Dark Store is dead. Long live Dark Store.

I’ve never been a fan of zombie movies, but the Dark Store saga is beginning to look like one. For a significant number of property taxpayers: Beware, Dark Store zombies continue to walk the state. The solution to the problem will (almost-but-not-quite) certainly not be resolved by the Legislature this year.

For those of you who aren’t political junkies, Thursday, February 22nd was the last scheduled day for the State Assembly to be in session. Our two legislative proposals to close the Dark Store property tax loophole and its sister the Walgreens loophole were not on the list of bills to see resolution. We had been told the week prior that they would not be taken up.

But a day or two beforehand, we started getting phone calls from Representative Brooks, the bills’ author. He still had hope that at least part of one of the bills could be amended onto another piece of legislation. A large number of Republican State Representatives did not want to go home for re-election without solving the Dark Store problem, which will start to show up on property tax bills this year, and they were encouraging Brooks to find a solution.

In addition, Representative Kevin Peterson had seen the damage caused by a large property tax shift in the village of Manawa and he was determined to get something passed to pull back the 14-percent tax increase imposed on residents and small business by a reassessment of a single large manufacturer in that community.

Despite Brooks’ and Peterson’s best efforts, opponents of the bill dug in. The manufacturers’ lobby, Wisconsin Manufacturers and Commerce (WMC) refused to accept any compromise. At the urging of Brooks and Peterson we agreed to change after change, narrowing after narrowing and WMC continued to say, “Nope.” Finally, at 11:00 p.m., we were presented with a solution that didn’t fix the Dark Store problem (it didn’t even mention it) and made permanent the sister loophole, Walgreens. We finally said enough and said no. (Ironically, the legislative leadership then promptly went to reporters to tell them that WE were unwilling to compromise. Sigh; politics is such fun.) The Assembly wrapped up its business and, barring another unexpected zombie uprising, there will be no Dark Store solution this session.

What’s next? For communities with a large amount of national-chain retailers, you can expect to see a steady or even increasing stream of property tax appeals. The Legislature’s lack of action, coupled with the significant financial incentives that big box retailers and others have to chase a tax cut/tax shift make that outcome inevitable. Attorneys who specialize in this area of tax law often work on a percentage of recovery, which makes the appeal a freebie for the property owner.

One more thing. Every other property owner will pay more. There will be another Manawa or two, as tax attorneys learn how to adapt the Dark Store strategy to Dark Manufacturers, Dark Banks, and so on. An enterprising attorney will attempt to expand the Walgreens loophole to other commercial properties.

The only ones who won’t be able to at least make a run at this loophole are home owners, apartment owners and small businesses. They will be left holding the bag while their big box neighbors happily fill it up for them. Dark Store is Dead. Long live Dark Store.

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