As Big Retailers Seek to Cut Their Tax Bills, Towns Bear the Brunt

Wauwatosa, Wis., is chockablock with malls. Some of the stores are challenging their property taxes, arguing that their assessment should be based on the sale price of vacant stores in other places.

WAUWATOSA, Wis. — With astonishing range and rapidity, big-box retailers and corporate giants are using an aggressive legal tactic to shrink their property tax bills, a strategy that is costing local governments and school districts around the country hundreds of millions of dollars in lost revenue.

These businesses — many of them brick-and-mortar stores like Walmart, Home Depot, Target, Kohl’s, Menards and Walgreens that have faced fierce online competition — maintain that no matter how valuable a thriving store is to its current owner, these warehouse-type structures are not worth much to anyone else.

So the best way to appraise their property, they contend in their tax appeals, is to look at the sale prices on the open market of vacant or formerly vacant shells in other places. As shuttered stores spread across the landscape, their argument has resonated.

To municipalities, these appeals amount to a far-fetched tax dodge that allows corporations to wriggle out of paying their fair share.

Either way, homeowners and small businesses will have to pay more or live with smaller budgets for police, schools, garbage pickup and road repair.

Businesses, of course, appeal property assessments as routinely as coaches work the refs. But this approach — labeled dark store theory by critics — significantly broadens the basis for those appeals while threatening to undermine municipalities’ ability to raise operating funds.

“The potential for a domino effect of property tax appeals across the commercial and industrial portions of the tax base, which, were it to occur, could have a much more profound effect on some governments’ ability to levy” property taxes,” S&P Global Ratings concluded in a report last year.

For a smaller town or school district, “the financial impact could be devastating,” said Scott Nees, a co-author of the report, noting that it could also threaten localities’ ability to borrow money.

In Michigan, the state association of counties estimated that dark-store appeals reduced local revenue from 2013 to 2017 by $100 million. In Texas, the comptroller said such appeals could end up costing local governments $2.6 billion a year.

And in Wauwatosa, a shopping polestar in Wisconsin where chockablock malls attract families in the market for $4,000 sofas, Adidas NMDs and a Cheesecake Factory pig out, the city is fighting property tax appeals in court dating back to 2015 from Lowe’s, Nordstrom, Best Buy, Meijer and United Healthcare. It recently settled with Target, Walgreens and a KFC franchise.

“It’s like a virus,” said Kathleen Ehley, the mayor of Wauwatosa.

In the Lowe’s case, the company spent more than $16 million to buy the land and construct its 140,000-square-foot building less than a dozen years ago. The city assessed the spot in a bustling retail hub right off Highway 41 at $13.6 million. The company’s appraisal was $7.1 million, based on sales of empty and once empty buildings in other neighborhoods.

Lowe’s declined to comment because the case is being litigated.

But the city’s assessor said Lowe’s had partly based its analysis on stores that were more than 25 years old and in economically declining neighborhoods. Another store was listed as comparable in part because of its “proximity” to a shopping mall, although instead of the booming center near this Lowe’s, that mall had closed 15 years earlier.

City officials estimate that the current string of dark-store lawsuits alone would require it to refund $4.1 million of tax payments — the equivalent of about a tenth of its total property tax revenue this year.

“Either my property taxes are going to go up or my schools are going to suffer,” said Lisa Williams, who lives in a classic Craftsman-style bungalow a few minutes’ drive from Lowe’s in Wauwatosa, a comfortable suburb of Milwaukee. “The stores want to get all the benefits of being here without any of the costs.”

Ms. Williams, 53, a researcher at the University of Wisconsin-Milwaukee who has three children, added, “Everybody in the neighborhood shops there.”

Efforts to reduce tax assessments on the local level are continuing even as businesses are seeing hefty reductions in their federal taxes from last year’s tax overhaul in Washington.

The dark-store argument started to gain traction in a few states in the mid-2000s, but has snowballed in the last year. After retailers won some influential legal decisions, thousands of similar appeals from other commercial taxpayers — from manufacturers to owners of corporate office buildings — have followed.

The judicial victories have elbowed the issue into the political arena. Several states, like Alabama, Texas and Indiana, have considered legislation that would curb the tactic.

In nonbinding referendums in November, voters in 23 counties and cities across Wisconsin approved proposals calling for laws to prevent dark-store analyses from being used in tax assessments. (Wauwatosa was not among them.)

That and similar legislative proposals have been opposed by Wisconsin Manufacturers & Commerce, the state’s largest business association.

“Local governments want to exclude vacant buildings because a lot of retail has gone vacant in recent years,” said Scott Manley, the group’s vice president of governmental relations. “Retail property is less valuable today, and they don’t want to acknowledge it.”

Appraisal guidelines vary from state to state. But mega-retailers argue, in essence, that traditional approaches that look at land and building costs or how much income the property can generate are not relevant. Instead, they say, appraisals should primarily rely on comparable sales, and the only sales that are comparable are of other big-box stores that have been vacated.

Empty commercial buildings often go for bargain-basement prices because the structures — football-field-size stores or factories — were developed for specific purposes and, therefore, attract few, if any, buyers.

“These warehouses are obsolete pretty much from the moment they build them,” said Robert Hill, a lawyer in Minnesota who has represented Walmart, Menards, Walgreens, CVS, Sturm Foods, United Healthcare and other companies. “It doesn’t matter whether they’re for sale in a suburb of Virginia or Nome, Alaska.”

This is not an entirely new idea. In 1921, the New York Stock Exchange appealed its property tax assessment, arguing that because its building could not be adapted for any other use, it should be considered only a “tear-down proposition” that decreased the value of the land. A State Supreme Court judge disagreed.

Sales comparisons often make sense for homes, experts say, because they can estimate what a willing buyer would pay by looking at recent sales of similar houses or apartments on the same block or in the neighborhood.

Appraisals can be much more complicated when it comes to a specialized commercial property, where adjustments have to be made for location, condition, size, the incomes of area residents, traffic flow and much more. Is the property on Fifth Avenue in Manhattan or in a dead suburban mall? Is the building three years old or 30? Restrictive clauses in leases that companies themselves impose — such as prohibiting its use by a competitor — can further depress a property’s value.

Sales comparisons are reliable benchmarks but only when there are lots of substitute properties and data, the International Association of Assessing Officers concluded in a 2017 report. “Using vacant sale comparables (without adjustment) to value an occupied property is not proper appraisal practice,” it said.

What constitutes a fair comparison and adjustment, however, is open to debate.

“Courts are grappling with the meaning of market value,” said Joan Youngman, chairwoman of the Department of Valuation and Taxation at the Lincoln Institute of Land Policy in Cambridge, Mass. “We are in the early stages of the issue working its way through the higher courts, and we don’t have the answers to some of these questions.”

In Manawa, a town about 130 miles north of Milwaukee that has a population of 1,294, the mayor is carefully monitoring snow plowers’ overtime after settling a yearslong tax dispute with Sturm Foods, the largest local employer. The appeals began a couple of years after Sturm was bought by TreeHouse Foods, a multinational conglomerate, for $660 million in 2010.

Sturm initially argued the factory’s property was worth less than half of its assessment.

In 2017, when they finally settled, property taxes for everyone else rose by 12.4 percent — $300 per homeowner, on average — while the city’s borrowing ability was curtailed.

“We have to be much more careful with services,” said Mayor John Smith. “It also reduces our ability to borrow.”

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