Bayridge Associates Ltd. Partnership v. Department of Revenue

GRABER, J.

This case involves the valuation, for ad valorem tax purposes in the tax year 1990-91, of two apartment complexes — the Durham Park Apartments, located in Tigard, and the Bayridge Apartments, located in Beaverton. The Tax Court found that the true cash value of the Durham Park property was $6,535,000 and that the true cash value of the Bayridge property was $4,412,000. Bayridge Assoc. Ltd. Partnership v. Dept. of Rev., 13 OTR 24, 31 (1994). On de novo review, ORS 305.445, we affirm.

Durham Park Limited Partnership and Bayridge Associates Limited Partnership (taxpayers) receive federal income tax credits, under 26 USC § 42 (IRC § 42), in return for operating the properties at issue as low-income housing. The Tax Court held that that arrangement, as applied by the Oregon Housing Authority (OHA),¹ constitutes a “governmental restriction as to use” of the properties under ORS 308.205(2) (1989).² 13 OTR at 27-28. The Tax Court concluded that the “governmental restriction as to use” made taxpayers’ appraisal based on actual or contract rents more accurate in determining the true cash value of the properties than the appraisal based on market rents conducted by the Department of Revenue (department). Id. at 31.

The department appealed. The issue presented on appeal is a legal one: whether a property owner’s participation in the section 42 low-income housing program constitutes a “governmental restriction as to use” of the property, thereby requiring a reduction in the assessed value of the property pursuant to ORS 308.205(2) (1989). There are no factual issues. The department and taxpayers agree about the operative facts, and they do not quarrel with each other’s calculations; we simply must determine whose appraisal to accept.

Durham Park was completed in 1989. The project contains 224 living units in 28 eight-unit (8-plex) buildings. The 8-plexes are all three-story buildings. There are separate one-story buildings that contain garages, offices, and a recreation area. Durham Park was constructed, and is operated, as a low-income housing project.

The Bayridge complex is similar to the Durham Park project. It is a multi-building, 246-unit development. Bay-ridge was constructed, and is operated, as a low-income housing project. Bayridge was 60 percent complete as of the assessment date.

Under 26 IRC § 42, the owner of an apartment complex may qualify for substantial income tax credits. As the Tax Court properly noted, “[t]he laws governing income tax credits .and low-income housing are complex.” 13 OTR at 26. See generally Andrew Zack Blatter and Elena Marty-Nelson, An Overview of the Low Income Housing Tax Credit, 17 U Balt L Rev 253 (1988) (providing a detailed examination of the operation of the low-income housing tax credit). A brief overview of that law will suffice for our purposes here.

The low-income housing tax credit is available for certain low-income housing projects. IRC § 42(a), (c)(2), (g). In order to qualify for that credit, the owner of, or investor in, an apartment complex must make available a certain number of rental units in the project for use by the general public on a residential (i.e., nontransient and noncommercial) basis for not less than 15 years. IRC § 42(g), (i)(l). If the owner or investor qualifies, section 42 provides income tax credits to the owner or investor over a 10-year period, IRC § 42(f)(1), based on the cost of the building and the proportion of the building used by low-income tenants, IRC § 42(a)-(d).

The Internal Revenue Code (Code) places a limit of $1.25 per capita on the aggregate amount for each taxable year that may be claimed as credits by all the taxpayers in a given state. IRS § 42(h)(3)(C). The Code requires that “the State housing credit ceiling for each calendar year shall be allocated to the housing credit agency of’ each state. IRC § 42(h)(3)(B). The state agency allocates those credits to owners or investors. IRC § 42(h)(3)(A). In 1990, Oregon had $2,643,750 in tax credits to allocate.

If a project fails to comply with the tenant and rent limitations in IRC § 42 at any time during the 15-year compliance period, the taxpayer is subject to a recapture of a portion of the credit claimed. IRC § 42(j). Additional taxes, plus interest, will be due as a result. IRC § 42(j)(2). When a sale occurs before the end of the 15-year compliance period, it is possible to avoid recapture on the sale of a low-income housing project that qualifies for tax credits under IRC § 42. To accomplish that, the seller of the project must post a bond in an amount satisfactory to, and for the period required by, the Secretary of the Treasury, if it reasonably is expected that the project will continue to be operated as a qualified low-income project for the remainder of the building’s compliance period. IRC § 42(j)(6). The amount of the required bond generally equals or exceeds the value of the credits claimed or available. See RevRul 90-60,1990-2, CB 2 (explainingbond).

In Oregon, for the tax year in question, the OHA administered the distribution of federal tax credits for low-income housing. ORS 456.559(l)(f) (1989). That agency was established by statute, ORS 456.553(1) (1989), in response to the legislature’s conclusion that there was an inadequate supply of low-income housing in Oregon and that it was the desire of the state to ensure an adequate supply of such housing. ORS 456.550 (1989). If a taxpayer received credits under IRC § 42 and later failed to comply with the federal statutory requirement, OHA would report that noncompliance to the Internal Revenue Service. See Treas Reg § 1.42-5(e)(l) (so providing).

Under IRC § 42, as already noted, the taxpayer claiming the credit must limit rents in the complex to obtain the tax credits. OHA set additional requirements. For example, OHA’s allocation document pertaining to the properties in question incorporated by reference the terms and conditions set forth in taxpayers’ applications for tax credits. Those applications provide that taxpayers must

“[a]gree to rent, or hold available for occupancy, for 15 years at least 20% of the dwelling as Rent Restricted Units for low-income tenants whose incomes are 50% or less of area median gross income adjusted for family size, or at least 40% of the dwelling as Rent Restricted Units for low-income tenants whose incomes are 60% or less of area median gross income adjusted for family size.”

Against that background, we examine the applicable Oregon statutes. ORS 308.232 (1989) required all property to be assessed at 100 percent of its true cash value. ORS 308.205 (1989), quoted at note 1, above, defined “true cash value” as “the market value” of the property. However, ORS 308.205(2) (1989) also provided that, when a property was “subject to governmental restriction as to use,” true cash value must be adjusted to reflect or take into account that restriction.

Taxpayers argue (and the Tax Court held) that the federal low-income housing tax credit program, as administered by OHA, constitutes a “governmental restriction as to use” that needs to be taken into account in determining the true cash value of the property pursuant to ORS 308.205(2) (1989). The department counters that the section 42 program is not a “governmental restriction,” because a “governmental restriction” must be involuntary and it must not be to a taxpayer’s financial advantage. The department further contends that, even if the program is a “governmental restriction,” it is not a governmental restriction “as to use” of the property. For the reasons that follow, we agree with taxpayers and the Tax Court.

In interpreting a statute, our task is to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). The text of the statutory provision in question is the best evidence of the legislature’s intent and the starting point for our inquiry. Id. at 610. Words of common usage typically should be given their plain, natural, and ordinary meaning. Griffin v. Tri-Met, 318 Or 500, 508, 870 P2d 808 (1994).

We use the foregoing principles in interpreting ORS 308.205(2) (1989). That statute did not define “restriction.” In ordinary usage, a “restriction” is:

“1: something that restricts: QUALIFICATION: as a: a regulation that restricts or restrains * * * b: a limitation placed on the use or enjoyment of real or other property; esp: an encumbrance on land restricting the uses to which it may be put.” Webster’s Third New Int’l Dictionary, 1937 (unabridged ed 1993).

A restriction thus is “a limitation placed on the use or enjoyment” of the property, without any necessary reference to the process that led to the placement of that restriction, without any necessary reference to the form of the restriction (e.g., by statute or by contract), and without any necessary reference to the absence of an economic benefit in exchange for placement of that restriction.

ORS 308.205(2) (1989) also used, without definingit, the adjective “governmental” to modify the noun “restriction.” In ordinary usage, “governmental” means “of or relating to government or to the government of a particular political unit.” Webster’s Third New Int’l Dictionary at 983. A “governmental” restriction thus is a limitation “of * * * the government of a particular political unit,” placed on the use or enjoyment of property. There is no necessary reference to who initiated the process that led to the government’s placement of a restriction on the property, nor is there a necessary reference to how the restriction is expressed (e.g., by statute or by contract), nor is there a necessary reference to whether the restriction was placed in exchange for an economic benefit.

As noted above, the department first argues that the availability of section 42 tax credits does not create a “governmental restriction,” because (a) the taxpayer chooses to participate in the program and (b) the program results in financial gain to the taxpayer. We are not persuaded.

Nothing in the text of ORS 308.205(2) (1989) suggests that a “governmental restriction” must be involuntary at its inception. Neither does the text suggest that a taxpayer may not derive an economic benefit from a “governmental restriction.” The text of ORS 308.205(2) (1989) does not distinguish between voluntary and involuntary, or between beneficial and nonbeneficial, “governmental restrictions.” We are not at liberty to read in such requirements. See ORS 174.010 (when this court interprets a statute, it may not “insert what has been omitted, or * * * omit what has been inserted”).³

Taxpayers entered into an agreement with OHA that limited the rents that taxpayers could charge to tenants residing in taxpayers’ properties and limited the pool of tenants to whom they could rent apartments. Taxpayers agreed to those limitations for a period of 15 years. As of the assessment date, those limitations restrained how taxpayers could enjoy their property. Those limitations came from a binding agreement with a governmental agency, the breach of which would entail serious financial consequences to taxpayers. Thus, the limitations were “governmental restrictions.”

The department next argues that, even if participation in the section 42 low-income housing credit program is a “governmental restriction,” it is a “governmental restriction as to income” but not a “governmental restriction as to use.” (Emphasis added.) Again, we disagree.

The noun “use” means, among other things, “a method or manner of using something’ ’; ‘ ‘the legal enj oyment of property that consists in its employment, occupation, exercise, or practice.” Webster’s Third New Int’l Dictionary at 2523. Utilizing that definition, a “governmental restriction as to use” includes a governmental restriction as to the method or manner of using the property in question, or as to how the property is employed or occupied.

As already explained, taxpayers are subject to governmental restrictions concerning the persons to whom they may rent, as well as how much they may charge those to whom they rent. Furthermore, under those governmental restrictions, taxpayers must provide a certain number of residential housing units. That is, taxpayers must maintain at least a part of the complexes as residential. Even if taxpayers wanted to use the properties for nonresidential purposes (such as commercial purposes), and even if those uses were permitted by applicable zoning laws, the governmental restrictions placed on those properties would inhibit such a use. Those limits on what taxpayers may do with their properties, resulting from taxpayers’ participation in the section 42 program, constitute “governmental restriction[s] as to use.”

The context of ORS^308.205(2) (1989) supports the view that the legislature intended that the phrase “governmental restriction as to use” to encompass a broad realm of potential governmental limitations. The context of a statute includes other provisions of the same statute and other related statutes. PGE, 316 Or at 611.

The provision that became ORS 308.205(2) (1989), containing the phrase “governmental restriction as to use,” was added to the statute in 1977 as part of Senate Bill 827. Or Laws 1977, ch 423, § 2. Senate Bill 827 contained six sections:

Section 1 added a new provision to ORS chapter 308 to address downzoning, a situation in which “the assessed value of any real property is reduced by reason of the adoption of or a change in the comprehensive plan, zoning ordinance, or zoning designation for such property not at the request of the owner.” (Emphasis added.) Section 1 provided that the owner of a downzoned property may have that property reassessed to take into account the loss in value caused by the downzoning. Section 1 is codified as ORS 308.341.

Section 2 added what became ORS 308.205(2) (1989), the statute that we are called on to apply in this case. The remaining substantive sections of Senate Bill 827 addressed the notification of property owners and assessors concerning the downzoning of their property and are codified as ORS 308.342 and 308.343.

Section 2 embraced all forms of “governmental restriction^] as to use,” in contrast to the other sections, which were directed more specifically at downzoning. Moreover, while section 1 expressly limited the tax benefit to involuntary downzoning, section 2 contained no similar requirement for other forms of governmental restriction as to use. In addition, downzoning is defined to result in an economic detriment to the taxpayer, while other forms of governmental restriction as to use are not.

This court assumes that, when the legislature includes a provision in one section of an act, but omits it from another, it does so intentionally. PGE, 317 Or at 611. Thus, we must give effect to the distinctions drawn by the legislature (a) between voluntary downzoning, from which a taxpayer may not receive a tax benefit, and other forms of governmental restriction as to use, which omit the concept of voluntariness; and (b) between downzoning, which is defined to result in an economic detriment to the taxpayer, and other forms of governmental restriction as to use, which omit the requirement of economic detriment. We conclude that a “governmental restriction as to use,” ORS 308.205(2) (1989), need not be involuntary and may result in an economic benefit to the taxpayer.

So understood, ORS 308.205(2) (1989) encompasses, as a “governmental restriction as to use,” taxpayers’ participation in the section 42 program. Because the intent of the legislature when it enacted ORS 308.205(2) (1989) is clear from the text and context of the statute, further inquiry is not required. See PGE, 317 Or at 611 (stating principle).

As noted at the outset, the parties do not attack the calculations made by each others’ appraisers. The department’s data do not reflect the limits placed on the properties as a result of the “governmental restriction[s] as to use”; taxpayers’ data do reflect the limitations placed on the properties. Accordingly, we adopt taxpayers’ valuations.

The department does argue that, even if we treat participation in the section 42 program as a “governmental restriction as to use,” we should “consider the receipt of tax credits as additional income that increases the value of the property.” The Tax Court reasoned that

“an underlying assumption of market value is that the market will only pay for those benefits it will receive. If tax benefits are limited to the first owner or are recaptured when a property is transferred, such benefits will not enter into market considerations.” 13 OTR at 29.

We agree with that reasoning. OAR 150-308.205(A)(l)(a) (1989) defined market value as “the most probable price in terms of money which a property will bring if exposed for sale in the open market.” The most probable price depends on what the buyer will receive in exchange for that price; the buyer will pay only for what it will receive. Thus, the most probable price to be received for the properties at issue would not include the tax credits, because the record shows that the credits would be recaptured if the property were not maintained as low-income housing.

For the foregoing reasons, we find that, for tax year 1990-91, the true cash value of the Durham Park property was $6,535,000 and the true cash value of the Bayridge property was $4,412,000.

The judgment of the Tax Court is affirmed.

1 The Oregon Housing Authority has been succeeded by the Housing and Community Services Department. ORS 456.555.

2 ORS 308.205 (1989) provided in part:

“True cash value of all property, real and personal, means the market value of the property as of the assessment date. True cash value in all cases shall be determined by methods and procedures in accordance with rules adopted by the Department of Revenue and in accordance with the following:

“(2) If the property is subject to governmental restriction as to use on the assessment date under applicable law or regulation, true cash value shall not be based upon sales that reflect for the property a market value that the property would have if the use of the property were not subject to the restriction unless adjustments in value are made reflecting the effect of the restrictions.”

3 We also note that prior decisions from this court indicate that voluntarily incurred limitations on the use of property may be considered in assessing the value of a piece of property. See, e.g., Tualatin Development v. Dept. of Rev., 256 Or 323, 473 P2d 660 (1970) (when the taxpayer voluntarily agreed with county planning commission to set aside “open areas” to be retained as a golf course in return for a zone change permitting a planned residential community, and the golf course is operated at a loss, court affirmed Tax Court’s decision that golf course had no “true cash value” for tax years at issue).