2012-436, Granite State Management & Resources v. City of Concord

years 2008 and 2009. We aff irm in part, reverse in part, and remand. organization eligible for a tax exemption under RSA 72:23, V (2012) for the tax judgment to the City, based upon a finding that GSMR is a charitable Granite State Management & Resources (GSMR), and denyin g summary Superior Court (McNamara, J.) granting summary judgment to th e petitioner, LYNN, J. The respondent, City of Concord (City), appeals an order of the

Pacik on the brief, and Mr. Kennedy orally), for the respondent. City Solicitor’s Office, of Concord (James W. Kennedy and Danielle L.

and orally), for the petitioner. Sulloway & Hollis, P. L. L. C., of Concord (Margaret H. Nelson on the brief

No. 2012 - 436 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

income from origination fees paid by borrowers, loan servicing and origination assets “likely to gener ate income are the loan servicing assets.” GSMR derives fundamental purpose of GSMR is to service educational loans” and that its only The trial court found that “there can be no serious dispute that the

GSMR, the NHHEAF Network organizations do not have any employees. transferred its assets to NHHELCO. But for the staffing servic es provided by was a tax - exempt charitable trust that suspended operations in p. 2 2008 and the federal guaranteed student and parent educational loan programs. NNEF U.S.C. § 501(c)(3) that serves as an in - state guarantor of loans originated under NHHEAF is a nonprofit organization exempt from f ederal income tax under 26 Educational Foundation (NNEF) – comprise the so - called NHHEAF Network. Educational Assistance Foundation (NHHEAF) and NHHEAF Network with NHHELCO, these nonprofit affiliates – the New Hampsh ire Higher of GSMR “to carry out their charitable and education[al] purposes.” Together and all staff necessary to enable” NHHELCO and two other nonprofit affiliates Second, GSMR provides “all administrative and management services

several lenders in addition to NHHELCO, including private organizations. insufficient funding. See p. 2 20 U.S.C. § 1078. GSMR services education loans for lender under FFELP and supplements FFELP loans when they provide exempt from f ederal income tax under 26 U.S.C. § 501(c)(3); it is a qualified educational loan program. NHHELCO is a nonprofit organization that is also Education Loan Programs (FFELP), a federally guaranteed student and parent Corporation (NHHELCO), to service loa ns originated under the Federal Family contracts with its nonprofit affiliate, New Hampshire Higher Education Loan two primary functions: student loan servicing and staffing. First, GSMR Ac cording to its chief financial officer (CFO), Dean Grondin, GSMR has

(Emphasis added.)

United States of America and its territories. education and educational opportunities for the citizens of the territories . . . and of supporting the development of higher e ducational programs in the United States of America and its who are attending educational institutions or participating in students and to parents, custodians or guardians of such students providing low cost or alternative financial assistance to eligible

forth GSMR’ s purpose as: under p. 2 26 U.S.C. § 501(c)(3). Article 2 of its Article s of Agreement (articles) set s New Hampshire nonprofit corporation that is exempt from f ederal income tax The summary judgment record supports the following facts. GSMR is a

I. Facts p. 3 3

motions for summary judg ment. GSMR argued that it “fully meets the T he trial cour t consolidated GSMR’s petitions, and t he parties filed cross -

judgment. abatement of its 2009 taxes, GSMR filed a second petition for declaratory See RS A 72:2 p. 3 3, V, :23 - l (2012). After applying, unsuccess fully, for a full tax exemption because it did not meet the statutory definition of “charitable.” In 2009, the City determined that GSMR did not qualify for the charitable

declaratory judgment. substantial overpayment.” GSMR subsequently brought a petition for four lots, but informed the City that it believed the tax bill “include[d] a PILOT using the lots’ combined value. GSMR paid the assessed taxes on all assessed taxes on consolidated Lots 18 and 19 under the September 2000 when appraising the consolidate d lot for PILOT purposes. In 200 8, the City to Lot 18, in 200 p. 3 3 the City started using the combined value of Lots 18 an d 19 (September 2000 PILOT). Although th e September 2000 PILOT ap plied solely 19 pursuant to a separate PILOT agreement entered into i n September 2000 began taxing Lot 17 a t its full value. The City taxed consolidated Lots 18 and 2001 PILOT), the City informed GSMR in 2003 that the PILO T had expired, and agreement entered into by the City and GSMR in February 2001 (February value. Although Lot 17 was subject to a payment - in - lieu - of - taxes (PILOT) In 2008, the City assessed taxes on Lots 17 and 20 based on their full

and 19, which were consolidated in 2001. Lots 17 and 20 are used for parking. Office buildings are located on Lots 18 G SMR owns four parcels o f land located at 1 - 4 Barrell Court in Con cord.

II. Procedural Background

convenient means to provide families with educational financing.” educational activities,” and “New Hampshire lenders were provided with a were assured of the flow of funds necessary to allow them to continue their to finance the cost of education,” “New Hampshire educational institutions Hampshire students and parents were able to obtain access to lower cost funds According to GSMR, as a res ult of its activities in 2008 and 2009, “New

profit, maintained investments, and retained a surplus. GSMR serviced approximately $2.5 billion in loans, earned a substantial net services,” a nd to conduct “statewide outreach efforts.” In 2008 and 2009, to pay for the development of new educational loan rela ted activities and provide student[s], parent[s], and institution[s] information and counseling, . . . uncollectible loans and collection expenses, to fund loan default reserves, to GSMR administers. It uses its income to “pay operational expenses, to pay for fees paid by institutions, and interest stemming from the education loans that p. 4 4

(2010) (quotation omitted); see RSA p. 4 491:8 - a (2010). Gen. Mut. Ins. Co. v. Green & Co. Bldg. & Dev. Corp., 160 N.H. 690, 692 matter of law, then we will affirm the grant of summary judgment.” Concord issue of material fact and if the moving party is entitled to judgment as a (2009) (quotation omitted). “If our review of that evidence discloses no genuine matter of law.” N.H. Assoc. of Counties v. State of N.H., 158 N.H. 284, 287 - 88 exists, we determine whether the moving party is entitled to judgment as a its capacity as the nonmoving party and, if no genuine issue of material fact judgment, “we consider the evidence in the light most favorable to each party in In reviewing the trial court ’ s rulings on cross - motions for summary

I I I. Standard of Review

2009. The City appealed. 2009 as we ll, i.e., whether the September 2000 PILOT was terminated prior to 19 were subject to the September 2000 PILOT pertains solely to 2008 or to however, whether the trial court’s determination that consolidated Lot s 18 and 2001 PILOT had previously terminated. It is not clear from the record, GSMR was a charitable organization during th e se years a nd that the February tax - exempt apparently applie d both to 2008 and 2009, given its findings that entitled to an exemption.” The court’ s determination that Lots 17 and 20 are exemption” and it used the lots “for parking for the facilities for which GSMR is taxation because GSMR was “a charitable organization entitled to a tax 2001 PILOT. Nevertheless, it concluded that Lots 17 and 20 were exempt from agreed with the City that in 200 p. 4 4, Lot 17 ceased to be sub ject to the February valuing the parcel subject to the PILOT for billing purposes.” The court also PILOT and that it was “appropriate for the City to use the consolidated lot when 18 an d 19, the court found that the lots were subject to the September 2000 denied the City’s motion. Addr essing GSMR’s tax liability for conso lidated Lots The trial court granted GSMR’s motion for summary judgment and

2009 because it is not a charitable organization. not eligible for a charitable tax exemption under RSA 72:23, V for 2008 and Lot 18. The City argued i n its motion for summary judgment that GSMR wa s 19 under the terms of the September 2000 PILOT, which was applicable only to its full rate, even though it was subject to the February 2001 PILOT; and (2) Lot regards 2008, GSMR contended that the City improperly tax ed: (1) Lot 17 at decision in 2009 to . . . [deny] GSMR such a tax exemption was incorrect.” As standards for a charitable exemption under RSA 72:23, V and that the City’s p. 5 5

ElderTrust, 1 p. 5 54 N.H. at 697 - 98.

profit or benefit. organization ’ s officers or member s may not derive any pecuniary the organization was established. Under the fourth factor, the profits are used for any purpose other than the purpose for which charitable purposes; and (4) any of the organization ’ s income or organization, is occupied by it and used directly for the stated organization; (3) the land, in addition to being owned by the stated purpose to the public rather than simply to members of the purpose; (2) an obligation exists to perform the organization ’ s organization was established and is ad ministered for a charitable of the following four factors; namely, whether: (1) the institution or institution [applying for a charitable tax exemption] to satisfy each [T] he plain language of RSA 72:23, V and RSA 72:23 - l requires the

In ElderTrust of Florida v. Town of Epsom, 1 p. 5 54 N.H. 693 (20 07), w e held:

members, or those of any related organization. restrictions which confine its benefits or services to such officers or pecuniary profit or benefit to its officers or members, or any that includes residents of the state of New Hampshire, w ith no public or a substantial and indefinite segment of the general public physical, intellectual, social or economic well - being of the general so me service of public good or welfare advancing the spiritual, performing, and obligated, by its charter or otherwise, to perform organization established and administered for the purpose of The term “charitable”. . . shall mean a corporation, society or

Pursuant to RSA 72:23 - l:

purpose than the purpose for which they are established. that none of the income or profits thereof is used for any other directly for the purposes for which they are established, provided doing business in this state, owned, used and occupied by them organizations and societies organized, incorporated, or legally [t]he buildings, lands and personal property of charitable

RSA 72:23, V exempts from taxation:

IV. Charitable Exemption p. 6 6

establish a connection between outreach activity and efficient loan servic ing. GSMR provided the public benefit of efficiency, the record does not offer factual support for or To the extent that the trial court relied on GSMR’s community outrea ch activities in finding that 1

charitable purpose so narrowly. According to its a rticles, GSMR serve s the does not constitute a charitable purpose. We decline to view GSMR’s The City argues that efficiently managing and servicing student loans

affordable for students to undertake.” “minimizing the costs of servicing student loans so that the loans become more This outcome, the court found, would frustrate the public benefit of individuals GSMR seeks to assist by providing low - cost, efficient loan services.” “that cost would be passed on to the users of student loans; the very found that, were a for - profit organization to service the loans instead of GSMR, student loans and consequently for students themsel ves.” The court further lending and borrowing, respectively, “less expensive for the originators of banks that own student loan debt that GSMR services,” which, in turn, makes The court found that “GSM R’s activities help reduce fees and expenses paid by services to New Hampshire lenders,” and that its “key benefit is its efficiency.” 1 “benefit[s] . . . the public at large by providing highly efficient streamlined loan The trial court found that GSMR serves a charitable purpose because it

[of RSA 72:23, V and RSA 72:23 - l].” Id. at 5 (q uotation omitted). not to be thwarted by a strained, over - technic al and unnecessary construction concurring). “[T] he legislative purpose to encourage charitable institutions is P eterborough v. MacDowell Colony, 157 N.H. 1, 12 (200 8) (Dalianis, J., services; and ( p. 6 6) other purposes that a re beneficial to the community. Town of (4) aiding religion; (5) providing governmental or municipal facilities and categories: (1) relieving poverty; (2) promoting health; (3) advancing education; p urpose. I d. at 697. Generally, charitable purposes fall into the following V, an organization must be established and administered for a charitable First, in order to qualify for a charitable tax exemption under RSA 72:23,

turn. qualify it as a charitable organization. W e address each ElderTrust factor in profit entities and for - profit entitie s, earning a significant profit” does not GSMR’s activity of “administer[ing] and servic[ing] student loans for both non rather than the public. See id. The main thrust of the City’s argument is th at purpose, does not use its land for a charitable purpose, and benefits its officers charitable pur pose, lacks an enforceable obligation to perform a charitable ElderTrust factors. The City argues that GMSR is not administered for a On appeal, the City argu e s that GSMR cannot satisfy any of the four

A. The City’s Motion for Summary Judgment p. 7 7

N.H. at 353. compared to the benefit derived by [the taxpayer’s] members.” Appeal of City of Concord, 161 determine whether the taxpayer’s “benefits to the public are slight, negligible or insignificant when Our remand on this point in Appeal of City of Co ncord was for the purpose of having the BTLA 2

supporting home health care providers. Id. at 350, 352 - 53. Similarly, in 2 organization could ultimately benefit the public by training and otherwise New Hampshire Board of Tax and Land Appeals (BTLA) that the taxpayer bracke ts omitted). In Appeal of City of Concord, we affirmed the finding of the Appeal of City of Concord, 161 N.H. 344, 350 (2011) (citation, quotations, and

the public and provide some service of public good. the organization must be obligated to perform its stated pu r pose to which the public be nefits indirectly satisfies the requirement that certain individuals. . .. The obligation to provide the service by to the public . . . by means of a service . . . that is provided to exemption. . . . [A]n organization can indirectly provide a benefit [D]irect service to the public is not re quired for a charitable tax

may benefit the public indirectly. an organization from a charitable tax exemption: a charitable organization M ak ing another organization’s activity more efficient does not disqualify

charity, even if it makes those organizations more e fficient.” We disagree. charitable activities of another organization to demonstrate that it qualifies as a deemed charitable, GSMR is not permitted to ‘bootstrap’ or ‘piggy - back’ on the other lenders. The City contends that, “[e]ven if NHHEAF and NHHELCO were and services loans originated and guaranteed by NHHEAF, NHHELCO, and because it does not originate or service loans of its own, but instead manages The City argues that GSMR is not administered for a charitable purpose

charitable institutions. MacDowell Colony, 15 p. 7 7 N.H. at 5. 72:23 - l that is inconsistent with the legislative purpose of encouraging the type of “strained, over - technic al and unnecessary construction” of RSA from the recognized charitabl e purpose of advancing education would result in clearly promote the advanc ement of education. Treating efficiency separately do, indeed, reduce the cost of obtaining education al loans for students, they is consi dered as being used for educational purposes.”). I f GSMR’s activities institution rather than to furnish a habitation for the employee, the residence residence for a school employee is to promote the efficient administration of the (Del. Super. Ct. 1935) (“[W]here the dominant consideration in acquiring a achieve that purp ose. Cf. Burris v. Tower Hill School Ass ’ n, 179 A. 397, 399 administration of loans is not GSMR’s charitable purpose, but a means to education and educational opportunities.” Efficient servicing and students and to parents .. . and of supporting the development of higher purpose of “providing low cost or alternative financial assistance to eligible p. 8 8

services are its affiliated organizations” rather than the public. Id. are, thus, not charitable” and “because t he direct beneficiaries of SHHS’ cannot be classified as educational, religious, moral, physical, or social, and a charitable purpose because “[m]anagement and admin istrative services “improve[e] the efficient allocation of health care resources,” it did not advance the general public.” Id. The court reasoned that, even though SHHS aim ed to profit and non - profit, for a fee, and n ot to the general public or any segment of management services to only a small group of affiliated corporations, both for - Id. Consistent with this purpose, “SHHS provide[d] administrative and

utilization all [sic] allocation of health care resources . . . governmental costs of such health care, through more efficient public in Lehigh County . . .; and to contain consumer and quality, breath [sic] and diversity of health care delivered to the [and] such support will enable such organizations to improve the Hospital . . . and other subordinate units of the Corporation. . . benefitting, supporting, and performing functions of Sacred Heart

described its charitable purpose as Healthcare Sys tem, 673 A.2d at 1026. SHHS’s articles of incorporation services were its affiliated organizations rather than the pu blic. Sacred Heart Healthcare System (SHHS), in part because the direct beneficiaries of its Pennsylvania denied a charitable tax exemption to a corporation, Sacred Heart In Sacred Heart He althcare Sys tem, the Commonwealth Court of

345141 (N.H. Bd. Tax. Land. App., Feb. 5, 2001). the BTLA, Shallow River Properties, Inc. v. Town of Northumberland, 2001 WL Commonwealth, 673 A.2d 1021 (Pa. Commw. Ct. 1996) – and on an opinion of 1269 (Pa. Commw. Ct. 199 p. 8 8), a nd Sacred Heart Healthcare System v. two Pennsylvania cases – Lewistown Hosp ital v. Mifflin County Board, 706 A.2d charitable activities is neither controlling nor persuasive. T h e City relies on does not pe rform a charitable purpose because it “piggy - back s” on the lenders’ The authority that the City cites in support of its argument that GSMR

exemption. GSMR must engage in direct lending in order to be eligible for a charitable tax art but to promote it”). Based on our case law, we disagree with the City that exemption” where the taxpayer’s “charitable purpose is not to actually create upon the coattails of the individual artists to receive a public charitable tax 157 N.H. at 7 - p. 9 9 (rejecting the town’s contention that the taxpayer “cannot ride furthered the charitable purpose of promoting the arts. MacDowell Colony, restricted to artists . . . of the highest talent” benefited the general public and MacDowell Colony, we concluded that a highly selective residential “program 9

necessarily constrained by the manner in which the organization has chosen to organization qualifies as a charity for property tax purposes, our review is By contrast, w e have nev er held that, in determining whether an

fact that SHHS is an independent entity.” (citation omitted)). SHHS’s sister corporations in our analysis would require us to disregard the ignore those distinct legal entities . . . . Thus, including the functions of separate corporate entities, the taxpayer cannot insist that the Com monwealth Healthcare System, 673 A.2d at 1025 (“Where a taxpayer divides itself into Lewistown Hosp., 706 A.2d at 1274 (quotation omitted); Sacred Heart determining a single corporat ion ’ s right to a charitable tax exemption.” “that the activities of related organizations may not be considered when and Lewistown Hospital were decided based on Pennsylvania case la w stating at 12 (Dalianis, J., concurring). Furthermore, Sacred Heart Healthcare System charitable purpose of advancing education. S ee MacDowell Colony, 157 N.H. supporting their affiliates, whereas GSMR’s articles set forth the recognized River Properties, Inc. were established for the purpose of assisting and the taxpayer organizations in Sacred Heart Healthcare Sys tem and Shallow Properties, Inc. are distinguishable. Based on their articles of incorporation, Sacred Heart Healthcare System, Lewistown Hosp ital, and Shallow River

tax exemption. Id. at 1273 - 74. the hospital operate d free from profit motive and was eligible for a charitable “without regard to the parent’s or subsidiaries’ function,” and concluded that affirmed the trial court’s assessment of the hospital’s charitable purpose operated retail pharmacies an d primary care centers. Id. The appellate court parent company’s subsidiaries owned and rented a medical office building and administer[ing] those funds for the benefit of the Hospital.” Id. at 1270. The parent company was formed for the purpose of “rais [ing] funds and organizations. Lewistown Hosp., 706 A.2d at 1273 - 74. Lewisto w n Hospital’ s though its corporate structure consisted of both for - profit and non - profit that Lewisto w n Hospital was eligible for a charitable tax exemption even In Lewistown Hospital, the Commonw ealth Court of Pennsylvania found

charitable purpose of its own. Id. if not exclusively, to serve an affiliated organization,” and did not have a direct The BTLA concluded that the corporation “was organized and exists primarily, out their missions.” Shallow River Properties, Inc., 200 1 WL 345141, at *3. property,” and “assist [the affiliate] and [other] affiliate corporations in carrying and administrative services,” “manage, sell or otherwise dispose of real maintain real property associated with the provision of residential treatment affiliate, consistent with its purpose “to receive, purchase, lease, hold and tax exemption to a corporation that owned and rented its property to an Similar ly, in Shallow River Properties, Inc., the BTLA denied a charitable p. 10 10

exempt status under 26 U.S.C. § 501(c)(3) when it found that GSMR used its 698, t he City contends that the trial court erroneou sly relied on GSMR’s tax and used directly for the stated charitable purposes,” ElderTrust, 154 N.H. at Addressing the third factor, whether GSMR’s land is “occupied by . . .

matter of law on the second ElderTrust factor. conclude that the City has not demonstrated that it is entitled to judgment a s a for the performance of the obligations it has undertaken. Accordingly, we notwithstanding any such rights, GSMR remains primarily liable to the lenders GSMR’s agreements with NHHELCO a nd NHHEAF indicates that, obligations to another organization, including a for - profit entity. Our review of NHHEAF, it contractually retains the right to assign or subcontract its s tated charitable purpose because, in its agreements with NHHELCO and The City also appears to a rgue that GSMR is not obligated to perform its

review). 346 (2001) (a n undeveloped legal argument is insufficient to warrant judicial we decline to ad dress it. In the Matter of Thayer and Thayer, 146 N.H. 342, obligation.” Because the City makes but a passing reference to this argument, educational opportunities” is vague and does not create an enforceable GSMR’s articles that it “support[] the development of higher education and can enforce this limitation. On ap peal, the City argues that the requirement in exempt corporations under 26 U.S.C. § 501(c)(3) and that the Attorney General court found that GSMR’ s articles limit its operations to those permitted for tax its stated purpo se to the public. ElderTrust, 154 N.H. at 697 - 98. The trial ElderTrust factor: that a charitable organization must be obligated t o perform The City has not sufficiently developed its argument as to the second

tax exemption. ElderTrust, 154 N.H. at 697. servicing other len ders’ loans, GSMR is c ategorically ineligible for a charitable Accordingly, we disagree with the City’s position that, by virtue of

several affiliated entities. activities are performed through an organizational structure that consists of clear why a different result should occur merely because the same charitable the activities of that entity would qualify it for a charitable exemption, it is not GSMR and its affiliates had been combined as a single corporate entity, and if subsidiary, “considered together w ith all the facts of this case”). For example, if mutuality of identity between the parent corporation and its wholly - owned double taxation based on the similarity between the taxes imposed and corporate structure which the taxpayer has chosen for itself” and finding no 386 - 87 (1981) (stating that “[i]n tax cases we do not completely disregard the particular case. Cf. First Financial Group of N.H., Inc. v. State, 121 N.H. 381, have a bearing on the issue depending on the facts and circumstances of the structure its legal existence, although we recognize that thi s consideration may p. 11 11

motion “an affidavit based upon personal knowledge of admissible facts as to A party moving for summary judgment must submit in support of its

B. GSMR ’s Motion for Summary Judgment

summary judgment. W e therefore affi rm the trial court’s denial of the City’s motion for

to judgment as a matter of law on the fourth ElderTrust factor. salaries. See RSA 491:8 - a, II. The City has not demonstrated that it is entitled expert or otherwise, in support of the City’s position that GSMR pays excessive qualifications of GSMR’s experts, there is a complete absence of any ev idence, own motion for summary judgment. Regardless of a ny deficiencies in the showing the absence of a genuine issue of material fact in connection with its judgment as to this factor, the City is t he party that bears the burden of declarations are not sufficient to establish GSMR’s entitlement to summary the letters.” But while we agree, as stated infra, that these experts’ unsworn qualifications by sugg esting that the lack thereof is evident from “[a] review of (CEO) were reasonable. On appeal, the City challenges the consultant’s expert consultant, stating that the salary and benefits of its chief executive officer court apparently relied on two letters prepared for GSMR by a compensati on opinions of “outside experts” demonstrate that the salaries are reasonable. The excessive salaries and bonu ses to its employees because un contradicted N.H. at 6 98. The trial court rejected the City’s argument that GSMR pays and members from deriv ing any pecuniary profit or benefi t. ElderTrust, 154 T he fourth ElderTrust factor prohibits a charitable organization’s officers

on the third factor. different uses.”). Thus, the City is not entitled to judgment as a matter of law receive a proportional division of value according t o the parts assigned to the (“A building partly used for class rooms and partly as a dormitory clearly may apportionment. See Trustees &c. Academy v. Exeter, 90 N.H. 472, 503 (1940) it leases to NHHEAF and NHHELCO at most raises a question of argument that GSMR improperly claims a charitable tax exemption for property argument on the first factor, which has been addressed above. Finally, t he loans does not qualify as such a purpose is merely a restatement of the City’s occupy its property for a charitab le purpose because servicing a nd managing GSMR is a charitable organization. The City’s argument that GSMR does not were used in 2008 and 2009 and based its ruling on the determination that property was used for tax - exempt pu rposes. The court considered how the lots court relied on GSMR’s status as a 501(c)(3) company in finding t hat t he requirement is not strictly construed. We disagree with the City that the trial org anization’s property be used exclusively for exempt purposes, this court noted that, although 26 U.S.C. § 501(c)(3) requires that a charitable property for a charitable purpose in 2008 and 2009. In its order, the trial p. 12 12

the efficiency of its services. admitted that it had not provided to the trial court a comparative analysis of employees for four enterprises, thus eliminating middle management. GSMR follows: the affidavits of Grondin and Drouin and the fact that GSMR supplies efficiency, i.e., the means by which it performs it s charitable purpose, as borrowers.” A t oral argument, GSMR listed the evidence demonstrating its reduce the level of defaults and limit b urdens both for the loan program and for affidavit of its C E O, René Drouin, in which he stated that GSMR “works to opposition to the City’s motion for summary judgment, GSMR submitted the Hampshire ed ucational institutions were assisted in securing reliable funds. In New Hampshire obta ined access to lower - cost educational financing and New the CFO stated that, as a result of GSMR’s activities, students and parents in In support of its motion, GSMR submitted Grondin’s affidavit, in which

profits are used for its established purpose. ElderTrust, 154 N.H. at 697 - 98. that it is actually administered for a charitable purpose and that it s income or four factors that GSMR must prove to qualify for a charitable tax exemption: We find that genuine issues of material fa ct exist as to at least two of the

law.” RSA 491:8 - a, III. material fact and that the moving party is entitled to judgment as a matter of together with the affidavits filed, show that there is no genuine issue as to any pleadings, depositions, answers to interrogatories, and admissions on file, § 332, at 404 - 05 (2009). Ultimately, summary judgment is proper only “if the particularity, mere general averments being insufficient.” 49 C.J.S. Judgments evidentiary, and not ultim ate, facts and should set forth the facts with in oppos ing a summary judgment motion). “The affidavits should set forth support conclusory assertions and conclusory assertions did not satisfy burden (affidavit, even of expert, that failed to set forth specific facts was insufficient to 91 (1989); N.E. Tel. & Tel. Co. v. City of Franklin, 141 N.H. 449, 454 (1996) judgment. See Brown v. John Hancock Mut. Life Ins. Co. 131 N.H. 485, 490 of purely personal opinion” are insufficient to entitle a party to summary A ffidavits containing statements of legal conclusions a nd “expression[s]

(1987). issue for trial.” RSA 491:8 - a, IV; see Omiya v. Castor, p. 13 130 N.H. 234, 237 admissions,. . . set [ting] forth specific facts showing that there is a genuine so “by affidavits or by reference to deposition s, answers to interrogatories, or affidavits.” Id. In other words, a party o ppos ing summary judgment must do contradictory evidence can be presented at a trial but cannot be furnished by showing specifica lly and clearly reasonable grounds for believing that “contradictory affidavits based on personal knowledge . . . [or] an affidavit RSA 491:8 - a, II. The other party may then oppose summary judgment by filing which it appears affirmatively that the affiants will be competent to testify.” 13

matter of law. not relieve GSMR of its burden as movant and entitle it to judgment as a rebut his showing.”) T he City’s failure to submit contradictory affidavits does genuine issues of material fact, . . . the opposing party . . . was not required to moving party . . . did not meet his burden of showing that there were no ma terial fact s. Stewart v. Bader, 154 N.H. 75, 86 (2006) (“Because . . . the because GSMR failed to establish that the re is no genuine issue as to those borrowers save. However, the City was not required to submit such evidence Drouin’s and Grondin’s affidavits, i.e., evidence that GSMR does not help GSMR is correct that the City did not submit any evidence to contradict

exemption, an organization must perform its stated purpose). education. See MacDowell Colony, 157 N.H. at 7 (to qualify for a charitable tax activit y is efficient and provides the stated public benefit of advancing find that there exist genuine issue s of material fact as to whether GSMR’s and one for which few direct comparisons may be possible. Accordingly, we provide, but the record in fact reflects that the organizations’ structure is novel borrowers, and that these savings exceed those that a for - profi t entity would factual support for GSMR’s assertion that its structure results in savings for entity ha d its own set of e m ployees.” Thus, not only does the record provide no that of counterpart organizations in Massac husetts and elsewhere where each however, that “[t] he NHHEAF Network Organiz ations’ structure is different from [GSMR’s] extensive community outreach program. Drouin also states, ” NHHEAF, NHHELCO’s and NNEF’s functions . . . reduces costs and supports fashion that the administrative structure, whereby GSM R “performs all of to the users of student loans.” In his affidavit, Drouin states in conclusory for - profit servicer performed GSMR’s functions, “th[e] cost would be passed on In addition, the affidavits do not support the trial court’s f inding that, if a

staffs. efficien cy because it eliminates middle management for all the organizations it offer any basis for GSMR’s as sertion at oral argument that GSMR enhances involved, the result of litigation, etc.”). Nor do Drou in’s and Grondin’s affidavit s importance of the case, the amount of time spent and work performed, the sum the professional reputation and standing of the attorney, the difficulty and given that “[t]h e value [was] bas ed upon a number of considerations, including statement in it as to the value of extensive legal services wa s opinion, not fact, 1929) (affidavit wa s insufficient to support summary judgment where a GSMR pu rportedly provides. Cf. Baxter v. Szucs, 227 N.W. 666, 66 7 - 6 8 (Mich. for summary judgment reference specific facts evidencing the savings that and parents are general averments. Neither the affidavits nor GSMR’s motion lowers the level of defaults and provides access to lower - cost funds for students Grondin’s and Drouin’s assertions that GSMR’s loan ser vicing activity p. 14 14

and 19. T he trial court affirmed the City’s use of the September 2000 PILOT exemption will affect its tax l iability only for 2009. This is correct as to Lots 18 GSMR argues tha t a determination of it s eligibility for a charitable tax

this opinion. GSMR summary judgment and remand for further proceedings consistent with For the fore going reasons, we find that the trial court erred in granting

competent to testify.” RSA 491:8 - a, II. of admissible facts as to which it appears affirmatively that the affiants will be judgment: they d o not constitute “affidavit[s] based upon personal knowledge fall short of the type of evidence that is required for entry of summary charitable purpose. The c ompensation consultants’ letters referenced earlier salaries and benefits that GSMR pays to its employees are consistent with its In ad dition, genuine issues of material fact remain as to whether the

opportunities” for students and parents. “supporting the development of higher education and educational contractual liability is consistent with its stated charitable purpose of amoun t and purported use of GSMR’s surplus to protect itself from future (decided under prior law). It is not apparent from the record whether the its charitable character. The test comes in the use made of the profits.”) (1937) (“[A] charitable institution[] . . . may engage in business without loss of omitted); see Y oung Women’s Christian Ass’n v. Portsmouth, 8 9 N.H. 40, 44 - 45 Institute for Trend Research v. Brown, 100 N.H. 286, 290 (1956) (citations

the source of the income, determines the exemption. char ges fees for its services. The destination of the income, and not taxes mere ly because it has a net income or makes a profit or under a statute which requires the payment of contributions or I t is recognized that a corporation does not lose its exempt status

(2010). Similarly, a cha ritable entity may deriv e a profit from its operations. inconsistent with its charitable purpose.” 84 C.J.S. Taxation § 350, at 362 exempt status as a charity, provided that it uses those funds in a manner not non profit charitable entity can take in surplus revenue without losing its tax to ensure sufficient reserves for any contractual liability it may incur. “A none of this surplus “goes to students” and that it retains the surplus in order $37 million and almost $40 million. GSMR represented at oral argument that a net profit of almost $2 million and over $3 million and held a surplus of over p. 15 154 N.H. at 698. According to GSMR, in 2008 and 2009, respectively, it earned purpose other than the purpose for which [it] was established.” ElderTrust, ElderTrust factor – whether GSMR uses its “income or profits . .. for any Furthermore, genuine issues of material fact exist as to the fourth 15

DALIANIS, C.J.