Corporate Exchange Buildings IV & V, Ltd. Partnership v. Franklin County Board of Revision ( 1998 )

Per Curiam.

Partnership contends that the BTA erred in not allocating the purchase price between the two parcels. We disagree.

The amount that the Partnership paid for the two parcels containing Corporate Exchange Buddings IV and V is not in dispute. In addition, the BTA determined that the sale to Partnership was an arm’s-length sale; presumably then, the sale price reflects true value. Walters v. Knox Cty. Bd. of Revision (1989), 47 Ohio St.3d 23, 24, 546 N.E.2d 932, 934. However, the arm’s-length sale price was paid for two separate properties.

The two parcels are not identical. While the amount of land contained in each parcel is about the same, the buildings located on the parcels are different in size and age. Partnership set forth an allocation of the purchase price in the complaints it filed with the BOR. However, as the appellant before the BTA Partnership needed to show that its allocation of the purchase price between the two parcels represented the true value of each parcel. See Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision (1997), 78 Ohio St.3d 325, 677 N.E.2d 1197.

Partnership’s two witnesses, however, testified only about their involvement with the negotiations that culminated in the purchase of the two parcels. In addition, the voluminous amount of documents presented by Partnership related only to the negotiations, purchase, and transfer of the two parcels.

After hearing this testimony and reviewing these documents, the BTA correctly refused to accept the allocation of the purchase price made by Partnership. The BTA concluded that it could find no basis to “justify reliance upon appellant’s suggested valuation allocation.”

Partnership argues that the BTA had testimony before it to allocate the purchase price based on rentable square feet. Partnership quotes from the BTA’s decision. That quote, however, was taken from the brief Partnership filed with the BTA. Partnership cites no source in the record for the statement.

Moreover, the only reference in the BTA record as to how the allocation could be made is contained in the opening statement of counsel for Partnership. He stated that the purchase price was allocated based on square footage and that he “believe[d] there will be testimony that this is also a reasonable way in this type of property to apportion.” However, statements of counsel are not evidence. In State v. Green (1998), 81 Ohio St.3d 100, 104, 689 N.E.2d 556, 559, we stated that a “statement of facts by a prosecutor does not constitute evidence.” This premise is adopted in VI Wigmore, Evidence (Chadbourn Rev.1976) 349, Section 1806, wherein it is stated that in an argument to the jury by counsel, any representation of fact “must be based solely upon those matters of fact of which evidence has already been introduced or of which no evidence need ever be introduced because of the notoriety as judicially noticed facts.”

Partnership further contends that Youngstown Sheet & Tube Co. v. Mahoning Cty. Bd. of Revision (1981), 66 Ohio St.2d 398, 20 O.O.3d 349, 422 N.E.2d 846, requires the BTA to allocate the purchase price. In Youngstown, the BTA adopted a total valuation for a steel production complex situated on approximately four hundred sixteen acres containing some two hundred major structures. The property consisted of fourteen individual parcels located in three taxing districts. We required the BTA, on remand, to break down its aggregate valuation into individual parcel values before certifying its decision and order to the county auditor. The Youngstown record, however, contained opinions and documentation from multiple appraisers from each side on which the BTA could base an allocation of total value. Thus, in Youngstown, the BTA had before it evidence of value which it could use to allocate the total true value.

In Coventry Towers, Inc. v. Strongsville (1985), 18 Ohio St.3d 120, 18 OBR 151, 480 N.E.2d 412, we acknowledged the authority of the BTA to exercise independent judgment in determining the true value of property. However, such independent judgment must be based upon the evidence presented to it. We have consistently required that the BTA’s decisions be supported by sufficient probative evidence. Hawthorn Mellody, Inc. v. Lindley (1981), 65 Ohio St.2d 47, 19 O.O.3d 234, 417 N.E.2d 1257. Here, the BTA received no evidence on which it independently could allocate the purchase price.

Partnership also cites Zazworsky v. Licking Cty. Bd. of Revision (1991), 61 Ohio St.3d 604, 575 N.E.2d 842, as a case where this court ordered the BTA to apply a sale price as true value. In Zazworsky, the taxpayer was required to purchase a parcel of real property containing a warehouse he did not want in order to acquire a sublease on a building he did want. He paid $100,000 for both the building and the sublease. The only question before the BTA was the value of the purchased warehouse.

The BTA affirmed the board of revision’s valuation of $184,500 for the purchased warehouse, stating that the sale occurred “under peculiar circumstances.” We reversed and ordered the BTA to enter a valuation of $100,000, holding that no evidence supported the BTA’s decision.

Zazworsky differs from this case. Only one piece of real property was at issue in Zazworsky, and we did not need to allocate a purchase price between two pieces of real property. Indeed, Zazworsky himself maintained that the true value of the purchased warehouse was $100,000.

Since Partnership has failed to produce sufficient competent and probative evidence to meet its burden of proof and has not presented evidence to support an independent valuation by the BTA, the BTA may approve the board of revision’s valuation. Simmons v. Cuyahoga Cty. Bd. of Revision (1998), 81 Ohio St.3d 47, 49, 689 N.E.2d 22, 24.

For all the foregoing reasons, the decision of the BTA is reasonable and lawful and it is affirmed.

Decision affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney and Cook, JJ., concur. Pfeifer and Lundberg Stratton, JJ., dissent.