. II, p. 403].

43. Although Arnold did not rely on Section 16 of Chapter 14 of the Department’s Rules for her decision, she believes the language of that rule – pertaining to undeveloped, unconstructed or unused property – requires the same result that she reached. [Transcript Vol. II, pp. 407-408]. As similar examples, she cited hospitals and churches which own vacant ground. [Transcript Vol. II, p. 408]. They are not entitled to an exemption until the land is actually used for the purpose exempted by law. [Transcript Vol. II, p. 408].

44. LEADS presented testimony to support the claim that LEADS is a charitable and benevolent organization.

45. Lynn Birleffi is the administrator of the Cheyenne-Laramie County Joint Powers Board, a governmental entity. [Transcript Vol. I, pp. 209, 211]. The mission of the Joint Powers Board is to promote economic development and enhance the quality of life in Laramie County. [Transcript Vol. I, pp. 210-212; Exhibit 147]. The Joint Powers Board considers economic development to be a public purpose, and the promotion of economic development to be one of its burdens. [Transcript Vol. I, pp. 211-212].

46. For many years, the Joint Powers Board has contracted with LEADS to help with the business parks, and for advice on other projects. [Transcript Vol. I, p. 213]. Contracts related to the North Range Business Park included a contract for engineering, geo-technical, and environmental work for the road template phase of water line construction, a contract to pay a portion of the Board of Public Utilities System Development Fees, and a contract to pay a portion of the Board of Public Utilities System Access Fees. [Exhibit 115]. Most of the relationship between the Joint Powers Board and LEADS has been contractual. [Transcript Vol. I, p. 220].

47. Birleffi placed a high value on LEADS services. Without the insight and leadership of LEADS, the Joint Powers Board would require additional staff and would have difficulty accomplishing its mission. [Transcript Vol. I, pp. 214-216, 222-223]. Birleffi also believed that a private entity like LEADS is better suited to implement economic development than a public entity, because “business listens to business.” [Transcript Vol. I, pp. 216, 223]. She believed that public-private partnerships are more successful at economic development than either the public sector or private sector alone. [Transcript Vol. I, p. 225].

48. Birleffi recalls one or two occasions when the Joint Powers Board has assisted LEADS with the payment of property taxes, using money generated by the city sales tax. [Transcript Vol. I, p. 217].

49. Birleffi viewed any profit that Wal-Mart may have realized from its land transaction with LEADS as helping the community because “it created jobs and so on.” [Transcript Vol. I, p. 226].

50. Jim Rittmueller is senior corporate project manager for VAE Nortrak North America, Inc. [Transcript Vol. II, p. 356]. He is based in Cheyenne. [Transcript Vol. I, p. 356]. VAE Nortrak services Class I railroads in North America, and has a Cheyenne plant because Cheyenne is located on the main line of the Union Pacific railroad. [Transcript Vol. II, pp. 357-359]. LEADS assisted VAE Nortrak in establishing its Cheyenne operation. However, VAE Nortrak is not located in a business park. [Transcript Vol. II, p. 360].

51. VAE Nortrak is a member of LEADS, but receives no direct benefits from its membership, since its “customer base is effectively 100 per cent outside the City of Cheyenne.” [Transcript Vol. II, p. 361]. Rittmueller believes LEADS is valuable because it brings in other businesses, and over the long term helps improve the total employment base from which VAE Nortrak draws its employees. [Transcript Vol. II, pp. 361-362]. VAE Nortrak has increased its hourly wages over time as the Cheyenne community has become more economically competitive. [Transcript Vol. II, p. 363].

52. Tucker Fagan suggested criteria to identify what property owned by local economic development organizations should qualify for tax exemption. [Transcript Vol. II, p. 340]. First, the property should be owned by a community development organization as defined in Wyo. Stat. Ann. § 9-12-301(a)(ii). [Id.]. Second, the owner must be an entity exempt under Section 501(c)(6) of the Internal Revenue Code. [Id.]. Third, the community development organization must be “in contract with a city, town or county.” [Id.]. Fourth, the project in question should have been “vetted through an entity like business ready communities” [Id.], which would assure that the organization has a viable plan in place. [Transcript Vol. II, p. 346].

53. Any portion of the Conclusions of Law: Principles of Law or the Conclusions of Law: Application of Principles of Law set forth below which includes a finding of fact may also be considered a Finding of Fact and, therefore, is incorporated herein by reference.

CONCLUSIONS OF LAW: PRINCIPLES OF LAW

54. The Wyoming Constitution provides for exemptions from taxation:

The property of the United States, the state, counties, cities, towns, school districts and municipal corporations, when used primarily for a governmental purpose, and public libraries, lots with the buildings thereon used exclusively for religious worship, church parsonages, church schools and public cemeteries, shall be exempt from taxation, and such other property as the legislature may by general law provide.

Wyo. Const., art. 15, § 12.

55. The Wyoming Constitution prohibits donations to individuals, associations, and corporations:

Neither the state nor any county, city, township, town, school district, or any other political subdivision, shall loan or give its credit or make donations to or in aid of any individual, association or corporation, except for necessary support of the poor, nor subscribe to or become the owner of the capital stock of any association or corporation, except that funds of public employee retirement systems and the permanent funds of the state of Wyoming may be invested in such stock under conditions the legislature prescribes. The state shall not engage in any work of internal improvement unless authorized by a two-thirds (2/3) vote of the people.

Wyoming Constitution, art. 16, § 6.

56. Wyoming Statute Annotated Section 39-11-105 provides:

(a) The following property is exempt from property taxation:

(i) Property owned by the United States the majority of which is used primarily for a governmental purpose. The following property is not owned and used primarily for a governmental purpose:

(A) Improvements placed on federal lands by persons for private or commercial use;

(B) Improvements furnished by the federal government to employees other than enlisted and officer personnel of the armed forces as a place of residence;

(C) Improvements and equipment rented, leased, loaned or furnished by the federal government to employees or groups of employees for the purpose of operating enterprises for which there is a service or admission charge;

(D) The equity or interest of the purchaser, his heirs, executors or assigns, in any real property being purchased from the United States government under a contract of sale, the value thereof to be determined by taking the market value of the real property and deducting the amount of principal and accrued interest owing to the United States on January 1 of the year for which the property is assessed;

(E) Lands entered under any act of congress when final proof of ownership has been issued before February 1 whether or not patent for the lands has been issued.

(ii) Property of the state of Wyoming owned and used primarily for a governmental purpose. The following property is not owned and used primarily for a governmental purpose:

(A) Improvements placed on state lands by lessees for private or commercial use;

(B) Improvements furnished by the state to employees as a place of residence;

(C) Improvements and equipment rented, leased, loaned or furnished by the state to employees or groups of employees for the purpose of operating enterprises for which there is a service or admission charge;

(D) The equity or interest of the purchaser, his heirs, executors or assigns, in any land being purchased from the state of Wyoming under a contract of sale, the value thereof to be determined by taking the market value of the lands and deducting the amount of principal and accrued interest owing to the state of Wyoming on January 1 of the year for which the property is assessed.

(iii) Property owned and used by counties primarily for a governmental purpose;

(iv) Property of a Wyoming school district owned and used primarily for a governmental purpose excluding teacherages;

(v) Property of Wyoming cities and towns owned and used primarily for a governmental purpose including:

(A) Streets and alleys and property used for the construction, reconstruction, maintenance and repair of streets and alleys;

(B) Property used to furnish sewer and water services;

(C) City or town halls, police stations and equipment, traffic control equipment, garbage collection and disposal equipment and lands and buildings used to service and repair the halls, stations or equipment;

(D) Parks, airports, auditoriums, cemeteries, golf courses, playgrounds and recreational facilities. Any charges for the use of the facilities shall not exceed the cost of operation and maintenance to qualify for the exemption;

(E) Personal property used exclusively for the care, preservation and administration of city or town property;

(F) Parking lots operated on a nonprofit basis.

(vi) Property of a public library used for library purposes;

(vii) Real property used exclusively for religious worship, church schools and church parsonages;

(viii) Property of a cemetery used for cemetery purposes;

(ix) Property of:

(A) A nonprofit organization, corporation, cooperative or association which is exclusively a water utility engaged in the production, gathering, transmission, distribution or sale of water for domestic use in Wyoming; and

(B) Any other organization, corporation, cooperative or association which is a water utility, if the property is used in the production, gathering, transmission, distribution or sale of water for domestic use in Wyoming.

(x) Fire engines, stations, including land upon which located, and equipment used to extinguish fires;

(xi) Personal property held for personal or family use excluding mobile homes required to be titled under W.S. 31-2-501 through 31-2-508;

(xii) Inventories;

(xiii) Vehicles subject to registration as defined by W.S. 31-4-101(a)(i) and 31-18-201(a) and registered as provided by law;

(xiv) Vehicles owned by the United States, state of Wyoming, counties, cities, towns, school districts and municipal corporations when used primarily for a governmental purpose;

(xv) Snowmobiles;

(xvi) Property of a museum or hospital district;

(xvii) In transit property;

(xviii) Property owned by the Wyoming community development authority excluding assessments for local improvements;

(xix) Property of charitable trusts;

(xx) Property used for pollution control to the extent provided by W.S. 35-11-1103;

(xxi) Property owned by the Black Hills Joint Power Commission;

(xxii) Property owned by a water and sewer district;

(xxiii) Property of a water conservancy district;

(xxiv) The property of veterans to the extent provided by W.S. 39-13-105;

(xxv) Property used for schools, orphan asylums or hospitals to the extent they are not used for private profit;

(xxvi) Property used by a secret, benevolent and charitable society or association, including any fraternal organization officially recognized by the University of Wyoming or any community college, and senior citizens centers to the extent it is not used for private profit nor primarily for commercial purposes by the society, association or center, or lessee thereof;

(xxvii) Property owned by a nonprofit society, foundation or association and used primarily as a community area center in which presentations in music, the arts and related fields are made in order to foster public interest and education therein, to the extent and in the proportion that receipts and revenues attributable to the above specified presentations bear to total receipts and revenues from the use and operation of the center including rentals and revenues received for the commercial use of the center not attributable to the above specified presentations;

(xxviii) Lands for mines or mining claims as prescribed by section 3, article 15, Wyoming constitution and defined by W.S. 39-11-102(c)(viii);

(xxix) Intangible personal property as provided by subsection (b) of this section, and except as specified in W.S. 39-13-103(b)(xi);

(xxx) Other property as provided by law;

(xxxi) All livestock including livestock in feed lots being fed for slaughter. This exemption applies only to ad valorem taxation. Any other special tax which is levied on livestock for a particular purpose based on the assessment value established by the department of revenue is not affected by this exemption;

(xxxii) Any improvement to residential property making entrance to or common facilities within the property accessible to a handicapped person;

(xxxiii) Real and personal property owned by an irrigation district created under W.S. 41-7-201 through 41-7-210 or a weed and pest control district created under W.S. 11-5-101 et seq. which is essential to the operation and maintenance of the district and which is used for no business or commercial activity unrelated to the operation and maintenance of the district;

(xxxiv) Mobile machinery registered under W.S. 31-18-203 through 31-18-208;

(xxxv) Property owned and used by a nonprofit corporation serving persons with disabilities, mental illnesses or substance abuse problems, or operating a family violence project to the extent it is not used for private profit nor primarily for commercial purposes;

(xxxvi) Real property owned by the Wyoming game and fish commission. Nothing in this exemption affects the special tax levied under W.S. 39-13-103(b)(xii);

(xxxvii) Property owned by a conservation district formed pursuant to the Wyoming Conservation Districts Law, W.S. 11-16-101 through 11-16-134.

Wyo. Stat. Ann. § 39-11-105(a).

57. Wyoming Statute Annotated Section 39-13-103(b) provides in part:

(b) Basis of tax. The following shall apply:

* * *

(ii) All taxable property shall be annually valued at its fair market value. Except as otherwise provided by law for specific property, the department shall prescribe by rule and regulation the appraisal methods and systems for determining fair market value using generally accepted appraisal standards;

* * *

(vii) The county assessor shall enter in books furnished for that purpose, from the tax schedule, the enumeration and fair market value of all taxable property assessed by him or his deputies. The county assessor shall enter the names of persons against whom property is assessed in the county assessment roll in alphabetical order. On or before the fourth Monday in April, or as soon thereafter as is practicable, the county assessor shall mail all assessment schedules to taxpayers at their last known address, and return the county assessment roll enumerating the property and value assessed by him or his deputies to the board of county commissioners together with a list stating the assessed value of taxable property within each school district, municipality or special district in the county….

58. The Department is required to confer with, advise and give necessary instructions and directions to the county assessors as to their duties, and to promulgate rules and regulations necessary for the enforcement of all tax measures. Wyo. Stat. Ann. § 39-11-102(c)(xvi) and (xix). In particular, except as provided by law for specific property, the Department “shall prescribe by rule and regulation the appraisal methods and systems for determining fair market value using generally accepted appraisal standards.” Wyo. Stat. Ann. § 39-13-103(b)(ii).

59. A county assessor has a corresponding duty to annually value property within the assessor’s county, and in doing so to “[f]aithfully and diligently follow and apply the orders, procedures and formulae of the department of revenue or orders of the state board of equalization for the appraisal and assessment of all taxable property.” Wyo. Stat. Ann. § 18-3-204(a)(ix).

60. The Board is required to “[d]ecide all questions that may arise with reference to the construction of any statute affecting the assessment, levy and collection of taxes, in accordance with the rules, regulations, orders and instructions prescribed by the department.” Wyo. Stat. Ann. § 39-11-102.1(c)(iv).

61. The Wyoming Supreme Court has previously summarized a number of useful precepts concerning statutory interpretation:

Statutes must be construed so that no portion is rendered meaningless. (citation omitted) Interpretation should not produce an absurd result. (citation omitted) We are guided by the full text of the statute, paying attention to its internal structure and the functional relation between the parts and the whole. (citations omitted) Each word of a statute is to be afforded meaning, with none rendered superfluous. (citation omitted) Further, the meaning afforded to a word should be that word’s standard popular meaning unless another meaning is clearly intended. (citation omitted) If the meaning of a word is unclear, it should be afforded the meaning that best accomplishes the statute’s purpose. (citation omitted) We presume that the legislature acts intentionally when it uses particular language in one statute, but not in another. (citations omitted) If two sections of legislation appear to conflict, they should be given a reading that gives them both effect. (citation omitted)

Rodriguez v. Casey, 2002 WY 111, ¶ 10, 50 P.3d 323, 326-327 (Wyo. 2002); quoted in Hede v. Gilstrap, 2005 WY 24, ¶ 6, 107 P.3d 158, 163 (Wyo. 2005).

62. It is an elementary rule of statutory interpretation that all portions of an act must be read in pari materia, and every word, clause and sentence of it must be considered so that no part will be inoperative or superfluous. Chevron U. S. A., Inc. v. Department of Revenue, 2007 WY 79, ¶ 15, 158 P.3d 131, 136 (Wyo. 2007). Also applicable is the oft-repeated rule it must be presumed the Legislature did not intend futile things. Hamlin v. Transcon Lines, 701 P.2d 1139, 1142 (Wyo. 1985). See also, TPJ v. State, 2003 WY 49, ¶ 11, 66 P.3d 710, 713 (Wyo. 2003).

63. Wyoming Statute Annotated Section 9-12-110 provides an exemption for the Wyoming Business Council:

The exercise of the powers granted by this [Wyoming Economic Development Act] constitutes the performance of an essential governmental function. The [Wyoming Business] council shall not be required to pay any taxes levied by any municipality or political subdivision of the state, other than to comply with the Wyoming employment security law and for assessments for local improvements, upon its property or monies. Except as provided herein, the council's monies and the income therefrom, shall be free from taxation of every kind by the state, municipalities and political subdivisions of the state.

64. Wyoming Statute Annotated Section 9-12-301(a)(ii) defines a community development organization:

"Community development organization" means a group of private citizens organized as a business entity authorized to do business in this state for the purpose of providing financing for new, existing, or expanding businesses and other economic or community development purposes throughout its community or county, and which may take equity positions and shall take security positions in its borrowers' businesses and appropriate personal guarantees from the owners thereof.…

65. Wyoming Statute Annotated Section 9-12-601 requires an opinion of the attorney general for loans under the Business Ready Communities program:

9-12-601. Wyoming business ready community program; purpose; creation; rulemaking.

(f) Loans provided under this article shall be adequately collateralized as determined by the council. No loans shall be made without the written opinion of the attorney general certifying the legality of the transaction and all documents connected therewith. An election approving the project and borrowing for the project by the qualified electors of the borrowing entity shall be required only if the attorney general determines such an election is otherwise required by law.

66. Administrative rules have the force and effect of law. Wyo. Dep’t of Revenue v. Union Pacific Railroad Co., 2003 WY 54, ¶ 18, 67 P.3d 1176, 1184 (Wyo. 2003); Painter v. Abels, 998 P.2d 931, 939 (Wyo. 2000). “The rules of statutory interpretation also apply to the interpretation of administrative rules and regulations.” State by and through Wyoming Department of Revenue v. Buggy Bath Unlimited, Inc., 2001 WY 27, ¶ 6, 18 P.3d 1182, 1185 (Wyo. 2001).

67. Chapter 14 of the Rules of the Department of Revenue contain a number of pertinent provisions:

Section 1. Purpose and scope; authority.

(a) These standards provide a reference to accepted definitions, procedures

and criteria for the exemption from assessment and taxation of real and personal property.

(b) All questions of exemption cannot be addressed and answered by rule.

These standards are to serve, together with applicable law and Departmental guidelines, as a ready reference to commonly encountered problems. The general law governing exemptions is found in Art. 15,12, Wyoming Constitution and W.S. 39-11-105.

Section 2. Considerations.

(a) For locally assessed property, county assessors are responsible for making

the initial determination of exemption.

(i) For publicly owned property the assessor begins with the legal

presumption the property is exempt.

(ii) For all other property, both real and personal, the exemption

process begins with the legal presumption the property is assessable utilizing the established principle that taxation is the rule, and exemptions are not presumed. Specific exemptions are provided by statute and constitution. In applying specific exemptions, the statutes and constitution shall be strictly construed. This does not mean, however, any possible doubt must be resolved to approve the exemption. Only if the doubt is well founded should the exemption be denied.

* * *

property should be exempt:

(i) Ownership of the property;

(ii) Use of the property; and/or

(iii) Type of property.

Section 3. Burden of proof.

(a) Except for publicly-owned property, the burden is on the owner to prove

the property meets exemption requirements. An affidavit or similar form is

recommended to establish basic facts on ownership, use and type of property.

Section 4. Publicly owned property - W.S. 39-11-105(a)(i)-(vi).

* * *

the direction of a municipality or downtown development authority is subject to ad valorem taxes unless otherwise exempt by specific provision of law. W.S. 15-9-222.

(d) Real or personal property within a project owned and leased by a

municipality or county under authorization of the "Industrial Development Projects Act" (W.S. 15-1-701 et seq.) is either taxable or exempt pursuant to specific provisions in W.S. 15-1-708.

* * *

Section 6. Church property - W.S. 39-11-105(a)(vii).

(a) The word "exclusively" shall not be construed so narrowly and literally

that it defeats the purpose of the exemption. Any use, however, other than one qualifying as religious worship under the statute must be de minimis (truly minor). As an example, the receipt of pay for temporary use of church property, when not needed or desired for religious services, is minor and will not affect the exemption.

(b) The real property exemption for religious worship, church schools and

church parsonages, includes land around such institutions reasonably necessary for convenient ingress and egress, light, air, or appropriate ornament. However, lots adjacent to a church building which are not reasonably needed for the convenient enjoyment of the building as a church are not exempt.

including educational, commercial, social or charitable, is not exempt. (Kings Ranch, #85-4)....

* * *

Section 8. Property of a museum or hospital district - W.S. 39-11-105(a)(xvi).

* * *

Not all property of a museum or hospital district is exempt. A museum district may only exempt property owned for museum purposes (W.S. 18-10-203). A hospital district may only exempt property owned for hospital purposes (W.S. 35-2-403). By definition, a nursing home owned by a hospital district is exempt as a "hospital purpose", while a house owned by a district for use by the hospital administrator is not exempt.

* * *

Section 10. Schools, orphan asylums and hospitals - W.S. 39-11-105(a)(xxv).

(a) The fundamental basis for this exemption is the benefit conferred upon the

public by schools, orphan asylums and hospitals, and the consequent relief, to some extent, of the burden upon the state to educate, care and advance the interests of its citizens. Such institutions thus confer a benefit upon the general citizenry of the state and render an essential service for which they are relieved of certain burdens of taxation.

(b) "Schools" means property owned by private educational institutions and

used primarily to provide "traditional education" equivalent to public education.

"Traditional education" means systematic instruction in useful branches of learning afforded through methods common to public schools and educational institutions, directed at an indefinite class of persons, which benefits the general public indirectly because it is of a nature ordinarily provided by the government at taxpayer expense.

(i) "Traditional" may include courses offering specialized instruction

such as those centered around teaching outdoor leadership and practical field experience to professionals in the field of outdoor education.

(ii) "Traditional" does not include continuing education or education

for the professional advancement of an organization's members.

(iii) An entity is rebuttably presumed to be a "school" if it possesses a

license and teacher certification from the Wyoming Department of Education, or evidence of courses for which college or university credit is given.

nursing home care, promote health care, or provide health related assistance to the

general public. In general the institution shall have policies which reflect recognized standards adopted by public health care institutions therefore lessening governmental responsibility in this area.

(i) The institution shall provide health related assistance to the general

public without regard to race, religion or gender.

(ii) Indigent care shall be afforded through admission to the institution

based on the clinical judgment of the physician, not upon the patient's financial ability or inability to pay.

(d) The property of schools, orphan asylums and hospitals shall not be used

for private profit (see Section 11(b)-(c) of this Chapter for relevant criteria).

(e) If a school, orphan asylum or hospital confers benefit only upon the

citizens of another state, its property is not exempt.

Section 11. Secret, benevolent and charitable societies and associations - W.S.

39-11-105(a)(xxvi).

(a) The following definitions apply:

(i) "Secret" means fraternal or lodge-type societies or associations

which are not necessarily secret or ritualistic.

(ii) "Charity" is a gift for the benefit of an indefinite number of persons in Wyoming, by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works. The fundamental basis for this exemption is the benefit conferred upon the public, and the consequent relief, to some extent, of the burden upon the state to care and advance the interests of its citizens.

(iii) "Benevolent" includes purposes which may be deemed charitable,

as well as acts dictated by kindness, good will, or a disposition to do good, the objects of which have no relation to the promotion of education, learning, or religion, the relief of the needy, the sick, or the afflicted, the support of public works, or the relief of public burdens. The term has wider significance than "charitable" as a legal tenet but shall be limited to purposes or activities of sufficient public importance and wide-spread social value.

(iv) The word "and" in the phrase "secret, benevolent and charitable

society or association" shall be understood in the disjunctive, not conjunctive.

(b) To be exempt under this section, the institution shall fulfill the above

definitions, and operate primarily for non-commercial purposes without any element of private profit.

is whether the entity has capital stock and a provision for dividends or profits, or whether it derives funds mainly from public and private charity, holding them in trust to be expended only for charitable and benevolent purposes.

(i) An institution may charge fees or engage in business, but no gain

or value may be distributed to members or stockholders. The officers and members may have no pecuniary interest in the property from which they gain. Payments made to officers, employees, contractors and suppliers shall be reasonable and not an indirect means of conferring gain or profit to private persons.

(ii) Revenue from fees paid by recipients of the charity or services shall be devoted only to the maintenance of the institution or its purposes.

(iii) A grant of sales/use tax exempt status by the State as a qualified charitable organization, or the grant of income tax exempt status by the Internal Revenue Service as a "501(c)(3)" or similar organization, is not binding in making the determination of whether the property of the entity is exempt from ad valorem taxation. Assessors may consider compliance with and operation under the tax exempt provisions of the Internal Revenue Service Code or an exemption from sale and use tax as a rebuttable presumption the institution's operations are reasonable and not for profit.

(iv) he matter of private profit concerns the way property is used, not solely the ownership thereof. The entire use of the property by all concerned shall be considered.

(d) The property at issue shall not be used primarily for a "commercial purpose", that is use of property or any portion thereof to provide services, merchandise, area or activities for a charge, which are generally obtainable from any commercial enterprise and are collateral to the purpose of the secret, benevolent and charitable society or association.

(i) Commercial purpose includes, without limitation, the operation for

charge of bars, restaurants, dancing areas, merchandise shops, housing, theaters and bowling alleys.

(ii) The use of property for commercial purpose is controlling, not

whether or not a profit is actually made nor how the revenue is ultimately used. If an activity is considered "commercial", it does not become "non-commercial" merely because the revenue derived from the commercial use is devoted to charitable or authorized purposes....

Section 12. Senior citizens' centers - W.S. 39-11-105(a)(xxvi).

(a) "Senior citizen centers" include property used to provide transportation,

information, and recreation facilities and other services which enable senior citizens to maintain their independence and avoid institutionalization.

(i) Senior citizen meal facilities or senior citizen housing complexes

which are part of a senior citizen center are exempt. For the exemption, nonprofit organizations providing meals or services to senior citizens shall possess certification of such activity by the division of public assistance and social services of the department of health and social services (or its successor).

(ii) Housing made available to senior citizens which is not part of a

senior citizens' center (such as a retirement home) is exempt only if the entity owning the property meets the criteria of a "charitable and benevolent society or association" in Section 11 of this Chapter. A retirement home is taxable if the residents provide their own furnishings and are charged for the cost of operating the home, including extra amenities enjoyed by the residents. Such a retirement home constitutes a commercial enterprise, even if operated on a non-profit basis with reduced charges.

(b) In order to be exempt under this section, the senior citizen center shall be

operated without any element of private profit and primarily for non-commercial purposes. The definitions and restrictions in Section 11(c)-(d) of this Chapter shall apply.

Section 12A. Nonprofit corporations - W.S. 39-11-105(a)(xxxv).

(a) In order to be exempt under this section, the corporation shall

demonstrate:

(i) income tax exempt status authorized by the Internal Revenue

Service as a "501(c)(3)" corporation; and

(ii) the property is owned and used by the corporation to serve persons

with disabilities, mental illness, substance abuse problems, or family violence problems;

and

(iii) the extent to which the property is operated without any element of

private profit, and primarily for non-commercial purposes as limited and defined by Section 11(c)-11(d) of this Chapter.

(b) Housing made available to persons with disabilities, mental illness,

substance abuse or family violence problems is not exempt if the residents provide their own furnishings, and are charged for the cost of operating the housing project, which constitutes a commercial enterprise, even if operated on a non-profit basis with reduced charges.

Section 13. Claimed exemptions on multiple authority.

Taxpayers may claim exemption on the basis of one or more statutory provisions. Careful analysis of the ownership and use of the property is required.

(a) For example, museum property may be exempt because: it is a public

municipal museum operated for a governmental purpose under W.S. 15-1-103 and W.S. 39-11-105(a)(v); it is a public county museum operated for a governmental purpose under W.S. 18-10-101 and W.S. 39-11-105(a)(iii); it is property of a special museum district under W.S. 18-10-201 and W.S. 39-11-105(a)(xvi); or it is owned by a non-profit entity qualifying as a charitable or benevolent association and operated on a noncommercial basis under W.S. 39-11-105(a)(xxvi). Under this example only one exemption is applicable based on ownership and operation.

* * *

Section 16. Undeveloped, unconstructed or unused property.

(a) For exemptions requiring a specific use to qualify, neither ownership of

the property nor stated objectives of the entity's organization is sufficient. To justify an exemption, actual and immediate use of the property consistent with the applicable exemption standard is required. The mere holding of the property by an entity for future or prospective use is not sufficient.

(b) An exemption may be granted once construction or use commences

consistent with the exempt purpose.

Rules, Wyoming Department of Revenue, Chapter 14, §§ 1, 2, 3, 4, 6, 8, 10, 11, 12, 12A, 13, 16, 20.

68. Section 20 of this Board’s Rules prescribe a litigant’s burdens of going forward and persuasion:

Except as specifically provided by law or in this section, the Petitioner shall have the burden of going forward and the ultimate burden of persuasion, which burden shall be met by a preponderance of the evidence. If Petitioner provides sufficient evidence to suggest the Department determination is incorrect, the burden shifts to the Department to defend its action. For all cases involving a claim for exemption, the Petitioner shall clearly establish the facts supporting an exemption. In proceedings involving the question of whether or not there is a taxable event under Wyoming law, the Petitioner shall have the burden of going forward and the Department shall have the ultimate burden of persuasion.

Rules, Wyoming State Board of Equalization, Chapter 2, § 20.

69. Rule 301 of the Wyoming Rules of Evidence addresses presumptions in civil actions and proceedings:

(a) Effect. In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes upon the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

(b) Inconsistent presumptions. If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight neither presumption applies.

70. The United States Internal Revenue Code defines certain tax-exempt organizations:

(a) Exemption from taxation.–An organization described in subsection (c)....shall be exempt from taxation under this subtitle....

* * *

(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for 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 distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

* * *

(6) Business leagues, chambers of commerce, real-estate boards, boards of trade, or professional football leagues (whether or not administering a pension fund for football players), not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.

26 U. S. C. § 501.

CONCLUSIONS OF LAW - APPLICATION OF PRINCIPLES OF LAW

71. The Wyoming constitution exempts certain specified property from taxation, and broadly authorizes the legislature to provide for the exemption of other property. Wyo. Const., art. 15 § 12. The legislature has used that authority to adopt thirty-seven subsections of exemptions, one of which is at issue in this case. Wyo. Stat. Ann. § 39-11-105(a). The Department of Revenue has adopted Rules to “provide a reference to accepted definitions, procedures and criteria for the exemption from assessment and taxation of real and personal

property,” and to serve “as a ready reference to commonly encountered problems.” Rules, Wyoming Department of Revenue, Chapter 14, § 1 (a), (b). These Rules are binding on the Assessor, and have the status of law. Conclusions, ¶¶ 58, 59, 66.

72. The Department’s Rules establish a presumption which applies in this case:

For all other property, both real and personal, the exemption process begins with the legal presumption the property is assessable utilizing the established principle that taxation is the rule, and exemptions are not presumed. Specific exemptions are provided by statute and constitution. In applying specific exemptions, the statutes and constitution shall be strictly construed. This does not mean, however, any possible doubt must be resolved to approve the exemption. Only if the doubt is well founded should the exemption be denied.

Rules, Wyoming Department of Revenue, Chapter 14, § 2 (a)(ii).

73. Section 2(a)(ii) generally echoes established case law. “‘When interpreting tax statutes, there is a presumption against granting exceptions and in favor of taxation.’” Laramie County Board of Equalization v. Wyoming State Board of Equalization, 915 P.2d 1184, 1190 (Wyo. 1996). However, the Wyoming Supreme Court has recently embraced greater nuance in its statement of the principle:

When it is said that exemptions must be strictly construed in favor of the taxing power, this does not mean that if there is a possibility of a doubt it is to be at once resolved against the exception. It simply means that if, after the application of all rules of interpretation for the purpose of ascertaining the intention of the legislature, a well founded doubt exists, then an ambiguity occurs which may be settled by the rule of strict construction.

Lance Oil & Gas Co. v. Wyo. Dept. of Revenue, 2004 WY 156, ¶ 29, 101 P.3d 899, 907 (Wyo. 2004), quoting Cooley, The Law of Taxation § 674, p. 1415 (1924).

74. The Rules describe considerations typically involved in determining whether a property should be exempt:

(i) Ownership of the property;

(ii) Use of the property; and/or

(iii) Type of property.

Rules, Wyoming Department of Revenue, Chapter 14, § 2 (c). We take this to be a summary of the character of the many exemptions, rather than a directive to an assessor. Exemption are typically framed in terms of ownership, e.g., Wyo. Stat. Ann. § 39-11-105(a)(xviii), (xxi), (xxii), (xxxvi), (xxxvii); use of property, e.g., Wyo. Stat. Ann. § 39-11-105(a)(vii), (xx); type of property, e.g., Wyo. Stat. Ann. § 39-11-105(a)(x), (xii), (xv); or some combination of ownership, use, and type, e.g., Wyo. Stat. Ann. § 39-11-105(a)(iii), (iv), (v), (xiv), (xxvii), (xxxv).

75. The County Assessor followed the analysis prescribed by the Rules. She considered the express provisions of the statute and the express provisions of the Rules. Findings, ¶ 40. In the absence of clear guidance from those sources, she turned to other authorities before reaching a final conclusion. Findings, ¶ 40. Like the County Assessor, the Board concludes there is no provision of the constitution, statute, or regulations which expressly exempts lands held by a private non-profit corporation devoted to economic growth and/or development. Wyo. Const., art. 15, § 12; Wyo. Stat. Ann. § 39-11-105(a); Rules, Wyoming Department of Revenue, Chapter 14.

76. The legislature has made express provision for some property related to community or economic development. Property of the Wyoming Community Development Authority is exempt, “excluding assessments for local improvements.” Wyo. Stat. Ann. § 39-11-105(a)(xviii). A mixture of explicit provisions is made for industrial development properties. Rules, Wyoming Department of Revenue, Chapter 14, § 4. The state agency most associated with economic development, the Wyoming Business Council, is generally exempted from taxation “other than to comply with the Wyoming employment security law and for assessments for local improvements.” Wyo. Stat. Ann. § 9-12-110; Wyo. Stat. Ann. § 39-11-105(a)(xxx). There is no similar exemption for property held by community development organizations, Wyo. Stat. Ann. § 9-12-301(a)(ii), of which LEADS is an example.

77. LEADS relies on a single subsection of the thirty-seven subsections of Wyo. Stat. Ann. § 39-11-105(a):

78. The Department’s Rules provide significant guidance concerning this exemption. Rules, Wyoming Department of Revenue, Chapter 14, § 11. This guidance extends to the most obvious question of interpretation, i.e., whether LEADS must in some way be secret. By Rule, “the word ‘and’ in the phrase ‘secret, benevolent and charitable society or association’ shall be understood in the disjunctive, not conjunctive.” Id., §11(a). To qualify for the exemption, LEADS does not have to be “secret or ritualistic,” or a “fraternal or lodge-type” association. Id., § 11(a)(i). This conclusion echoes the conclusion of a 1965 opinion of the Attorney General concerning property used in conjunction with building and operating retirement homes for senior citizens. Opinions of the Attorneys General of the State of Wyoming, Opinion 1, p. 12 (January 15, 1965).

79. LEADS must nonetheless be at least a benevolent and/or charitable association. Rules, Wyoming Department of Revenue, Chapter 14, § 11(b). The Rules define “charity,” as the root noun of the adjective “charitable,” and define “benevolent”:

(ii) "Charity" is a gift for the benefit of an indefinite number of persons in Wyoming, by bringing their minds or hearts under the influence of education

or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works. The fundamental basis for this exemption is the benefit conferred upon the public, and the consequent relief, to some extent, of the burden upon the state to care and advance the interests of its citizens.

(iii) "Benevolent" includes purposes which may be deemed charitable, as well as acts dictated by kindness, good will, or a disposition to do good, the objects of which have no relation to the promotion of education, learning, or religion, the relief of the needy, the sick, or the afflicted, the support of public works, or the relief of public burdens. The term has wider significance than "charitable" as a legal tenet but shall be limited to purposes or activities of sufficient public importance and wide-spread social value.

Id., § 11(a)(ii), (iii). We note that the definition of “charity” is consistent with case law on the subject. See Wes Brandt Foundation, Inc. v. Carper, 652 P.2d 564, 567 (Colo. 1982).

80. The Board follows authorities applying similar standards by looking first to the use of the property: “[e]ligibility for exemption is determined by examining the use to which the property is put, not the character of the owner.” Wes Brandt Foundation, Inc. v. Carper, 652 P.2d at 567. The exemption of subsection (a)(xxvi) case focuses on “property used,” rather than property owned, by a charitable or benevolent association. Compare examples of alternative exemptions in Conclusions, ¶ 74.

81. The LEADS property described in this case cannot fit under the definition of charity in the Rules. The Wyoming Attorney General has already determined that LEADS’ disposal of the property would not result in a gift, as the definition of “charity” requires. The Wyoming Attorney General reached this conclusion taking into account the potential benefit to the enterprises LEADS recruits using property in its business parks. The record includes an illustrative transaction which verges on the “donation” of land authorized by LEADS policy. Findings, ¶ 11. Wal-Mart paid LEADS $1,000 for unimproved property which had a fair market value of about $2,000,000 shortly thereafter. Findings, ¶ 28.

82. The Wyoming Attorney General nonetheless concluded LEADS made no donations with respect to the North Range Business Park. Instead, LEADS has engaged in, and proposes to engage in, quid pro quo transactions. LEADS and occupants of the Park exchanged promises of performance – “adequate consideration”– that reflected the expectations of the parties regarding the results of the transaction. Findings, ¶ 27. Specifically, LEADS sold land to Wal-Mart in anticipation of an investment commitment which would create primary jobs. If LEADS’ transfer of land to Wal-Mart had been a donation, i.e., an act of “charity,” the use of Business Ready Communities grants would have violated Article 16, section 6 of the Wyoming Constitution. Findings, ¶ 25; Conclusions, ¶ 55.

83. The relationship between LEADS and its intended recruits was plainly to be “imbued with an atmosphere of quid pro quo which negated the spontaneous and generous giving of talents and goods to those in need which characterizes true charity.” Wes Brandt Foundation, Inc. v. Carper, 652 P.2d at 568. LEADS may have served Cheyenne and Laramie County well by inducing Wal-Mart to locate in the North Range Business Park, but it did not do so with a gift, and consequently did not do so as an act of charity with the meaning of the Department’s Rule. To paraphrase Ms. Birleffi, when LEADS reached its agreement with Wal-Mart, it was an instance of business speaking to business in a language business understands. Findings, ¶ 47.

84. We reach a similar conclusion with respect to the whether the definition of benevolent applies. On its face, the definition of “benevolent” extends beyond “charity,” so LEADS could conceivably be a benevolent association even if it is not a charitable association. Benevolent “includes purposes which may be deemed charitable, as well as acts dictated by kindness, good will, or a disposition to do good.” Rules, Wyoming Department of Revenue, Chapter 14, § 11(b)(iii).

85. The opinion of the Wyoming Attorney General also leads us to conclude LEADS’ use of its property is not benevolent. LEADS does not dispose of its property as an act dictated by kindness, good will, or a disposition to do good. It disposes of its property to induce enterprises to locate in Laramie County, if and only if those enterprises meet LEADS’ standards for the creation of primary jobs. Findings, ¶ 11. The same atmosphere imbued with quid pro quo which negates a characterization of charity, Conclusions, ¶ 83, also negates a characterization of benevolence.

86. Because we conclude the property at issue does not qualify for an exemption in light of the definitions of charity and benevolence, we have no reason to address the application of other aspects of the same definitions, or other subsections of Rule 11. Specifically, it is not necessary for us to consider facets of LEADS’ position, such as whether the activities of LEADS relieve “the burden of government to care for and advance the interests of its citizens;” whether the activities and purposes of LEADS itself were “of sufficient public importance and wide-spread social value” to qualify as benevolent; the motivations of LEADS members; or the significance of other incidental benefits to LEADS members or locating businesses. [See generally, Cheyenne LEADS’ Post-Hearing Brief, pp. 8-14, 16-18]. Nor do we need to address whether LEADS property is commercial within the meaning of the exemption and Chapter 14, § 11(d) of the Department’s Rules. [Id., pp. 14-16].

87. We naturally decline to accept any proposed list of factors which would reach a result inconsistent with our conclusion. Findings, ¶ 52; [Cheyenne LEADS’ Post-Hearing Brief, pp. 7-8].

88. We have no reason to prejudge the results of a different use of property by a nonprofit Wyoming corporation formed to promote economic development. E.g., Maurer v. Denver Urban Economic Development Corporation, 781 P.2d 111 (Colo. Ct. App. 1989).

89. As a further and separate basis for our decision, the Board concludes Chapter 14, § 16 of the Rules applies to the LEADS property. The Rule states:

Section 16. Undeveloped, unconstructed or unused property.

(a) For exemptions requiring a specific use to qualify, neither ownership of

(b) An exemption may be granted once construction or use commences consistent with the exempt purpose.

The principle of immediate use for the exempt purpose is illustrated by Section 6(b) of the Department’s Rules, which provides that “lots adjacent to a church building which are not reasonably needed for the convenient enjoyment of the building as a church are not exempt.” Id., § 6(b).

90. Section 16 (a) of the Rules applies to “exemption requiring a specific use to qualify.” Id., §16(a). The exemption upon which LEADS relies, i.e., an exemption for “property used by a secret, benevolent and charitable society or association,” is such a specific use.

91. LEADS has taken considerable care to distinguish its use from charitable entities which hold property in contemplation of later use, where the later use would be consistent with the applicable exemption standard. In briefing prior to the hearing, LEADS stated:

....LEADS’ purpose, and the “use” to which it puts its property, includes providing “shovel-ready sites” to attract new businesses which will create jobs and tax base in order to benefit the community. This is the essence of “economic development,” which is a public purpose, benevolent and charitable.

[Cheyenne LEADS’ Pre-Hearing Brief, p. 22]. This theme was reiterated by LEADS counsel in closing argument:

MS. GUNDLACH: ....In the case of a church and a hospital, the exemption is being requested based on the future use when you’ve got vacant land and they’re going to put a church or a hospital on it. It’s being requested because of future use. LEADS isn’t doing that....We’re requesting an exemption based on the current use of the property. And it’s not the physical use. I mean, you can see from the picture in the assessor’s exhibits. There is no structure out there. There [are] no buildings....Based on it being used like a bargaining chip. You can’t pick up the land, but you can tell people. You can show them the deed. You can tell them it’s there. That’s how the land is being used.

And in Section 16(a) of Chapter 14 that you referred me to, Mr. Chairman, it says, “The mere holding of the property by an entity for future use is not sufficient.” This is a completely different case. It’s not the future use. It’s the current use of the property that we’re claiming the exemption for.

[Transcript Vol. II, pp. 482-483].

92. The distinction LEADS wishes to draw is unpersuasive.

93. Rule 16(a) requires us to consider the “actual and immediate use of the property consistent with the applicable exemption standard.” When the Board does so, it finds neither a “gift,” nor an act “dictated by kindness, good will, or a disposition to do good.” Rules, Wyoming Department of Revenue, Chapter 14, § 11(a)(ii),(iii); Conclusions, ¶¶ 81-85. Instead, LEADS was simply holding the business park properties in contemplation of later transactions.

94. We conclude LEADS is in the same position as other entities seeking a tax exemption based on an intended use of vacant property. LEADS distinguishes itself by arguing that its business park properties are bargaining chips presently held for the purpose of facilitating its ultimate charitable objective. We can readily imagine other charities making a similar argument – a church, for example, holding land that is available for building or for trading. In either case, the Department’s Rules require the assessor and this Board to regard holding “for future or prospective use” as insufficient. Rules, Wyoming Department of Revenue, Chapter 14, § 16(a).

95. In reaching this conclusion, we support the Assessor’s description of the property as commercial vacant property consistent with this Board’s Rules, Findings, ¶ 39, without reaching the factual question of whether LEADS is using the property for commercial purposes as prohibited by the exemption. Wyo. Stat. Ann. § 39-11-105(a)(xxvi). It is enough for us to focus on the actual and immediate use of the property, which O’Gara characterized as an “idle resource,” Findings, ¶ 32, and the fact that LEADS was at all times merely holding the property. Nothing about our conclusion requires us to anticipate whether the entities purchasing property from LEADS might themselves qualify for exemption. [See Cheyenne LEADS’ Post-Hearing Brief, p. 15].

96. The Board acknowledges case law allowing an exemption where construction is underway, representing an irrevocable commitment to purposes which qualify for a charitable exemption, or bona fide necessary preparation. Utah County Bd. of Equalization v. Intermountain Health Care, 725 P.2d 1357 (Utah 1986). There is no similar commitment in this case. Specifically, we conclude that infrastructure investments in roads, water, sewer, and legal dedications do not amount to a degree of charitable or benevolent commitment that changes our analysis. LEADS plainly retains the right to dispose of its business park properties in such time and on such terms as it deems advantageous. From the evidence in the record, the hallmark of final use is facility construction, and facility construction has been the responsibility of the enterprise which purchases property from LEADS.

97. Although we find for the Assessor, we do not accept all of the Assessor’s arguments. Specifically, the Assessor argued that the legislature had provided a specific tax exemption directed to the activities of the Wyoming Business Council, Wyo. Stat. Ann. § 9-12-110, but had made no similar provision for local community development organizations, defined in Wyo. Stat. Ann. § 9-12-301(a)(ii). Laramie County Assessor’s First Supplement to Preliminary Statement, section I.C. (pages unnumbered). As the Department’s Rules point out, “Taxpayers may claim exemption on the basis of one or more statutory provisions. Careful analysis of the ownership and use of the property is required.” Rules, Wyoming Department of Revenue, Chapter 14, § 13. The fact that the legislature chose to address the particular circumstances of the Wyoming Business Council does not, in and of itself, preclude an exemption for land used by a nonprofit Wyoming corporation formed to promote economic development.

ORDER

IT IS THEREFORE HEREBY ORDERED the decision of the Laramie County Assessor denying the Taxpayer’s request for tax exemptions for the property at issue is affirmed.

Pursuant to Wyo. Stat. Ann. §16-3-114 and Rule 12, Wyoming Rules of Appellate Procedure, any person aggrieved or adversely affected in fact by this decision may seek judicial review in the appropriate district court by filing a petition for review within 30 days of the date of this decision.

DATED this day of March, 2008.

STATE BOARD OF EQUALIZATION

_____________________________________

Alan B. Minier, Chairman

_____________________________________

Thomas R. Satterfield, Vice-Chairman

_____________________________________

Thomas D. Roberts, Board Member

ATTEST:

________________________________

Wendy J. Soto, Executive Secretary