In re: Creekside Senior Apts. ( 2012 )

ELECTRONIC CITATION: 2012 FED App. 0008P (6th Cir.)File Name: 2012b0008p.06
BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT
In re: CREEKSIDE SENIOR APARTMENTS, )
LP, et al., )
) No. 11-8072
Debtors.
)
______________________________________ )
Appeal from the United States Bankruptcy Court
for the Eastern District of Kentucky
Case No. 10-53019
Argued: April 23, 2012
Decided and Filed: June 29, 2012
Before: HARRIS, PRESTON, and SHEA-STONUM, Bankruptcy Appellate Panel Judges.
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COUNSEL
ARGUED: Robert D. Gordon, CLARK HILL PLC, Birmingham, Michigan, for Appellants. Daniel
E. Hitchcock, WYATT, TARRANT, & COMBS, LLP, Lexington, Kentucky, for Appellee. ON
BRIEF: Robert D. Gordon, John R. Stevenson, CLARK HILL PLC, Birmingham, Michigan, Ellen
Arvin Kennedy, DINSMORE & SHOHL LLP, Lexington, Kentucky, for Appellants. Daniel E.
Hitchcock, WYATT, TARRANT, & COMBS, LLP, Lexington, Kentucky, for Appellee.
____________________
OPINION
____________________
ARTHUR I. HARRIS, Bankruptcy Appellate Panel Judge. This appeal arises from a
bankruptcy court order in which the bankruptcy court concluded that, for purposes of determining
the value of the secured portion of the claims of Bank of America, N.A. (“Bank”) pursuant to
11 U.S.C. § 506(a), a determination of the fair market value of various apartment complexes
included consideration of the remaining federal low-income housing tax credits. In determining the
value of the real property, the bankruptcy court also concluded that various rates and/or figures used
by the Bank’s appraiser were more accurate.
The five Kentucky limited partnership debtors in the five jointly-administered Chapter
11 cases (collectively “Debtors”) and their general partners (collectively “General Partners”)
challenge the bankruptcy court’s valuation of the real property. In connection therewith, they also
take issue with the bankruptcy court’s order overruling (1) the Debtors’ objection to the valuation
of low-income housing tax credits in the Bank’s appraisals (“Valuation Objection”) and (2) the
Debtors’ motion in limine to exclude certain portions of expert reports, affidavit, and testimony of
the Bank’s expert witness (“Motion In Limine”).
For the reasons that follow, we affirm the bankruptcy court’s orders setting the market value
of the Debtors’ low-income housing tax credit properties (“LIHTC properties”) and overruling the
Debtors’ and the General Partners’ Valuation Objection and Motion In Limine.
I. ISSUES ON APPEAL
The main issue presented by this appeal is whether the bankruptcy court erred in including
the purported value of the remaining low-income housing tax credits when valuing the Bank’s
secured interest in the Debtors’ real properties under § 506(a) of the Bankruptcy Code. The Debtors
and their General Partners have also alleged that the bankruptcy court made several errors in
weighing the evidence at the valuation hearing and in denying their Motion In Limine to exclude
certain portions of the Bank’s appraisals.
II. JURISDICTION AND STANDARD OF REVIEW
The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal.
The United States District Court for the Eastern District of Kentucky has authorized appeals to the
Panel, and no party has timely elected to have this appeal heard by the district court. 28 U.S.C.
§ 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to
28 U.S.C. § 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and
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leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United
States, 489 U.S. 794, 798, 109 S. Ct. 1494, 1497 (1989) (citations omitted).
An order determining the value of property pursuant to 11 U.S.C. § 506(a) is a final order
for purposes of appeal if the valuation was made for purposes of plan confirmation. Chase
Manhattan Mortg. Corp. v. Rodriguez (In re Rodriguez), 272 B.R. 54, 56 (D. Conn. 2002); see also
Gen. Electric Credit Equities, Inc. v. Brice Rd. Devs., L.L.C. (In re Brice Rd. Devs., L.L.C.), 392
B.R. 274, 282 n.4 (B.A.P. 6th Cir. 2008). Because the bankruptcy court made its valuation “for use
in connection with the plan, disclosure statement, and confirmation process,” the valuation order is
a final order. (Order Setting Market Value of Debtors’ Low-Income Housing Tax Credit Properties
at 1, Bankr. Case No. 10-53019, ECF No. 252.)
A determination of value pursuant to 11 U.S.C. § 506(a) presents a mixed question of law
and fact. Fin. Sec. Assurance, Inc. v. T-H New Orleans Ltd. P’ship (In re Matter of T-H New
Orleans Ltd. P’ship), 116 F.3d 790, 799 (5th Cir. 1997). The bankruptcy court’s findings of fact are
reviewed under the clearly erroneous standard. Riverview Trenton R.R. Co. v. DSC, Ltd. (In re DSC,
Ltd.), 486 F.3d 940, 944 (6th Cir. 2007). “A finding of fact is clearly erroneous ‘when although
there is evidence to support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’ ” Id. (quoting Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985)). The bankruptcy court’s legal
conclusions are reviewed de novo. Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518,
522 (6th Cir. 2011). “De novo means that the appellate court determines the law independently of
the trial court’s determination.” Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R.
651, 653 (B.A.P. 6th Cir. 2001) (citations omitted).
As the trier of fact, a bankruptcy “ ‘court’s rulings on evidentiary matters will only be
reversed on a clear showing of abuse of discretion.’ ” Phillips Petroleum Co. v. Stokes Oil Co., Inc.,
863 F.2d 1250, 1257 (6th Cir. 1988) (citing Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1218
(6th Cir. 1987)). This standard applies to denials of motions in limine, United States v. Poulsen, 655
F.3d 492, 508 (6th Cir. 2011), as well as to determinations regarding the weight particular evidence
should be given. United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir. 1993).
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III. FACTS
This appeal arises from an order dated September 12, 2011, setting the market value of
Debtors’ low-income housing tax credit properties (“Valuation Order”), entered in five jointly-
administered Chapter 11 cases in the Eastern District of Kentucky:
10-53019 In re Creekside Senior Apartments, Limited Partnership
10-53298 In re Nicholasville Greens, Limited Partnership
10-53300 In re Franklin Place Senior Apartments, Limited Partnership
10-53301 In re Pennyrile Senior Apartments, Limited Partnership
10-53346 In re Park Row Senior Apartments, Limited Partnership
A. Background of the Debtors
The Debtors are five single-asset real estate debtors as defined in 11 U.S.C. § 101(51B).
Each of the Debtors is a Kentucky limited partnership with a corresponding general partner, an
administrative limited partner, and an investor limited partner. By virtue of the partnership
agreements, the General Partners hold .01% of the corresponding limited partnership’s equity
interests, the administrative limited partners hold .01% of the corresponding limited partnership’s
equity interests, and the investor limited partners hold the remaining 99.98% of the corresponding
limited partnership’s equity interests. Each of the Debtors owns a parcel of real property on which
it operates a low-incoming housing apartment complex.
To finance the acquisition and construction/rehabilitation of each property, the Debtors
obtained construction loan financing from the Bank. Each construction loan automatically converted
into permanent financing upon various terms and conditions. Pursuant to the agreements, the Bank
loaned the Debtors the following total amounts of money:
Creekside Senior Apartments, LP: $1,3.90,000.00
Nicholasville Greens, LP: $7.60,234.35
Franklin Place, LP: $7.93,345.29
Pennyrile Senior Apartments, LP: $5.34,242.63
Park Row Senior Apartments, LP: $1,0.34,222.00
As security for these loans, the Bank took a first mortgage lien upon the Debtors’ real properties.
All five notes matured prior to the filing of the Debtors’ bankruptcy cases.
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Each of the Debtors’ real property complexes was developed in conjunction with the federal
Low-Income Housing Tax Credit Program enacted by Congress in 1986 to encourage private market
investment in low-income housing. See 26 U.S.C. § 42. In exchange for agreeing to rent
restrictions, the owners or investors in the property get a dollar-for-dollar credit against their federal
income tax obligations over a period of 10 years, provided that the property remains in compliance
with the low-income housing tax credit program requirements. The Treasury Department
administers the program while state agencies distribute the credits on a competitive basis.
B. The Land Use Restriction Agreements
In 2008, each of the Debtors entered into a land use restriction agreement (“LURA”) with
the Kentucky Housing Corporation (“KHC”), the agency tasked with administering the federal low-
income housing tax credit program for the Commonwealth of Kentucky. The Debtors, and not their
General Partners, administrative limited partners, or investor limited partners, entered into these
LURAs as the owners of the properties. The LURAs entered into between the Debtors and the KHC
in these cases provide that the restrictions set forth therein are covenants running with the land:
Owner intends, declares and covenants, on behalf of itself and all future owners and
operators of the Project during the term of this Agreement, that this Agreement and
the covenants and restrictions set forth in this Agreement regulating and restricting
the use, occupancy and transfer of the Project (i) shall be and are covenants running
with the Project, encumbering the Project for the term of this Agreement, binding
upon Owner’s successors in title and all subsequent owners and operators of the
Project; (ii) are not merely personal covenants of Owner; . . . .
(LURA § 2(b), Bankr. Case No. 10-53019, ECF Nos. 204-4, 204-8, 204-12, 204-16, and 204-20.)
The LURAs further provide:
(j) Subject to the requirements of Section 42 of the [Internal Revenue] Code and this
Agreement, Owner may sell, transfer or exchange the entire Project at any time, but
Owner shall notify in writing and obtain the agreement of any buyer or successor or
other person acquiring the Project or any interest therein that such acquisition is
subject to the requirements of this Agreement and the requirements of Section 42 of
the Code and applicable regulations and the KHC Occupancy Restrictions. This
provision shall not act to waive any other restriction on sale, transfer or exchange of
the Project or any low-income portion of the Project. KHC may void any sale,
transfer or exchange of the Project if the buyer or successor or other person fails to
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assume in writing the requirements of this Agreement and the requirements of
Section 42 of the Code.
(k) Owner will notify KHC in writing of any sale, transfer or exchange of the entire
Project or any low-income portion of the Project.
(Id. at § 3(j) and (k).)
Subject to limited exceptions not applicable here, the term of each LURA was for an initial
compliance period of 15 years and then an additional 15 year extended period. (Id. at §§ 5(a) and
6(a).) As the lender for the construction and/or acquisition of the properties, the Bank was a party
to each LURA. The sole purpose of making the Bank a party to the LURA was to subordinate the
Bank’s debt to the restrictions contained within the LURA. All of the properties in this case were
put into service in 2004 or 2005, and the tax credits have been used through 2010. As a result, there
are 4 to 5 years of remaining tax credits and 24 to 25 years remaining on the rent restrictions.
In accordance with 26 U.S.C. § 42(h)(6), the LURAs entered into between the Debtors and
the KHC in this case provide as follows:
THIS DECLARATION OF LAND USE RESTRICTIVE COVENANTS AND
SUBORDINATION AGREEMENT, . . . [is] given by [each Debtor], a Kentucky
limited partnership and its successors and assigns (“Owner”) . . . as a condition
precedent to the allocation of Low Income Housing Tax Credits by KENTUCKY
HOUSING CORPORATION . . . .
(LURAs at 1, Bankr. Case No. 10-53019, ECF Nos. 204-4, 204-8, 204-12, 204-16 and 204-20.)
Each LURA was recorded in the appropriate county recorder’s office.
C. The Tax Credit Allocations and Partnership Agreements
Once the KHC awarded and reserved the tax credits to each of the Debtors’ properties, the
corresponding investor limited partner “syndicated the investment and tax credits opportunity to a
pool of investors. Through the Investor LP, those investors then funded the ‘Investor Limited
Partner Contribution’ in accordance with paragraph 3.4 of each Debtor’s Amended and Restated
Agreement of Limited Partnership.” (Appellant Br. at 4.) All of the investments were made by the
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investor limited partners in exchange for 99.98% of the equity ownership in the corresponding
Limited Partnership.
With respect to the tax credits, the partnership agreements provide as follows:
[T]he Partners intend that Housing Tax Credits shall be allocated 99.98% to the
Investor Limited Partner, 0.01% to the Administrative Limited [Partner] and 0.01%
to the General Partner.
(Amended and Restated Partnership Agreements at § 9.1(G)(v)(a), Bankr. Case No. 10-53019, ECF
Nos. 214-1 through 214-15) (emphasis added.) In the event of a recapture of certain tax credits, then
“Housing Tax Credits shall be recaptured by the Partners who originally claimed said Housing Tax
Credits, in proportion to the ratio in which such recaptured Housing Tax Credits were claimed.” (Id.
at § 9.1(G)(v)(b).) Section 6.6 of the Partnership Agreements also provides “[e]xcept for the
Apartment Complex, the Housing Tax Credits, and the contractual rights referred to herein, the
[Limited] Partnership [aka the Debtor] owns no other property, tangible or intangible, real or
personal.” (Id. at § 6.6(A).)
In the “Low Income Housing Tax Credit Certificate of Carryover Allocation” letters from
KHC to the Debtors, KHC identifies the name of the “Taxpayer Receiving Allocations” as
“Creekside Senior Apartments, Limited Partnership,” “Nicholasville Greens, Limited Partnership,”
“Franklin Place Senior Apartments, Limited Partnership,” “Pennyrile Senior Apartments, Limited
Partnership,” and “Park Row Senior Apartments, Limited Partnership.” (Tax Credit Letters, Bankr.
Case No. 10-53019, ECF No. 204-29.)
D. The Bankruptcy Cases
The Debtors filed petitions for relief under chapter 11 of the Bankruptcy Code in September
and October 2010. On January 10, 2011, the Bank filed proofs of claim as to each Debtor for the
following amounts:
10-53019, Creekside: $1,2.72,589.36
10-53298, Nicholasville Greens: $7.14,857.43
10-53300, Franklin Place: $8.63,467.53
10-53301, Pennyrile: $4.66,294.67
10-53346, Park Row: $1,0. 7,461.15
3
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In each proof of claim, the Bank asserted that its claim was fully secured.
On March 4, 2011, the Debtors and the General Partners filed a motion for a hearing to
determine the value of the Bank’s secured claims pursuant to 11 U.S.C. § 506(a). The Debtors and
the General Partners disputed the Bank’s assertion that each claim was fully secured and instead
alleged that the claims were substantially undersecured. The Debtors and the General Partners
further asserted that a valuation hearing was vital because “[t]he treatment of the secured and
unsecured portions of the [Bank’s] Claims will be a critical component of the Debtors’ and the
General Partners’ prospective plan.” (Mot. for Valuation Hr’g at 5, Bankr. Case No. 10-53019, ECF
No. 164.)
The Debtors filed their disclosure statement and plan on March 17, 2011. In Article IV,
paragraph 4.1, the plan states that the Bank will have an allowed secured claim “equal to the fair
market value of [the Bank’s] interest in the Estate’s interest in such Debtor’s Property as determined
by the Court at the Valuation Hearing.” (Joint Plan of Reorganization” at ¶ 4.1, Bankr. Case No. 10-
53019, ECF No. 170.) Class 3 of the Debtors’ plan is comprised solely of the Bank’s allowed
unsecured deficiency balance. The Debtors proposed to pay the Bank the “full principal amount of
each of its Allowed Unsecured Claims” unless the Bank timely elected to be treated in accordance
with the “Alternative Unsecured Claim Treatment.” (Id. at ¶ 4.3.) The Debtors and General Partners
filed their First Amended Plan on August 11, 2011, which provided for the same treatment of the
Bank’s claims as the original plan.
On March 28, 2011, the bankruptcy court granted the Debtors’ request to schedule a
valuation hearing. The bankruptcy court also set forth various deadlines for identifying expert
witnesses, submission of written reports and/or appraisals, filing a list of witnesses, submission of
testimony by affidavit, and other various pretrial issues.
E. The Valuation Objection and Motion In Limine
On July 25, 2011, the Debtors and its General Partners filed their Valuation Objection and
Motion In Limine seeking to exclude portions of expert reports, the affidavit, and related testimony
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of the Bank’s appraiser, David A. Donan. In their Valuation Objection, the Debtors argued that the
valuation of the remaining tax credits in the Bank’s appraisals was critically flawed for three reasons.
First, the Debtors alleged that the tax credits do not constitute property in which a security interest
can be taken and, therefore, the credits are not part of the Bank’s collateral or its secured claims.
Second, the Debtors asserted that the tax credits were held by the Debtors’ limited partners and not
by the Debtors so the credits are not property of the Debtors’ estates. Last, the Debtors argued that
the Bank’s loan and security documents failed to create a security interest in the tax credits “and, in
fact, explicitly carve the Tax Credits out of the Bank’s collateral.” (Valuation Obj. at 1, Bankr. Case
No. 10-53019, ECF No. 214.)
In its brief on appeal, the Bank states,
Bank of America has never stated that it does not hold a security interest in the
Remaining Tax Credits. Bank of America has continuously maintained that whether
it has a security interest in the Remaining Tax Credits themselves is irrelevant, as it
holds a perfected security interest in the LIHTC real properties which cannot be
separated from the Remaining Tax Credits for purposes of § 506 valuation.
(Appellee Br. at 21, n.5.) A review of the pleadings filed in the bankruptcy court supports the
Bank’s assertion. Additionally, the mortgage documents provide that the Bank’s security interest
includes:
(j) To the extent not expressly prohibited by law or not inconsistent with the terms
of the Partnership Agreement, all federal, state, and local tax credits, and other tax
benefits related to the Property . . . .
(Construction Phase Mortgage at 3, ¶1.1(j), Bankr. Case No. 10-53019, ECF Nos. 214-16, 214-18,
214-20, 214-22, and 214-24.)
In their Motion In Limine, the Debtors argued that the bankruptcy court should exclude those
portions of David Donan’s reports, affidavit, and related testimony which purport to include the
value of the remaining low-income housing tax credits in the value of the Bank’s collateral. The
Debtors alleged that those portions of Donan’s evidence “are not based on sufficient facts and data,
are not based on and do not conform to accepted principles and methodologies in the industry, and
are therefore not reliable.” (Mem. in Support of Mot. In Limine at 5, Bankr. Case No. 10-53019,
ECF No. 215-1.) The Debtors also alleged that the testimony relating to the value of the remaining
tax credits was irrelevant.
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In response, the Bank argued that the value of the remaining tax credits was relevant to the
valuation of its interest in the Debtors’ real properties for several reasons. First, the Bank alleged
that 28 U.S.C. § 47(d)(7)(A)(ii) clearly provides that federal low-income housing tax credits cannot
be separated from ownership of the LIHTC properties, and that once the property is sold the
purchaser obtains the right to claim the remaining tax credits. As a result, the Bank argued the value
of the remaining tax credits significantly impacts the price a willing buyer would pay to obtain the
LIHTC properties at issue in this case. The Bank also alleged that excluding consideration of the
value of the remaining low-income housing tax credits while including consideration of the impact
the low-income rent restrictions on the value of the properties would lead to an “absurd result.”
(Resp. to Obj. and Mot. In Limine at 1-2, Bankr. Case No. 10-53019, ECF No. 228.) Finally, the
Bank asserted that the Debtors’ arguments “incorrectly attempt[] to divert the Court’s attention to
whether security interests in the Remaining Tax Credits themselves are obtainable, as opposed to the
real issue of § 506 valuation of [the Bank’s] security interest in the Debtors’ LIHTC real property
and the impact the Remaining Tax Credits that go with the property have on value.” (Mem. of Law
in Support of Bank’s Resp.to Obj. at 5-6, Bankr. Case No. 10-53019, ECF No. 229.)
On August 15, 2011, the bankruptcy court overruled the Debtors’ Valuation Objection and
Motion In Limine and held that evidence of the remaining tax credits was relevant to the issue of
valuation (“In Limine Order”). The bankruptcy court also held that the Debtors’ arguments really
went “to the weight of the evidence, not to its reliability.” The bankruptcy court observed that, as
the trier of fact, it could determine the proper weight to give the evidence of the value of the
remaining tax credits at the valuation hearing. (Id.)
In overruling the Debtors’ Valuation Objection and Motion In Limine, the bankruptcy court
stated:
It is uncontroverted that the Bank holds a first mortgage on each Debtor’s LIHTC
Property. It is further uncontroverted that each of those parcels of real estate is
subject to a Land Use Restriction Agreement (“LURA”) entered into between the
Debtor entity as “Owner” (not the individual limited partners) and the Kentucky
Housing Corporation (“KHC”). It is through the LURA that the Debtor entities
became entitled to the Tax Credits and each Debtor’s LIHTC Property became
subject to the rent restrictions. The limited partners may have become entitled to the
allocation of the Tax Credits through the respective partnership agreements, but they
did not become the owners of the Tax Credits through those agreements. Both the
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rent restrictions and the Tax Credits run with the land. Therefore, if the LIHTC
Property is sold prior to the end of the compliance period and there are remaining tax
credits, then
[T]he credit allowable . . . to the taxpayer for any period after such
acquisition shall be equal to the amount of credit which would have
been allowable . . . for such period to the prior owner . . . had such
owner not disposed of the building.
26 U.S.C. § 42(d)(7)(A)(ii) (emphasis added). This provision makes it clear that the
limited partners do not own the Remaining Tax Credits. Those credits would be
transferred to the purchaser of the Debtors’ LIHTC Properties. As such, the
Remaining Tax Credits as well as the rent restrictions would affect the price any
purchaser was willing to pay for the Debtors’ LIHTC Properties; and thus, their
respective values.
(In Limine Order at 4-5 and 8, Bankr. Case No. 10-53019, ECF No. 235.)
F. The Valuation Hearing and Bankruptcy Court Determination
The bankruptcy court conducted the valuation hearing on August 18, 2011. The Debtors’
appraiser and the Bank’s appraiser both appeared at the hearing.
The Bank’s appraisals included a valuation of the respective properties and a separate
valuation of the remaining tax credits prepared by its expert witness and appraiser, David A. Donan
of Allgeier Company. The values placed on the Debtors’ properties by the Bank’s appraiser were
as follows:
LIHTC Property Bank’s Real Bank’s Tax Bank’s Total Value
Estate Value Credit Value
Creekside Senior Apartments $890,000 $350,000 $1,240,000.00
Nicholasville Greens Townhomes $495,000 $160,000 $655,000.00
Franklin Place Senior Apartments $535,000 $445,000 $980,000.00
Pennyrile Senior Apartments $575,000 $755,000 $1,330,000.00
Park Row Senior Apartments $825,000 $865,000 $1,690,000.00
(Valuation Order at 14, Bankr. Case No. 10-53019, ECF No. 252.)
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Debtors’ appraisals, prepared by its expert witness and appraiser, Brad Weinberg of
Novogradac & Company, LLC, were as follows:
LIHTC Property Debtors’ Total Value
Creekside Senior Apartments $593,000.00
Nicholasville Greens Townhomes $425,000.00
Franklin Place Senior Apartments $274,000.00
Pennyrile Senior Apartments $398,000.00
Park Row Senior Apartments $750,000.00
(Valuation Order at 14, Bankr. Case No. 10-53019, ECF No. 252.) Like the Bank’s appraiser, the
Debtors’ appraiser considered the impact the restricted rents have on the properties’ values. (See
Market Valuations at 3, Bankr. Case No. 10-53019, ECF Nos. 207-1, 207-3, 207-6, 207-8, 207-10.)
Despite this similarity, the Debtors’ appraisals specifically excluded the valuation of the remaining
tax credits because the Debtors “believed, and continue to believe, that the remaining Tax Credits
are irrelevant to the valuation of the Bank’s secured claims, since the Tax Credits are not part of the
Bank’s collateral.” (Appellant Br. at 7.)
Both appraisers testified that the availability of remaining low-income housing tax credits
can affect the value of a piece of property. The Bank’s appraiser included the value of the
remaining tax credits as a component in his determination of the value of the properties; however,
the Debtors’ appraiser stated that he did not include any consideration of the remaining tax credits
in his appraisal because “under the scope of work my appraisal was of the real property only, that
was the collateral for the basis of the bankruptcy and that was defined for me, and I – I completed
the appraisal on that basis.” (Aug. 18, 2011 Tr. of H’rg at 72, Bankr. Case No. 10-53019, ECF No.
258.) When asked by counsel for the Debtors whether he thought there was a market for the sale
of mid-stream tax credits associated with small properties in small, non-money center banking
markets, the Debtors’ appraiser testified that his opinion was “no.” (Id. at 141-143.) The Bank’s
appraiser disputed this conclusion and instead stated that the market for tax credits is “extremely
busy” at the present time. (Id. at 174.)
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The bankruptcy court issued a Valuation Order on September 12, 2011. In that order, the
bankruptcy court weighed the two appraisals and arrived at values for the Debtors’ properties. In
so doing, the bankruptcy court concluded that the Bank’s appraisals more accurately reflected the
true value of the Debtors’ properties. The bankruptcy court recognized that “[b]oth appraisers
stated substantially the same formula for calculating market value under the income capitalization
method” although they disagreed on how each component of that formula was derived. (Valuation
Order at 13, Bankr. Case No. 10-53019, ECF No. 252.)
As to the vacancy and collection loss rate (“VCLR”), the Debtors’ appraiser stated that a
minimum of 5% is the industry standard. (Aug. 18, 2011 Tr. of H’rg at 17, Bankr. Case No. 10-
53019, ECF No. 258.) The Debtors’ appraiser also pointed out that “while historical performance
is important, lenders and buyers recognize that conditions can change over the life of the loan and
simply will not factor in a vacancy and loss rate of less than 5%, in order to be conservative.”
(Appellant Br. at 35.) The Bank’s appraiser, on the other hand, based his VCLRs on the historically
low vacancy rates for most of Debtors’ LIHTC properties. With the exception of Nicholasville
Greens, all of the Debtors’ properties had waiting lists at the time of the Bank’s appraisals.
The bankruptcy court analyzed the VCLR for each property and concluded as follows:
LIHTC Property Debtors’ Bank’s VCLR Bankruptcy Court’s conclusion
VCLR
Creekside 5% 3% 3%; based on historical vacancy
rate, existing waiting list, and
vacancy rates of comparable
LIHTC properties
Franklin Place 6% 3% 3%; (same as Creekside)
Nicholasville Greens 9% 11% 11%; composed of 9% vacancy loss
and 2% collection loss
Pennyrile 5% 3% 3%; (same as Creekside)
Park Row–residential 4% 2.5% 2.5%; based on average historical
vacancy rate of 2.45% for 2008 -
2010
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Park Row–commercial 10% 15% 15%; one of two commercial units
would have to be built-out for light
and heat prior to being rented
(Valuation Order at 15-17.)
The parties disagreed on two other figures used in determining the proper value of the
Debtors’ properties. First, although the parties agreed that a management fee based on 5% of
effective gross income was the proper measure for 4 of the 5 properties, they did not agree on that
percentage for Nicholasville Greens. Instead, the Debtors’ appraiser calculated a management fee
of 4% of effective gross income, while the Bank’s appraiser used a management fee of 5%.
Because the management fee for Nicholasville Greens averaged 4.875% over the last four years,
the bankruptcy court used the Bank’s figure of 5%. (Id. at 17.)
Second, the parties disagreed as to the proper real estate tax expense to use in valuing the
Debtors’ properties. Although both appraisers stated “that the Debtors’ real estate taxes were
significantly higher than they should be as reflected by comparable LIHTC Properties,” the
bankruptcy court concluded that only “[t]he Bank’s Appraiser reduced the real estate tax expense
to an amount that would be consistent with his opinion of the market value of the Debtors’ real
estate for each particular LIHTC Property before any adjustments for the Remaining Tax Credit
Value.” (Id. at 18-19.) The Debtors’ appraiser only reduced the expense for three of the five
properties. The bankruptcy court found the Bank’s appraiser’s testimony “that a fair market
purchaser will consider the effect of the purchase price on future property taxes in his decision
regarding the value of (and thus price to pay for) the property” to be more credible. (Id. at 19.)
However, because the Bank’s appraiser failed to complete all of the necessary “calculation[s] once
the effect of the Remaining Tax Credits was included in his opinion of fair market value, . . . the
Court adjusted the real estate tax component . . . to arrive at the annual real estate tax that is
consistent with the Court’s findings regarding the fair market value of each property.” (Id.) The
bankruptcy court used the assessment rates set forth in the Bank’s appraisals in order to do these
calculations since the Bank’s appraisals contained the most current information. (Id. at 19, n. 14.)
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Turning to the issue of the remaining tax credits, the bankruptcy court stated:
The Remaining Tax Credits are not being valued as if they are being sold. As
previously held, the Remaining Tax Credits cannot be separated from the Debtors’
LIHTC Properties and sold separately. . . . “Although market participants often talk
casually about “selling” the tax credits, they are actually referring to selling a partial
ownership interest in the entity that owns the real estate. The tax credits themselves
cannot be severed from the ownership of the real estate.” Appraising Low-Income
Housing Tax Credit Real Estate, 10/1/10 APPRAISAL J. 350 (emphasis added).
....
. . . Debtors chose to ignore the fact [that] the Remaining Tax Credits impact the
value of the property, are owned by the Debtors and that any rights/benefit/burdens
of the Remaining Tax Credits which inure to the limited partners do so only as a
result of their ownership/partnership interests in the Debtors. If the LIHTC
Properties are sold, all proceeds of a sale belong to the respective Debtor with any
benefits of the Remaining Tax Credits flowing through the new entity to the owners
of that new entity.
(Id. at 20-22.) Because the Bank “provided the only detailed, substantiated evidence of the impact
of the Remaining Tax Credits on the market value of the Debtors’ LIHTC Properties,” the
bankruptcy court included the value of the remaining tax credits in its § 506(a) valuation of the
Debtors’ property. (Id.)
After considering all the evidence, the bankruptcy court set the following values for the
Debtors’ real properties:
LIHTC Property Value of Real Value of Tax Total Value
Estate Credits
Creekside Senior Apartments $708,718.67 $350,000 $1,058,718.67
Nicholasville Greens Townhomes $307,475.86 $160,000 $467,475.86
Franklin Place Senior Apartments $371,244.42 $445,000 $816,244.42
Pennyrile Senior Apartments $446,188.44 $755,000 $1,201,188.44
Park Row Senior Apartments $727,427,01 $865,000 $1,592,427.01
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(Id. at 23-28.)
After the valuation hearing, but prior to entry of the Valuation Order, the Debtors and their
General Partners had filed a notice of appeal and a motion for leave to appeal the bankruptcy court’s
In Limine Order as it related to the Debtors’ Valuation Objection. On September 26, 2011, the
Debtors and General Partners filed an amended notice of appeal to include an appeal of the
bankruptcy court’s Valuation Order. This appeal was timely.
IV. DISCUSSION
A. 11 U.S.C. § 506(a)(1) & 26 U.S.C. § 42Section 506(a)(1) of the Bankruptcy Code provides:
An allowed claim of a creditor secured by a lien on property in which the
estate has an interest, . . . is a secured claim to the extent of the value of such
creditor's interest in the estate's interest in such property, . . . and is an unsecured
claim to the extent that the value of such creditor's interest . . . is less than the
amount of such allowed claim. Such value shall be determined in light of the
purpose of the valuation and of the proposed disposition or use of such property, and
in conjunction with any hearing on such disposition or use or on a plan affecting
such creditor's interest.
11 U.S.C. § 506(a)(1). In valuing property under this section, a court must engage in a two-step
process. First, “a court must compare the creditor’s claim to the value of ‘such property,’ i.e., the
collateral.” Assocs. Commercial Corp. v. Rash, 520 U.S. 953, 961, 117 S. Ct. 1879, 1884-85
(1997). This determination necessarily requires the court to ascertain the “creditor’s interest in the
estate’s interest in” the property. 11 U.S.C. § 506(a)(1). The second step in the valuation process
requires the court to determine how to value the collateral. Rash, 520 U.S. at 961-62. When a
debtor proposes to retain property and continue to use the property in the debtor’s trade or business,
the proper methodology to use in establishing “the amount of the secured claim under § 506(a) . . .
is the price a willing buyer in the debtor’s trade, business, or situation would pay to obtain like
property from a willing seller.” Id. at 960. Although Rash was decided in the context of Chapter
13, its holding applies equally to valuation of secured claims in Chapter 11. In re Heritage
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Highgate, Inc., 679 F.3d 132 (3d Cir. 2012). The Debtors and General Partners allege that the
Debtors do not have any ownership interest in the tax credits and that the tax credits are not part of
the Bank’s collateral. Therefore, the Debtors assert the value of the remaining tax credits are not
properly included in determination of the secured portion of the Bank’s claim.
The Bank asserts Debtors’ arguments are flawed because the right to claim the low-income
housing tax credits goes to the owner of the LIHTC property and this right cannot be separated from
the land. The bankruptcy court agreed with the Bank. (See In Limine Order at 4-5 Bankr. Case No.
10-53019, ECF Nos. 235 and 252) (referenced in Valuation Order at 20, Bankr. Case No. 10-53019,
ECF No. 252.) Additionally, the bankruptcy court concluded that:
Debtors chose to ignore the fact the Remaining Tax Credits impact the value of the
property, are owned by the Debtors and that any rights/benefit/burdens of the
Remaining Tax Credits which inure to the limited partners do so only as a result of
their ownership/partnership interests in the Debtors. If the LIHTC Properties are
sold, all proceeds of a sale belong to the respective Debtor with any benefits of the
Remaining Tax Credits flowing through the new entity to the owners of that new
entity.
(Valuation Order at 22, Bankr. Case No. 10-53019, ECF No. 252.)
The Low-Income Housing Tax Credit program is provided for in § 42 of the Internal
Revenue Code. 26 U.S.C. § 42. The program provides an incentive to develop low-income housing
properties in exchange for a 10-year stream of tax credits. 26 U.S.C. § 42(b)(1)(B). The availability
of the tax credits is dependent on the property maintaining compliance with the Low-Income
Housing Tax Credit program’s rent and occupancy restrictions. See 26 U.S.C. § 42.
Section 42(b)(1) provides that, for purposes of calculating the amount of the low-income
housing credit,
the term “applicable percentage” means, with respect to any building, the
appropriate percentage prescribed by the Secretary for the earlier of—
(i) the month in which such building is placed in service, or
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(ii) at the election of the taxpayer--
(I) the month in which the taxpayer and the housing
credit agency enter into an agreement with respect to
such building (which is binding on such agency, the
taxpayer, and all successors in interest) as to the
housing credit dollar amount to be allocated to such
building . . . .
26 U.S.C. § 42(b)(1) (emphasis added). Additionally, as recognized by the bankruptcy court, if a
low-income housing property is sold prior to the conclusion of the compliance period,
the credit allowable . . . to the taxpayer for any period after such acquisition shall be
equal to the amount of credit which would have been allowable . . . for such period
to the prior owner . . . had such owner not disposed of the building.
26 U.S.C. § 42(d)(7)(A)(ii) (emphasis added). These sections make clear that the low-income
housing tax credits are attached to the low-income housing property and belong to the owner of
such property. “The tax credits are better characterized as ‘rights and privileges’ belonging to the
land under the definition of ‘real property’ . . . as they do not exist separate from an ownership right
in the low-income housing.” Brandon Bay, Ltd. P’ship v. Payette Cnty., 132 P.3d 438, 441 (Idaho
2006). “Because the tax credits are rights and privileges that directly relate to the real estate, they
are properly considered in assessing the value of low-income housing.” Id.The various exhibits in this case bolster this conclusion. Section 2(b) of the LURAs states
that the covenants and the restrictions set forth therein are “covenants running with the Project.”
(LURA Section 2(b), Bankr. Case No. 10-53019, ECF Nos. 204-4 at 25, 204-8 at 5, 204-12 at 16,
204-16 at 11 and 204-20 at 14.) Section 6.6 of the Partnership Agreements states “[e]xcept for the
Apartment Complex, the Housing Tax Credits, and the contractual rights referred to herein, the
[Limited] Partnership [aka the Debtor] owns no other property, tangible or intangible, real or
personal.” (Amended and Restated Partnership Agreements, section 6.6(A), Bankr. Case No. 10-
53019, ECF No. 214-1 through 214-15.) This section demonstrates that the Debtors own the low-
income housing tax credits. The “Low Income Housing Tax Credit Certificate of Carryover
Allocation” letters from KHC identify the “Taxpayer Receiving Allocations” as the Debtors. (Tax
Credit Letters, Bankr. Case No. 10-53019, ECF No. 204-29 at 1-6.) Additionally, section 9.1G(v)
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of the Partnership Agreements state that tax credits shall be allocated among the partners, just as
profits and losses are allocated among the partners. (Amended and Restated Partnership
Agreements, section 9.1G(v), Bankr. Case No. 10-53019, ECF No. 214-1 through 214-15.)
Nowhere in the partnership agreements is there an indication that the tax credits are sold or
otherwise conveyed to the partners.
In a case factually analogous to the one before the Panel, a limited partnership, Pine Pointe,
entered into a land-use restriction agreement with the state housing authority in exchange for the
allocation of low-income housing tax credits. Pine Pointe Hous., L.P. v. Lowndes Cnty. Bd. of Tax
Assessors, 561 S.E.2d 860 (Ga. Ct. App. 2002). The limited partnership agreement allocated 99%
of the tax credits to Pine Pointe’s limited investor partners. Following an ad valorem tax
assessment on the property, Pine Pointe appealed the assessment. The issue on appeal was how to
determine the fair market value of the property “given the rental restrictions and the federal tax
benefits applicable to the project.” Id. at 862. Although the ultimate issue in the Pine Pointe case
was different, two of the holdings are applicable to the case currently before the Panel.
In its appeal, Pine Pointe asserted that the tax credits had been effectively sold to its limited
investor partners by virtue of the limited partnership agreement and thus had no value to Pine
Pointe. Pine Pointe therefore alleged that inclusion of the value of the remaining tax credits was
in error. The Georgia Court of Appeals rejected this argument based on the provisions of 26 U.S.C.
§ 42(d)(7) which state that, when the property is sold, the subsequent owner is entitled to claim the
remaining tax credits. Id. at 863. The court held that because the tax credits run with the land, they
cannot be severed from the property and sold to an investor.
The Pine Pointe court also concluded that “[b]ecause Section 42 tax credits are generated
by a designated property, a third party would pay for the value as part of that property's sale price
in a bona fide, arm's length transaction.” 561 S.E.2d at 863. “Furthermore, the tax credits go hand
in hand with restrictive covenants that require the property to charge below-market rent” and,
therefore, the tax credits run with the land. Id.-19-
In another case factually identically to the one before the Panel, Spring Hill, L.P. v. Tenn.
State Bd. of Equalization, No. M2001-02683-COA-R3-CV, 2003 WL 23099679 (Tenn. Ct. App.
Dec. 31, 2003), the taxpayers appealed from property tax assessments that included the present
value of the remaining low-income housing tax credits authorized by § 42 of the Internal Revenue
Code. The taxpayers were three limited partnerships who owned low-income housing tax credit
properties. After the low-income housing tax credits were awarded by the Tennessee state agency
tasked with administering the low-income housing tax credit program, the taxpayers allocated the
right to claim the annual tax credits to limited partner investors. Id. at *2.
Like the Debtors in this case, the owners contracted with the state agency to receive the tax
credits in exchange for surrendering a portion of their property rights, i.e., the right to charge higher
rents and to use the property without restraint. “[B]ecause the tax credits may be transferred to
purchasers” and because the “tax credits made ownership of the properties more desirable to” the
owners of the properties, the trial court determined that the low-income housing tax credits
“enhance[d] the value of the properties in the marketplace.” Id. at *4. The court of appeals
affirmed and stated “the real economic benefit caused by [the tax credits] has a significant impact
on the value of the property and must, therefore, be analyzed when determining the fair value of the
property.” Id. at *11.
[A]lthough the owner of the property had, by the limited partnerships, internally
allocated the right to receive the Tax Credits to limited partners in exchange for a
discounted lump sum payment by investors, the assignment of this right is the
equivalent of any number of other financing tools available.
Id. (summarizing prior decision of Tax Board which found syndication of tax credits did not serve
to exclude the consideration of tax credits in determining a property’s value).
In determining that the value of the tax credits was properly included in the value of the
property at issue in the case, the Spring Hill court recognized that
[w]hile some [other states] have found that the Tax Credits should not constitute a
factor in assessing the value of the real property, the majority take the position that,
absent legislation to the contrary, the Tax Credits should be used as a factor in
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determining the fair market value of the real property upon which they were
awarded.
....
In these cases, the courts determined that only consideration of both the value-
decreasing factor of restricted rents along with the value-increasing factor of the Tax
Credits provides a full and accurate picture of the property’s worth.
Id. at *12-13 (citations omitted). The Spring Hill court agreed. Because the “issue is ‘whether the
price that a willing buyer and seller would agree upon would take into account the tax credits,’ ”
the value of “[i]ntangible factors should be considered when they affect the value, either upward
or downward.” Id. at *14.
Kentucky has not excluded the consideration of tax credits in assessing property values
either by statute or case law. Although the Debtors and General Partners argue that Kentucky
partnership law and federal tax law “recognize[ ] the ability of limited partnerships to syndicate
partnership interests – and, of paramount importance, the attendant tax credits – to limited
partners,” they cite no authority for their argument. (Appellant Reply Br. at 3-4.) And, although
this may be true, the fact that allocation of tax credits is allowed does not mean that such allocation
has the effect of transferring ownership of the low-income housing tax credits away from the
property owner.
In this appeal, the Debtors and the General Partners argue that the cases cited by the Bank
are inapposite because the underlying policy considerations in those cases are tax policies, not the
policies of § 506(a) of the Bankruptcy Code. Nevertheless, these cases are relevant in
demonstrating that, just as the property tax rate can affect the value of real property, so too can the
availability of tax credits. Indeed, in using an income analysis to value real property, it would be
incongruous to consider the limitations imposed by land use restrictions but not consider the
associated benefits of tax credits made available to the property’s owners. For example, real
property may be owned subject to certain restrictions in furtherance of historic preservation that
limit its value, while at the same time providing the owner with a reduced property tax rate or even
complete tax abatement. In such a situation, it would be inconsistent to consider the limitations
imposed by the historic preservation restrictions without also considering the effect that a reduced
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or zero tax rate would have on the net income generated by the property. Ultimately, both the
benefits and the burdens associated with property ownership are relevant in valuing the real
property.
The Debtors cite the case of Randall v. Loftsgaarden, 478 U.S. 647, 106 S. Ct. 3143 (1986),
in support of their position that the tax credits are not collateral in which the Bank could take a
security interest and, therefore, cannot be included within the Bank’s secured claim; however, the
Supreme Court’s decision in Randall is readily distinguished and is not inconsistent with the
bankruptcy court’s valuation analysis in the case currently before the Panel. In Randall, the
Supreme Court considered whether an award of damages in a prospectus securities fraud case must
be offset by the tax benefits received by defrauded investors. The Supreme Court held, under the
plain meaning of the statute, that the “offset for ‘income received’ on the security does not
encompass the tax benefits received by defrauded investors by virtue of their ownership of the
security, because such benefits cannot, under any reasonable definition, be termed ‘income.’ ” Id.
at 656.
The Supreme Court then added:
[The tax credits] have no value in themselves; the economic benefit to the investor-
the true “tax benefit”- arises because the investor may offset tax deductions against
income received from other sources or use tax credits to reduce the taxes otherwise
payable on account of such income. Unlike payments in cash or property received
by virtue of ownership of a security . . . “receipt” of tax deductions or credits is not
itself a taxable event, for the investor has received no money or other “income”
within the meaning of the Internal Revenue Code.
Id. at 657 (citing 26 U.S.C. § 61).
The Debtors and General Partners assert that Randall stands for the proposition that tax
credits have no value in and of themselves and are not property in which an enforceable lien can
be taken. Their reliance on Randall is misplaced; Randall addressed the measure of damages under
the remedy of rescission in a securities fraud case. The key issue in the present case is different –
namely, whether the tax credits associated with the ownership of real property can be considered
in determining the value of that real property. In short, nothing in Randall suggests that a court
cannot consider the effect that tax credits associated with the ownership of real property have when
valuing that real property.
-22-
The Debtors also rely on the case of City of Chicago v. Michigan Beach Housing
Cooperative, 609 N.E.2d 877 (Ill. App. Ct. 1993). In Michigan Beach, the City of Chicago argued
that, because its security interest extended to proceeds of its collateral, its security interest extended
to the syndication funds that investors paid to purchase interests in a limited partnership that owned
a low-income housing complex and held the right to claim certain income tax credits. The trial
court held that the language of the city’s security agreement did not cover the income tax credits,
and the Illinois Court of Appeals affirmed. Id. at 884-85. The Illinois Court of Appeals also found
the city’s argument unavailing “because income tax credits cannot be intangible personal property
subject to a security interest under Article 9.” Id. at 885. In following Randall, the Illinois Court
of Appeals explained:
Applying the Supreme Court's analysis in Randall to the case at bar, we are led
ineluctably to the conclusion that the tax credits at issue cannot serve as collateral
because they are not general intangible personal property. Tax credits, as Randall
instructs us, have no independent value in and of themselves; instead, they are an
incidental benefit that investors receive when they purchase a security evidencing
their interest in a limited partnership. The investors cannot transfer or sell the tax
credits separate from the security itself. The limited partnership did not “sell” the
tax credits to the investors; the tax credits remain exactly where they resided before
the sale of the securities, in the limited partnership. Accordingly, it is clear that the
NTC defendants in this case did not purchase and do not own tax credits; instead,
they bought and now possess securities which gave them an interest in the Michigan
Beach Limited Partnership. The tax credits they received along with their interest
in the partnership were incidental benefits of that investment - not separate
intangible personal property which could collateralize the city's loan - and whatever
benefit they conferred on the investor renders no comfort to the city.
Id. at 886.
Although the Debtors and General Partners quoted at length from this paragraph of the
opinion in support of their argument that the value of the Bank’s secured claim does not include the
value of the remaining tax credits, they omitted and replaced with ellipses a key sentence:
The limited partnership did not “sell” the tax credits to the investors; the tax credits
remain exactly where they resided before the sale of the securities, in the limited
partnership.
Id. (emphasis added). Even when an entity allocates the rights to use the low-income housing tax
credits to investors, it does not lose ownership of the tax credits. The tax credits remain with the
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property and with the owner of the property. As the bankruptcy court recognized in this case, “[t]he
[investor] limited partners may have become entitled to the allocation of the Tax Credits through
the respective partnership agreements, but they did not become the owners of the Tax Credits
through those agreements.” (In Limine Order at 4, Bankr. Case No. 10-53019, ECF No. 235.) In
short, the Michigan Beach case is consistent with the bankruptcy court’s analysis that the right to
the tax credits remains in the limited partnership that owns the real property, and not with the
investors who purchased an ownership interest in the limited partnership.
The Debtors in this case still own the tax credits, and the tax credits are covenants running
with the real properties. This is true even though the Debtors allocated the credits to the investor
limited partners. See Spring Hill, 2003 WL 23099679. As a result, determination of the Bank’s
interest in the Debtors’ interest in the LIHTC properties must include consideration of the value of
those credits. Because “[a] willing buyer would most certainly consider the availability of section
42 tax credits when determining the fair cash value of the property,” the bankruptcy court in this
case was correct in concluding that the value of the remaining tax credits is properly included in
determining the value of the Bank’s secured claim. Rainbow Apartments v. Ill. Prop. Tax Appeal
Bd., 762 N.E.2d 534, 537 (Ill. App. Ct. 2001).
The Debtors and General Partners seemingly fail to understand a key issue in this case. The
question before the bankruptcy court was not whether the Bank has an independent security interest
in the tax credits. The issue was whether the fair market value of the various apartment complexes
secured by the Bank’s mortgages should reflect the value of the remaining tax credits. The Bank
did not argue, nor did the bankruptcy court determine, that the Bank was entitled to claim the tax
credits on its tax returns. Nor did the Bank argue that it owned or had a separate security interest
in the tax credits or in the money paid by the investors in exchange for allocation of the tax credits.
The only aspect of the tax credits at issue in this case is whether the value of the remaining credits
affects the value of the Bank’s collateral and, thus, the amount of the Bank’s secured claim.
The ability to claim the low-income housing tax credits pursuant to 26 U.S.C. § 42 flows
from the property owner’s agreement to comply with the rent and occupancy restrictions of the
Low-Income Housing Program. If the owners fail to comply with those restrictions, the owners,
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or whomever they allocate the right to claim the tax credits to, lose the benefits of the tax credits.
Simply stated, without the burden, there is no benefit.
Because the restrictions limit the amount of income an owner can realize from low-income
housing properties, the restrictions affect the price a willing seller would agree to pay for such
properties. The Debtors and the General Partners do not dispute this, and their appraisals state that
the estimated market value was calculated in light of the rent and occupancy restrictions. If the
burden impacts the value, the benefits must as well. In short, the bankruptcy court did not err when
it concluded, consistent with the Internal Revenue Code, relevant case law, and the record before
it, that the value of the remaining tax credits is properly included in determining the amount of the
Bank’s secured claim.
B. Weighing of Evidence in Determining Value Under § 506(a)
The Debtors and General Partners also allege that the bankruptcy court erred in accepting
the Bank’s appraisal figures in setting the value of the real properties and in determining the value
of the remaining tax credits.
“Findings of fact, whether based on oral or documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court
to judge the credibility of the witnesses.” Fed. R. Bankr. P. 8013. Courts have broad discretion in
admitting expert witnesses and weighing testimony. Nordhoff Invs., Inc. v. Zenith Elecs. Corp., 258
F.3d 180, 191 (3rd Cir. 2001) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153, 119
S. Ct. 1167 (1999)). “Judging the credibility and mental capacity of witnesses and resolving
conflicts in the evidence are within the unique capacity of the factfinder” and a court’s
determinations on such issues will not be disturbed on appeal unless clearly erroneous. United
States v. Baker, 807 F.2d 1315, 1320 (6th Cir. 1986).
“The valuation of property is an inexact science and whatever method is used will only be
an approximation and variance of opinion by two individuals does not establish a mistake in either.”
Boyle v. Wells (In re Gustav Schaefer Co.), 103 F.2d 237, 242 (6th Cir. 1939). “Because the
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valuation process often involves the analysis of conflicting appraisal testimony, a court must
necessarily assign weight to the opinion testimony received based on its view of the qualifications
and credibility of the parties’ expert witnesses.” In re Smith, 267 B.R. 568, 572 (Bankr. S.D. Ohio
2001).
In examining the valuations given to the debtors’ property, the court notes that
valuation is ultimately the opinion of a particular appraiser and, as such, the weight
to be accorded the opinion rests upon a number of factors frequently used by courts
in evaluating appraisal testimony. A nonexclusive listing of these factors includes:
the appraiser's education, training, experience, familiarity with the subject of the
appraisal, manner of conducting the appraisal, testimony on direct examination,
testimony on cross-examination, and overall ability to substantiate the basis for the
valuation presented.
Buckland v. Household Realty Corp. (In re Buckland), 123 B.R. 573, 578 (Bankr. S.D. Ohio 1991).
“A bankruptcy court is not bound to accept the values contained in the parties’ appraisals; rather,
it may form its own opinion of the value of the subject property after considering the appraisals and
expert testimony.” Smith, 267 B.R. at 572-73.
When faced with setting a value for a low-income housing tax credit property, a court’s job
is difficult.
[S]ales of LIHTC properties are very rare. When sales do occur, they are difficult
to compare because the land use restrictions may be quite different from one LIHTC
property to another. The extreme scarcity of comparable sales and the difficulties
in evaluating the differences between the comparable properties' LURAs present
formidable obstacles to performing a credible sales comparison approach for an
LIHTC property.
Kenneth N. Alford & David C.Wellsandt, Appraising Low-Income Housing Tax Credit Real Estate,
10/1/10 APPRAISAL J. 350 (Oct. 1, 2010).
In the case currently on appeal, the bankruptcy court found both appraisers to be qualified
as experts. (Valuation Order at 10, Bankr. Case No. 10-53019, ECF No. 252.) The bankruptcy
court also found that both appraisers, as certified appraisers, had extensive experience in appraising
low-income housing tax credit properties and that both appraisers used an accepted method of
valuing the property. Although both appraisers agreed that the income capitalization approach was
the most reliable one to use for income-producing properties, the appraisers disagreed how to
-26-
calculate the vacancy and collection loss rate, or VCLR, and the proper management fee. They also
disagreed about which real estate tax expenses to use.
With respect to the tax credits, the Debtors and General Partners argue that the bankruptcy
court erred in accepting the Bank’s appraiser’s value of the credits because the Bank’s appraiser did
not consider the impact of the tax credits. Instead, he merely valued the remaining tax credits. The
bankruptcy court rejected this argument and determined that the Bank’s appraisal of the tax credits
was valid.
The Court finds Mr. Donan’s testimony on the issue of the impact of the Remaining
Tax Credits to be credible and further finds that the Debtors’ evidence presented on
rebuttal is too little, too late. The Debtors’ Rebuttal Exhibit lacks the details,
analysis and substantiation contained in the Bank’s Appraisals. Debtors chose to
ignore the fact [that] the Remaining Tax Credits impact the value of the property,
are owned by the Debtors and that any rights/benefit/burdens of the Remaining Tax
Credits which inure to the limited partners do so only as a result of their
ownership/partnership interests in the Debtors. . . . When backed into a corner,
Debtors finally chose to compute a value for the Remaining Tax Credits by
challenging the methodology used by the Bank’s Appraiser with unsupported
assertions of components missing from Mr. Donan’s calculations.
(Valuation Order at 20-22, Bankr. Case No. 10-53019, ECF No. 252.)
After thoroughly reviewing the record and the briefs in this matter, it does not appear that
the bankruptcy court abused its discretion in finding the Bank’s appraisal more accurately reflected
the true value of the properties under § 506(a), nor was that finding clearly erroneous. Although
the Debtors argue that their appraiser’s approach was “far more nuanced and better reasoned,” they
offer no true support for their assertion, which ignores the instruction given their appraiser not to
factor the tax credits in his analysis. (Appellant Br. at 35.) As pointed out above, there is no exact
science for determining the value of low-income housing tax credit properties. The bankruptcy
court had copies of all the appraisals as well as the opportunity to assess the credibility of each
appraiser in the courtroom. The bankruptcy court analyzed the market conditions as set forth by
both appraisers and determined that the Bank’s figures were more accurate. Quite simply, the
bankruptcy court did what it was tasked with doing: determining which report more accurately
reflected the market conditions for these properties.
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With respect to the tax credits, the bankruptcy court was correct in determining their value
was included when assessing the value of the Bank’s secured claim. Because the Debtors held fast
to their contention that the value of the tax credits was not properly included in the claim, they
failed to timely introduce any evidence of the credits. When pressed at the hearing, their appraiser
finally agreed that the Bank’s appraiser used an accepted methodology, but contended that he had
used some incorrect figures in calculating the value. The Debtors, however, failed to convince the
bankruptcy court that the figures used by the Bank’s appraiser were invalid.
The Debtors further argue that the Bank’s appraisal of the tax credits was flawed because
the appraiser failed to analyze the partnership agreements and the Debtors’ current debt structure.
The Debtors allege that this failure is in violation of the Uniform Standards of Professional
Appraisal Practice (“USPAP”); however, the bankruptcy court considered this argument and found
that the Bank’s appraiser properly set forth the extraordinary assumptions and limiting conditions
in compliance with the requirements of the USPAP and that he reached a credible result as to the
value of the remaining tax credits. This was not an abuse of the bankruptcy court’s discretion.
In this case, the bankruptcy court engaged in a thorough analysis of the appraisals and the
appraisers’ qualifications. The bankruptcy court set forth a detailed analysis of why it gave more
weight to the Bank’s figures as compared to those of the Debtors. Additionally, the bankruptcy
court also set forth a detailed explanation of why it deviated from those of the Bank’s appraisals
regarding the tax expense calculation. The bankruptcy court’s reliance on the Bank’s appraisals and
its calculation of the final values was well-reasoned. There was neither clear error nor an abuse of
discretion in the bankruptcy court’s analysis.
C. Order Overruling Debtors’ Valuation Objection and Motion In Limine
The Debtors assert that the bankruptcy court erred in overruling their Valuation Objection
and Motion in Limine on August 15, 2011, because those portions of the appraisals and related
testimony about the remaining tax credits were “not based on sufficient facts and data” and did “not
conform to accepted principles and methodologies in the industry . . . .” (Mem. in Support of Mot.
in Limine at 1, Bankr. Case No. 10-53019, ECF No. 215-1.) Specifically, the Debtors and General
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Partners asserted that the Bank’s appraiser’s reports did not comply with the USPAP. The Debtors
and General Partners also argued that the value of the remaining tax credits was irrelevant to the
valuation issue because the tax credits were not part of the Bank’s collateral.
In their brief, the Debtors and General Partners allege that their Valuation Objection and
Motion In Limine should have been granted in light of Federal Rule of Evidence 702 which governs
testimony by expert witnesses and provided as of the valuation hearing:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the
case.
Fed. R. Evid. 702 (version in effect prior to general restyling of the Federal Rules of Evidence
effective December 1, 2011). There are essentially three components in making a Rule
702 determination. A court must determine (1) if the witness is qualified by “knowledge, skill,
experience, training, or education; (2) if the witness’ opinion or testimony will “assist the trier of
fact;” and (3) if the testimony is reliable “which is shown by the satisfaction of the three numbered
elements in Rule 702.” Kaylor v. Holsinger (In re Holsinger), 437 B.R. 260, 270 (Bankr. S.D. Ohio
2010) (citing In re Scrap Metal Antitrust Litig., 527 F.3d 517, at 528-29 (6th Cir. 2008)).
Importantly, the court does not assess the credibility and accuracy of expert opinion
when determining the reliability of the expert opinion, but must only ensure that the
opinion is made upon a reliable factual foundation and is not unsupported
speculation. [Scrap Metal Antitrust Litig., 527 F.3d] at 529-30. Ultimately, the
court has broad discretion in determining the admissibility of expert testimony and
“the gatekeeping inquiry must be [tied to the facts of a particular case.]” Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, [150], 119 S. Ct. 1167, 143 L. Ed. 2d
238 (1999).
Holsinger, 437 B.R. at 270.
Rule 702’s requirement that the proffered testimony “assist the trier of fact” requires the
testimony be relevant. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591, 113 S. Ct. 2786(1993). “Expert testimony which does not relate to any issue in the case is not relevant and, ergo,
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non-helpful.” Id. (citation omitted) (internal quotation marks omitted). Essentially, this
requirement mandates that the expert testimony “is sufficiently tied to the facts of the case that it
will aid the [factfinder] in resolving a factual dispute.” Id. (citation omitted) (internal quotation
marks omitted). “T[he] relevance requirement ensures that there is a ‘fit’ between the testimony
and the issue to be resolved at trial.” Buck v. Ford Motor Co., 810 F. Supp. 2d 815, 822 (N.D. Ohio
2011). As long as the testimony relates to an issue the factfinder must determine, it is relevant.
Multimatic, Inc. v. Faurecia Interior Sys. USA, Inc., 358 Fed. App’x 643, 652 (6th Cir. 2009).
Additionally,
[t]he Court's “requirement that ‘any and all scientific testimony or evidence admitted
[be] not only relevant, but reliable,’ ‘entails a preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in
issue.’”
Sigler v. Am. Honda Motor Co., 532 F.3d 469, 478 (6th Cir. 2008) (citations omitted).
“The inquiry [under Rule 702] is . . . a flexible one. . . . The focus . . . must be solely on
principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595.
“Rule 702 should be broadly interpreted on the basis of whether the use of expert testimony will
assist the trier of fact.” Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500, 516 (6th Cir.1998)
(internal citations omitted).
In Daubert, the Supreme Court “established a general gatekeeping [or screening]
obligation for trial courts” to exclude from trial expert testimony that is unreliable
and irrelevant. Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 260 (6th Cir.2001)
(citation and internal quotation marks omitted). The district court must determine
whether the evidence “both rests on a reliable foundation and is relevant to the task
at hand.” Id. (citation omitted). In assessing relevance and reliability, the district
court must examine “whether the expert is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to understand or determine a fact in
issue.” Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir.2000) (citations
omitted). This involves a preliminary inquiry as to whether the reasoning or
methodology underlying the testimony is scientifically valid and whether that
reasoning or methodology properly can be applied to the facts in issue. Id. (citation
and internal quotation marks omitted). Some of the factors that may be used in such
an inquiry include: (1) whether the theory or technique has been tested and subjected
to peer review and publication, (2) whether the potential rate of error is known, and
(3) its general acceptance. Hardyman, 243 F.3d at 260.
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Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002). “[R]ejection of expert
testimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory committee’s note. The
party seeking to introduce the expert testimony bears the burden of demonstrating its admissibility
by a preponderance of the evidence. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir.
2001).
With respect to a claim that a method used in an appraiser’s report does not comply with the
USPAP, there is no authority “for the proposition that an appraiser’s compliance with USPAP is
the sole determining factor as to whether an appraiser’s valuation report is reliable.” Whitehouse
Hotel Ltd. P’ship v. Comm’r, 615 F.3d 321, 332 (5th Cir. 2010). This is especially true when the
trial court is the “factfinder as well as the expert-testimony gatekeeper . . . .” Id. The issue of
whether an appraiser’s report complied with USPAP standards goes to “the weight [the] report
should be given, instead of whether it should be admitted.” Id.. “[T]he nature and extent of the
deviations [from USPAP] concern only the report’s credibility . . . .” Id.; see also Wal-Mart Stores,
Inc. v. Qore, Inc., No. 1:06CV326, 2009 WL 224908, at *3 (N.D. Miss. Jan. 28, 2009). This is true
even if an appraiser, like the Bank’s appraiser in this case, makes “extraordinary assumptions in
coming to his ultimate conclusion.” Id.When a party agrees that an expert witness used an accepted methodology, but that the data
used in applying that methodology was flawed, such an allegation does not require a court to
exclude the testimony or report. Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333,
1345-46 (11th Cir. 2003). Instead, “such an attack goes to the weight of the evidence, rather than
to its admissibility.” Scrap Metal Antitrust Litig., 527 F.3d at 530 (citing Quiet Tech. DC-8, 326
F.3d at 1345) (“ ‘Thus, the alleged flaws in [the appellee’s] analysis are of a character that impugn
the accuracy of his results, not the general scientific validity of his methods.’ ”). “The identification
of such flaws in generally reliable scientific evidence is precisely the role of cross-examination.”
Quiet Tech. DC-8, 326 F.3d at 1345; see also Daubert, 509 U.S. at 596 (“Vigorous cross-
examination, presentation of contrary evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but admissible evidence.”).
Because a “trial court has broad discretion in admitting and excluding expert testimony,”
such a determination will be upheld on appeal unless there was an abuse of discretion or unless the
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decision was “manifestly erroneous.” Gen. Electric Co. v. Joiner, 522 U.S. 136, 141-42, 118 S. Ct.
512, 517 (1997); Mayhew v. Bell S.S. Co., 917 F.2d 961, 962 (6th Cir.1990). However, “a
determination that proffered expert testimony is reliable does not indicate, in any way, the
correctness or truthfulness of such an opinion.” Scrap Metal Antitrust Litig., 527 F.3d at 529.
Instead, a court must determine whether an expert witness’s opinion is accurate in deciding what
weight to give to that opinion at trial. Id. at 531.
In the case currently before the Panel, the Debtors and General Partners allege that the
Bank’s appraisal of the value of the remaining tax credits “materially fail[s] to comply with the
USPAP standards” because the “valuation of the remaining Tax Credits is based upon
‘extraordinary assumptions.’ ” (Appellant Br. at 29.) According to the Debtors and General
Partners, the “extraordinary assumptions” used by the Bank’s appraiser “reflect ‘assignment
conditions’ that restrain appropriate due diligence ‘to such a degree that the assignment results are
not credible,’ per the USPAP.” (Appellant Br. at 30-31) (emphasis added.)
Despite these allegations, the Debtors’ own appraiser testified that the Bank’s appraiser used
an accepted methodology in calculating the value of the remaining tax credits. When asked by
Bank’s counsel if he agreed with Donan’s methodology, the Debtors’ appraiser stated:
There are certain issues I have with – with application of the methodology. The
general methodology, no, but there are certain things that are missing, key
components that are missing as part of applying the methodology that he applied.
(August 18, 2011 Tr. of H’rg at 144.)
In analyzing Debtors’ arguments, the bankruptcy court noted that, by using an extraordinary
assumption, the Bank’s appraiser concluded that he could still reach a credible result. The
bankruptcy court also held that the use of the extraordinary assumption was allowed by the USPAP.
(See In Limine Order at 6-8, Bankr. Case No. 10-53019, ECF No. 235.) Based on these holdings,
the bankruptcy court concluded that “the Debtors’ arguments go to the weight of the evidence, not
to its reliability.” (Id. at 8.)
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Whether the Bank’s appraiser complied with USPAP is not a determining factor as to
whether an appraisal is reliable. It may impact whether or not the report is credible, but does not
determine the admissibility of the report. Additionally, as long as an appraiser uses a methodology
that is accepted in the industry, his report is admissible. If, in applying the methodology, the
appraiser uses incorrect data or the appraiser’s use of the methodology is somehow flawed, a court
is not required to exclude the testimony or report. Instead, the error may affect the weight the
testimony or report is given.
In the case presently before the Panel, the bank’s appraiser developed an “extraordinary
assumption” as provided for in USPAP in valuing the remaining tax credits. Although the Debtors
assert that the assumption was wrong, their own appraiser testified that the methodology the Bank’s
appraiser used in valuing the remaining tax credits was an accepted one in the industry. As a result,
the bankruptcy court did not abuse its broad discretion in declining to exclude those portions of the
Bank’s appraisals which included valuation of the remaining tax credits.
As for the Debtors’ argument that the value of the remaining tax credits was irrelevant to
the valuation issue, such argument must fail. The ultimate issue the bankruptcy court had to
determine was the value of the secured portion of the Bank’s claim. A major component of this
determination was whether the value of the remaining tax credits would influence the price offered
by a hypothetical willing purchaser of the property that serves as collateral for the Bank’s claims.
As a result, the issue of whether the tax credits had any value was relevant to the issue before the
bankruptcy court, and the bankruptcy court properly denied the Debtors’ Motion In Limine.
V. CONCLUSION
For the foregoing reasons, we affirm the bankruptcy court’s orders setting the market value
of the Debtors’ low-income housing tax credit properties and overruling the Debtors’ and the
General Partners’ Valuation Objection and Motion In Limine.
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