[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Christian Voice of Cent. Ohio v. Testa, Slip Opinion No. 2016-Ohio-1527.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-1527

CHRISTIAN VOICE OF CENTRAL OHIO, APPELLANT, v. TESTA, TAX COMMR.,

ET AL., APPELLEES. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Christian Voice of Cent. Ohio v. Testa, Slip Opinion 

No. 2016-Ohio-1527.] 

Real-property taxation—Exemption for houses of public worship under R.C. 

5709.07(A)(2)—Exemption allowed for property used to operate Christian 

radio station because primary use of property is for public worship—

Decision of Board of Tax Appeals reversed. 

(No. 2014-1626—Submitted October 14, 2015—Decided April 14, 2016.) 

APPEAL from the Board of Tax Appeals, No. 2011-1446. 

____________________ 

KENNEDY, J. 

{¶ 1} This is an appeal from a decision of the Board of Tax Appeals 

(“BTA”) that affirmed the tax commissioner’s denial in 2011 of an exemption for 

real property located in Gahanna from which appellant, Christian Voice of Central 
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2

Ohio, operates a radio station. Until 2007, Christian Voice operated the station 

from offices located in New Albany. In 1991, the tax commissioner had granted 

an exemption for that property, reasoning that it was being “used for church 

purposes * * * under R.C. 5709.07.” In 2007, following the relocation of Christian 

Voice’s offices to Gahanna, a complaint was filed challenging the continued 

exemption of Christian Voice’s New Albany property. In a final determination 

issued in 2013, the tax commissioner denied the complaint, similarly reasoning that 

the property was “being used for church facilities.” 

{¶ 2} Meanwhile, in 2008, Christian Voice applied for the same exemption 

for its Gahanna property that its New Albany property had enjoyed for 17 years. 

According to the application, a building constructed on the Gahanna property 

contains “production studios used for the origination of certain religious 

programming, offices, assembly rooms and a chapel.” Christian Voice again 

sought exemption under R.C. 5709.07(A)(2), which relieves “[h]ouses used 

exclusively for public worship” and attendant lands from taxation. On this 

occasion, the tax commissioner denied the exemption, finding “no evidence that 

people assemble to worship together on the subject property” and reasoning that 

the exemption applies only “where people gather to profess their faith or to observe 

and participate in religious rituals or ceremonies.” 

{¶ 3} On appeal from the BTA’s affirmance of the tax commissioner’s final 

determination, Christian Voice advances three arguments: the decision to deny the 

exemption is unreasonable and unlawful when the primary use of the property is 

for public worship; the decision to ignore a property owner’s prior tax exemption 

violates the doctrine of collateral estoppel when no material facts or circumstances 

changed since the prior determination; and the decision to completely deny the 

exemption is unreasonable and unlawful because R.C. 5713.04 permits real 

property to be split into exempt and nonexempt parts if the part used in the exempt 

manner can be precisely delineated. 
January Term, 2016 

3

{¶ 4} We agree with Christian Voice’s first argument—that the primary use 

of the property is for public worship—and therefore reverse the decision of the 

BTA. Because we conclude that the BTA should have allowed the exemption under 

R.C. 5709.07(A)(2), the public-worship exemption, for the entire property, 

regardless of past determinations, we do not examine the second and third 

arguments asserted by Christian Voice. 

FACTUAL BACKGROUND

{¶ 5} According to testimony presented at the BTA hearing on May 29, 

2013, Christian Voice operates several1

 radio stations, including most prominently 

WCVO 104.9 FM, “The River.” The property at issue was acquired in May 2007 

to replace Christian Voice’s prior New Albany offices. 

{¶ 6} Christian Voice has had 501(c)(3) status since it was established in 

1964. There are no stockholders. According to Christian Voice’s 2008 exemption 

application, the Gahanna property is used to produce radio programming for the 

purpose of “furthering the gospel of Jesus Christ through Contemporary Christian 

Music and Preaching and Teaching radio programs.” 

{¶ 7} The property is a 2.184-acre parcel improved with a 16,783-squarefoot building built in 1998. Diagrams furnished by Christian Voice to the tax 

commissioner show two floors plus a basement. The basement consists primarily 

of a meeting room, the first floor contains a chapel and offices for administrative 

and program staff, and the second floor contains additional offices. 

{¶ 8} According to testimony and recent financial statements introduced at 

the BTA hearing, Christian Voice’s primary sources of revenue are (1) funds 

received from underwriters in exchange for advertising and (2) donations. The 

former relates to the sale of airtime on The River. Bill Montgomery, The River’s 

 

1

 According to Christian Voice’s 2008 exemption application, programming originating on the 

property at that time aired on nine radio stations. By the time of the BTA hearing in May 2013, 

Christian Voice was operating only three stations. 
SUPREME COURT OF OHIO

4

chief sales officer, testified that the sale of advertising is vital to the ministry of the 

station. Daniel Baughman, president and chief executive officer, testified that the 

station has “to generate that revenue ourselves. It takes money to do what we do to 

get the Gospel out there.” 

{¶ 9} The advertising is limited by Federal Communications Commission 

regulations to mentions of the supporting business’ names and telephone numbers; 

advertisements may not state the prices of their services or products. Montgomery 

testified that the station does not air advertisements that promote alcohol, lotteries, 

casinos, or adult businesses such as nightclubs. Additionally, the content of 

advertising is monitored to ensure that it is appropriate for children to hear. 

{¶ 10} About 95 percent of Christian Voice’s programming consists of 

Christian music and 5 percent of “talk.” Todd Stach, chief creative officer, 

described the music as “bible verses put to music,” explaining that artists convert 

old hymns into contemporary songs. He also stated that most of the songs 

“encourag[e] a vertical relationship with God.” 

{¶ 11} The River’s talk segments consist of pastoral programming. John 

Moriarty—the station’s full-time pastor, known as Pastor John—records oneminute devotional spots with contact information, inviting listeners to contact him 

for prayer or support. The River’s DJs also promote Pastor John’s counseling 

services on the air. In addition, on Sunday mornings, The River airs a three-hour 

syndicated program called “Keep the Faith.” Although it includes music, the 

program is, according to Baughman’s testimony, as “close to preaching and 

teaching as you can be,” helping listeners “get through life[’s] struggles.” 

{¶ 12} Christian Voice’s chapel features a collection of Christian books as 

well as stained-glass artwork depicting the life of Jesus Christ. Pastor John leads a 

prayer devotional with Christian Voice staff in the chapel every Monday, Tuesday, 

Thursday, and Friday morning to pray for intentions that listeners have submitted 

via Christian Voice’s website. On Wednesdays, he holds a Bible study in the chapel 
January Term, 2016 

5

for the staff. In addition, the pastor of Epic Church, a church located nearby, 

utilizes the chapel for pastoral counseling. The River airs regular announcements 

informing listeners that the chapel is open to them daily for private prayer. 

{¶ 13} Christian Voice’s basement meeting room is used regularly by 

groups and organizations with a religious focus, regardless of denomination. Epic 

Church uses the meeting room for several regular worship services, including a 

Sunday evening discipleship service, a Wednesday youth service, and a monthly 

service for the church’s leadership team. Alpha, a group described as an 

introduction to the Christian faith, also utilizes the meeting room. Boy Scout 

meetings are also held in this space. Christian Voice does not charge any of these 

organizations for their use of its chapel or meeting room. 

{¶ 14} The River is active in community outreach. Pastor John testified that 

part of The River’s ministry is doing work for the homeless—for example, by 

coordinating groups of volunteers at local food pantries. DJ Mary Harris testified 

that her off-air duties involve community outreach with various nonprofit 

organizations and individuals in need. She shared stories of locating a refrigerator 

and delivering it to a listener’s friend, collecting donations for a schoolteacher 

whose students needed clothes and shoes and delivering supplies to them, and 

collecting items for a family whose home had been destroyed by a fire. She also 

discussed the station’s involvement with an organization that assists women 

recovering from sexual trauma and drug addiction. David Baker, The River’s chief 

administrative finance officer, discussed the station’s material assistance to local 

crisis-pregnancy centers. 

PROCEDURAL HISTORY

{¶ 15} Christian Voice filed its application for exemption for tax year 2008 

on June 17, 2008. After the filing and the submission of requested supplemental 

information, the tax commissioner issued his determination on May 18, 2011. The 

commissioner cited BTA decisions holding that radio stations that broadcast 
SUPREME COURT OF OHIO

6

religious programming do not equate to “[h]ouses used exclusively for public 

worship” under R.C. 5709.07(A)(2). He also found that there was “no evidence 

that people assemble to worship together on the subject property used exclusively 

as a radio station.” The commissioner denied the exemption claim, and Christian 

Voice appealed to the BTA. 

{¶ 16} The BTA held a hearing at which Christian Voice presented ten 

witnesses and six exhibits, and the tax commissioner offered no witnesses and 

introduced exhibits consisting mostly of financial statements and tax filings. 

{¶ 17} The BTA issued its decision on August 22, 2014. The BTA 

acknowledged Christian Voice’s reliance on World Evangelistic Ent. Corp. v. 

Tracy, 96 Ohio App.3d 78, 644 N.E.2d 678 (1994), but distinguished that case as 

involving a station that was supported fully by donations without 

“advertising/underwriting” and that featured preaching and religious teaching on 

the air. BTA No. 2011-1446, 2014 Ohio Tax LEXIS 3942, 7-10 (Aug. 22, 2014). 

Under the circumstances, the BTA concluded that “the activities that occur at the 

subject property do not rise to [the] level” of “ ‘the open and free celebration or 

observance of the rites and ordinances of a religious organization.’ ” Id. at 11-12, 

quoting Faith Fellowship Ministries, Inc. v. Limbach, 32 Ohio St.3d 432, 435, 513 

N.E.2d 1340 (1987), and citing Jimmy Swaggart Evangelistic Assn. v. Kinney, 6th 

Dist. Wood No. WD-82-64, 1983 Ohio App. LEXIS 5732 (Mar. 18, 1983). The 

BTA therefore affirmed the commissioner’s denial of the application. 

{¶ 18} Christian Voice has appealed. 

ANALYSIS

Standard of Review 

{¶ 19} In reviewing a BTA decision, this court considers whether the 

decision was “reasonable and lawful.” R.C. 5717.04. Under this standard, we 

acknowledge that “ ‘[t]he BTA is responsible for determining factual issues and, if 

the record contains reliable and probative support for these BTA determinations,’ 
January Term, 2016 

7

” we will affirm them. (Brackets sic.) Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-

Ohio-5856, 856 N.E.2d 954, ¶ 14, quoting Am. Natl. Can Co. v. Tracy, 72 Ohio 

St.3d 150, 152, 648 N.E.2d 483 (1995). On the other hand, we “ ‘will not hesitate 

to reverse a BTA decision that is based on an incorrect legal conclusion.’ ” Id., 

quoting Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino, 93 Ohio St.3d 

231, 232, 754 N.E.2d 789 (2001). 

{¶ 20} The dispute between Christian Voice and the tax commissioner 

concerns not the underlying facts but whether those undisputed facts indicate that 

the property and attendant lands are a “[h]ous[e] used exclusively for public 

worship” and thus entitled to the property-tax exemption under R.C. 5709.07(A)(2). 

Therefore, this appeal presents a question of law, Brennaman v. R.M.I. Co., 70 Ohio 

St.3d 460, 466, 639 N.E.2d 425 (1994), and our review is not deferential but de 

novo, State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, 

¶ 9. 

Public-Worship Exemption 

{¶ 21} R.C. 5709.07(A)(2) exempts from real-property taxation “[h]ouses 

used exclusively for public worship, the books and furniture in them, and the 

ground attached to them that is not leased or otherwise used with a view to profit 

and that is necessary for their proper occupancy, use, and enjoyment.” 

{¶ 22} We have previously held that for purposes of R.C. 5709.07, “ ‘public 

worship’ means the open and free celebration or observance of the rites and 

ordinances of a religious organization.” Faith Fellowship, 32 Ohio St.3d at 435, 

513 N.E.2d 1340. In Faith Fellowship, three justices agreed that the Ohio 

Constitution, the basis from which the exemption originates, “contemplate[s] that 

the worship be a celebration of a religious rite in an open and free place and not the 

everyday activities of an individual which express devotion to his or her God.” Id. 

at 436. To qualify under the public-worship exemption of R.C. 5709.07, the real 

property “must be used in a principal, primary, and essential way to facilitate the 
SUPREME COURT OF OHIO

8

public worship.” Id. at paragraph two of the syllabus. While Justice Lanzinger’s 

dissenting opinion may not be able to accept that “exclusively” means “primarily,” 

this is the interpretation of R.C. 5709.07 established by this court and applied for 

almost 30 years. See also Full Gospel Apostolic Church v. Limbach, 46 Ohio St.3d 

195, 196, 546 N.E.2d 403 (1989); Grace Cathedral, Inc. v. Testa, 143 Ohio St.3d 

212, 2015-Ohio-2067, 36 N.E.3d 136, ¶ 30. This interpretation is also applied by 

the tax commissioner and the BTA to determine whether property is exempt 

pursuant to R.C. 5709.07. See Grace Cathedral, Inc. v. Testa, BTA No. 2012-2168, 

2014 Ohio Tax LEXIS 963, 4-5 (Feb. 12, 2014). Although Justice Lanzinger seeks 

to limit the application of the syllabus language in Faith Fellowship “to those 

auxiliary buildings or portions of buildings * * * when there existed a primary 

building used exclusively for public worship,” dissenting opinion at ¶ 95, the 

holding is devoid of any such limiting language. Had the Faith Fellowship court 

intended “principal, primary, and essential” to apply only to the determination of 

whether auxiliary buildings or portions of buildings qualified for exemption 

pursuant to R.C. 5709.07, it could have easily added this qualifying language. But, 

it did not. 

{¶ 23} Christian Voice relies on World Evangelistic, 96 Ohio App.3d 78, 

644 N.E.2d 678, and the tax commissioner relies on Jimmy Swaggart, 6th Dist. 

Wood No. WD-82-64, in support of their respective positions. We conclude that 

neither decision adequately resolves the instant matter. 

{¶ 24} Guidance for whether Christian Voice’s Gahanna property qualifies 

under the public-worship exemption of R.C. 5709.07(A)(2) is instead found in 

Maumee Valley Broadcasting Assn. v. Porterfield, 29 Ohio St.2d 95, 279 N.E.2d 

863 (1972). The Maumee Valley Broadcasting Association was a nonprofit 

religious corporation that owned land upon which a broadcasting studio and 120-

person auditorium were located. The tax commissioner argued that Maumee was 

not entitled to an exemption from sales and use taxes under R.C. 5739.02 because 
January Term, 2016 

9

it was a radio station and not a “church” within the meaning of that statute. We 

disagreed and advanced a holistic approach to determining whether an organization 

qualifies as a church: 

With a view to substance, we are of the opinion that the [tax 

commissioner]’s isolation of the radio station from the total picture 

is unwarranted by the evidence in this case. The evidence amply 

shows that this facility merely implements the religious objectives 

of the organization. The character of any nonprofit corporation must 

be found in its motives, its charter, its purposes, its methods, and its 

operation. Here, the appellee, like most churches, has dedicated all 

its land and buildings to charity and religion, and the operation of 

the radio station is not alone sufficient to change the underlying 

foundation of the corporation. Within the scope of common 

understanding, the appellee has demonstrated by evidence the 

necessary attributes of a church. 

Id. at 97-98. While Maumee involved sales and use taxes, its analysis is applicable 

to real-property-tax exemptions. 

{¶ 25} After our decision in Faith Fellowship, the General Assembly 

amended R.C. 5709.07, adopting a definition of “church” that embodied our prior 

case law. See Am.S.B. No. 71, 117 Ohio Laws, Part I, 147, 148. That definition 

remains the same today: a “church” is “a fellowship of believers, congregation, 

society, corporation, convention, or association that is formed primarily or 

exclusively for religious purposes and that is not formed for the private profit of 

any person.” R.C. 5709.07(D)(1). In enacting this definition, effective after Faith 

Fellowship, the General Assembly recognized that in modern society, “public 

worship involves more than formal religious rites and ordinances.” Id. at 438 
SUPREME COURT OF OHIO

10 

(Locher, J., joined by Wright and Brown, JJ., concurring and dissenting in part). 

As Justice Locher stated, “[t]he life style of the people of Ohio has changed a great 

deal over the years, and the nature of public worship has changed with it. Formal 

church services today constitute only a portion of the worship experience, which 

now encompasses religious retreats, camps, athletics, and other social and 

recreational activities.” Id. at 438-439. 

{¶ 26} As a church is but one type of house of public worship, the definition 

of church in R.C. 5709.07(D)(1) and the related case law must be considered when 

determining whether Christian Voice qualifies under the public-worship exemption 

of R.C. 5709.07(A)(2). To find that an organization embodies the attributes of a 

church sufficiently to satisfy R.C. 5709.07(D)(1) but to conclude that that 

organization does not operate as a “[h]ous[e] used exclusively for public worship” 

for purposes of R.C. 5709.07(A)(2) is incongruous. 

{¶ 27} Christian Voice is a corporation with 501(c)(3) status that conducts 

nondenominational religious activities through its broadcasts and on its premises. 

Devotional spots are aired throughout the day on The River, and a three-hour 

program that preaches a Christian message of hope and encouragement is 

broadcasted on Sunday mornings. DJs inform listeners of the availability of 

pastoral counseling and that the chapel is open to the public for private prayer. 

{¶ 28} The majority of Christian Voice’s broadcasts on The River are 

devoted to contemporary Christian music. The fact that Christian music makes up 

the majority of the broadcasting strengthens, not weakens, Christian Voice’s 

argument that its purpose is religious. “[M]usic is a vital means of expressing and 

celebrating those beliefs which a religious community holds most sacred. [It] is an 

integral part of many different religious traditions.” Equal Emp. Opportunity 

Comm. v. Roman Catholic Diocese of Raleigh, 213 F.3d 795, 802 (4th Cir.2000). 

“[T]he inspirational appeal of religion in the * * * guis[e] [of music] is often 

stronger than in forthright sermon.” Illinois ex rel. McCollum v. School Dist. No. 
January Term, 2016 

11

71 Board of Edn., 333 U.S. 203, 236, 68 S.Ct. 461, 92 L.Ed. 649 (1948) (Jackson, 

J., concurring). 

{¶ 29} Christian Voice employs Pastor John as a full-time minister. He and 

other Christian Voice staff members gather on a regular basis in the on-site chapel 

to pray for intentions that listeners have submitted. He also leads Bible study on a 

weekly basis in the chapel, and counseling services are available there to anyone 

who is in need. 

{¶ 30} Christian Voice is also active in the community, performing acts of 

charity. It partners with a number of charitable organizations to provide assistance 

to the less fortunate. It also works directly with listeners who contact its station 

seeking assistance. 

{¶ 31} Finally, Christian Voice provides its chapel and basement meeting 

room to the public regardless of denomination and without seeking compensation. 

The meeting room is used regularly by religious and charitable groups for worship 

services and religious discussion as well as for Boy Scout meetings. 

{¶ 32} Christian Voice has presented evidence demonstrating that it is a 

corporation that was formed primarily or exclusively for religious purposes and not 

for the private profit of any person. See R.C. 5709.07(D)(1). Similar to Maumee 

Valley, Christian Voice “has dedicated all its land and buildings to charity and 

religion, and the operation of the radio station is not alone sufficient to change the 

underlying foundation of the corporation. * * * [It has] the necessary attributes of 

a church.” Maumee, 29 Ohio St.2d at 98, 279 N.E.2d 863. Accordingly, it follows 

that Christian Voice operates as a “[h]ous[e] used exclusively for public worship” 

under R.C. 5709.07(A)(2). 

{¶ 33} In previously exempting Christian Voice’s New Albany property 

under R.C. 5709.07(A)(2), the tax commissioner relied upon the fact that Christian 

Voice has the attributes of a church. In 1991, the tax commissioner granted the 

exemption, “find[ing] that the real property * * * is used for church purposes.” 
SUPREME COURT OF OHIO

12 

(Emphasis added.) In 2013, almost two years after denying the exemption for the 

Gahanna parcel, the tax commissioner approved the continued exemption for the 

New Albany parcel, finding that that property “satisfies the requirements for 

exemption by reason of being used for church facilities.” (Emphasis added.) 

{¶ 34} Even if true, the tax commissioner’s position that a physical 

assemblage of persons does not engage in worship activity on Christian Voice’s 

Gahanna property would not preclude the conclusion that Christian Voice is a 

church within the meaning of the statute. R.C. 5709.07(D)(1) does not require a 

congregation or worship activity; instead, its concern is whether the organization 

has a primarily religious purpose and is not for profit. We have also rejected the 

requirement that an organization must have a united body of communicants to be a 

church when the organization exhibits the essential qualities of a church. Maumee 

at 98. 

{¶ 35} Finally, the BTA stated in its decision that even if Christian Voice’s 

broadcasts and other activities could be considered “public worship,” the sale of 

on-air advertising is not public worship but part of a commercial radio enterprise’s 

operations. The BTA’s focus on the sale of advertising is without support in R.C. 

5709.07, which prohibits exemption for property being used “with a view to profit,” 

R.C. 5709.07(A)(2), (3), and (4), and for a church that was “formed for the private 

profit of any person,” R.C. 5709.07(D)(1). Christian Voice is a nonprofit 

corporation that sells on-air advertising to continue its ministry. It was not formed 

for private profit and its property is not being used to generate a profit. To the 

contrary, the revenue that is generated is for the religious mission of the 

corporation. In this respect, Christian Voice is no different from a church that sells 

advertising on weekly bulletins or on banners at church functions to raise revenue 

that allows the church to continue its religious ministry. The BTA’s position on 

revenue erodes the standing of traditional religious institutions as churches and 

houses of public worship. 
January Term, 2016 

13

{¶ 36} The Chief Justice’s dissenting opinion contends that we “ignor[e] 

the well established rule in Ohio that ‘it is the use of the property and not the use 

of the proceeds derived therefrom’ that determines whether a tax exemption is 

conferred.” Dissenting opinion at ¶ 77, quoting Columbus Youth League v. Cty. 

Bd. of Revision, 172 Ohio St. 156, 158, 174 N.E.2d 110 (1961). However, we have 

only applied this rule in the context of the charitable-use exemption under R.C. 

5709.12—not the public-worship exemption under R.C. 5709.07(A)(2). The 

dissent’s attempt to extrapolate this rule into the public-worship exemption lacks 

support in our case law. The Ohio cases referenced by the dissent are neither 

factually similar—none involved a Christian radio station that exhibited the 

attributes of a church—nor present the current legal issue—application of the 

public-worship exemption. See Columbus Youth League, 172 Ohio St. 156, 174 

N.E.2d 110 (affirming denial of charitable-use exemption for baseball stadium 

owned by charitable institution and leased to professional baseball club because the 

property was not used exclusively, or even primarily, for charitable purposes); 

Incorporated Trustees of Gospel Worker Soc. v. Evatt, 140 Ohio St. 185, 188, 42 

N.E.2d 900 (1942) (affirming denial of charitable-use exemption for the part of 

charitable institution’s property that was used as living quarters for employees of 

religious printing and publishing establishment); Lutheran Book Shop v. Bowers, 

164 Ohio St. 359, 361, 131 N.E.2d 219 (1955) (to qualify for charitable-use 

exemption under R.C. 5709.12, the test is the present use of the property rather than 

the ultimate use of proceeds received from the property); Zindorf v. Otterbein 

Press, 138 Ohio St. 287, 34 N.E.2d 748 (1941) (holding that not-for-profit 

publishing corporation’s use of property was not exclusively for charitable 

purposes when more than 40 percent of total revenues came from commercial 

printing). Notably, there are no Ohio cases in which we have applied this rule in 

the context of R.C. 5709.07(A)(2). The Chief Justice’s reliance in her dissent on 

out-of-state authorities is also unavailing as those decisions interpret Illinois and 
SUPREME COURT OF OHIO

14 

Alaska statutes, each of which has different language from R.C. 5709.07(A)(2). 

See dissenting opinion at ¶ 78, citing Three Angels Broadcasting Network, Inc. v. 

Dept. of Revenue, 381 Ill.App.3d 679, 697, 885 N.E.2d 554 (2008), and Nome v. 

Catholic Bishop of N. Alaska, 707 P.2d 870, 879 (Alaska 1985). 

{¶ 37} Moreover, our analysis focuses on the exclusive use of the property. 

In other words, we have considered how the property is primarily used. See Grace 

Cathedral, 143 Ohio St.3d 212, 2015-Ohio-2067, 36 N.E.3d 136, at ¶ 18 (resolution 

of an exemption claim pursuant to R.C. 5709.07(A)(2) focuses on whether the 

primary use of the property is public worship). As detailed above, the record clearly 

demonstrates that the primary use of Christian Voice’s land and building is for 

church purposes. Accordingly, Christian Voice uses its property “exclusively for 

public worship” under R.C. 5709.07(A)(2). 

{¶ 38} In reaching this conclusion, the Chief Justice’s dissent accuses us of 

blatant activism. Dissenting opinion at ¶ 47. However, the charge of activism is 

misdirected and gratuitous as our conclusion gives entire effect to R.C. 

5709.07(A)(2), is supported by relevant case law, and reaches the same conclusion 

that the tax commissioner reached in two separate final determinations issued 21 

years apart, one of which was issued after the determination at issue in this appeal. 

{¶ 39} The tax commissioner’s failure to consider whether Christian Voice 

exhibits the essential qualities of a church in determining whether it is a “[h]ous[e] 

used exclusively for public worship” resulted in an overly narrow construction 

based on an incorrect legal conclusion. We agree with Christian Voice’s first 

argument—namely, that the primary use of its property is for public worship. 

Because we allow the exemption under R.C. 5709.07(A)(2), we do not address 

Christian Voice’s remaining arguments.

CONCLUSION

{¶ 40} Christian Voice’s Gahanna property qualifies for the property-tax 

exemption for “[h]ouses used exclusively for public worship” under R.C. 
January Term, 2016 

15

5709.07(A)(2). The decision of the BTA is reversed, and the exemption is allowed 

for tax year 2008 in accordance with the application filed in this case in that year. 

Decision reversed. 

PFEIFER, O’DONNELL, and FRENCH, JJ., concur. 

O’CONNOR, C.J., dissents with an opinion that LANZINGER, J., joins. 

LANZINGER, J., dissents with an opinion that O’NEILL, J., joins in part. 

_________________ 

O’CONNOR, C.J., dissenting. 

{¶ 41} In this appeal, appellant, Christian Voice of Central Ohio, asserts 

that it established that its real property, which is located in Gahanna and serves 

primarily as a radio broadcast station, satisfies the “exclusive use” requirement to 

qualify for tax-exempt status for “[h]ouses used exclusively for public worship” 

under R.C. 5709.07(A)(2). 

{¶ 42} The majority frames the issue before us as whether appellant’s 

broadcast of “adult contemporary Christian” music mystically transforms its radio 

station into a tax-exempt house of worship. If that framing were proper, we would 

face a church-state issue that poses complex constitutional conundrums. See Young 

Life Campaign v. Patino, 122 Cal.App.3d 559, 565, 176 Cal.Rptr. 23 (1981). But 

the question before us is far more simple and mundane: Is appellant entitled to a 

tax exemption on real property that contains a radio broadcast station that produces 

millions of dollars in revenue? That question should be answered according to this 

state’s law of taxation, which is meant to apply equally to all Ohioans. 

{¶ 43} The principle underlying Ohio tax law is that all Ohioans must 

equally bear the burdens of taxation and, therefore, that all real property is subject 

to taxation except in the limited circumstances in which the General Assembly has 

granted tax exemptions. R.C. 5709.01; Seven Hills Schools v. Kinney, 28 Ohio 

St.3d 186, 503 N.E.2d 163 (1986); Kroger Co. v. Schneider, 9 Ohio St.2d 80, 83, 

223 N.E.2d 606 (1967), citing Exchange Bank of Columbus v. Hines, 3 Ohio St. 1, 
SUPREME COURT OF OHIO

16 

15 (1853). The property owner bears the burden of establishing entitlement to an 

exemption, which is conferred by statute, and exemption provisions are construed 

strictly to ensure fairness to all. Natl. Tube Co. v. Glander, 157 Ohio St. 407, 105 

N.E.2d 648 (1952), paragraph two of the syllabus; Cincinnati College v. State, 19 

Ohio 110, 115 (1850). In all doubtful cases, exemptions must be denied. A. 

Schulman, Inc. v. Levin, 116 Ohio St.3d 105, 2007-Ohio-5585, 876 N.E.2d 928, 

¶ 7. These basic rules are designed to ensure that all Ohioans are burdened equally 

by taxation. Lutheran Book Shop v. Bowers, 164 Ohio St. 359, 362, 131 N.E.2d 

219 (1955); Watterson v. Halliday, 77 Ohio St. 150, 171, 82 N.E. 962 (1907). 

{¶ 44} Appellant seeks the statutory exemption provided to “[h]ouses used 

exclusively for public worship * * * and the ground attached to them that is not 

* * * used with a view to profit.” R.C. 5709.07(A)(2). 

{¶ 45} Based on a careful review of the record in this case, measured against 

our legal precedent, the Board of Tax Appeals found that the property in question 

is not tax-exempt as a house used exclusively for public worship. Instead, it 

concluded, quite unremarkably, that the property was used to operate a radio station 

and thus was not exempt under R.C. 5709.07(A)(2). 

{¶ 46} Our task is a limited one: We are to review the BTA’s decision and 

uphold it if it is reasonable and lawful. R.C. 5717.04; Seven Hills Schools, 28 Ohio 

St.3d at 186-187, 503 N.E.2d 163. In doing so, the law requires that “we indulge 

no presumption favorable to [tax] exemptions,” Incorporated Trustees of Gospel 

Worker Soc. v. Evatt, 140 Ohio St. 185, 188, 42 N.E.2d 900 (1942), and demands 

that even if we are sympathetic to “appellant’s desire to acquire tax exempt status 

for a radio station which provides inspiration to so many,” we may not “create new 

categories for tax exemption; that is the job more properly left to the legislature,” 

Jimmy Swaggart Evangelistic Assn. v. Kinney, 6th Dist. Wood No. WD-82-64, 

1983 Ohio App. LEXIS 5732, 6 (Mar. 18, 1983). 
January Term, 2016 

17

{¶ 47} Nevertheless, the majority here announces a new and overly broad 

interpretation of the exemption provision in R.C. 5709.07(A)(2), with an analysis 

that hints at dispensation for perceived religious freedoms, majority opinion at 

¶ 35-36, but which is ultimately based on inapposite case law flown in on a wing 

and a prayer. I dissent from that blatant activism, which reaches a result favorable 

to this appellant, to the burden of every other Ohio taxpayer. 

{¶ 48} I would hold that the tax commissioner properly denied tax-exempt 

status under R.C. 5709.07(A)(2). I would also deny on the merits appellant’s 

argument based on collateral estoppel and reject as waived appellant’s partialexemption claim. 

ANALYSIS

Appellant 

{¶ 49} Let us first consider appellant. 

{¶ 50} Appellant operates on a multimillion-dollar annual budget. 

{¶ 51} The property for which it seeks a tax exemption includes a building 

that encompasses nearly 17,000 square feet and contains “production studios used 

for the origination of certain religious programming, offices, assembly rooms and 

a chapel.” The religious programming offered by appellant is almost entirely “adult 

contemporary Christian” music that appellant obtains from music-industry sources 

and monitors carefully for ratings. Appellant does not broadcast prayer or church 

services. Other than music (and advertisements), listeners are offered only a 60-

second devotional “spot,” which is run “cyclically throughout the day,” and 

appellant’s DJs’ attempts to “shar[e] their lives spiritually” on the air. 

{¶ 52} The chapel occupies a minute portion of the facility, a 25-by-15-foot 

room, which is approximately 375 square feet—two percent of the total square 

footage of the structure. Although appellant’s listeners are invited to use the chapel, 

there are no regular worship services in it, and its use by those seeking religious 

guidance is rare. Indeed, appellant has conceded that the use of the chapel is de 
SUPREME COURT OF OHIO

18 

minimis. And although the majority makes a point of noting the work of “Pastor 

John,” a minister and DJ employed by appellant, there is absolutely nothing in the 

record establishing that he uses the chapel to lead religious services for the public. 

{¶ 53} Appellant emphasizes that a meeting room in the basement is open 

to churches and other organizations for use, free of charge. For example, a local 

church uses the room for a weekly youth-group meeting and for Sunday evening 

services. But the record is devoid of any showing that other groups use the building 

for religious purposes. In fact, many of those who visit, including members of the 

Boy Scouts of America and children who are home-schooled, tour the building for 

educational purposes rather than for religious ones. 

{¶ 54} To the extent that appellant has a flock, that flock is its on-air 

audience, which includes those who tune in from their homes, motor vehicles, or 

workplaces. Though the flock numbers about a quarter of a million people, the 

great majority of appellant’s income—about two-thirds—is derived from 

advertising revenue and the rental of appellant’s broadcasting towers.2

 It is not a 

bad business, evidently; appellant secures approximately two million dollars in 

annual revenue from the advertisements that it broadcasts between the faith-based 

songs on its playlist. 

{¶ 55} Appellant nevertheless asserts that its use of the property is for the 

purpose of “furthering the gospel of Jesus Christ through Contemporary Christian 

Music and Preaching and Teaching radio programs.” The chief sales officer of the 

broadcasting corporation contends that the sale of advertising is “vital to the 

furtherance of the ministry of the radio station.” And appellant’s chief executive 

officer explains, “It takes money to do what we do to get the Gospel out there.” 

 

2

 Listeners apparently contribute about one-third of appellant’s income. Appellant also allows a 

local church to use the property twice weekly for services. Although appellant does not charge that 

church for rent, the church makes weekly contributions to appellant. 
January Term, 2016 

19

{¶ 56} As far as economic principles go, those statements may be truthful. 

But they neither equate with the law of taxation, nor are they unassailable religious 

principles. Quite the contrary. Even assuming that appellant’s programming is 

“bible verses put to music,” majority opinion at ¶ 10, appellant is not unique in that 

regard. As the majority admits, music is integral to many religious traditions. Id.

at ¶ 28, citing Equal Emp. Opportunity Comm. v. Roman Catholic Diocese of 

Raleigh, 213 F.3d 795, 802 (4th Cir.2000). 

{¶ 57} References to music, including singing and the use of musical 

instruments, appear throughout the Bible. See, e.g., Isaiah 12:5; Psalms 9:2, 11; 1 

Chronicles 13:8. And references to the Bible and other religious texts are often the 

bases of great works by musical artists, even those considered outside the 

contemporary Christian music genre. Consider, for example, Pete Seeger’s Turn! 

Turn! Turn! (To Everything There Is A Season), which was made famous by The 

Byrds in the 1960s but is, essentially, a restatement of the Book of Ecclesiastes. 

Cohn, The Byrds’ Turn! Turn! Turn! TURNS 50 (Dec. 4, 2015), 

http://www.biography.com/news/the-byrds-turn-turn-turn-facts-anniversary 

(accessed Mar. 4, 2016). Similarly, other great musicians have found comfort, 

solace, and faith in music they created based on their own interpretations of 

religious texts,3

 as Andrew Lloyd Webber did with Joseph and the Amazing 

Technicolor Dreamcoat and Jesus Christ Superstar. See Coulson, They’re Playing 

Our Song! The Promise and the Perils of Music Copyright Litigation, 13 J. Marshall 

Rev. Intell. Prop. L. 555, 563 (2014); http://www.jesuschristsuperstar.com/about/ 

 

3

 The majority relies, in part, on Justice Jackson’s concurring opinion in McCollum, which forbade 

the states from utilizing tax-supported public school systems “in aid of religious instruction,” Illinois 

ex rel. McCollum v. School Dist. No. 71 Bd. of Edn., 333 U.S. 203, 204-205, 68 S.Ct. 461, 92 L.Ed. 

649 (1948). Properly understood, Justice Jackson’s opinion recognized that many subjects taught 

in schools, not just music, could carry “the inspirational appeal of religion.” Id. at 235-236 (Jackson, 

J., concurring). 
SUPREME COURT OF OHIO

20 

(accessed Mar. 4, 2016). And who could argue that Handel’s Messiah is not one 

of the world’s greatest pieces of music inspired by religious teachings? 

{¶ 58} But as both Christians and taxpayers will recognize and understand, 

the mere fact that those songs are transmitted over radio airwaves does not 

transmogrify the broadcaster into a tax-exempt house of worship under the Revised 

Code any more than a television or cable station comes closer to tax-exemption 

eligibility every time it airs a religiously inspired song or movie. And the mere fact 

that one might receive the broadcast in his home or even spend a portion of his 

week humming, whistling, or singing some of the great hymns or “bible verses set 

to music” does not transform one’s abode or vehicle into a tax-exempt house of 

worship. 

The Majority’s Opinion 

The majority uses incorrect standards of review and inapposite law 

{¶ 59} To carve out an improper tax exemption here, the majority chooses 

to ignore legislation and the law on church taxation cited by the parties and instead 

relies on inapposite law, Maumee Valley Broadcasting Assn. v. Porterfield, 29 Ohio 

St.2d 95, 279 N.E.2d 863 (1972). 

{¶ 60} Maumee Valley presented a discrete question: whether a nonprofit 

religious corporation was a tax-exempt “church” within the meaning of Ohio’s 

sales-tax statute, R.C. 5739.02(B)(12). Contrary to the majority’s suggestion that 

Maumee Valley provides guidance here, that summary decision offers little to assist 

us in determining whether appellant is a “[h]ous[e] used exclusively for public 

worship” under R.C. 5709.07(A)(2). And to the extent that Maumee Valley has any 

import here, it is of no help to appellant. To the contrary, Maumee Valley supports 

the tax commissioner’s determination. 

{¶ 61} At the outset, it is important to recognize that Maumee Valley clearly 

mandates a different standard of review than that used by the majority. Maumee 

Valley holds that the determination of whether an organization is a church is a 
January Term, 2016 

21

factual determination, not a legal one. Id. at 98 (describing the “factual 

determination” of the Board of Tax Appeals in deciding whether the corporation 

was a church for purposes of the sales-tax statute). The majority ignores that part 

of the holding, which it must do in order to employ de novo review rather than the 

deferential review that should apply—and that would require our affirmance of the 

tax commissioner’s decision in this case. See Seven Hills Schools, 28 Ohio St.3d 

at 186-187, 503 N.E.2d 163. The court’s decision today, however, ignores but does 

not change our clear precedent that “ ‘[t]he BTA is responsible for determining 

factual issues and, if the record contains reliable and probative support for these 

BTA determinations,’ ” we will affirm them. Satullo v. Wilkins, 111 Ohio St.3d 

399, 2006-Ohio-5856, 856 N.E.2d 954, ¶ 14, quoting Am. Natl. Can Co. v. Tracy, 

72 Ohio St.3d 150, 152, 648 N.E.2d 483 (1995). When engaging in appellate 

review of tax decisions, every member of the court should remember the 

commandment that we do not intrude on determinations that are sound and 

supported by the record. 

It is not our province to be a “super board” and thereby render a 

different decision because we have interpreted the facts differently 

than has the board. While we have the ultimate authority, we should 

always remember that we are not final because we are infallible—

we are only infallible because we are final. 

(Emphasis sic.) Faith Fellowship Ministries, Inc. v. Limbach, 32 Ohio St.3d 432, 

439-440, 513 N.E.2d 1340 (1987) (Douglas, J., concurring in part and dissenting in 

part). 

{¶ 62} Even assuming that the majority could find some way around the 

standard of review, the facts and law make Maumee Valley inapplicable here. 
SUPREME COURT OF OHIO

22 

{¶ 63} The majority’s analysis of Maumee Valley omits two critical facts: 

Maumee Valley involved a nonprofit religious organization that conducted church 

services on its premises for members of the public, and the organization’s only 

source of revenue was “donations, gifts, and contributions.” Id. at 95-97. In fact, 

about 80 percent of the organization’s gross receipts came from approximately 500 

people called “faith partners,” who contributed financial support on a monthly 

basis. Id. at 96-97. With the millions in advertising revenue that it secures, 

appellant is, of course, quite different from the organization in Maumee Valley and 

quite different from the many traditional churches that receive modest revenue from 

advertising in their weekly bulletins or on banners at church functions. See majority 

opinion at ¶ 32. 

{¶ 64} Even if the cases were not distinguishable on the facts, they would 

remain distinguishable on the law because the organization in Maumee Valley and 

the radio station here rely on different exemptions from different taxes. 

{¶ 65} The syllabus in Maumee Valley is limited expressly to R.C. 

5739.02(B)(12)—a statute not at issue here. For this reason, the BTA found 

appellant’s reliance on Maumee Valley to be misplaced because the standards 

applicable there are not applicable to the exemption for “[h]ouses used exclusively 

for public worship.” 

{¶ 66} Moreover, although Maumee Valley states that a nonprofit religious 

corporation may not be denied tax-exempt status “for the reason that it operates a 

radio facility in conjunction with and in furtherance of its religious and charitable 

activities,” id. at syllabus, it does not say that the taxing authorities—or this court—

must grant an exemption to a radio facility. Its holding is of no import here. 

{¶ 67} Properly understood, Maumee Valley stands for the proposition that 

a nondenominational church, which was relatively uncommon in 1972,4

 is eligible 

 

4

 The percentage of Protestants claiming “no denomination or non-denominational” rose from 

roughly four percent in the 1970s to 15 percent in 2006. Thumma, A Report on the 2010 National 
January Term, 2016 

23

for exemption on the same grounds as a more traditional house of worship.5 The 

majority in Maumee Valley clarified that even if a nonprofit religious corporation 

“is not without some unique features” and “cannot, in a traditional sense, claim a 

certain congregation,” it can be considered a church under R.C. 5739.02(B)(12). 

29 Ohio St.2d at 98, 279 N.E.2d 863. 

{¶ 68} Indeed, the opinion pointedly states, albeit without proper attribution 

to the great 19th-century agnostic orator Robert Green Ingersoll, that it was 

referring to nondenominational churches: “In other words, a church of the type 

‘that finds with joy the grain of gold in every creed, and floods with light and love 

the germs of good in every soul’ cannot reasonably be denied exempt status for that 

reason alone.” Id. 

{¶ 69} In any event, the fact that appellant is nondenominational is not an 

issue in this case and plays no role in the legal analysis of its tax liability. Thus, 

Maumee Valley is neither applicable nor compellingly illustrative on either fact or 

law. And to the extent that Maumee Valley has any proper application here, the 

majority ignores it. 

{¶ 70} But those are not the only analytical sins committed by the majority. 

The majority incorrectly concludes that appellant’s property is used 

exclusively for public worship 

{¶ 71} The majority’s effort to bless appellant with a tax exemption 

purportedly relies on this court’s lead opinion in Faith Fellowship Ministries, 32 

 

Profile of U.S. Nondenominational and Independent Churches, 

http://www.hartfordinstitute.org/cong/nondenominational-churches-national-profile-2010.html 

(accessed Mar. 10, 2016), citing National Opinion Research Center, The General Social Survey, 

http://gss.norc.org/, and Bader et al., The Ties that Bind: Network Overlap among Independent 

Congregations, 30 Social Science Computer Rev. 259 (2012). 

5

 At that time, there appears to have been some debate in the courts over whether nondenominational 

churches were constitutionally exempt from taxation. See, e.g., Young Life Campaign, 122 

Cal.App.3d at 571-572, 176 Cal.Rptr. 23, citing Vic Coburn Evangelistic Assn. v. Emp. Div., 35 

Or.App. 655, 582 P.2d 51 (1978), and Chapman v. Commr. of Internal Revenue, 48 T.C. 358 (1967). 
SUPREME COURT OF OHIO

24 

Ohio St.3d 432, 513 N.E.2d 1340. It bears mention, however, that in that case, 

three justices would have gone so far as to exempt from taxation, along with an 

applicant’s sanctuary, its cafeteria, gymnasium, swimming pool, “playfield,” and 

nature trails. Id. at 439 (Locher, J., joined by Wright and Brown, JJ., concurring in 

part and dissenting in part). But common sense prevailed, and four justices rejected 

that overly generous view of the exemption, id. at 437 (lead opinion); id. at 439 

(Douglas, J., concurring in part and dissenting in part), holding that only the 

portions of property that are used in a principal, primary, and essential way to 

facilitate public worship are exempt from real estate taxes, id. at paragraph two of 

the syllabus. See also Christ Church Pentecostal v. Tennessee State Bd. of 

Equalization, 428 S.W.3d 800, 808, 814 (Tenn.Ct.App.2013) (affirming the denial 

of a property-tax exemption for a bookstore café operated by a church, in part for 

outreach efforts). 

{¶ 72} Properly understood, the holding in Faith Fellowship stands for the 

proposition that public worship means the “open and free celebration or observance 

of the rites and ordinances of a religious organization.” Id. at paragraph one of the 

syllabus. As Chief Justice Moyer explained in Faith Fellowship, public worship 

must be public: 

The everyday expression of one’s relationship with a supernatural 

power may be considered by that individual as worship. This court 

certainly does not intend to discourage such activity. However, the 

Constitution, which incorporates the exemption, and the statute, by 

which it is established, contemplate that the worship be a 

celebration of a religious rite in an open and free place and not the 

everyday activities of an individual which express devotion to his or 

her God. 
January Term, 2016 

25

(Emphasis added.) Id. at 436 (lead opinion). 

{¶ 73} The majority’s suggestion here that the General Assembly amended 

the statute in the wake of Faith Fellowship in order to make the statute applicable 

to radio broadcast listeners is not an accurate understanding of the decision or the 

amendment. It simply evidences the majority’s attempt to impose its logic on a 

statutory scheme and to create an unlimited tax exemption beyond the scope of the 

express statutory language. See Clayton v. Ohio Bd. of Nursing, __ Ohio St.3d __, 

2016-Ohio-643, __ N.E.3d __, ¶ 46 (Kennedy, J., dissenting). 

{¶ 74} The amendment made clear that a “church” can be any number of 

believers that formed primarily or exclusively for a religious purpose and who did 

not form for the private profit of any person. R.C. 5709.07(D)(1). Even assuming 

that the majority is correct in that the legislature intended to expand the definition 

of a “[h]ous[e] used exclusively for public worship” to mean more than a physical 

structure, see, e.g., World Evangelistic Ent. Corp. v. Tracy, 96 Ohio App.3d 78, 83, 

644 N.E.2d 678 (2d Dist.1994),6

 nothing in any of the General Assembly’s 

amendments to R.C. 5709.07 shows that the legislature intended to alter the 

fundamental premise of Faith Fellowship, i.e., the necessity of public worship. And 

even if we assume that listening to music is worship, nothing in the record before 

us establishes that appellant’s property is used exclusively for public worship. “For 

 

6

 As the Second District Court of Appeals explained: 

A “house used exclusively for public worship,” as used in R.C. 5709.07, 

must accommodate a structure or facility that is used exclusively or primarily to 

propagate a religious message to persons who receive that message for a 

worshipful purpose. Those who engage in that activity constitute a form of 

religious society, whether they are gathered where the religious message 

originates or are dispersed elsewhere. 

Thus, there is some nonbinding precedent for the notion that a broadcasting corporation can be a 

“[h]ous[e] used exclusively for public worship” for purposes of R.C. 5709.07(A)(12). Notably, 

however, the World Evangelistic Enterprise Corporation was fully supported by listener donations 

and the contributions of churches and radio-program producers, rather than by advertising revenue. 

World Evangelistic Ent. at 79-80.
SUPREME COURT OF OHIO

26 

the purposes of [R.C. 5709.07(A)(2),] ‘public worship’ means the open and free 

celebration or observance of the rites and ordinances of a religious organization; it 

does not include everyday activities that express devotion to God.” (Emphasis 

added.) 86 Ohio Jurisprudence 3d, Taxation, Section 539, at 650 (2009). 

{¶ 75} And, even if we assume appellant had adduced sufficient evidence 

that it is a house of public worship, it is still unable to establish that the exemption 

is proper. 

{¶ 76} Appellant is a radio station. The fact that it broadcasts religious 

songs or does charitable deeds does not change that fact. Even if bears the indicia 

of incidental aspects of a ministry, it is not entitled to an exemption because it is 

not used exclusively for public worship. See, e.g., Watterson, 77 Ohio St. at 173, 

82 N.E. 962. 

{¶ 77} The statutory term “exclusive” means just that—exclusive. Here, 

even accepting the argument that appellant uses its programming to evangelize, it 

admittedly also uses its radio stations to generate income. The majority makes 

much of the fact that appellant’s purported use of that income is not for profit but 

for the benefit of the station’s charitable and religious works. But in doing so, the 

majority ignores the well established rule in Ohio that “it is the use of the property 

and not the use of the proceeds derived therefrom” that determines whether a tax 

exemption is conferred. Columbus Youth League v. Cty. Bd. of Revision, 172 Ohio 

St. 156, 158, 174 N.E.2d 110 (1961). “Any right of exemption is lost if the property 

is used to produce income, regardless of the fact that the income is exclusively used 

for a purpose that is of such a nature that if the property itself, rather than its income, 

were so used the property would be exempt.” 86 Ohio Jurisprudence 3d, Taxation, 

Section 539, at 649-650 (2009), citing Incorporated Trustees of Gospel Worker 

Soc., 140 Ohio St. 185, 42 N.E.2d 900. “[T]he test is the present use of the property 

rather than the ultimate use of [the] proceeds,” Gospel Worker Soc. at paragraph 
January Term, 2016 

27

two of the syllabus, even when the owner of the property is a not-for-profit 

corporation organized for charitable purposes: 

“Where a substantial portion of the gross income of a corporation is 

received for work done in competition with commercial concerns in 

the same line, the property of such corporation may not be exempted 

from taxation under Section 5353, General Code [Section 5709.12, 

Revised Code], even though such corporation be one formed not for 

profit and owned by a religious institution, for whose use, benefit 

and behoof the property of the corporation is held.” 

(Brackets sic.) Lutheran Book Shop, 164 Ohio St. at 361-362, 131 N.E.2d 219, 

quoting Zindorf v. Otterbein Press, 138 Ohio St. 287, 34 N.E.2d 748 (1941), 

paragraph two of the syllabus. 

{¶ 78} “ ‘When money is made by the use of [a] building, that is profit, no 

matter to what purpose that money is applied.’ ” (Brackets sic.) Three Angels 

Broadcasting Network, Inc. v. Dept. of Revenue, 381 Ill.App.3d 679, 697, 885 

N.E.2d 554 (2008), quoting People ex rel. Baldwin v. Jessamine Withers Home, 

312 Ill. 136, 141, 143 N.E. 414 (1924). “Thus, property used by a charitable 

organization to raise money for that group’s charitable activities is not exempt since 

the property’s direct and primary use is fund-raising and not charity itself.” Nome 

v. Catholic Bishop of N. Alaska, 707 P.2d 870, 879 (Alaska 1985). 

{¶ 79} Having concluded that appellant fails to establish that the BTA’s 

decision is not entitled to our deference or even to show that the property in question 

is a house of worship used exclusively for public worship, I would affirm the BTA’s 

decision. I therefore address two other points raised by appellant in its appeal to 

this court but not addressed by the majority. 
SUPREME COURT OF OHIO

28 

The tax commissioner was not collaterally estopped from denying the 

exemption 

{¶ 80} Appellant asserts that the tax commissioner was collaterally 

estopped from denying it the exemption because it previously conferred one to 

appellant in 1991. 

{¶ 81} This court has acknowledged “a narrow range of applicability for the 

doctrine of collateral estoppel in tax proceedings.” Olmsted Falls Bd. of Edn. v. 

Cuyahoga Cty. Bd. of Revision, 122 Ohio St.3d 134, 2009-Ohio-2461, 909 N.E.2d 

597, ¶ 17. The doctrine “ ‘precludes the relitigation, in a second action, of an issue 

that has been actually and necessarily litigated and determined in a prior action.’ ” 

Progressive Plastics, Inc. v. Testa, 133 Ohio St.3d 490, 2012-Ohio-4759, 979 

N.E.2d 280, ¶ 17, quoting Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108, 112, 254 

N.E.2d 10 (1969), overruled on other grounds, Grava v. Parkman Twp., 73 Ohio 

St.3d 379, 653 N.E.2d 226 (1995). Accord Am. Soc. for Metals v. Limbach, 59 

Ohio St.3d 38, 39, 569 N.E.2d 1065 (1991) (identifying as “basic elements” of 

collateral estoppel “(1) an administrative proceeding of a judicial nature, (2) an 

identity of the parties, and (3) an identity of the issues”). Appellant’s assertion of 

collateral estoppel fails at the most basic level: there was no previous 

administrative proceeding of a judicial nature, and the issue here was not actually 

and necessarily litigated previously. 

{¶ 82} Appellant relies on a 1991 final determination of the tax 

commissioner granting appellant the exemption at a former address, but that 

proceeding before the tax commissioner was the initial process by which the 

administrative determination of taxable status occurs. Thus, in no sense is the final 

determination in 1991 a “judgment” rendered after issues were litigated between 

contending parties. 
January Term, 2016 

29

{¶ 83} Moreover, the 1991 decision determined that the exemption was 

justified, so there was no need to litigate. Nor does the record establish that any 

litigation ensued. 

{¶ 84} The same is true of the more recent determination by the tax 

commissioner regarding the taxable status of part of the same property that 

appellant previously owned. There can be no requisite “identity of issues” because 

the current exemption claim involves a different parcel in a different tax year. See 

Hubbard Press v. Tracy, 67 Ohio St.3d 564, 565, 621 N.E.3d 396 (1993) (collateral 

estoppel did not apply despite continuous exemption of printing house associated 

with Presbyterian Church from 1950 until its return to the taxable list in 1983 

because 1983 was a different year, hence a different issue). Thus, appellant’s 

collateral estoppel argument fails. 

Appellant is barred from arguing for a “split-listing” because it did not 

raise that claim in its notice of appeal to the BTA 

{¶ 85} Former R.C. 5717.02 required that a notice of appeal to the BTA 

from a determination of the tax commissioner have a copy of the determination 

attached and “specify the errors therein complained of.” 2011 Sub.H.B. No. 225.7

 

It is well settled that “the BTA lacks jurisdiction to grant relief from a final 

determination based on * * * alleged errors that were not sufficiently specified in 

the notice of appeal.” Brown v. Levin, 119 Ohio St.3d 335, 2008-Ohio-4081, 894 

N.E.2d 35, ¶ 17; see also Global Knowledge Training, L.L.C. v. Levin, 127 Ohio 

St.3d 34, 2010-Ohio-4411, 936 N.E.2d 463, ¶ 15 (specification requirement of R.C. 

5717.02 constitutes a “jurisdictional prerequisit[e] to the exercise of authority by 

the BTA or this court on appeal”). 

 

7

 In 2013, the operative language of R.C. 5717.02 was changed; the statute now requires a “short 

and plain statement of the claimed errors in the determination,” while granting an option to amend 

the notice later in the proceedings. R.C. 5717.02(C). Because the notice of appeal to the BTA in 

this case was filed before the enactment of the 2013 legislation, we apply the earlier version of the 

statute. 
SUPREME COURT OF OHIO

30 

{¶ 86} The tax commissioner’s determination specifically finds that 

“[t]here is no evidence that people assemble to worship together on the subject 

property used exclusively as a radio station.” The record suggests that that 

determination may not be accurate, and in its brief to this court, appellant asserts 

that the BTA erred in failing to consider whether the property should be split into 

exempt and taxable parts. 

{¶ 87} But even if the claim has merit, it is jurisdictionally barred because 

it was not raised at the BTA. Nothing in appellant’s notice of appeal to the BTA 

asserted that the commissioner erred by not considering actual on-site worship 

services at the broadcasting facility or otherwise suggested that the nature of this 

case might justify split-listing portions of the property as exempt. 

{¶ 88} A taxpayer is required to challenge a specific finding of the tax 

commissioner in order to preserve the issue before the BTA. Ellwood Engineered 

Castings Co. v. Zaino, 98 Ohio St.3d 424, 2003-Ohio-1812, 786 N.E.2d 458, ¶ 23. 

Appellant did not do so, and its failure bars it from raising the issue before this 

court. See Osborne Bros. Welding Supply, Inc. v. Limbach, 40 Ohio St.3d 175, 178, 

532 N.E.2d 739 (1988). 

CONCLUSION

{¶ 89} I would hold that the tax commissioner properly denied tax-exempt 

status under R.C. 5709.02(A)(2). I would also deny on the merits appellant’s 

argument based on collateral estoppel, and I would reject as waived appellant’s 

partial-exemption claim. 

LANZINGER, J., concurs in the foregoing opinion. 

_________________ 

 LANZINGER J., dissenting. 

{¶ 90} Property-tax exemptions are to be strictly construed because they are 

in derogation of equal rights. Cincinnati College v. State, 19 Ohio 110, 115 (1850). 

The exemption for a house of public worship, R.C. 5709.07(A)(2), exempts 
January Term, 2016 

31

“[h]ouses used exclusively for public worship * * * and the ground attached to them 

that is not leased or otherwise used with a view to profit and that is necessary for 

their property occupancy, use, and enjoyment.” (Emphasis added.) 

{¶ 91} I cannot accept that interpreting the word “exclusively” to mean 

“primarily” in this case is a strict construction of this property-tax exemption. More 

than a century ago, this court interpreted language virtually identical to that 

contained in R.C. 5709.07(A)(2) as standing for the principle that “[t]he exemption 

is not of such houses as may be used for the support of public worship; but of houses 

used exclusively as places of public worship.” (Emphasis sic.) Watterson v. 

Halliday, 77 Ohio St. 150, 173, 82 N.E. 962 (1907). 

{¶ 92} The word “exclusively” as used in the statute has to mean something. 

The origin of the “primary use” test applied by the majority can be traced to our 

decision in In re Bond Hill-Roselawn Hebrew School, 151 Ohio St. 70, 84 N.E.2d 

270 (1949), in which we considered whether the public-worship exemption applied 

to a building where the first floor was “used exclusively for public worship” and 

the second floor was used as living quarters for a caretaker’s family. Id. at 71. We 

first observed that an overly literal construction of the exemption could prevent 

every application of the exemption, since “[i]t would not be difficult to show some 

slight use of any church building for a purpose other than public worship,” for 

example, when a room of the church was used to entertain children during church 

services, when part of the church building was used for Boy Scout meetings, or 

when part of the church was used to prepare a church supper. Id. at 72-73. We 

reversed the Board of Tax Appeals’ (“BTA”) holding denying the exemption as an 

unreasonable interpretation of its application to the church building. Id. at 78. 

{¶ 93} In a later case, the question was whether the parish hall in the 

basement of a building housing a church qualified for the R.C. 5709.07 exemption. 

Bishop v. Kinney, 2 Ohio St.3d 52, 442 N.E.2d 764 (1982). The BTA had found 

that the primary use of the parish hall, which was used in part as classrooms for 
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32 

religious education, retreats, a summer Bible school, and post-worship breakfasts, 

“was religious in nature” but not used “exclusively for public worship” because it 

was also used for social gatherings and bingo games. Id. at 52. We held that a tax 

exemption for the parish hall was proper because the BTA found that the primary 

use of the parish hall was religious in nature and the tax commissioner had 

conceded that the primary use constituted “public worship” within the meaning of 

R.C. 5709.07. Id. at 54. 

{¶ 94} Thus, we applied the primary-use test in both Bond Hill and Bishop

to determine whether an auxiliary use of a building otherwise used exclusively for 

public worship affected the tax-exempt status of those buildings. See Summit 

United Methodist Church v. Kinney, 7 Ohio St.3d 13, 15, 455 N.E.2d 669 (1983) 

(the educational wing of a parish center used as Sunday school classrooms and 

leased to a public university, which used the space as a day-care center during the 

week, was not primarily religious in nature and not entitled to an exemption under 

R.C. 5709.07). We have also applied the primary-use test to determine whether 

buildings or land surrounding buildings used exclusively as churches defeated taxexempt status. Faith Fellowship Ministries, Inc. v. Limbach, 32 Ohio St.3d 432, 

436-438, 513 N.E.2d 1340 (1987) (lead opinion) (a chapel in a church complex 

used for children’s church services in the summer and adult church services in the 

winter was exempt from taxation; a building used as a boiler building was necessary 

for the operation of exempt buildings on the church complex and consequently 

exempt under the primary-purpose test; buildings used as a cafeteria, sleeping 

rooms, a gymnasium, and a retreat house were merely supportive of or incidental 

to the public-worship function and not exempt from taxation; and a building used 

for storage and a vacant building were not exempt from taxation); Full Gospel 

Apostolic Church v. Limbach, 46 Ohio St.3d 195, 196, 546 N.E.2d 403 (1989) (the 

sporadic use of 47 acres surrounding a church sanctuary and associated buildings 
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33

for outdoor revivals and congregational services did not satisfy the primary-purpose 

test as applied to surrounding areas). 

{¶ 95} In each of the cases cited by appellant and the majority in support of 

the primary-purpose test, that test was applied to determine whether the exemption 

applied to buildings or portions of buildings auxiliary to traditional church 

buildings or in other words, to buildings used exclusively for public worship. See 

majority opinion at ¶ 22. In other words, we have applied the primary-purpose test 

to those auxiliary buildings or portions of buildings only when there existed a 

primary building used exclusively for public worship. Never before have we 

expanded the exemption, which again must be strictly construed, to property like 

the one in the present case—a radio station, which is so clearly unlike the traditional 

church buildings exclusively used for public worship to which we have applied the 

exemption in the past. 

{¶ 96} There is no church here. 

{¶ 97} I accordingly dissent and join Chief Justice O’Connor’s dissent in 

full. 

O’NEILL, J., concurs in all but the final sentence of the foregoing opinion. 

_________________ 

 Isaac, Wiles, Burkholder & Teetor, L.L.C., and Brian M. Zets, for appellant. 

 Michael DeWine, Attorney General, and Daniel G. Kim, Assistant Attorney 

General, for appellee Tax Commissioner. 

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