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EHP Glendale v. Co. of Los Angeles ( 2013 )


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  • Filed 9/18/13
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION EIGHT
    EHP GLENDALE, LLC, et al.,                        B244494
    Plaintiffs and Appellants,                (Los Angeles County
    Super. Ct. No. BC 385925)
    v.
    COUNTY OF LOS ANGELES,
    Defendant and Respondent.
    APPEAL from a judgment of the Superior Court of Los Angeles County,
    Michelle R. Rosenblatt, Judge. Affirmed.
    Cahill Davis & O‟Neall, John D. Cahill, Cris K. O‟Neall, C. Stephen Davis and
    Andrew W. Bodeau for Plaintiffs and Appellants.
    Sutherland Asbill & Brennan and Douglas Mo for American Seniors Housing
    Association as Amicus Curiae on behalf of Plaintiffs and Appellants.
    John F. Krattli, County Counsel, and Albert Ramseyer, Deputy County Counsel,
    for Defendant and Respondent.
    Kamala D. Harris, Attorney General, Paul D. Gifford, Assistant Attorney General,
    Felix E. Leatherwood, W. Dean Freeman and Marta L. Smith, Deputy Attorneys General,
    for the California State Board of Equalization as Amicus Curiae.
    For a second time, we are asked to review an action for a property tax refund filed
    by appellants EHP Glendale, LLC and Eagle Hospitality Properties Trust, Inc. (Eagle),
    against the County of Los Angeles (County). Eagle challenges the property tax
    assessment for the Glendale Hilton Hotel (hotel or property) by the Los Angeles County
    Assessor (assessor) following Eagle‟s purchase in 2005, an assessment confirmed by the
    Los Angeles County Assessment Appeals Board (Board). In the first appeal, we reversed
    the grant of summary judgment to Eagle, finding the trial court improperly rendered the
    decision on an incomplete administrative record that contained disputed issues of fact.
    (EHP Glendale, LLC v. County of Los Angeles (2011) 
    193 Cal.App.4th 262
     (EHP
    Glendale).) On remand, the trial court held a bench trial on the complete record and
    entered judgment in the County‟s favor, affirming the assessor‟s and the Board‟s
    assessment (with one exception for a reduction in the purchase price undisputed by the
    parties). Eagle timely appealed that judgment. We affirm.
    FACTS
    We set forth the background facts from our prior opinion, which have not changed
    (EHP Glendale, supra, 193 Cal.App.4th at pp. 264-268 [all footnotes in original]):1
    “1. The Subject Property
    “The property at issue is located near the intersection of Brand Boulevard and
    Glenoaks Boulevard in the City of Glendale (City). The 18-story structure, built in 1991,
    is operated as a full-service first-class hotel with 351 guestrooms, including 13 suites.
    The hotel encompasses about 285,000 square feet of improvements, including a lobby,
    administrative offices, hotel laundry, two ballrooms, a „prefunction‟ area, seven meeting
    rooms, a business center, a fitness facility, a gift shop, an outdoor pool and spa with
    sundeck, two restaurants, a lounge, kitchen facilities and an approximately 196,000-
    square-foot, five-level, below-grade parking garage accommodating over 500 vehicles.
    1      We add any additional facts as needed in the Discussion part.
    2
    “2. Hotel Sale and Purchase
    “In January 2005, the Hilton Hotels Corporation (Hilton) offered the hotel for sale.
    Hilton marketed the property as being located in a prime location, distant from competing
    Hilton hotels, relatively insulated from new supply, in good physical condition and the
    only „four diamond‟ facility in the San Fernando and San Gabriel Valleys.
    “In May 2005, Eagle and Hilton entered into a sale and purchase agreement for
    Eagle to acquire the hotel. As part of the transaction, Hilton and Eagle entered into a
    franchise agreement for Eagle to use the Hilton franchise in exchange for payment of a
    royalty and a management contract under which Hilton agreed to continue managing the
    hotel for two years.
    “The hotel purchase closed in June 2005. The purchase price was $79.8 million
    and included the real property, personal property (e.g., furniture, fixtures and equipment)
    and certain intangible assets and rights.2 Under the stipulated facts, the franchise
    agreement with Hilton and the management contract were among the intangible assets
    acquired by Eagle during the sale.
    “3. Postsale Price Refund
    “Eagle took title to the hotel subject to a covenant running with the land allowing
    the Glendale Redevelopment Agency (redevelopment agency) to participate in a
    percentage of the hotel‟s gross revenue. Because Hilton was unable to reach a
    satisfactory agreement with the City to eliminate the redevelopment agency‟s profit
    participation, Hilton paid Eagle a postclosing refund of $2.5 million under the terms of
    the purchase agreement. The $79.8 million purchase price was effectively reduced to
    $77.3 million.
    “4. Property Reassessment
    “After Eagle purchased the property, the assessor reassessed the property as
    required by Proposition 13. The assessor initially enrolled a total value for the hotel of
    2      “For discussion purposes all dollar sums are rounded.”
    3
    $79.8 million, allocating $7.8 million to the land, about $68.5 million to improvements
    and about $3.4 million to personal property.
    “5. Appeal to Board
    “Eagle appealed the enrolled assessment to the Board, contending the market
    value of the property should be decreased to $51 million. Eagle argued that the
    assessor‟s methodology for appraising the hotel was invalid and that the assessment
    impermissibly captured the value of nontaxable intangible assets. The Board held a
    valuation hearing over the course of six days.
    “A. Eagle’s Valuation
    “Eagle argued at the hearing before the Board that the franchise agreement, the
    management agreement and the assembled hotel workforce had independent value at the
    time of sale and that the assessor was legally required to deduct those values from the
    purchase price in the assessment. Eagle further argued that the hotel‟s various service
    centers, such as food and beverage, room telephone and telecommunications services,
    business center, vending machines, health club, guest laundry and parking facilities, were
    independent businesses whose value also should have been deducted from the hotel‟s
    purchase price.
    “Eagle‟s expert appraiser testified he valued the property using all three
    recognized approaches to value, i.e., sales comparison, income capitalization and cost.3
    Based on all three approaches, his final opinion of the value of the going concern hotel
    business (including land, improvements, personal property and intangible assets and
    rights) was $77.3 million.
    “As a final step, however, Eagle‟s appraiser incorporated a value allocation made
    by another of Eagle‟s experts who appraised the fair market value of (1) the Hilton flag
    and franchise, (2) the assembled and trained workforce, and (3) the hotel‟s various
    3      “Assessors have developed three basic methods for determining the full cash value
    of property, namely, the market data method, the income method and the cost method.
    (See Bret Harte Inn, Inc. v. City and County of San Francisco (1976) 
    16 Cal.3d 14
    , 24
    (Bret Harte).)”
    4
    service centers. That analysis resulted in ascribed values of $7.1 million for the
    franchise, $265,000 for the assembled workforce and $7.3 million for the hotel‟s various
    service centers, or a claimed total value for intangible assets and rights of $14.6 million.
    “From his final opinion of property value of $77.3 million, Eagle‟s valuation
    expert deducted the ascribed value of intangible assets and rights, to account for the
    „going concern‟ value of the hotel business. He concluded that the value of the taxable
    property (including land, improvements and personal property and excluding intangible
    assets and rights) was $62.6 million.
    “B. Assessor’s Valuation
    “During the valuation hearing, the assessor‟s deputy, whose analysis the assessor
    adopted, testified he employed the income capitalization approach. Under this method,
    he analyzed the historical operating revenue and expenses of the hotel and used the data
    to develop a stabilized income and expense projection for the property as of the June
    2005 date of the hotel‟s change in ownership.
    “After projecting the hotel‟s income revenue from all sources, the assessor‟s
    deputy deducted appropriate projected expenses to arrive at a net operating income for
    the hotel. These deductions from the income stream included Hilton‟s management and
    franchise fees, labor costs and marketing expenses.
    “Using a direct capitalization technique, also called the „Rushmore method,‟4 the
    deputy assessor divided the stabilized net income by a capitalization rate derived from
    sales of comparable hotels to arrive at the estimated value of the property as of the date of
    purchase. This calculation yielded an estimated value for the hotel of $76.3 million.
    Because the value of the real property he obtained from the income capitalization
    4      “The deputy assessor testified there was an alternative method of assessment, the
    „business enterprise value‟ method, which was followed by Eagle‟s experts and espoused
    by the statewide Assessors‟ Handbook Section 502. The Assessors‟ Handbook
    recommended that intangible rights and assets be separately identified, valued and then
    deducted from the entire business enterprise as a going concern to arrive at taxable value
    of the property. (Board of Equalization, Assessors‟ Handbook Section 502, Advanced
    Appraisal (Dec. 1998) pp. 156, 158 [(Assessors‟ Handbook Section 502)].)”
    5
    approach was close to the hotel‟s verified sale price, the deputy assessor accepted the
    verified sales price as the value of the real estate. He then deducted the nontaxable value
    of the furniture, fixtures and equipment (an undisputed $3.4 million) to arrive at a taxable
    value of $73.3 million.
    “The assessor recommended to the Board that the assessment be adjusted
    downward by $2.5 million to reflect the seller‟s refund of part of the sale price for the
    redevelopment agency‟s reserved participation interest.
    “C. Board Decision
    “The Board adopted the assessor‟s property valuation. Through an apparent
    oversight, however, the Board neglected to adjust the enrolled assessment by deducting
    the value of the redevelopment agency‟s $2.5 million retained profit sharing interest as
    recommended by the assessor.5”
    PROCEDURAL HISTORY
    1. Procedural History Leading to First Appeal
    Eagle challenged the Board‟s determination by bringing the present action seeking
    a refund of about $187,000 in property taxes. (EHP Glendale, supra, 193 Cal.App.4th at
    p. 268.) Eagle moved for summary judgment, stating that the sole issue concerned
    “„whether the Board properly equalized the value of [Eagle‟s] property, based on the
    evidence presented to the Board‟” and contending the assessor‟s valuation, adopted by
    the Board, relied on an invalid appraisal methodology that did not fully identify, value,
    and exclude intangible assets from the assessed property as required by California law.
    (Ibid.) In support of its motion, however, Eagle submitted only fragmentary excerpts of
    the administrative record. (Ibid.)
    The court granted the motion, ruling the Board erred as a matter of law in adopting
    the assessor‟s methodology because it failed to fully exclude nontaxable intangible assets
    from the property assessment. (EHP Glendale, supra, 193 Cal.App.4th at p. 268.) The
    5      “The County concedes, and there is no dispute, that the hotel‟s assessment should
    be adjusted downwards by $2.5 million for this profit participation interest.”
    6
    court reasoned that the applicable standard of review was for the court to “„examine the
    underlying record for substantial evidence and to ascertain whether the Board applied a
    valid appraisal technique correctly,‟” and held that the assessor‟s “„methodology failed
    to provide for a return on the non-taxable operating assets in the total amount deducted
    from the hotel‟s income stream.‟” (Id. at p. 269.) After denying a motion by the County
    to clarify the ruling, the court entered judgment in Eagle‟s favor, declaring the assessor‟s
    “„valuation methodology, which was adopted by the [Board], necessarily failed to
    exclude the value of intangible assets from the assessment of [Eagle‟s] property, the
    [hotel], and is contrary to California law.‟” (Id. at pp. 269-270.) The judgment remanded
    Eagle‟s assessment appeals application to the Board for further proceedings consistent
    with the court‟s ruling on summary judgment.6 The County appealed from the judgment,
    and Eagle cross-appealed from a later denial of a motion for attorney fees. (Ibid.)
    2. Our Decision in the First Appeal
    We determined the trial court erred in two respects. First, we held the issue
    presented to the trial court “amounted to one of fact, and the trial court erred in granting
    summary judgment based on a fragmentary record.” (EHP Glendale, supra, 193
    Cal.App.4th at p. 272.) In doing so, we ruled the income approach applied by the
    assessor was a valid methodology for determining full cash value, so “Eagle‟s contention
    that the assessor improperly applied the income approach by not deducting intangibles
    presents a question of fact.” (Ibid.) Because “the issue whether the Board‟s findings are
    supported by substantial evidence presupposes that the trial court has before it all the
    evidence considered by the Board in making its assessment,” and neither Eagle nor the
    County provided the court with the full administrative record, “the absence of a complete
    record of proceedings prevents a substantial evidence review.” (Id. at pp. 272-273.) We
    rejected Eagle‟s argument that the trial court did not exceed its jurisdiction because the
    6       The trial court also found the Board erred in the assessment of Eagle‟s property by
    failing to exclude the $2.5 million postclosing refund from the assessed value. (EHP
    Glendale, supra, 193 Cal.App.4th at p. 270, fn. 8.)
    7
    facts were undisputed and thus the issue was one of law reviewed de novo. (Id. at
    p. 273.) We distinguished a line of cases Eagle cited because they “did not review
    valuation decisions calling for the weighing of facts and are wholly inapplicable to the
    case at bar.” (Ibid., citing GTE Sprint Communications Corp. v. County of Alameda
    (1994) 
    26 Cal.App.4th 992
    , 999 (GTE Sprint), Mola Development Corp. v. Orange
    County Assessment Appeals Bd. (2000) 
    80 Cal.App.4th 309
    , 316, 328, County of
    Stanislaus v. Assessment Appeals Bd. (1989) 
    213 Cal.App.3d 1445
    , 1450 & County of
    Orange v. Orange County Assessment Appeals Bd. (1993) 
    13 Cal.App.4th 524
    , 529-530
    (County of Orange).)
    Second, we held there were triable issues of material fact in dispute even on the
    incomplete record. (EHP Glendale, supra, 193 Cal.App.4th at p. 273.) We explained the
    income method and the Board‟s role in property valuation, and found the parties‟
    valuations presented a factual dispute not amenable to summary judgment: “In the
    present case, one of the methods Eagle‟s expert appraiser used to value the hotel property
    was the income method. However, the expert opined a further deduction should be made
    from this value for intangibles such as the Hilton franchise, assembled workforce and
    other profit centers. The deputy assessor, on the other hand, testified that because in his
    income approach he removed the value of intangibles from the income stream, a further
    deduction from the valuation for the hotel‟s service centers would not accurately reflect
    the property‟s true value as a full-service lodging facility. [¶] The Board considered the
    evidence regarding which, if any, amounts should be deducted from the property value to
    account for the value of intangibles. In doing so, the Board properly weighed the
    evidence presented by Eagle and the assessor, and the Board appropriately exercised its
    judgment on the credibility of the testimony and evidence presented, selecting the
    assessor‟s valuation over that of Eagle‟s expert. [Citation.] [¶] In granting the summary
    judgment, the court found the assessor‟s methodology „necessarily failed to exclude from
    his valuation certain intangible assets, such as a return on the franchise and management
    expenses, from his going concern valuation methodology,‟ and that the Board‟s
    subsequent adoption of the assessor‟s income approach „is contrary to California law.‟ In
    8
    making this determination, the court impermissibly weighed and drew inferences from
    the conflicting evidence.” (EHP Glendale, supra, at p. 275, fn. omitted.)
    Finally, we distilled the disputed issue to one of the competing credibility of the
    parties‟ witnesses: “The court effectively made a credibility determination in favor of the
    opinions of Eagle‟s experts over the opinion of the assessor and his deputy. Whether the
    testimony of one group of experts was more persuasive than the expert opinion of another
    was an issue to be decided by the Board. The role of the trial court and this court is to
    decide whether substantial evidence supports the Board‟s finding as to valuation. „The
    actual weighing of conflicting evidence by the factfinder is a process which can never
    take place in the context of a summary judgment motion.‟ [Citations.] In view of the
    deputy assessor‟s testimony that his valuation excluded in particular the value of
    intangibles, the trial court could not make a finding that such valuation „necessarily‟
    failed to do so. [¶] „Where a witness has disclosed sufficient knowledge, the question of
    the degree of knowledge goes more to the weight of the evidence than its admissibility.‟
    [Citations.] The question of credibility of the experts was a matter to be decided by the
    Board.” (EHP Glendale, supra, 193 Cal.App.4th at pp. 275-276, fn. omitted.) We
    concluded “Eagle was not entitled to a trial de novo in the trial court. The question
    presented to the court was whether „“„there was evidence of sufficient substantiality
    before the board to justify the finding [citation], and in the absence of fraud or malicious
    or arbitrary use of its powers the board is the sole judge of questions of fact and of the
    values of property. [Citation.]‟”‟ [Citation.] It is presumed the Board has properly
    performed the duties entrusted to it and, absent a showing otherwise by the taxpayer, the
    presumption is that the assessment of the Board is both regularly and correctly made.
    [Citation.].” (Id. at p. 276.)
    3. Proceedings on Remand
    On remand to a different judge, the case was tried based upon the entire record and
    arguments from the parties. In a written decision and judgment, the court summarized in
    considerable detail the evidence each side presented to the Board and the Board‟s
    findings. It quoted the standard of review from our prior opinion and explained its view
    9
    of the issues presented: “Thus, the Court finds . . . it is faced with a question of law: is
    the assessor‟s income (Rushmore-type) approach arbitrary, in excess of discretion, or in
    violation of the standards prescribed by law and/or supported by substantial evidence[?]
    Further, if the methodology passes the Bret Harte test, the Court finds that it is faced with
    a question of fact: is the decision of the Board upholding the assessor‟s appraisal
    supported by substantial evidence[?]”
    The court reviewed the Board‟s decision and resolved the issues against Eagle.
    First, it found “the Board, in making a finding that [Eagle] did not meet its burden of
    proof of rebutting the reliability of the property‟s acquisition value as a basis for its
    assessment, relied upon a finding that the assessor is . . . more credible and that his
    position is supported by the evidence presented by the assessor.” Second, it held the
    assessor‟s and Board‟s use of the “Rushmore-like approach” was not arbitrary, in excess
    of discretion, or in violation of the standards prescribed by law. Finally, the court
    reviewed in detail the evidence presented to the Board and held there was “substantial
    evidence to support [the Board‟s] decision in favor of the assessor.” The court remanded
    the matter to the Board to deduct from the assessment the undisputed $2.5 million
    reduction in purchase price.
    DISCUSSION7
    1. Law of the Case
    In the prior appeal, we held the issue before the trial court was one of fact, and
    therefore subject to the “substantial evidence” standard of review. (EHP Glendale,
    7       The County argues we should not reach the merits of Eagle‟s appeal because
    Eagle did not fairly summarize the record. Eagle‟s brief, however, adequately set forth
    the pertinent facts. (Cal. Rules of Court, rule 8.204(a)(2)(C).) Eagle argues the Board‟s
    findings did not “include all legally relevant subconclusions supportive of its ultimate
    decision so that a reviewing court is able to trace and adequately examine the Board‟s
    mode of analysis. [Citations.] While it is not necessary for the findings to cover every
    evidentiary matter, the Board should address specifically its reasoning for accepting or
    rejecting each issue raised by the parties. [Citation.]” (Farr v. County of Nevada (2010)
    
    187 Cal.App.4th 669
    , 686.) We find the Board adequately addressed the issues to enable
    our review.
    10
    supra, 193 Cal.App.4th at pp. 272-273.) Eagle urges us to “clarify or limit” that holding
    because it disagrees the issue is factual, citing the GTE Sprint line of cases we had
    distinguished, as well as the newly issued decisions in Sky River LLC v. County of Kern
    (2013) 
    214 Cal.App.4th 720
     (Sky River) and Elk Hills Power, LLC v. Board of
    Equalization (2013) 
    57 Cal.4th 593
     (Elk Hills). The County responds that our prior
    decision constitutes law of the case, which validated the Board‟s use of the income
    approach and limited Eagle to challenging whether substantial evidence supported the
    Board‟s decision. We agree.
    “Where an appellate court states in its opinion a principle or rule of law necessary
    to its decision, that principle or rule becomes the law of the case. [Citation.] The law of
    the case must be adhered to both in the lower court and upon subsequent appeal.
    [Citation.] This is true even if the court that issued the opinion becomes convinced in a
    subsequent consideration that the former opinion is erroneous. [Citation.]” (Santa
    Clarita Organization for Planning the Environment v. County of Los Angeles (2007) 
    157 Cal.App.4th 149
    , 156.)
    Because the rule is “harsh,” courts “have declined to adhere to it where its
    application would result in an unjust decision, e.g., where there has been a manifest
    misapplication of existing principles resulting in substantial injustice, or where the
    controlling rules of law have been altered or clarified by a decision intervening between
    the first and second appellate determinations. The unjust decision exception does not
    apply when there is a mere disagreement with the prior appellate determination.”
    (Morohoshi v. Pacific Home (2004) 
    34 Cal.4th 482
    , 491-492 (Morohoshi).) Further, the
    “primary purpose served by the law-of-the-case rule is one of judicial economy,” but
    “[t]hat reason for the rule is inoperative when the court hearing the subsequent appeal
    determines that there should be a reversal on a ground that was not considered on the
    prior appeal. The fact that reversal is necessary in any event frees us from the
    compulsion that the rule of law of the case might otherwise impose on us to follow a
    ruling in the prior appeal that we now perceive to be manifestly erroneous.” (Searle v.
    Allstate Life Ins. Co. (1985) 
    38 Cal.3d 425
    , 435 (Searle).)
    11
    Eagle argues our holding validating the assessor‟s methodology and finding the
    issue before the trial court was subject to the substantial evidence review was not
    necessary to our prior decision that the trial court erroneously granted summary judgment
    on an incomplete record and on disputed facts. Yet, to find the trial court erred in
    granting summary judgment, we necessarily decided the assessor‟s methodology was
    legally valid, that the remaining issue was one of fact and not law, and that the court‟s
    review was for substantial evidence that presupposed a complete record. (EHP Glendale,
    supra, 193 Cal.App.4th at pp. 271-272.) We even rejected Eagle‟s argument that “the
    issues presented to the court were based on uncontested or undisputed facts and thus
    presented solely issues of law, as to which review is de novo,” finding review of the
    Board‟s exclusion of intangible assets “call[ed] for the weighing of facts.” (Id. at p. 273.)
    Eagle also invokes the exceptions in Morohoshi and Searle, but they do not apply
    here. Eagle‟s claimed “substantial injustice” is simply a disagreement with our
    conclusion that GTE Sprint and other cases are distinguishable. Further, the exception
    from Searle does not apply because we have not identified any reason not considered in
    our prior decision that would warrant a reversal of the trial court‟s decision.
    Finally, neither Sky River nor Elk Hills changed the controlling rules of law
    regarding the proper standard of review. Like GTE Sprint and the other cases we
    previously cited, the dispute in Sky River was over which of two tax rates should have
    been used as an “element of the chosen method to be used in calculating the market value
    of the property,” an issue that did not call for the weighing of facts. (Sky River, supra,
    214 Cal.App.4th at p. 731.)
    Elk Hills addressed whether the State Board of Equalization (SBE) improperly
    included the value of intangible emission reduction credits (ERCs) when it assessed the
    taxable value of a power plant. (Elk Hills, supra, 57 Cal.4th at pp. 601-602.) In
    reviewing the grant of summary judgment to the SBE and Kern County, the court
    identified the primary issue as one of statutory interpretation, which it reviewed de novo
    as a question of methodology. (Id. at pp. 605-606.) It also approved the SBE‟s
    application of the income approach, even though the SBE did not subtract any value for
    12
    the ERCs from the income stream. (Id. at p. 619.) Here, as we previously held, the issue
    is not whether the assessor used a valid methodology, but whether the assessor subtracted
    an adequate value for intangible assets from the income stream of the hotel, which called
    for the Board to weigh conflicting evidence and testimony.
    Thus, our holding that the Board applied a legally valid methodology and the
    standard of review was for substantial evidence is law of the case. The sole question
    before the trial court and presented in this appeal is whether substantial evidence
    supported the Board‟s assessment.8
    2. Standard of Review
    “When a taxpayer challenges a decision of the board of equalization claiming the
    board „erroneously applied a valid method of determining full cash value, the decision of
    the board is equivalent to the determination of a trial court, and the trial court in turn may
    review only the record presented to the board. [Citations.] The trial court may overturn
    the board‟s decision only when no substantial evidence supports it, in which case the
    actions of the board are deemed so arbitrary as to constitute a deprivation of property
    without due process. [Citations.]” (EHP Glendale, supra, 193 Cal.App.4th at p. 271; see
    also Elk Hills, supra, 57 Cal.4th at p. 606.) On appeal, we apply the same standard of
    review. (Freeport-McMoran Resource Partners v. County of Lake (1993) 
    12 Cal.App.4th 634
    , 640; Dennis v. County of Santa Clara (1989) 
    215 Cal.App.3d 1019
    ,
    1025-1026.)
    3. Substantial Evidence Supported the Board’s Decision
    In California, property taxes are assessed based on the “fair market value” of the
    property. (Cal. Const., art. XIII, § 1; Elk Hills, supra, 57 Cal.4th at p. 606.) “Fair market
    value means „the amount of cash or its equivalent that property would bring if exposed
    for sale in the open market under conditions in which neither buyer nor seller could take
    8      In light of this conclusion, the trial court erred on remand in identifying one issue
    as whether, as a matter of law, the assessor‟s methodology was valid. But because the
    court held it was, the error did not impact the court‟s judgment affirming the Board‟s
    decision.
    13
    advantage of the exigencies of the other, and both the buyer and the seller have
    knowledge of all the uses and purposes to which the property is adapted and for which it
    is capable of being used.‟” (Elk Hills, supra, at p. 606; see Rev. & Tax. Code, § 110,
    subd. (a).9) The “fair market value” or “full cash value” is presumed to be the purchase
    price of the property, “unless it is established by a preponderance of the evidence that the
    real property would not have transferred for that purchase price in an open market
    transaction.” (§ 110, subd. (b); see EHP Glendale, supra, at p. 274.) Because “[t]he
    Board is vested with special expertise in property valuation and its factual determinations
    are treated with deference,” the property owner bears the burden to present evidence to
    the Board demonstrating that a valuation different from the purchase price is warranted.
    (EHP Glendale, supra, at p. 274; see § 110, subd. (b).)
    “Assessors have developed three basic methods for determining the full cash value
    of property, namely, the market data method, the income method and the cost method.
    [Citation.]” (EHP Glendale, supra, 193 Cal.App.4th at p. 266, fn. 3.) Under the income
    method, “the sum of income attributable to the property is capitalized to reach a value for
    the property, less an allowance for the risk of partial or no receipt of income.” (Id. at
    p. 274.) “The income method is based on the assumption that in an open market a willing
    buyer would pay a willing seller an amount approximately equal to the present value of
    the income to be derived from the property.” (Ibid.)
    In applying any valuation method, intangible assets must be excluded because they
    are generally not subject to direct property taxation, although “[t]axable property may be
    assessed and valued by assuming the presence of intangible assets or rights necessary to
    put the taxable property to beneficial or productive use.” (§§ 110, subds. (d) & (e), 212,
    subd. (c); see GTE Sprint, supra, 26 Cal.App.4th at p. 1002.)10 Thus, the value of
    9      All undesignated statutory citations are to the Revenue and Taxation Code.
    10     Section 110, subdivision (d) states in relevant part, “Except as provided in
    subdivision (e), for purposes of determining the „full cash value‟ or „fair market value‟ of
    any taxable property, all of the following shall apply: [¶] (1) The value of intangible
    assets and rights relating to the going concern value of a business using taxable property
    14
    intangible assets may not be reflected in the valuation of taxable property, but
    considering the presence of intangibles may be necessary to value real property at its fair
    market value. (Michael Todd Co. v. County of Los Angeles (1962) 
    57 Cal.2d 684
    , 696;
    American Sheds, Inc. v. County of Los Angeles (1998) 
    66 Cal.App.4th 384
    , 392-393
    (American Sheds); see also Los Angeles SMSA Ltd. Partnership v. State Bd. of
    Equalization (1992) 
    11 Cal.App.4th 768
    , 776 (Los Angeles SMSA) [“„[I]ntangible values
    that cannot be separately taxed as property may be reflected in the valuation of taxable
    property . . . . [T]he propriety of including nontaxable intangible values in the valuation
    of otherwise taxable property has been asserted by the courts in a variety of contexts, and
    market value for assessment purposes is the value of property when put to beneficial or
    productive use.‟ [Citation.]”].)
    The court in Elk Hills recently clarified the relationship between intangible assets
    and the valuation of real property at fair market value under sections 110, subdivisions
    (d) and (e), and section 212, subdivision (c). “[S]ection 110(d)(1) and (2) prevents the
    direct taxation of intangible rights and assets when assessors use methods of unit
    valuation. Section 110(d)(1) prevents tax assessors from including the value of
    shall not enhance or be reflected in the value of the taxable property. [¶] (2) If the
    principle of unit valuation is used to value properties that are operated as a unit and the
    unit includes intangible assets and rights, then the fair market value of the taxable
    property contained within the unit shall be determined by removing from the value of the
    unit the fair market value of the intangible assets and rights contained within the unit.”
    Subdivision (e) states, “Taxable property may be assessed and valued by assuming the
    presence of intangible assets or rights necessary to put the taxable property to beneficial
    or productive use.” And subdivision (f) states, “For purposes of determining the „full
    cash value‟ or „fair market value‟ of real property, intangible attributes of real property
    shall be reflected in the value of the real property. These intangible attributes of real
    property include zoning, location, and other attributes that relate directly to the real
    property involved.” Section 212, subdivision (c) provides, “Intangible assets and rights
    are exempt from taxation and, except as otherwise provided in the following sentence, the
    value of intangible assets and rights shall not enhance or be reflected in the value of
    taxable property. Taxable property may be assessed and valued by assuming the
    presence of intangible assets or rights necessary to put the taxable property to beneficial
    or productive use.”
    15
    intangible assets that relate to the going concern value of a business within the unit value
    of property prior to assessment. Section 110(d)(2) requires taxing authorities to value
    intangible assets and actively remove that value from a unit‟s taxable base value, so that
    the intangibles are not directly taxed.” (Elk Hills, supra, 57 Cal.4th at p. 608.) But in the
    context of the going concern value of a business (i.e., “„[t]he value of a commercial
    enterprise‟s assets or of the enterprise itself as an active business with future earning
    power, as opposed to the liquidation value of the business or of its assets‟”), section 110,
    subdivision (e) permits taxable property to be “„assessed and valued by assuming the
    presence of intangible assets or rights necessary to put the taxable property to beneficial
    or productive use.‟” (Elk Hills, supra, at p. 608.)
    Thus, “[s]ection 110(d)(1) prevents the value of intangible assets from enhancing
    or being reflected in the valuation of taxable property. Section 110(e) allows assessors to
    enhance the valuation of taxable property, not by including the value of intangible assets
    in the valuation (see § 110(d)(1)), but simply by assuming the presence of intangible
    assets when valuing the taxable property put to beneficial or productive use. While the
    value of the taxable property is enhanced, it is not enhanced by the value of intangible
    assets. That would violate section 110(d)(1) as well as section 212(c). Rather, it is
    enhanced by the presence of intangible assets.” (Elk Hills, supra, 57 Cal.4th at p. 615.)
    As we noted in our prior opinion, the issue before the Board was a factual question
    essentially resting on a credibility determination between dueling experts. (EHP
    Glendale, supra, 193 Cal.App.4th at pp. 275-276.) In ruling for the assessor, the Board
    adopted the opinion and valuation from the County‟s deputy assessor Richard House, a
    licensed assessor with an advanced certificate who, throughout his career at the county
    assessor‟s office, had concentrated on commercial properties, shopping centers, strip
    retail centers, and supercenters. At the time of the hearing, he had specialized in hotel
    valuation for the past four years and served as the hotel appraiser for the County. In
    assessing the hotel in issue, he reviewed overall trends in the hospitality market and
    submarket; he studied the hotel‟s historical operations and made projections of future use
    based on its history; he projected the hotel‟s income revenue from all sources and
    16
    deducted appropriate expenses and projected expenses to arrive at a net operating
    income; and he analyzed market rates to derive a capitalization rate with which to
    capitalize that income into a value estimate for the property. He then deducted furniture,
    fixtures, and equipment from the value estimate to reach a base value for the property.
    In valuing the property, House viewed the purchase price as reflecting the value of
    only the taxable real and personal property. (EHP Glendale, supra, 193 Cal.App.4th at
    p. 276, fn. 12.) His opinion was based in part on the terms of the purchase agreement,
    which included a general assignment of intangible property, “including without limitation
    all operations and businesses conducted on or from the Real Property,” but it did not
    identify the value of any particular intangible assets; excluded the Hilton trademarks and
    other intellectual property; provided that the parties would execute separate franchise and
    management agreements as conditions to closing, which were separately paid for through
    royalties and fees; and provided that all employees would either be terminated upon sale
    and rehired by Eagle or continue to be employed by Hilton and managed under the
    management agreement for the benefit of Eagle. In House‟s view, the value of the
    workforce was therefore subsumed in the management agreement because managing the
    workforce was one of the activities to be performed under that agreement.
    House also did not view any service centers present in the hotel as assets that
    could be separated from the purchase price of the hotel as an intermingled operation.11
    Eagle acquired the hotel as a “full-service” hotel, defined as “[g]enerally mid-price,
    upscale or luxury lodging facilities with a restaurant, lounge facilities, and meeting space
    as well as minimum service levels often including bell service and room service. These
    lodging facilities report food and beverage revenue.” The property on which the hotel
    sits is limited to first-class hotel use, which was the “highest and best use” of the
    property. As a result, House looked at the hotel “under the concept of the unit valuation
    11     The Board did not expressly resolve the issue of the service centers, but it
    accepted House‟s opinion, and he did not view the service centers as intangible assets
    that could be separately valued. The Board did discuss the separate valuation of the
    service centers by Eagle‟s expert.
    17
    as an operation as a whole,” which is the way “market participants would view this
    property.”
    In applying the income approach to confirm the purchase price as the taxable full
    market value, House identified the franchise and management agreements as intangible
    assets that should be removed from the income stream of the hotel.12 He testified he
    removed their value by using what has been termed the “Rushmore method” of income
    valuation, that is, subtracting the expenses for intangible assets from the income stream
    of a property before capitalization in order to remove their value from the final valuation.
    He opined that, because “capitalization is the process of converting income into
    value, . . . to remove income from the capitalization process is in effect to remove
    value, . . . and it is an acceptable methodology to value the value of intangibles by
    removing them as an expense from the income stream.” He also removed more than $1.3
    million from the income stream (capitalized to $15 million) beyond the expenses for the
    franchise and management agreements, which he opined were shared expenses, some of
    which likely benefitted the service centers. In all, he removed 14.6 percent from total
    revenue, and capitalizing the net income, he reached $73.3 million, an amount close to
    the purchase price of the real estate alone, not the intangibles and not the personal
    property. Had he not deducted the expenses for the franchise and management
    agreements from the projected income from the property, the income method in his
    opinion would have yielded a value reflecting “land, improvements, personal property,
    and the value of those intangibles assets such as the management and franchise
    agreement[s]. But the value would have been much[,] much higher,” i.e., a “true going
    concern value of $113,803,000.”
    He conceded he was unaware of any statute or court decision in California
    supporting his approach. He also noted that the SBE disagreed with his method in the
    12    House clarified at the hearing that he did not view the management and franchise
    agreements as intangible “attributes” under section 110, subdivision (f).
    18
    Assessors‟ Handbook Section 502, but that no assessor in California follows Section 502
    on that issue.
    In contrast, in applying the cost, sales comparison, and income methods to reach a
    valuation, Eagle‟s expert appraiser produced what he claimed was a “going concern”
    value of $77.3 million, reflecting the value of both taxable real and personal property and
    nontaxable intangible assets (sometimes called the “Business Enterprise Approach”).
    Like House, in applying the income approach, Eagle‟s appraiser subtracted expenses
    from the income generated by the hotel, and capitalized the result to determine the value
    of the hotel. As a final step, however, he deducted from his valuation the value of three
    categories of intangible assets calculated by Eagle‟s intangible valuation expert: (1) the
    Hilton flag and franchise, (2) the assembled and trained workforce, and (3) the hotel‟s
    various service centers. The resulting valuation was approximately $63 million in
    taxable real and personal property.
    The Board accepted House‟s valuation: “The Board reviewed the points raised by
    both the applicant and the Assessor as to the two approaches to valuing hotels and related
    properties. There is obviously a difference in opinion as to the use of the Rushmore
    Approach and the Business Enterprise Approach. During the Board‟s deliberation, the
    decision regarding the first and only trial where Stephen Rushmore, the creator of the
    Rushmore Approach, and David Lennhoff, who developed the Business Enterprise
    Approach method; faced each other in court was reviewed. It has been reported by some
    sources that methodology known as the „Business Enterprise Approach‟ (BEA), has
    recently come into favor with hotel property tax representatives and some appraisers,
    given that it moves a disproportional share of [a] hotel‟s value out of the real property
    component and into the business [and] personal property components, thereby
    significantly reducing a hotel property tax assessment. As defined in the Uniform
    Standards of Professional Appraisal Practice, BEA refers to the value of the entire
    business enterprise and includes all tangible assets and intangible assets and rights, trade
    names, logos, system operations, advertising, customer and distribution relationships, and
    workforce are all components of an[] enterprise value that create value separate and apart
    19
    from, and value inherent in the tangible assets. [¶] The Board finds that the Assessor
    correctly allowed for the intangibles, through marketing and franchise expenses. The
    Board realizes that the SBE Handbook is a guide and is not binding on the Assessor or
    local Assessment Appeals Boards. [¶] After hearing all oral testimony and exhibits by
    the applicant and appraiser, the Board finds that the applicant did not meet the burden of
    proof, therefore this application is denied.”
    Eagle challenges the Board‟s conclusion because, in its view, the income approach
    to valuation always results in a “business enterprise value” that necessarily includes the
    value of intangible assets that must be excluded. Eagle cites several cases to argue, as a
    matter of law, “an income approach includes or subsumes the value of the intangible
    assets required to generate the revenue.” (See, e.g., GTE Sprint, supra, 26 Cal.App.4th at
    p. 1007; Service America Corp. v. County of San Diego (1993) 
    15 Cal.App.4th 1232
    ,
    1240; Shubat v. Sutter County Assessment Appeals Board (1993) 
    13 Cal.App.4th 794
    ,
    803; County of Orange, supra, 13 Cal.App.4th at p. 533; County of Los Angeles v.
    County of Los Angeles Assessment Appeals Bd. (1993) 
    13 Cal.App.4th 102
    , 113; Los
    Angeles SMSA, supra, 11 Cal.App.4th at p. 776, fn. 6; Madonna v. County of San Luis
    Obispo (1974) 
    39 Cal.App.3d 57
    , 61 (Madonna).) But the issue we must decide is not
    whether the income approach to valuing a business necessarily includes the value of
    intangible assets; we must determine whether substantial evidence supported the Board‟s
    decision that, under the facts of this case, the assessor properly removed the value of
    intangible assets from the hotel‟s valuation. We conclude the assessor did.
    As a starting point, the fair market value is presumed to be the purchase price of
    the property (§ 110, subd. (b); Cal. Code Regs., tit. 18, § 2, subd. (b); EHP Glendale,
    supra, 193 Cal.App.4th at p. 274), and here, the Board had before it evidence that the
    purchase price reflected only the value of the taxable real and personal property.13 The
    13     While the Board found the “purchase included the real estate, furniture, fixtures,
    equipment, the assembled workforce and business center within the hotel separate from
    the rooms, in conjunction with the franchise and related management agreements” (italics
    added), the Board did not expressly address the components of the purchase price. By
    20
    terms of the purchase agreement supported the Board‟s conclusion that the value of the
    franchise and management agreements (as well as the workforce, subsumed in the
    expense for the management agreement) were separate from the purchase price. Even
    though Eagle‟s representative who signed the purchase agreement testified Eagle would
    not have bought the hotel and the purchase price would have been less without the Hilton
    franchise in place, this was a factual dispute and the Board was entitled to credit the
    assessor‟s evidence over Eagle‟s. We find substantial evidence supported the Board‟s
    decision on this point. (See American Sheds, supra, 66 Cal.App.4th at p. 394 [rejecting
    similar argument that assessor‟s valuation must have included intangible assets because it
    equaled the purchase price for both tangible and intangible assets when the taxpayer gave
    additional consideration for the purchase].)
    The assessor also reasonably viewed the presence of the service centers as part of
    the valuation of a full-service hotel operating at its beneficial and productive use. We
    agree with the trial court that “[t]he Board was reasonable in determining that [the service
    centers] are among the features of an upscale hotel and that to remove them would
    change the revenue, expense and service profile of the hotel.” This conclusion was based
    on the assessor‟s “unit valuation” of the hotel assuming the presence of the service
    centers for a full-service, first-class hotel. As noted above, under unit valuation, the
    assessor was permitted to assume the presence of intangible assets in the valuation of the
    accepting House‟s valuation, though, the Board implicitly found the price did not include
    the value of nontaxable assets. Nor did any prior decision in this case analyze the
    components of the purchase price. We merely noted in our prior opinion “[t]he purchase
    price was $79.8 million and included the real property, personal property (e.g., furniture,
    fixtures and equipment) and certain intangible assets and rights. Under the stipulated
    facts, the franchise agreement with Hilton and the management contract were among the
    intangible assets acquired by Eagle during the sale.” (EHP Glendale, supra, 193
    Cal.App.4th at p. 265, fn. omitted.) While the trial court found the “total consideration
    that [Eagle] paid for the [h]otel” included “land, building improvements, fixtures,
    business personal property and some intangible assets,” it also expressly held the
    “assessor in this case did not include components of value for business enterprise value
    and other intangibles over and above the value of the realty.”
    21
    taxable property, but not their value. (Elk Hills, supra, 57 Cal.App.4th at p. 615.) There
    is no evidence to suggest the assessor included separate values for the service centers in
    assuming the purchase price was the full market value of only the taxable property.
    Instead, he merely opined the “highest and best use” of the property was as a full-service,
    first-class hotel, which was the only permitted use of the land. A deduction from the
    purchase price as urged by Eagle would have altered the character and profile of the full-
    service hotel and would have violated the requirement that the hotel be assessed at its full
    market value, including by assuming the presence of intangible assets. In order to value
    the property at its full market value, the assessor was entitled to assume the presence of
    the service centers necessary to that operation.
    We also find substantial evidence supported the Board‟s conclusion that House
    properly removed the value of the identified intangible assets in his application of the
    income approach by subtracting the expenses of intangible assets from the income stream
    to be capitalized. Eagle argues House‟s valuation did not comply with property tax Rule
    8(e) (Cal. Code Regs., tit. 18, § 8, subd. (e) (Rule 8(e))),14 which describes two general
    methods for estimating future income: using “[r]ecently derived income and recently
    negotiated rents or royalties” of the property or comparable property, so long as the rents
    “are reasonably indicative of the income the property will produce in its highest and best
    use under prudent management”; or, as House did, using “income from operating a
    property,” so long as sufficient income is excluded “to provide a return on working
    capital and other nontaxable operating assets and to compensate unpaid or underpaid
    management.”15
    14     The Board did not expressly address Rule 8(e), but again, by accepting House‟s
    valuation, the Board implicitly found his appraisal complied with Rule 8(e).
    15     Rule 8(e) states in full, “Recently derived income and recently negotiated rents or
    royalties (plus any taxes paid on the property by the lessee) of the subject property and
    comparable properties should be used in estimating the future income if, in the opinion of
    the appraiser, they are reasonably indicative of the income the property will produce in its
    highest and best use under prudent management. Income derived from rental of
    properties is preferred to income derived from their operation since income derived from
    22
    Eagle and amicus curiae American Seniors Housing Association chiefly object to
    House‟s valuation under Rule 8(e) because, in their view, he did not subtract an amount
    for a return on the nontaxable assets, as well as an amount for the return of the value of
    the nontaxable assets. As the County points out, the appropriate charge against the
    hotel‟s income for contribution of intangible assets utilized in operations was a factual
    question within the Board‟s expertise and House provided ample support for his estimate
    of expenses for the intangible assets, which were based on marketplace rates estimated
    from prior years of the hotel‟s operations and industry data for similar hotels. Indeed,
    House testified that the hotel‟s owner before Hilton was superior in its management of
    the hotel, producing higher net incomes in 2000 and 2001 than Hilton produced in 2003
    and 2004, from which the Board could have inferred that no further deduction was
    warranted for a return on the intangible assets such as the franchise and management
    agreements because they did not carry a value beyond the market rate for those assets. 16
    House acknowledged his valuation conflicted with the SBE‟s guidance published
    in the Assessors‟ Handbook Section 502, supra, pages 150 to 165. Citing, inter alia, Rule
    8(e), Section 502 provides in pertinent part: “The value of intangible assets and rights
    cannot be removed by merely deducting the related expenses from the income stream to
    be capitalized. Allowing a deduction for the associated expense does not allow for a
    return on the capital expenditure. For example, allowing the deduction of wages paid to a
    skilled work force does not remove the value of the work force in place from the income
    indicator, because the amount of the wages paid does not necessarily represent a return of
    operation is the more likely to be influenced by managerial skills and may arise in part
    from nontaxable property or other sources. When income from operating a property is
    used, sufficient income shall be excluded to provide a return on working capital and other
    nontaxable operating assets and to compensate unpaid or underpaid management.” Rule
    8(e) is binding on assessors and the Board. (Cal. Code. Regs., tit. 18, § 1.)
    16      Eagle claims House‟s math in deducting expenses was “fundamentally
    misleading.” Eagle also takes issue with House‟s analysis of the income and expenses
    for the prior owner and Hilton. These are factual disputes resolved against Eagle, and we
    will not revisit them.
    23
    and on the work force in place, and further bears no relationship to the costs associated
    with locating, interviewing, training and otherwise acquiring the work force. Similarly,
    the deduction of a management fee from the income stream of a hotel does not recognize
    or remove the value attributable to the business enterprise that operates the hotel.”
    (Assessors‟ Handbook Section 502, supra, at p. 162, fns. omitted.)
    The County argues the guidance in Section 502 reflects the “flawed assumption”
    that a management expense (or any expense) results invariably in a positive “return on”
    that expense that should be recognized in addition to the amount of the expense itself and
    charged against revenue. To the contrary, competent management of a property is
    required to put it to beneficial and productive use, and routine charges for that
    management against a property‟s revenue (such as for gardening, janitorial, and plumbing
    services, etc.) are properly accounted for in their market prices, and the appropriate
    additional return on those assets should be viewed as zero.
    There is considerable force to this argument. By its terms, Rule 8(e) requires only
    sufficient income be deducted for a return on nontaxable operating assets. House
    estimated the value of the intangible assets at market prices, and the market value
    investors might pay for an intangible asset could include a return on the asset. Equally, if
    the market rate of an intangible asset reflects that investors do not require a return on the
    asset, a “sufficient” deduction under Rule 8(e) could be zero, provided that is adequately
    supported by the record. We can conceive of many types of nontaxable operating assets
    under Rule 8(e) that would fall into this category, especially in an operation like a hotel
    that requires many services to put the property to beneficial use, but which may not carry
    a separate investment value (e.g., housekeeping services).
    In its amicus brief, the SBE interprets Rule 8 and Assessors‟ Handbook Section
    502 in a similar manner. It asserts that Section 502 cannot be interpreted to require
    additional deductions in every case in which the property is an operating business with
    management and a workforce. Relying on Rule 8(e) and Rule 8(c) (Cal. Code Regs., tit.
    24
    18, § 8, subd. (c) (Rule 8(c))),17 it argues that when intangibles are alleged to be included
    in a valuation of property that relate to “above-average or superior operation of a business
    enterprise that uses the real property, such as through an exceptional management team or
    workforce,” Rule 8 requires an adjustment in the net operating income to account for that
    above-average management. Absent superior management or an exceptional workforce,
    though, the presence of prudent management and a reasonably skilled workforce are
    required to put a property to its beneficial and productive use, and no additional value
    needs to be deducted from the income stream. The SBE urges that this approach could be
    used for other intangible assets, such as a superior trade name associated with an
    operating property, provided the taxpayer proves its value beyond an “average” trade
    name.
    Eagle refutes the SBE‟s interpretation, arguing the SBE‟s current view was set
    forth in a draft of the Assessors‟ Handbook Section 502 that was rejected, it misinterprets
    Rules 8(e) and 8(c), and it ignores cases like GTE Sprint that require the removal of
    intangible assets. We need not comment on the SBE‟s current views of Section 502 or
    wade any further into this policy debate. Neither the Board nor the trial court found
    House‟s disagreement with Section 502 problematic, nor do we. “[A]ssessors‟
    handbooks are not regulations and do not possess the force of law,” although “they serve
    as a primary reference and basic guide for assessors, and have been relied upon and
    accorded great weight in interpreting valuation questions. [Citation.]” (Sky River, supra,
    214 Cal.App.4th at p. 735; see also Watson Cogeneration Co. v. County of Los Angeles
    (2002) 
    98 Cal.App.4th 1066
    , 1070, fn. 2.) They “represent „merely the opinions of the
    [SBE] staff, and [have] no binding legal effect on boards, assessors, or taxpayers.‟
    [Citation.]” (Prudential Ins. Co. v. City and County of San Francisco (1987) 191
    17     Rule 8(c), provides in relevant part: “The amount to be capitalized is the net
    return which a reasonably well informed owner and reasonably well informed buyers
    may anticipate on the valuation date that the taxable property existing on that date will
    yield under prudent management and subject to such legally enforceable restrictions as
    such persons may foresee as of that date.”
    
    25 Cal.App.3d 1142
    , 1155.) Under the facts presented to the Board, House‟s deduction of
    expenses to remove the value of intangible expenses was consistent with Rule 8(e) and
    was supported by the record, and we find no reason to overturn the Board‟s decision.
    Eagle relies heavily on GTE Sprint, arguing that case forecloses the assessor‟s
    valuation here. In that case, the taxpayer challenged an assessment of public utility
    property based on the income approach, claiming it taxed the value of intangible
    property. (GTE Sprint, supra, 26 Cal.App.4th at p. 998.) On de novo review, the court
    found the assessment invalid because it included the value of intangible assets, rejecting
    the SBE‟s argument “that the unit valuation of Sprint‟s tangible property, as a going
    concern, necessarily captured only the enhancement value of the intangible assets as
    permitted by law.” (Id. at p. 995.) The court‟s decision turned on its view that the
    assessor and the SBE failed to present any evidence to rebut the taxpayer‟s experts that
    the value of intangible assets were included in the assessment; instead, the SBE and its
    appraisers “categorically denied that they taxed the intangible assets, except as they
    enhanced the value of the tangible property as a going concern.” (Id. at p. 1003.) The
    SBE‟s appraisers testified that “they did not look for and made no attempt to value
    intangible assets” and one even testified that intangible values would not have been
    deducted even if they existed. (Id. at p. 1004.) This was merely “lip service to the
    concept of exempting intangible assets from taxation.” (Id. at p. 1005.) Notably, the
    court remanded the matter for a reassessment hearing, “at which time the [SBE‟s]
    appraisers shall have an opportunity to present evidence rebutting [the taxpayer‟s]
    identification and/or valuation of intangible assets. At that hearing, both parties may
    present evidence as to the portion of the intangible values, if any, can be deemed to
    enhance the value of the tangible property.” (Id. at p. 1008.)
    Given our review is limited to whether substantial evidence supported the Board‟s
    decision, GTE Sprint is distinguishable. Far from providing “lip service” to addressing
    and excluding nontaxable intangible assets, House provided evidence to support his
    opinion that the purchase price did not include nontaxable intangible values and that he
    properly removed the value of intangible assets by subtracting expenses from the income
    26
    stream of the hotel.18 We may overturn the decision of the Board only if it was “„so
    arbitrary as to constitute a deprivation of property without due process. [Citations.]‟”
    (EHP Glendale, supra, 193 Cal.App.4th at p. 271.) Under this deferential standard of
    review, we find substantial evidence supported the Board‟s valuation.
    Finally, we briefly address Elk Hills, which was decided after oral argument in this
    case. In that case, the court addressed the income approach in considering intangible
    ERCs as part of the valuation of the power plant. The taxpayer argued in calculating the
    taxable value of the property using the income approach the SBE failed to attribute a
    portion of the power plant‟s income to the ERC‟s and then deduct that expense from the
    plant‟s income stream. (Elk Hills, supra, 57 Cal.4th at p. 617.) But the court rejected the
    contention because “under an income stream approach, not all intangible rights have a
    quantifiable fair market value that must be deducted.” (Ibid.)
    Analyzing two lines of cases, the court explained in one category of cases “courts
    have upheld income-based assessments that properly assumed the presence of intangibles
    assets necessary to the productive use of taxable property without deducting value for
    intangible assets.” (Elk Hills, supra, 57 Cal.4th at p. 618.) In the other line of cases,
    including GTE Sprint, courts “disapproved assessments that failed to attribute a portion
    of a business‟s income stream to the enterprise activity that was directly attributable to
    the value of intangible assets and deduct that value prior to assessment. [Citation.]
    These cases illustrate the principle that although assessors may assume the presence of
    intangibles when considering the income stream derived from taxable property that is put
    18     Eagle also cites Madonna, supra, 39 Cal.App.3d at page 61, involving the
    valuation of an inn. In that case, the court affirmed a decision by the county board of
    equalization that the assessor‟s capitalization approach improperly included enterprise
    income, including a portion of the income “„largely predicated on the personal expertise
    in the management‟” of the inn, when it should exclude “„any income from businesses or
    enterprises carried on in the same property.‟” (Id. at p. 60.) The court found no evidence
    was offered to correct the assessor‟s valuation, so the court found the taxpayer‟s
    valuation to be proper. (Ibid.) Like GTE Sprint, Madonna involved a different set of
    facts and we do not find it controlling here.
    27
    to beneficial or productive use (§ 110(e)), the value of intangibles that directly enhance
    that income stream cannot be subsumed in the valuation of taxable property
    (§ 110(d)(1)), and must be deducted from the unit prior to assessment (§ 110(d)(2)).” (Id.
    at p. 618.)
    The court explained the difference in the two lines of cases is “one of degree;
    intangible rights like ERCs merely allow for the taxable property to generate income
    when put to its beneficial or productive use. Thus, their contribution to the income
    stream is indirect, whereas intangible assets like the goodwill of a business, customer
    base, and favorable franchise terms or operating contracts all make a direct contribution
    to the going concern value of the business as reflected in an income stream analysis.
    Only the latter category of intangible assets and rights has a quantifiable fair market value
    that must be deducted from an income stream analysis prior to taxation.” (Elk Hills,
    supra, 57 Cal.4th at pp. 618-619.) The ERCs in the case fit in the first line of cases
    because it was undisputed they were legally necessary to put the property to its beneficial
    and productive use as a power plant and there was “no indication that the [SBE], when it
    employed the income capitalization approach, valued ERCs in any manner other than by
    „assuming their presence‟ in order to tax the property in question as a fully functioning
    power plant.” (Id. at p. 619.)
    Our decision here is consistent with Elk Hills. With regard to the franchise and
    management agreements, the assessor complied with Elk Hills by deducting the franchise
    and management fees from the income stream to remove their values from the valuation
    of the taxable property. Elk Hills did not address Eagle‟s primary argument that the
    assessor did not deduct sufficient value from the income stream to remove the full value
    of intangible assets under Rule 8(e). As for the service centers, as we noted above, a
    deduction from the purchase price would have altered the character of the full-service
    hotel and there was no evidence to suggest the assessor did anything more than assume
    their presence in valuing the taxable property. As in Elk Hills, the assessor‟s valuation
    reflected merely the presence of the service centers as an indirect contribution to the
    operation of a full-service hotel.
    28
    DISPOSITION
    The trial court‟s judgment is affirmed. This matter is remanded to the Board to
    deduct from the assessment the undisputed $2.5 million paid by reason of the profit
    participation agreement with the redevelopment agency, as recommended by the assessor
    and ordered by the trial court. Respondent is awarded costs.
    FLIER, J.
    WE CONCUR:
    RUBIN, Acting P. J.
    GRIMES, J.
    29
    

Document Info

Docket Number: B244494

Filed Date: 9/18/2013

Precedential Status: Precedential

Modified Date: 10/30/2014