DocketNumber： 2012-1542
Judges： Pfeifer, O'Donnell, Lanzinger, Kennedy, O'Neill, French
Filed Date： 4/16/2014
Status： Precedential
Modified Date： 11/12/2024
{¶ 1} In August 2005, the real property at issue was sold for $1,407,000. In assessing the property for tax year 2008, appellee Summit County fiscal officer performed the reappraisal that the law requires every six years and determined the value of the property to be $902,320. Appellee Akron City School District Board of Education (“school board”) filed a complaint asserting that the 2005 sale price should be adopted as the value of the realty. Relying entirely upon the presumption that the sale was within a reasonable time before the tax-lien date, the school board presented no evidence in support of the sale being recent with respect to the tax-lien date, January 1, 2008.
{¶ 2} Appellee Summit County Board of Revision (“BOR”) declined to use the sale price and retained the fiscal officer’s value. On appeal, the Board of Tax Appeals (“BTA”) reversed. The property owners, appellants Rodger L. and Sharon L. Barkoff, trustees, appealed. They argue that when property has been the subject of the reappraisal that occurs every six years, a sale 29 months before the lien date is not recent and thus no presumption arises that the sale price reflects the property’s value. We agree, and we therefore reverse the BTA’s application of the recency presumption. We also remand for further proceedings.
Facts
{¶ 3} The property at issue is an Akron-area Arby’s restaurant. For tax year
{¶ 4} A hearing was held before the BOR, at which the Barkoffs argued that a sale 29 months before the January 1, 2008 lien date was too remote. According to the Barkoffs, the remote sale should not be regarded as probative because the fiscal officer had conducted the reappraisal fully cognizant of the 2005 sale, but nonetheless determined a lower value than the sale price.
{¶ 5} More specifically, the Barkoffs also argued that market conditions had changed. They presented evidence that a substantially similar Arby’s restaurant in the Toledo area sold for $1,000,000, all cash, in July 2008. This sale was offered to corroborate the lower value found by the fiscal officer for 2008 and to negate the validity of using the August 2005 sale price.
{¶ 6} On September 18, 2009, the BOR issued a decision retaining the fiscal officer’s valuation of the property, and the school board appealed to the BTA.
{¶ 7} At the BTA, the parties waived a hearing, and the board decided the appeal based on the BOR transcript and the briefs submitted by the parties. Relying on R.C. 5713.03 and case law from this court regarding the presumption that a sale is recent, the BTA found that the Barkoffs had not rebutted that presumption and therefore adopted the $1.4 million sale price from August 2005 as the value of the property for tax year 2008. Akron City School Dist. Bd. of Edn. v. Summit Cty. Bd. of Revision, BTA No. 2009-K-3018, 2012 WL 3644672, *3 (Aug. 14, 2012). The board found the comparable-sale evidence unpersuasive, characterizing it as “uncorroborated evidence of a cash-only transaction” and emphasizing that the sale was “located in a different area” and that “little information” was available about the sale. Id. The BTA cited IIK New Plan Exchange Property Oumer II, L.L.C. v. Hamilton Cty. Bd. of Revision, 122 Ohio St.3d 438, 2009-Ohio-3546, 912 N.E.2d 95, as an example of the use of a 24-month-old sale. Id. at *3, fn. 1.
{¶ 8} In this appeal, the BOR and the fiscal officer have changed their positions: as appellees, they urge the court to affirm the BTA’s adoption of the sale price, which constitutes a higher value and thereby increases the tax base.
Analysis
1. Whether the presumption of recency applies is a question of law
{¶ 9} The true value of property is a “question of fact, the determination of which is primarily within the province of the taxing authorities,” and accordingly,
{¶ 10} Statutory construction presents a question of law that we determine de novo. See Akron Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054, ¶ 10. With regard to whether a sale is recent, the statute conditions the use of the sale price on the sale having occurred “within a reasonable length of time, either before or after the tax lien date.” R.C. 5713.03. The statute does not state whether a sale should be presumed to be recent. In construing and applying the statute, we have recognized that this presumption is important, because if the taxing authorities were to “require a definitive showing by the proponent that no evidence controverted the recency and arm’s-length character of the sale, then most cases involving a sale price would require the proponent to introduce appraisals and other extrinsic evidence showing the absence of any reason not to use the sale price to determine value.” (Emphasis sic.) Cummins Property Servs., L.L.C. v. Franklin Cty. Bd. of Revision, 117 Ohio St.3d 516, 2008-0hio-1473, 885 N.E.2d 222, ¶ 41. Thus, the presumption of recency in relation to the tax-lien date falls into the category of “judicially created presumptions” that are designed to effectuate a statute that “makes no express provision for their use.” United States Dept, of Justice v. Landano, 508 U.S. 165, 174-175, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993).
{¶ 11} Because the BTA applied a judicially created presumption in this case, this appeal from its decision raises a purely legal issue whether that presumption ought to have been applied under the circumstances in this case. Just as with an issue of statutory construction, we exercise de novo authority.
2. The case law does not establish that a 29-^nonth-old sale must be presumed to be recent
{¶ 12} Former R.C. 5713.03 stated that a county auditor (or in this case fiscal officer) “shall consider the sale price * * * to be the true value for taxation purposes” when the property “has been the subject of an arm’s length sale between a willing seller and a willing buyer within a reasonable' length of time,
{¶ 13} We have not set a bright line to establish when a sale is sufficiently close to the tax-lien date to be presumed to be recent. See New Winchester Gardens, Ltd. v. Franklin Cty. Bd. of Revision, 80 Ohio St.3d 36, 44, 684 N.E.2d 312 (1997) (“The question of how long after a sale the sale price is to be considered the best evidence of true value will vary from case to case”), overruled in part on other grounds, Cummins; see also Dublin-Sawmill Properties v. Franklin Cty. Bd. of Revision, 67 Ohio St.3d 575, 576, 621 N.E.2d 693 (1993) (noting that there is “no statutory guidance for the time frame within which the purchase price of land will govern true value determinations for purposes of real estate taxation” but reversing as unreasonable the BTA’s finding that the sales at issue were too remote to receive any consideration).
{¶ 14} We have not accorded a presumption of recency to a sale that occurred more than 24 months before the lien date, though there are a couple of instances in which we appear to have done so. The BTA cited one in rejecting the Barkoffs’ argument. In HK New Plan, 122 Ohio St.3d 438, 2009-Ohio-3546, 912 N.E.2d 95, we affirmed a BTA decision that determined the value of property for the 2005 tax year by using the price from a sale in which the deed was executed in December 2002 and the conveyance-fee statement was filed in mid-January 2003. But for two reasons, HK New Plan does not constitute authority for using a 24-month-old sale. First, in HIN, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 124 Ohio St.3d 481, 2010-Ohio-687, 923 N.E.2d 1144, the court held that for purposes of determining true value under R.C. 5713.03, the date of filing of the conveyance-fee statement should be used as the time of sale rather than the date the sale was negotiated or closed. Id., paragraph two of the syllabus and ¶ 21-24. By that measure, the sale in HK New Plan occurred on January 13, 2003, less
{¶ 15} Two other “almost 24-month” cases merit attention here: New Winchester Gardens, 80 Ohio St.3d 36, 684 N.E.2d 312, and Dublin-Sawmill Properties, 67 Ohio St.3d 575, 621 N.E.2d 693. In New Winchester Gardens, the sale occurred in October 1984 and the tax-lien date was January 1, 1987. Thus, the sale in that case (as in the present case) occurred more than two years before the lien date. The 1984 sale price had been used as the value for tax year 1986, but the county auditor set lower values for tax year 1987, which was a reappraisal year in Franklin County. New Winchester Gardens, Inc. v. Franklin Cty. Bd. of Revision, BTA Nos. 94-D-390 and 94-D-391, 1996 WL 368492, *1, 2 (June 28, 1996).
{¶ 16} The board of revision and the BTA adopted a slightly reduced version of the 1984 sale price as the value of the realty, but this court reversed. As to the recency issue, this court held that the BTA ought to have considered testimony proffered by a witness regarding an intervening change in tax law that affected market conditions, and the reversal was based in part on that holding. Thus, this court was not faced with deciding whether the sale price from 1984 was still presumptively recent as of January 1, 1987. As a result, New Winchester would not preclude a holding here that a sale 24 months before the lien date is too remote to be accorded a presumption of recency.
{¶ 17} In Dublin-Sawmill Properties, the property owner acquired several parcels over a period of time and constructed a shopping mall on the resulting single property. The owner contested the county’s valuation of the property by presenting evidence of acquisition costs and construction costs to support a lower valuation. Dublin-Sawmill Properties v. Franklin Cty. Bd. of Revision, BTA No. 89-M-497, 1992 WL 141256, *2 (June 12, 1992). The tax year at issue was 1987, and the several sales occurred as early as November 1984 and as late as May 1986. Id. The BTA specifically disregarded the land sales because the “bulk of the land in this case was purchased in November 1984, and April and September, 1985, times too remote from the tax lien date of January 1, 1987 to be indicative of its current value.” Id. at *3.
{¶ 18} In a four-to-three decision, this court reversed. A three-justice plurality opinion took the view that one of the land sales, the May 1986 one, was not too remote from the lien date and should therefore have been considered. Dublin-
{¶ 19} In N. Royalton City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 129 Ohio St.3d 172, 2011-Ohio-3092, 950 N.E.2d 955, Giant Eagle entered into a ground lease with the intent of building a parking lot for the store. Id. at ¶ 7. Under the terms of the ground lease, the owner could exercise an option to compel the store to purchase the property for $400,000 during the first five years of the agreement and $450,000 during the next five years of the agreement. Id.
{¶ 20} The ground lease was entered into in December 1998, and the parking lot was developed and used by the store pursuant to the ground lease. Id. at ¶ 5. During the second five-year period of the contract, the owner exercised the option and required the store to purchase the property for $450,000. That sale occurred in December 2005, and the board of education filed a complaint seeking an increase for tax year 2005 from the $73,700 value assigned by the county auditor to $450,000, the sale price. The board of revision retained the auditor’s valuation, but the BTA on appeal adopted the sale price.
{¶ 21} On appeal to this court, the store argued that the sale price was not recent because the price had been negotiated as a term of the ground lease in 1998, some seven years before the lien date. The court rejected that argument, holding that under HIN, 124 Ohio St.3d 481, 2010-Ohio-687, 923 N.E.2d 1144, the sale date is the date on which the conveyance-fee statement is filed. Thus, the time of sale was December 2005 rather than 1998. Once the timing of the sale was viewed in light of HIN, less than 12 months separated the lien date and the sale date.
{¶ 22} Nothing in our case law compels us to apply a presumption of recency for a sale that occurred more than 24 months before the lien date. Under the circumstances of this case, we decline to do so.
3. When a sale occurs more than 24 months before the lien date, and the assessor decides not to base the reappraisal on it, the sale should not be presumed recent
{¶ 23} In this case, the fiscal officer, cognizant of the August 2005 sale as reflected by the property record card, nonetheless found a lower value for 2008 as
{¶ 24} In conducting the reappraisal, the sale price should be used if the sale was “within a reasonable length of time, either before or after the tax lien date.” Ohio Adm.Code 5703-25-06(F). On the other hand, the fiscal officer also has the duty, “when practicable, [to] increase or decrease the taxable valuation of parcels in accordance with actual changes in valuation of real property which occur in different subdivisions, neighborhoods, or among classes of real property in the county.” Ohio Adm.Code 5703-25-06(E). In other words, the fiscal officer must conduct a reappraisal that considers all relevant factors in determining the current value of the property. As a public official, the fiscal officer is presumed to carry out his statutorily prescribed duties in good faith and in the exercise of good judgment, absent a showing to the contrary. See Dayton-Montgomery Cty. Port Auth. v. Montgomery Cty. Bd. of Revision, 113 Ohio St.3d 281, 2007-Ohio-1948, 865 N.E.2d 22, ¶ 13.
{¶ 25} In this case, after the fiscal officer assessed the property at the newly determined value, the school board filed a complaint asking that the 2005 sale price be adopted as the property’s value. The school board presented no evidence other than documentation of the 2005 sale and sought to prevail by invoking the presumption of recency. Although the BOR found the school board’s case unpersuasive, the BTA reversed and adopted the sale price as the property value for 2008, relying heavily upon the recency presumption.
{¶ 26} We conclude that the BTA’s decision is unlawful because the BTA erred by applying the recency presumption under these circumstances. We hold that a sale that occurred more than 24 months before the lien date and that is reflected in the property record maintained by the county auditor or fiscal officer should not be presumed to be recent when a different value has been determined for that lien date as part of the six-year reappraisal. Instead, the proponent of the sale price as the value should come forward with evidence showing that market
{¶ 27} The rule that we adopt today prevents a remote sale from controlling over a more recent appraisal, and in doing so it harmonizes the fiscal officer’s duties under former R.C. 5713.03, which stressed the primacy of the sale price, with R.C. 5713.01(B), which calls for a reappraisal every six years. See AERC Saw Mill Village, Inc. v. Franklin Cty. Bd. of Revision, 127 Ohio St.3d 44, 2010-Ohio-4468, 936 N.E.2d 472, ¶ 23 (harmonizing the auditor’s duty to carry forward a value determined under R.C. 5715.19 with the auditor’s duty to reappraise). Were we to impose a presumption of recency that had no boundaries, the fiscal officer’s duty to conduct an accurate reappraisal every six years would be impaired by sales too remote to be relevant. A sale as old as five or even ten years could potentially cast a deep shadow over the tax assessor’s performance of his legal duty to adopt and maintain a current valuation of the property. The safeguard in this instance is to remove the recency presumption from a sale that occurred more than 24 months before the lien date.
{¶ 28} We recognize, however, that the 24-month rule that we are announcing in this case is new, and the parties might not have anticipated this innovation. In particular, the absence of bright-line tests in our case law might have led the school board to believe that it could rely on the recency presumption, with no need to present evidence in support of using the sale.
{¶ 29} When we announce a decision that clarifies and corrects the legal standards to be applied, we ordinarily remand with the understanding that the BTA may hear additional evidence. Woda Ivy Glen Ltd. Partnership v. Fayette Cty. Bd. of Revision, 121 Ohio St.3d 175, 2009-Ohio-762, 902 N.E.2d 984, ¶ 32. And because this case involves our having shifted the burden by removing a presumption, the school board should have the opportunity to present evidence if it desires. See AERC Saw Mill Village, ¶ 37-38. Accordingly, we remand the cause to afford it the opportunity to do so.
Conclusion
{¶ 30} For the foregoing reasons, the BTA acted unlawfully when it presumed the recency of the August 2005 sale and placed the burden on the Barkoffs to show that it was not recent. We therefore vacate the BTA’s determination of value and remand so that the school board may decide whether to present additional evidence in support of using the sale price to value the property. Thereafter, the BTA shall redetermine the value of the property in light of the entire record and in a manner not inconsistent with this opinion.
Judgment accordingly.
. In Summit County, the fiscal officer performs the same functions as a county auditor, including the function of tax assessor for real property.
. In 2012 the General Assembly amended the statute to provide that the auditor “may” use the sale price to value the property. 2012 Am.Sub.H.B. No. 487. But the amended statute did not apply to tax year 2008. See Sapino, v. Cuyahoga Cty. Bd. of Revision, 136 Ohio St.3d 188, 2013-Ohio-3028, 992 N.E.2d 1117,¶ 20, fn. 1.
. More recently, the General Assembly has sought to improve the quality of “mass appraisal” at the county level by enacting R.C. 5713.012, which requires employment of a “qualified project manager” with specified qualifications to control the mass appraisal project. 2012 Am.Sub.H.B. No. 487. The new legislation does not affect the year at issue.