Opinion
No. 89-479
Submitted April 19, 1990 —
Decided August 29, 1990.
Taxation — Real property valuation determined, how — Board of Tax Appeals may determine that in the absence of a recent arm's-length sale of the subject property, other relevant evidence should be utilized.
APPEAL from the Board of Tax Appeals, Nos. 87-D-1214, 87-E-1219 and 87-E-1220.
Appellant, First Union Real Estate Equity Mortgage Investments ("First Union"), owned the Illuminating Building at 55 Public Square in Cleveland, Ohio ("subject property") for the tax year 1986. For that year, the Cuyahoga County Auditor had valued the subject property at approximately $26,000,000. Upon complaint the Cuyahoga County Board of Revision found no change in the true value. Both First Union and the appellee Cleveland Board of Education appealed to the Board of Tax Appeals ("BTA") and presented evidence.
Appellant utilized the services of expert-appraiser Richard Van Curen, who estimated, from an income approach, that the true value of the property for tax year 1986 was $22,400,000. Appellee's expert, Charles P. Braman, estimated the true value at $27,325,000. The appraisers agreed that the highest and best use of the subject property was for office use. They also agreed that the cost approach to value was not applicable and that the income approach was the preferred method of determining value. Each used the market data approach for corroboration purposes.
The subject property is a twenty-three-story office building with penthouse and basement and with an attached seven-level and basement-level garage and a one-story restaurant with basement. During 1986, substantial vacancies had occurred which reduced the historical ninety-five-percent occupancy figure. The appraisers disagreed as to the extent and likely continuation of the vacancy rate. In addition, there was a dispute as to whether post-tax-lien-date sales of other properties were a proper gauge for determining true value. Appellant's appraiser contended that information concerning such sales was inappropriate and of no value because a buyer and seller, on tax lien date, could not be aware of subsequent sales prices. Appellee's appraiser disagreed and utilized numerous comparable sales pre-dating January 1, 1986 and subsequent to that date. Appellant's appraiser also made a number of comparisons, all of which sales occurred between 1977 and January 1, 1986.
Evidence presented to the BTA detailed the number of square feet of the subject property, as to which there was agreement, and the adjustments required in dealing with factors such as the vacancy rate, as to which there was significant disagreement, the cost of garage remodeling, the lease rental income, and storage, parking, utilities, and miscellaneous income sources.
The BTA found that the true value of the subject property for 1986 was $27,325,000.
The cause is now before this court upon an appeal as of right.
Arter Hadden, Jacob I. Rosenbaum, Irene C. Keyse-Walker, Brian D. Isroff and R. Bruce Moore, for appellant.
Armstrong, Gordon, Mitchell Damiani, Timothy J. Armstrong and Deborah J. Papushak, for appellee.
It is well-established that the proper test for determining the true value of real estate for taxation purposes is the price agreed upon by a seller, willing to sell but under no compulsion to sell, and a buyer, willing to buy but under no compulsion to buy. That basic principle is not disputed and it is consistent with the controlling statute, R.C. 5713.03, which read, during tax year 1986, in pertinent part:
"The county auditor, from the best sources of information available, shall determine, as nearly as practicable, the true value of each separate tract * * * of real property and of * * * improvements located thereon * * *. * * * [I]f such tract * * * has been the subject of an arm's length sale between a willing seller and a willing buyer within a reasonable length of time, either before or after the tax lien date, the auditor shall consider the sale price of such tract * * * to be the true value * * *."
Appellant argues that although the method of determining true value is well-established, evidence of post-tax-lien-date transactions applies only in cases involving the particular real estate under investigation and not unrelated property. Thus, according to appellant, in order for evidence to be reliable it must relate to the specific property which was exchanged in an arm's-length transaction and not to comparable real estate. We disagree.
We recognized in Grabler Mfg. Co. v. Kosydar (1975), 43 Ohio St.2d 75, 78, 72 O.O. 2d 42, 44, 330 N.E.2d 924, 927, that:
"* * * [T]he question becomes whether the sales in question were, in time and circumstances surrounding them, the best evidence of true value in this case. We believe that they were, * * * and sales within that period of time after tax listing day * * * seem to be within a reasonable time." See, also, American Steel Wire Co. v. Cuyahoga Cty. Bd. of Revision (1942), 139 Ohio St. 388, 392, 22 O.O. 445, 446, 40 N.E.2d 426, 428.
Moreover, we reject appellant's argument that the BTA accepted an unrealistic vacancy rate since the BTA decision was consistent with testimony presented by appellee's appraiser.
As we pointed out in State, ex rel. Park Investment Co., v. Bd. of Tax Appeals (1964), 175 Ohio St. 410, 412, 25 O.O. 2d 432, 434, 195 N.E.2d 908, 910, evidence of an arm's-length sale is often unavailable, "and thus an appraisal becomes necessary." When such evidence is available its value is not diminished. This, too, is not a new concept. In Ramsey v. Franklin Cty. Bd. of Revision (1943), 141 Ohio St. 366, 368, 25 O.O. 476, 48 N.E.2d 102, 103, we stated:
"The valuation of these premises must necessarily bear some relation to valuations placed on similar properties in the same locality, and the fact that appellant's property has added value by reason of being a corner lot must also be given due consideration.
The syllabus of Cuyahoga Cty. Bd. of Revision v. Fodor (1968), 15 Ohio St.2d 52, 44 O.O. 2d 30, 293 N.E.2d 25, states:
"The fair market value of property for tax purposes is a question of fact, the determination of which is primarily within the province of the taxing authorities, and this court will not disturb a decision of the Board of Tax Appeals with respect to such valuation unless it affirmatively appears from the record that such decision is unreasonable or unlawful."
Here the BTA found that the income approach utilized by appellee's appraiser "more closely reflect[ed] the value of the subject property on tax listing day of 1986" and that his analysis utilized an historical vacancy rate of five percent plus a special allowance to reflect the loss of tenants.
A brief summary of our prior decisions having particular application to the case before us appears in R.R.Z. Associates v. Cuyahoga Cty. Bd. of Revision (1988), 38 Ohio St.3d 198, 201, 527 N.E.2d 874, 877:
"The BTA need not adopt any expert's valuation. It has wide discretion to determine the weight given to evidence and the credibility of witnesses before it. Its true value decision is a question of fact which will be disturbed by this court only when it affirmatively appears from the record that such decision is unreasonable or unlawful. Cardinal Federal S. L. Assn. v. Cuyahoga Cty. Bd. of Revision (1975), 44 Ohio St.2d 13, 73 O.O. 2d 83, 336 N.E.2d 433, paragraphs two, three, and four of the syllabus. * * * We will not overrrule BTA findings of fact that are based upon sufficient probative evidence. Hawthorn Mellody, Inc. v. Lindley (1981), 65 Ohio St.2d 47, 19 O.O. 3d 234, 417 N.E.2d 1257, syllabus."
The BTA may determine, as it did, that in the absence of a recent arm's-length sale of the subject property, other relevant evidence should be utilized. The BTA's decision, accepting appellee's income approach to value and finding the true value of the subject property to be $27,325,000, was reasonable and lawful and is supported by evidence of record. Consequently, we affirm the decision of the BTA.
Decision affirmed.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT and H. BROWN, JJ., concur.
DOUGLAS and RESNICK, JJ., dissent.