Dark-Store Tax Fight Shines Light on Commercial Property Values

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Lowe's Home Improvement Center.

FlickrCC / Mike Mozart

Lowe's Home Improvement Center.

With a legal battle looming that pits a big-box home improvement store against the Bexar County Appraisal District, Lowe’s Inc. is about to give a whole new meaning to the term “do-it-yourself.”

That’s because the lawsuit Lowe’s brought against the County to try to cut its property tax assessment by more than half could have an estimated statewide impact of $8.5 billion – lost tax revenue that could leave homeowners and small businesses shouldering the shortfall.

“That is the greatest injustice of all,” said the County’s Chief Appraiser Michael Amezquita.

A Bexar County arbitration panel last fall rejected Lowe’s argument that it should value some of its San Antonio stores as if they were empty, or “dark stores,” rather than a profitable business worthy of taxation. However, the judge’s decision is non-binding, and Lowe’s is likely to take the matter to court.

“The decision, while it was great for us, doesn’t bind them to anything,” Amezquita said. “At the time of the hearing, opposing counsel opened with a statement saying that he hoped the appraisal district would live with whatever the decision of the judges was.

“It turns out they [Lowe’s] are not going to do that. They’ve already told me they are going to proceed to trial, so apparently, if we lost we were supposed to live with it and fix it to their liking. But if they lose, they get to choose. This is likely going to go up to the Supreme Court.”

Lowe’s Corporate Public Relations Manager Karen Cobb declined the Rivard Report‘s request for comment, citing pending litigation.

Bexar County has already spent $250,000 on the legal fight, Amezquita said, and a loss in court would cost the County another $2 million in attorneys’ fees. Lowe’s already has fought for and won tax cuts in Michigan, Indiana, and Alabama, though they lost in their home state of North Carolina.

In San Antonio, the chain operates 10 stores, each about 137,000 sq. ft. and stocked with tools, hardware, appliances, building materials, and garden products. In 2016, the stores were appraised in the $70-per-sq.-ft. range, with a total tax bill of almost $93 million (not counting a data center, service station, and parking). If Lowe’s wins their dark-store case here, the per-sq.-ft. value would drop to $20 or $30, Amezquita said – a prospect he is fighting.

“We believe that a fully functioning and operating commercial establishment, regardless of who occupies the space, has a different and highest best-use than a building that has been shuttered,” he said. “And the judge agreed with us in our methodology.”

Commercial real estate appraisals are generally based on a business’ “highest and best use,” meaning the financially feasible use of a property that would produce the highest value for that property.

But there’s a fundamental problem with that methodology, said tax attorney Rahul Patel, a managing partner with Patel Gaines in San Antonio. Although he is not involved in representing Lowe’s, he works for more than 200 small-to-medium business owners and homeowners who he said “are getting pummeled” with property taxes. In 2010, he won a contentious battle with the County over tax exemptions for a nonprofit housing development.

“I represent a litany of business owners who are paying well in excess of the price-per-square-foot of what their real estate should be worth,” Patel said. “There are many business owners coming to the table with true profit-and-loss statements, true income statements, true vacancy issues, true deferred maintenance, and they are being valued based off a sale that happened down the road but [is] not truly reflective of their property.”

In short, commercial property should be valued differently, he said, and what Lowe’s is seeking is not a tax loophole as some have concluded, but a theory that should be looked at as an appraisal methodology.

“They fail to remove intangible components of a business – the person, the proprietor, the brand, the people who work there, the goodwill, the other items that help generate the business revenue that has nothing to do with the real estate – when they value the business,” Patel said. “If Lowe’s were to leave, would that space garner an equal tenant, of equal revenue, of equal national presence? History tells you no. In essence, the theory is you have to value the space as if it was dark, in order to get to the real value of the property. Then you have a property tax.”

Otherwise, it’s nothing more than an income tax, he said. “What if each house was valued based on the earnings of the family inside of it, not the value the house is worth?”

Amezquita countered that only tangibles figure into assessments.

“In terms of our valuation, we value the sticks, the bricks, and the dirt. That’s what we’re required to do,” he said. “The notion that Lowe’s thinks this should be based on some hypothetical sale of empty properties all over the country is silly.”

Lowe’s currently owns 141 Texas stores, more than in any other state, and 2,355 stores in the United States, Canada, and Mexico – representing 212.8 million sq. ft. of retail selling space. The company reported earnings of $2.5 billion for the 2015 fiscal year.

Patel also said the amount of potential lost tax revenue government officials have put forth is “grossly misleading,” comparing the concept to a personal income tax refund. “Is it a lost revenue if it never should have been assessed in the first place? My response is unequivocally no,” he said. “Second, the argument that homeowners pick up the slack has no factual support, merely one offered as the media’s – and often the counties’ and governmental agencies’ – attempt to mislead the public.”

Patel said he also believes there’s a real possibility that businesses like Lowe’s will “go dark,” pack up, and leave behind large, empty commercial spaces, plus jobs, if they continue to see increased tax bills based on “isolated sales and mass appraisal methodology.” They may reduce their footprint locally or choose not to invest in new projects, building rehabilitation, or capital improvements. They could choose more tax-friendly places to open shop. And he blamed the property tax issue for some of the commercial market slowdown already happening in the state.

But dark-store victories in some states, and suits filed in other counties in Texas, are paving the way for similar complaints from big-box stores across the nation, such as Target, Kohl’s, and Walmart.

And that’s one reason Amezquita said the County can’t afford not to fight back.

“The thing that makes it different for us is, in Texas, we have equal and uniform appeals,” Amezquita said. “You can sue me over market value or you can sue me over how your property relates to the value of comparably situated, similar, and adjusted properties. If you’re a big box [store], and Lowe’s gets knocked down to $20 a foot, what other big box is not going to come in and say, ‘I want to be just like Lowe’s stores’? That’s where the spiral starts.

“We already have spiraling-down values based on equal and uniform. No other state has an equal and uniform statute as liberal as we have, all of them tied to some limitation having to do with market value. We only have to lose this one time to have it spiral out of control.”

Patel said it is property tax increases that are spiraling out of control.

“What’s happening is we’re starting to take the easy road by valuing everything based on an income method, that what it generates in revenue is what it should be taxed at, and that’s not the case.”

Meanwhile, Amezquita intends to hold the line with Lowe’s, saying it’s ultimately not fair for the tax burden to be shifted, “forcing small businesses and everyday homeowners to pay the tax liability of gigantic commercial property owners just because they have the financial means to wrangle the law in ways to benefit their bottom line, no matter who they hurt in the process.”

3 thoughts on “Dark-Store Tax Fight Shines Light on Commercial Property Values

  1. I stopped shopping at Lowe’s months ago. I hope those homeowners who want reasonable ad valor taxes will do the same. We need taxes to fund public schools. Corporation pay less than their share in several ways. The Dark Store scams are outrageous.

    • In purely objective sense: most single family residential developments are a ‘net loss’ in terms of property tax paid vs services provided. Some multi family units are break even or slight positive and retail establishments are around break even or slight positive from a property tax stand point. Add in the sales tax and the other factors (like jobs provided, etc) and they come out ahead. Office spaces and industrial parks are usually net positive with regards to property tax paid vs services rendered.

      my point is that corporations don’t pay “less than their share”, objectively speaking. Simply look at some fiscal impact analysis reports and we can see that businesses (large and small) and corporations develop properties that have a net positive (financially from a property tax standpoint) while residential tends to be a net negative.

      Now, that doesn’t mean Lowe’s “dark store” theory is right. They make an interesting argument. One of the issues with the property tax is that it does rely on subjective measures that can be challenged and cause problems. Moving away from property tax to a sales tax would likely result in a more equitable funding mechanism and it would take into account a stores revenue – making it harder for companies like Lowes to twist the law in their favor. Sales are sales.

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