Amert v. Lake County Board of Equalization

SABERS, Justice

(dissenting).

[¶ 39.] I submit that Amert’s first issue is no better than his second issue, which the majority opinion dispatches “without merit.” I would affirm because Amert has not established that the assessments were in excess- of the true and full value of the property.

[¶40.]'The majority opinion pays lip service to our decision in Richter Enterprises, Inc. v. Sully County, 1997 SD 61, 563 N.W.2d 841, the “clearly erroneous” test stated therein, and the presumption in favor of the correctness of the assessment's, also stated therein. Each is simply sidestepped in order to reverse áñd remand.

[¶ 41.] Which of the circuit court’s findings of fact are found to be clearly erroneous? The majority opinion specifies none by number. Our role on appeal does' not include straining to reverse:

This court’s proper scope of review of a trial court’s decision in a trial de novo of an assessment matter is whether the decision of the trial court was “clearly erroneous.” When applying the clearly erroneous standard, the question is not whether this court would have made the same findings that the trial court did, but whether on the entire evidence this court is left with a definite and firm conviction that a mistake has been committed.
Furthermore, there is a presumption that tax officials act in accordance with the law *624and not arbitrarily or unfairly when assessing property. Taxpayer also has the burden of overcoming the presumption that Director’s value was correct. Specifically, Taxpayer must produce sufficient evidence to show the assessed valuation was in excess of true and full value, lacked uniformity in the same class or was discriminatory.

Richter, 1997 SD 61 at ¶ 7, 563 N.W.2d at 843 (emphasis added) (citations & internal quotations omitted).

[¶ 42.] The assessor testified that “the depreciation schedule he used incorporated physical depreciation as well as economic obsolescence.” The majority opinion purports to reverse the trial court for the claimed failure to consider functional obsolescence. The burden to establish functional obsolescence is on the taxpayer, not on the assessor, nor the trial court. Knodel v. Board of County Comm’rs, 269 N.W.2d 386, 389 (S.D.1978). Amert, the taxpayer, failed to establish functional obsolescence and the circuit court so found.7 See ¶ 32 (“The [circuit] court does not have testimony as to functional obsolescence valuations for these pieces of property_”).8

[¶ 43.] As noted by the majority opinion, Amert’s appraiser failed to assign a percentage for functional obsolescence. It is a well-settled principle of law that the taxpayer cannot overcome the presumption of correctness of the assessment without providing a contrary valuation. See Richter, 1997 SD 61 at ¶ 14, 563 N.W.2d at 845; see also Poindexter v. Hand County Bd. of Equalization, 1997 SD 71, ¶ 26, 565 N.W.2d 86, 92-93:

[Taxpayer] offered no proof to show the valuation was unfair. There was no showing that the assessed valuation of his land exceeded the actual value of the land. In fact, he testified that he never independently established a market value on the land. Therefore, Poindexter did not meet his burden as defined by this court. See Lincoln Township v. South Dakota Bd. of Equalization, 1996 SD 13, ¶ 26, 543 N.W.2d 256, 260 (stating that presumption of correctness cannot be overcome without an appraisal showing the assessment was erroneous) (citing Knodel, 269 N.W.2d at 389; Roseland v. Faulk Cty. Bd. of Equalization, 474 N.W.2d 273 (S.D.1991) (presumption overcome by evidence of excessive valuation, which was demonstrated by evidence of three instances where the assessed value of Faulk County agricultural property exceeded its actual value)).

[¶ 44.] In spite of Amert’s obvious failure to meet this burden, the majority opinion misinterprets the trial court’s recommendation to Amert of a procedure to be used in the future. ¶ 32. See Richter, 1997 SD 61 at ¶ 17, 563 N.W.2d at 845 (“Taxpayer’s assertion regarding economic obsolescence is based on conjecture, which is insufficient to demonstrate the circuit court erred.”). The trial court correctly pointed out the flaw in Amert’s appeal of his assessments.

[¶45.] Additionally, Amert states in his brief that he attempted to avoid an appeal by providing Lake County with all relevant information prior to the assessments. Appellant’s Br. at 8. If functional obsolescence was a factor he wanted considered, he obviously could have, and should have, timely conveyed that factor to assessor.9 By remanding, we are incorrectly providing Amert a second bite of the apple.

[¶ 46.] We should affirm based on Richter and not strain to overrule it without even saying so.

. If functional obsolescence (loss of use) really existed, it could have been, but was not, shown in the records of the properties' income.

. Even though the circuit court expressly stated there was no testimony as to functional obsolescence valuations, the majority opinion manages to find that functional obsolescence was present when the structures were built. ¶ 18 n. 4.

. The majority faults assessor for not personally inspecting the property in preparation for trial. ¶ 34 n. 6. We are supposed to be reviewing the assessment, not factors or events such as trial strategies occurring two years after the fact. Under that analysis, "the burden [of proof] is imper-missibly shifted from the taxpayer to the director of equalization." Sabow v. Pennington County, 500 N.W.2d 257, 260 (S.D.1993).