Tech One Associates v. Board of Property Assessment, Appeals & Review

OPINION BY

Judge PELLEGRINI.

Tech One Associates (Landowner) appeals an order of the Court of Common Pleas of Allegheny County (trial court) assessing the value of its property for tax years 2001 through 2005. The issue on appeal is whether buildings and other improvements on the property made and owned on land leased property must be included in the assessed value of the property. The trial court determined that those improvements were to be included, and finding no fault with the trial court’s determination, we affirm.

Landowner owned 47.5 acres of undeveloped land in West Mifflin Borough, Allegheny County, Pennsylvania. In 1989, it entered into a 50-year lease agreement with Terra Associates (Lessee) covering this land with an annual rent of $665,000. Landowner gave Lessee the right to improve the land, own what it built, and assign its interests at any time. Under the lease agreement, Lessee pays all real estate taxes and other related taxes for the entire property.

On the land in the early 1990s, Lessee constructed a one-story shopping center now known as Century Square, that has 415,613 square feet of rentable area with 29 tenant spaces. Lessee, or others pursuant to agreements with Lessee, have also built a multi-screen movie theater building and a restaurant building on the land.

In 2001, the Allegheny County Board of Property Assessment, Appeals and Review (Board) assessed the fair market value of Landowner’s property for 2001 at $30,984,700. It included the land (based on Landowner’s leased fee, i.e., the rent it received) and the buildings and improvements in its assessment. Landowner appealed, and a hearing was held before the Board of Viewers.¹

At that hearing, Anthony Barna (Barna), a licensed real estate appraiser, testified for Landowner stating that in making his appraisal of the property for the tax years in question, he recognized the “economic reality” of the impact of the long-term land lease between Landowner and Lessee in using the capitalization-of-ineome approach to value the property.² He stated that the income capitalization method established a capitalization rate by assessing the property and surrounding area as well as comparable properties, and any reversion interest in the property with the annual income of the property divided by the capitalization rate to obtain the value of the land. He established a capitalization rate of seven percent, and based on the annual rent Landowner received, the value of Landowner’s lease fee interest in the land was $9,500,000 for each of the four tax years, 2001 through 2005.³ He placed no value on the buildings because the economic reality of the long-term land lease held by Landowner, the party being assessed, was that it received no economic benefit from the buildings constructed on the land.

The taxing bodies, Borough of West Mifflin and the School District of West Mifflin, presented the expert testimony of Mark Ackerman (Ackerman) who used the income approach in arriving at his values. His appraisal value included the lease fee interest held by Landowner and the value of the improvements which it did not own. He testified that the values of the combined interest ranged from $36,130,000 in 2001 to $22,600,000 in 2004. He stated that he used a highest and best use evaluation and appraisal for a retail shopping center; however, his capitalization of income analysis of the leased fee concluded a value similar to that of Landowner’s expert and was just $200,000 less.⁴

The Board of Viewers concluded that Marple Springfield, I controlled the outcome of this matter and, therefore, accepted Barna’s fair market value of $9,500,000 for the property owned in leased fee by Landowner. No value was assigned to the buildings. The taxing bodies filed objections with the trial court and oral arguments were heard. The trial court then issued an opinion and order rejecting the Board of Viewers’ recommendation and rejecting the application of the Marple Springfield I and Marple Springfield II decisions. The trial court found that Landowner’s approach to value violated the Uniformity Clause of the Pennsylvania Constitution and the prohibition against creating exemptions not provided for in the Pennsylvania Constitution, an issue not discussed in either Marple Springfield I or Marple Springfield II. Instead, it accepted the value of the property for each of the tax years offered by the taxing bodies’ expert who included the value of the improvements in his opinion of fair market value. This appeal by Landowner followed.⁵

On appeal, Landowner contends that trial court erred (1) because it was at variance with our Supreme Court’s decision in Marple Springfield I where it holds that a long-term lease value is not subject to being assessed; (2) in holding that buildings built on the land lease are subject to taxation because no statutory authority exists for imposing a real estate tax assessment on a lessee’s leasehold interest; and (3) in finding that the methodology used by Landowner’s expert resulted in a constitutional violation of the Uniformity Clause of the Pennsylvania Constitution because our Supreme Court was aware of that clause at the time its decision came down and saw fit not to include it in its decision.

I.

In Marple Springfield I, the taxpayer was the owner of land on which a shopping center was built in 1964. In 1968, the taxpayer’s predecessor in title entered a long-term lease for the entire property which, with renewals, expired in 2044, and had values that were well below market rates which would not change during the term of the lease. There was no mention that the lessee was responsible for real estate taxes. The property was assessed based on the market rent that lessee received from its subtenants, not the contract amount the lessee paid to the taxpayer/landowner.⁶ The taxpayer challenged its real estate tax assessments contending that property should be valued based on the rent that it received, not the fair market rent. Our Supreme Court agreed, holding that “the economic realities of commercial real estate transactions” had to be taken into consideration when valuing property and stating:

Year Land (Leased Fee) Improvements (Leasehold) Total

2001 9,300,000.00 26,685,000 35,985,000

2002 9,300,000.00 26,685,000 35,985,000

2003 9,300,000.00 19,350,000 28,650,000

2004 9,300,000.00 13,300,000 22,600,000

2005 9,300,000.00 21,350,000 31,650,000

The capitalization-of-income approach to tax appraisals is the most appropriate if not the only valid means of establishing fair market value of real estate when the rental income is below what would otherwise be the current market level but for a long-term commercial lease, because such long-term leases are an accepted aspect of commercial real estate transactions and their effects have a decisive impact on the price a buyer would pay for the affected property. To interpret the tax assessment statute as requiring valuation of property in hypothetical unencumbered form, , is to ignore the economic realities of commercial real estate transactions. (Emphasis added.)⁷

Marple Springfield I, 530 Pa. at 126-127, 607 A.2d at 710. See also In re Assid, 842 A.2d 995 (Pa.Cmwlth.2004).

Marple Springfield I, however, does not apply to this appeal because of different economic and legal “realities.” The economic difference between this appeal and Marple Springfield I is that Marple Springfield I made no mention that the lessee was responsible for all real estate taxes. If a lessee is responsible for all real estate taxes, the landowner’s economic reality would not change because if the value of the leased premises increased for whatever reason, — new buildings went up or market rents increased — the lessee would solely be responsible for the value of the landowner’s interest in the real property, not the landowner, who would receive the bargain for the amount under the lease, without deductions for taxes. The legal reality is also different because what was involved in Marple Springfield I was the value of the shopping center, land and buildings, not, as here, where Landowner is contending that those buildings should remain untaxed because they are built on leased property which is akin to receiving an exemption from taxes.

II.

That leads us to Landowner’s central contention — whether the leasehold interests are not taxable because they are not real estate under the General County Assessment Law which provides that only real estate can be subject to taxation. It argues that leasehold interests are not real estate because a lessee only has the right to use and occupy real estate for a stated term and under certain conditions. Even though buildings that were worth millions of dollars were built on the leasehold, absent specific legislative authority to impose real estate taxation upon the leasehold, it argues that those buildings cannot be taxed. Independent Oil and Gas Association of Pennsylvania v. Board of Assessment Appeals of Fayette County, 572 Pa. 240, 243, 814 A.2d 180, 182 (2002). “[I]n Pennsylvania, the power to tax is statutory and must be derived from [an] enactment of the General Assembly.”

Section 204(a) of the General County Assessment Law, 72 P.S. § 5020-204(a), places on the assessors the duty to value all “objects of taxation” providing that:

(a) It shall be the duty of the several elected and appointed assessors, ... to rate and value all objects of taxation, ... according to the actual value thereof, and at such rates and prices for which the same would separately bona fide sell.... In arriving at the actual value, all three methods, namely, cost (reproduction or replacement, as applicable, less depreciation and all forms of obsolescence), comparable sales and income approaches, must be considered in conjunction with one another. Except in counties of the first class, no political subdivision shall levy real estate taxes on a county-wide revised assessment of real property until it has been completed for the entire county.

Notably, it provides that the cost approach to valuation must be used which is an approach only applicable to valuation of improvements to real estate and not just land itself.⁸

“Objects of taxation” are set forth in Section 201 of the General County Assessment Law, 72 P.S. § 5020-201, which provides that “all real estate” is to be assessed and subject to taxation. It describes real estate as:

(a) All real estate, to wit: House, house trailers and mobile homes buildings permanently attached to land or connected with water, gas, electric or sewage facilities, buildings, lands, lots of ground and ground rents, trailer parks and parking lots, mills and manufactories of all kinds, furnaces, gorges, bloomeries, distilleries, sugar houses, malt houses, breweries, tan yards, fisheries, and ferries, wharves, all office type construction of whatever kinds, that portion of a steel, lead aluminum or like melting and continuous casting structures which enclose, provide shelter or protection from the elements for the various machinery, tools, appliances, equipment, materials or products involved in the mill, mine, manufactory or industrial process, and all other real estate not exempt by law from taxation. (Emphasis added.)

Through these provisions, the General Assembly directed the assessors to assess real estate — including lands and buildings. To make that determination, who owns it and what are the ownership interests in the land — a fee simple, a fee simple determinable, a leasehold interest or month-to-month lease are irrelevant. Once the assessment is made, who pays the real estate taxes — the landowner or the tenant or subtenant — is not the concern of the taxing body but is determined by the parties in the terms of the lease or by some other private arrangement.

III.

Landowner also contends that the trial court erred in finding that the Uniformity Clause contained in Article 8, Section 1 of the Pennsylvania Constitution would be violated under its view of what is the effect of a land lease on the real estate tax assessment. That provision provides, in relevant part: “All taxes shall be uniform, upon the same classes of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” Landowner contends that uniformity is not violated if some concrete justification can be discerned for treating a relevant group of taxpayers as members of distinguishable classes to differing tax burdens. City of Harrisburg v. School District of Harrisburg, 675 A.2d 758 (Pa.Cmwlth.1996), reversed on other grounds, 551 Pa. 295, 710 A.2d 49 (1998). Landowner argues that the distinguishable class consisting of those properties that are encumbered by long-term ground leases that affect the income potential of that real estate has already been defined by our Supreme Court in Marple Springfield I. Landowner further argues that the trial court ignored that the Uniformity Clause existed at the time Marple Springfield I was decided by our Supreme Court.

Initially, we point out that the fact that the Uniformity Clause existed at the time our Supreme Court decided Marple Springfield I is of no legal import because the uniformity issue was not addressed in that decision. Also, it did not inferentially recognize that leased property and non-leased property could be treated differently for real estate tax purposes; all that it addressed is what revenue stream should be used in the income approach to value. When it addressed uniformity, our Supreme Court emphatically stated that a tax must be applied upon similar kinds of property with substantial equality of the tax burden on all members of the class. Amidon v. Kane, 444 Pa. 38, 51, 279 A.2d 53, 60 (1971). See also Truck Terminal Motels of America, Inc. v. Berks County Board of Assessment Appeals, 127 Pa. Cmwlth. 408, 561 A.2d 1305 (1989). For example, while there are substantial differences between commercial or industrial real estate and residential real estate, to tax them differently has been held to violate the Uniformity Clause. Appeal of Massachusetts Mutual Life Insurance Company, 426 Pa. 566, 235 A.2d 790 (1967); McKnight Shopping Center v. Board of Property Assessment, 417 Pa. 234, 209 A.2d 389 (1965); Deitch Company v. Board of Property Assessment, 417 Pa. 213, 209 A.2d 397 (1965). As explained above, the real estate — land and buildings — are the objects of taxation and because different parties own them is insufficient not to assess all “objects of taxation.” Moreover, we would also be adopting a class of buildings that would be exempt from taxation, which would similarly violate Article VIII, Section 2 of the Pennsylvania Constitution that only allows real estate used and occupied by “purely public charities” to be exempt from taxation.

Accordingly, for the reasons set forth above, the well-reasoned decision of the Honorable Stanton Wettick of the Court of Common Pleas of Allegheny County is affirmed.

ORDER

AND NOW, this 1st day of June, 2009, the order of the Court of Common Pleas of Allegheny County, dated December 28, 2007, is affirmed.

1 . The General County Assessment Law, Act of May 22, 1933, P.L 853, as amended, 72 P.S. § 5020-518.1(c), allow for the courts of common pleas to appoint the Board of Viewers to hear tax assessment appeals.

2 . Barna testified that he did his appraisal based on this Court’s holding in In re Appeal of Marple Springfield Center, Inc. (Marple Springfield II), 654 A.2d 635 (Pa.Cmwlth.1995) (which followed our Supreme Court's holding in In re Appeal of Marple Springfield Center, Inc. (Marple Springfield I), 530 Pa. 122, 607 A.2d 708 (1992)) (requiring an appraiser to utilize the capitalization-of-income approach to establish fair market value of real estate when rental income is below what would otherwise be current market levels due to a long-term commercial lease).

3 .Valuation of Anthony C. Barna, Landowner’s Expert:

Year Land (Leased Fee) Improvements (Leasehold) Total

2001 9,500,000.00 Not Valued 9,500,000.00

2002 9,500,000.00 Not Valued 9,500,000.00

2003 9,500,000.00 Not Valued 9,500,000.00

2004 9,500,000.00 Not Valued 9,500,000.00

2005 9,500,000.00 Not Valued 9,500,000.00

4 .Valuation by Mark D. Ackerman, Taxing Bodies' Expert:

5 .Our scope of review in a tax assessment appeal is limited to determining whether the trial court abused its discretion, committed an error of law, or made findings of fact unsupported by substantial evidence. First Korean Church of New York, Inc. v. Montgomery County Board of Assessment Appeals, 926 A.2d 543 (Pa.Cmwlth.2006).

6 .As we explained in footnotes in Appeal of/Property of Cynwyd Investments, 679 A.2d 304, 310 (Pa.Cmwlth.1996), “Market rent is [t]he rental income that a property would most probably command in the open market; indicated by current rents paid and asked for comparable space as of the date of the appraisal.” American Institute of Real Estate Appraisers, The Dictionary of Real Estate Appraisal, p. 71 (1984). Contract rent is "[t]he actual rental income specified in a lease.” Id.

7 . Our Supreme Court in Marple Springfield I noted that there was no suggestion that the lease was fraudulent in any way, and that it was an otherwise unremarkable business transaction reasonable at the time it was entered. We understand that to mean that if a lease is entered into by affiliated entities or arrangements are made that would present a false and fraudulent view of the economic realities, the contract rent could obviously not be used in valuing the property.

8 . As this Court explained in Appeal of Property of Cynwyd Investments, 679 A.2d at 308, n. 2: “The cost approach values the property by considering the reproduction or replacement cost of the property, less depreciation and obsolescence. 72 P.S. § 5020-402. Specifically, this method entails (1) estimating the value of the land assumed vacant and available for its highest and best use; (2) estimating the reproduction cost or cost new of the facility; (3) subtracting from the latter amount the facility's depreciation; and (4) adding to this depreciated balance the value of the land estimated in (1) above.”