                                                                               SIXTH DIVISION
                                                                               April 25, 2008



No. 1-07-0624

ILLINOIS BETA HOUSE FUND CORPORATION,                                      )    Appeal from
                                                                           )    the Circuit Court
       Plaintiff-Appellant,                                                )    of Cook County
                                                                           )
                v.                                                         )    04 L 50223
                                                                           )
ILLINOIS DEPARTMENT OF REVENUE, and BRIAN A. HAMER,                        )    Honorable
Director, Department of Revenue,                                           )    Rita M. Novak,
                                                                           )    Judge Presiding
       Defendants-Appellees.                                               )


       PRESIDING JUSTICE McBRIDE delivered the opinion of the court:

       Plaintiff Illinois Beta House Fund Corporation appeals from an order of the circuit court

of Cook County affirming the finding of defendant Illinois Department of Revenue that real

property owned by plaintiff is not exempt from taxation for the year 2000. The subject real

property is the Phi Delta Theta Fraternity House, situated at 5625 South University Avenue,

Chicago, 60637, near the main campus of the University of Chicago. The plaintiff argues it is

entitled to an exemption under section 15-35(c) of the Property Tax Code (35 ILCS 200/15-35

(West 1998)), because its residential real estate is being “used for *** college, *** university or

other educational purposes.”

       The real property is used primarily to provide housing to male students of the University

of Chicago who are members of the Illinois Beta Chapter of the Phi Delta Theta Fraternity.

Occasionally, rooms are rented to nonmembers of the Illinois Beta Chapter and one such person

resided in the house during 2000. The property has been used as a fraternity house (residence)
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since 1958. The house is a brick three-story structure providing approximately 7,000 square feet

of living space, including its attic and basement, and is on an 8,500 square foot lot. It has 21

rooms, consisting of 12 bedrooms which each accommodate one-to-three individuals and 9

rooms devoted to study, dining, recreation, and storage. Residents of the house have access to a

kitchen where they may prepare their own food, but most take their meals in the school’s dining

halls. It is undisputed that residents of the fraternity house and residents of the University of

Chicago’s dormitories use the respective facilities in comparable ways. Property taxes on the

fraternity house have been assessed and paid as follows: $17,996.28 for 1999, $13,853.30 for

2000, and $14,213.58 for 2001.

       The plaintiff owner of the house, Illinois Beta House Fund Corporation (Beta House

Fund), was organized under the Illinois General Not for Profit Corporation Act of 1986 (705

ILCS 105/101.01 et seq. (West 1998)), and is tax-exempt under section 501(c)(7) of the Internal

Revenue Code. 26 U.S.C. §501(c)(7) (2000). According to its articles of incorporation, the

purposes of the corporation are: “charitable, benevolent, eleemosynary, educational and social.”

Further, “The corporation will promote and foster the social and fraternal principles of Phi Delta

Theta Fraternity at the University of Chicago, and engage in other pleasure, recreation and

nonprofit[] activities.” According to section 2 of its bylaws, the corporation’s “principal object

*** is to *** maintain a Chapter House in [Chicago] for beneficent, charitable, and educational

purposes for students *** at actual cost to those able to pay for same or at no cost for those

unable to pay ***; [and] a free library shall be maintained at said Chapter House along with

electronic facilities and access to promote the advancement of sound learning.” Section 3 of the


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corporation’s bylaws state Beta House Fund’s activities shall include “representing the members

of [the fraternity] before all who may have business concerned with Illinois Beta,” “owning,

supervising, acquiring and disposing of real estate,” and “fostering united action and promoting

unbroken concourse of all members of [the fraternity].” Beta House Fund’s sole assets are the

real property at issue and bank accounts and insurance policies maintained for the property’s use

and upkeep. Expenses associated with the real property are met by reinvested excess rental

income and alumni donations.

       Based on these facts and precedent concerning section 15-35 of the Property Tax Code

(35 ILCS 200/15-35 (West 1998)), the administrative law judge determined the property was not

in exempt ownership or in exempt use. The Director of the Department of Revenue found the

analysis and reasoning persuasive and adopted it as his own. Beta House Fund appealed to the

circuit court of Cook County, but was unable to convince the court the disposition was in error.

Beta House Fund seeks further review here.

       We review the decision of the agency rather than the circuit court. Rogy’s New

Generation, Inc. v. Department of Revenue, 318 Ill. App. 3d 765, 770 (2000); 735 ILCS 5/3-101

et seq. (West 1998). In a case such as this one, when an agency is required to interpret a statute’s

meaning and determine whether the facts of the case fit within that definition, the case is said to

involve an examination of the legal effect of a given set of facts, or present a mixed question of

fact and law, which should be affirmed unless clearly erroneous. Rogy’s, 318 Ill. App. 3d at 770.

The clearly erroneous standard requires us to give some deference to the agency’s expertise and

experience with the statute it is charged with administering. Rogy’s, 318 Ill. App. 3d at 770. We


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must accept the agency’s findings unless we come to the definite and firm conviction that a

mistake has been committed. Rogy’s, 318 Ill. App. 3d at 770. Moreover, we may affirm the

agency’s decision on any basis appearing in the record. Rogy’s, 318 Ill. App. 3d at 771.

       The general rule is that all property is subject to taxation unless specifically exempted by

statute. Swank v. Department of Revenue, 336 Ill. App. 3d 851, 855 (2003). Section 6 of article

IX of the Illinois Constitution restricts the General Assembly’s power to exempt. Ill. Const.

1970, art. IX, §6; Chicago Bar Ass’n v. Department of Revenue, 163 Ill. 2d 290, 297 (1994).

Permissible exemptions are confined to “property used exclusively for agricultural and

horticultural societies, and for school, religious, cemetery and charitable purposes.” Ill. Const.

1970, art. IX, §6; Chicago Bar Ass’n, 163 Ill. 2d at 297. Statutory tax exemptions are always

construed narrowly and strictly in favor of taxation. Swank, 336 Ill. App. 3d at 855. Moreover,

the party claiming the benefit of an exemption bears the burden of proving clearly and

conclusively that it is entitled to the exemption, and all facts and all debatable questions are

resolved in favor of taxation. Rogy’s, 318 Ill. App. 3d at 771.

       Plaintiff Beta House Fund contends it met this burden and was entitled to relief from

taxation pursuant to subsection (c) of the following statute:

                       “15.35. Schools. All property donated by the United States

               for school purposes, and all property of schools, not sold or leased

               or otherwise used with a view to profit, is exempt, whether owned

               by a resident or non-resident of this State or by a corporation

               incorporated in any state of the United States. Also exempt is:


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                      (a) property of schools which is leased to a municipality to

               be used for municipal purposes on a not-for-profit basis;

                      (b) property of schools on which the schools are located

               and any other property of schools used by the schools exclusively

               for school purposes, including, but not limited to, student residence

               halls, dormitories and other housing facilities for students and their

               spouses and children, staff housing facilities, and school-owned

               and operated dormitory or residence halls occupied in whole or in

               part by students who belong to fraternities, sororities, or other

               campus organizations;

                      (c) property donated, granted, received or used for public

               school, college, theological seminary, university, or other

               educational purposes, whether held in trust or absolutely;

                      (d) in counties with more than 200,000 inhabitants which

               classify property, property *** on or adjacent to *** the grounds

               of a school, if that property is used by an academic, research or

               professional society, institute, association or organization which

               serves the advancement of learning in a field or fields of study

               taught by the school and which property is not used with a view to

               profit. 35 ILCS 200/15-35 (West 1998).1


      1
            The statute has been amended to include “property owned by a school district.”

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       Although section 15-35(c) does not specify a taxpayer must be a nonprofit entity to

qualify for exemption, this requirement is imposed by the first paragraph of section 15-35.

Swank, 336 Ill. App. 3d 851 (determining that because phrase “not sold or leased or otherwise

used with a view to profit” restricts 15-35(c)’s application, properties held for profit, even if they

are used for educational purposes, are not tax-exempt). Plaintiff Beta House Fund’s status as a

not-for-profit entity is undisputed.

       Plaintiff Beta House Fund first argues on appeal is that real estate can be “used for ***

college, *** university, or other educational purposes” within the meaning of section 15-35(c) by

any not-for-profit entity, and that the applicant for tax exemption need not be a school or other

educational institution itself. 35 ILCS 200/15-35(c) (West 1998). Beta House Fund relies

primarily on two cases in which nonschools were granted educational use property tax

exemptions, Ass’n of American Medical Colleges v. Lorenz, 17 Ill. 2d 125 (1959), and Big Ten

Conference, Inc. v. Department of Revenue, 312 Ill. App. 3d 88 (2000). Stated another way, Beta

House Fund contends the test for exemption under section 15-35(c) is strictly use. 35 ILCS

200/15-35(c) (West 1998). Having framed the issue as one of use only, Beta House Fund next

contends it is using the property “in substantially the same way as school-owned dormitories,”

which are tax-exempted by other parts of section 15-35 concerning the “property of schools” (35

ILCS 200/15-35 (West 1998))2, and that the fraternity house “should not be given inferior


See35 ILCS 200/15-35(e) (West 2000); Pub. Act 91-513 (eff. August 14, 1999).
       2
           Section 15-35's initial sentence states, “all property of schools, not sold or leased or

otherwise used with a view to profit, is exempt.” (Emphasis added.) 35 ILCS 200/15-35(West

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treatment [under section 15-35(c)].” We do not find Beta House Fund’s arguments persuasive.

       We find no similarity between the cases Beta House Fund is relying upon and its own

circumstances. The plaintiff in Ass’n of American Medical Colleges v. Lorenz was a not-for-

profit corporation whose general purpose was “to improve medical education in the United

States” by playing a role in the admission requirements, curricula, and accreditation of medical

schools. Lorenz, 17 Ill. 2d at 126. The association published a journal and a directory detailing

admission requirements and other information about medical schools, sponsored admission tests,

compiled information about students which could be used to develop instruction programs,

critiqued school curricula, and assisted in accreditation. Lorenz, 17 Ill. 2d at 127. Medical

schools throughout the country were members of the association and they contributed

“substantial” funding to the organization each year. Lorenz, 17 Ill. 2d at 126. Hospitals and

individuals were also allowed to join, but they were not given voting privileges. Lorenz, 17 Ill.

2d at 126. Even though “exemption provisions must be strictly construed, and taxation upheld if

there is any doubt about the matter,” the supreme court concluded the tasks performed by the

association of schools were the type envisioned by the legislature. Lorenz, 17 Ill. 2d at 129. The

court reasoned it was unnecessary for the respective member educational institutions to perform


1998). Similarly, section 15-35(b) provides, “[Also exempt is:] property of schools on which

the schools are located and any other property of schools used by the schools exclusively for

school purposes, including, but not limited to, student residence halls, dormitories and other

housing facilities for students ***.” (Emphasis added.) 35 ILCS 200/15-35 (West 1998). Beta

House Fund does not claim to be a school.

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the functions themselves in order to qualify for exemption. Lorenz, 17 Ill. 2d at 129.

Furthermore, “It is not the policy of the law to penalize efficiency or to favor duplication of

effort. If ways of doing things have become outmoded or replaced by more efficient and realistic

methods of management, the law will look to the substance, not the mere forms.” Lorenz, 17 Ill.

2d at 129.

       A similar administrative offshoot was addressed in Big Ten Conference, 312 Ill. App. 3d

88. A group of Midwestern universities formed a corporation to negotiate contracts for television

coverage of intercollegiate sports, host promotional events, monitor compliance with applicable

rules, and assign referees to athletic events. Big Ten Conference, 312 Ill. App. 3d at 89. The

analysis in Lorenz and a Kansas case regarding the property taxes of the national organization for

intercollegiate sports, the National Collegiate Athletic Association (commonly known as the

“NCAA”), led this court to conclude that the Big Ten organization qualified for an educational

use exemption. Big Ten Conference, 312 Ill. App. 3d at 91, citing Lorenz, 17 Ill. 2d 125,

National Collegiate Realty Corp. v. Board of County Commissioners, 236 Kan. 394, 690 P.2d

1366 (1984). Like the medical school association and the national intercollegiate sports

association, the Big Ten sports association was performing some of the administrative tasks of its

member schools and reducing their individual administrative expenses. Big Ten Conference, 312

Ill. App. 3d at 92. This court deemed these administrative functions a “legitimate educational

activity” (Big Ten Conference, 312 Ill. App. 3d at 92), and reiterated the supreme court’s

conclusion that a school’s administrative functions may be performed by a separate organization

and yet still qualify for a property tax exemption. Big Ten Conference, 312 Ill. App. 3d at 91.


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Because the Big Ten conference “used its property solely for educational purposes,” it qualified

for educational use exemption. Big Ten Conference, 312 Ill. App. 3d at 92.

       Another plaintiff with sufficient ties to a learning institution for purposes of the Property

Tax Code (35 ILCS 200/15-35(c) (West 1998)) was a media corporation which was incorporated

by the president of the University of Illinois at Urbana-Champaign; remained under the authority

of the university chancellor; and educated full-time students in the field of mass communications

by employing them to operate the campus radio station, publish the university newspaper,

produce the university yearbook, and compile a technical journal. Illini Media Co. v. Department

of Revenue, 279 Ill. App. 3d 432, 434 (1996). The non-profit corporation was closely affiliated

with the school and functioned on the school’s behalf to educate students in a particular field.

The Department of Revenue argued that classifying the media corporation’s use of real property

as “educational” would open the statutory tax exemption to “ ‘virtually any not-for-profit entity

that gives students “hands on” experience.’ ” Illini Media Co., 279 Ill. App. 3d at 437. The

supreme court disagreed, pointing out that each case must be decided on its particular facts, and

that not “just ‘any not-for-profit entity’ would be subordinate to the [chancellor], employ over

700 students of the [university], be governed by the students and faculty of the [university], have

students in positions of leadership of the enterprise, have a specific mission with respect to the

students of the [university], maintain this mission for over 84 years since its incorporation in

1911, and have other particular characteristics that make [it] unique.” Illini Media Co., 279 Ill.

App. 3d at 437. Significantly, however, only one of the media corporation’s three parcels of real

estate was entitled to a full tax exemption. The building which housed the media operations was


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adjacent to two parcels which were used primarily as car parking lots. Illini Media Co., 279 Ill.

App. 3d at 438. Because the media corporation was deemed an exempt corporation, its parking

areas would also be exempted.3 However, each parcel contained a building which the media

corporation was not using and intended to eventually demolish to make way for more parking

spaces. Illini Media Co., 279 Ill. App. 3d at 438. Because the property owner’s future intention

of use for an exempt purpose was not the equivalent of using it, the matter was remanded in part

for the administrative law judge to determine what portion of the lots was actually in tax exempt

usage as parking space. Illini Media Co., 279 Ill. App. 3d at 438.

       A foundation which was a financing vehicle for the University of Illinois is another entity

whose property was deemed tax exempt because it was closely affiliated with and functioning on

behalf of an educational institution. See People ex rel. Goodman v. University of Illinois

Foundation, 388 Ill. 363 (1944).

       These four tax-exempt property owners contrast with the Board of Certified Safety

Professionals of the Americas, which was not a school itself, did not function on behalf of any


       3
           Section 19.16 of the Property Tax Code, which has been repealed, exempted “[p]arking

areas, not leased or used for profit, when used as a part of a use for which an exemption is

provided *** and owned by any *** institution which meets the qualifications for exemption.”

35 ILCS 205/19.16 (1992), repealed by Pub. Act 88-455, art. 32, §32-20, eff. January 1, 1994.

Property tax exemptions for parking lots used by “any school district, non-profit hospital, school,

or religious or charitable institution” are now governed by section 15-125(a) (35 ILCS 200/15-

125(a) (West 1998)).

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learning institution, and was sponsored by four nonschools: the American Society of Safety

Engineers, the American Industrial Hygiene Association, the Systems Safety Society, and the

Society of Fire Protection Engineers. Board of Certified Safety Professionals of the Americas,

Inc. v. Johnson, 112 Ill. 2d 542, 544 (1986). It prepared and offered biannual testing for safety

professionals, maintained a library of standards and publications pertinent to the safety

profession, and regularly published a newsletter. Board of Certified Safety Professionals, 112 Ill.

2d at 545. The organization undoubtedly advanced the stature of the safety profession and

improved individual competency in safety issues, but it was not acting on behalf of an

educational institution. Accordingly, the supreme court rejected the contention the safety

organization was similar to the association of medical schools in Lorenz and met the

requirements for property used for educational purposes. Board of Certified Safety

Professionals, 112 Ill. 2d at 546.

       These cases illustrate the fallacy of Beta House Fund’s contention that the test for

exemption under section 15-35(c) is strictly use. 35 ILCS 200/15-35(c) (West 1998). They

indicate that not just “any not-for-profit entity” (Illini Media Co, 279 Ill. App. 3d at 437) can

qualify for an educational use exemption under the Property Tax Code. 35 ILCS 200/15-35

(West 1998). Rather, we must look to the particular facts of a case (Illini Media Co., 279 Ill.

App. 3d at 437) in order to determine whether the entity is closely associated with and

functioning on behalf of a learning institution (Lorenz, 17 Ill. 2d at 129; Big Ten Conference,

312 Ill. App. 3d at 91; Illini Media Co., 279 Ill. App. 3d at 338), and whether there is actual as

opposed to intended use of the property (Illini Media Co., 279 Ill. App. 3d at 338). They indicate


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the party seeking exemption from taxation need not show that the use of the real property is

absolutely indispensable for carrying out the work of a learning institution; however, the

applicant must show the primary use of the property is by an association of learning institutions

or some other legal entity that is closely affiliated with and functions on behalf of a learning

institution.

        We also reject Beta House Fund’s contention that the students’ use of the fraternity house

at 5625 South University Avenue “shares many of the criteria set forth in Illini Media” and meets

or exceeds the tax-exempt usage depicted in that case. Illini Media Co., 279 Ill. App. 3d 432. In

an attempt to establish that the fraternity is “assist[ing] the university’s mission,” it argues “the

University actively pursues links with and supervises the fraternities on campus, including the

[Illinois Beta Chapter of Phi Delta Theta], by appointing a University official as a ‘Greek

Advisor’ supervising the Chapter, by organizing an Inter-Fraternity Council, and by organizing

the alumni of the fraternities into an alumni coun[cil], the president of which is a Chapter

alumnus.” The Department of Revenue counters that these circumstances would not be sufficient

to garner a tax exemption under the rationale of Illini Media Company, even if they were an

accurate statement of the record, which they are not. Illini Media Co., 279 Ill. App. 3d 432.

        Michael Liberty, president of the local chapter in 2002, testified that he pledged to the

fraternity in the spring of 2000 and would be part of the graduating class of 2003. When Liberty

testified on June 11, 2002, he stated there is only “[s]ort of [an interfraternity council]. The

University is pursuing one, but the fraternities on campus have been reluctant to participate.” In

other words, there was no interfraternity council during the 2000 tax year at issue, and the


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fraternities, far from being controlled by or functioning on behalf of the school, are sufficiently

independent that they can resist the University’s efforts to organize them.

       Furthermore, there was no alumni interfraternity council in the 2000 tax year at issue.

According to Liberty, “it was more or less resurrected in the last year [2001-02] to facilitate

communication between the different fraternities’ alumni so they could pass on knowledge about

renovations, that type of thing” and to have “some kind of connection with the university about

Greek alumni events,” not about the events or activities of the current undergraduate residents of

the house.

       In addition, although Beta House Fund argues there was a University-appointed “Greek

Advisor supervising the Chapter,” Liberty testified the president of the alumni interfraternity

council happened to be an alumnus of the Illinois Beta Chapter of Phi Delta Theta, “[a]nd so he

will meet with the Greek advisor to the undergraduates and discuss different things that are going

on.”

       Thus, the only record evidence of a connection between the Beta House Fund or the

fraternity and the University is that a fraternity alumnus met with a Greek Advisor in 2002, not as

a representative of the Beta House Fund or fraternity, but in his role as the president of the

alumni interfraternity council to discuss “Greek alumni events.” This limited contact does not

demonstrate that the school exercised any authority over the Beta House Fund or the fraternity, or

that the fraternity shared a close affiliation with the school and was functioning on its behalf.

Moreover, Liberty testified that being a student of the University was not a requirement to

becoming a member of the fraternity. When asked whether fraternity members would “rush


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anyone who wasn’t already a student at the University of Chicago,” Liberty answered “[p]robably

not,” but explained, “[m]ostly because they are not around on a consistent basis.” The record

also shows that at least one non-member resided in the house during the tax year at issue. We

also note that Beta House Fund’s own articles of incorporation and corporate bylaws indicate it is

not closely affiliated with the university and functioning on behalf of the learning institution.

The corporation purports to “promote and foster the social and fraternal principles of the Phi

Delta Theta Fraternity of the University of Chicago, and engage in other pleasure, recreation and

nonprofit[] activities.” The corporation’s “principal object *** is to *** maintain a Chapter

House *** for students *** [and] a free library *** along with electronic facilities and access to

promote the advancement of sound learning,” and its activities include “representing the

members of [the fraternity],” “owning, supervising, acquiring and disposing of real estate,” and

“fostering united action and promoting unbroken concourse of all members of [the fraternity].”

In short, the plaintiff’s purpose and efforts are on behalf of the fraternal organization and its

student and alumni members, not on behalf of the learning institution. Although Beta House

Fund considers Lorenz and Big Ten Conference to be most analogous to its own circumstances,

we see no similarities between a fraternity that maintains a residence for the benefit of itself and

its individual members and associations which perform administrative functions for the benefit of

member colleges and universities. The record does not indicate Beta House Fund or the local

chapter of the fraternity is closely associated with and functioning on behalf of a learning

institution. Lorenz, 17 Ill. 2d at 129; Big Ten Conference, 312 Ill. App. 3d at 91; Illini Media

Co., 279 Ill. App. 3d at 338. The record does not indicate Beta House Fund or the local chapter


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of the fraternity is relieving the University of Chicago of any of its tasks or otherwise furthering

the school’s purposes. Lorenz, 17 Ill. 2d at 129; Big Ten Conference, 312 Ill. App. 3d at 91;

Illini Media Co., 279 Ill. App. 3d at 338. In addition, because the record suggests the local

chapter has begun hosting educational lectures in order to enhance its claim to an educational use

tax exemption, we point out that even if the fraternity house hosted regular lectures, study

sessions, or exam preparation classes, such incidental use of the residential property would not be

on behalf of the University of Chicago, and would not entitle the fraternity to a property tax

exemption under section 15-35(c). 35 ILCS 200/15-35 (West 1998).

         We conclude that allowing a tax exemption in this instance would be contrary to the

constitutional requirement that the property be used “exclusively for school purposes,” and

would be inconsistent with the terms of the Property Tax Code. 35 ILCS 200/15-35(b) (West

1998).

         For these reasons, we are not left with the definite and firm conviction that the decision of

the administrative agency which was affirmed by the circuit court was in error. We affirm.

         Affirmed.

         McNULTY and O’MALLEY, JJ., concur.




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