dissenting.
I dissent because I am unable to agree with the conclusion reached by the majority or the process employed in reaching that conclusion.
Plaintiffs, owners of terminal grain elevators on the north side of Sioux City, Iowa, had attacked the assessor’s valuations on their properties for the years 1971 and 1972 as excessive and confiscatory. Following refusal of the Board of Review of the City of Sioux City to reduce the property tax assessment valuations plaintiffs appealed to the Woodbury District Court. After hearing the evidence the trial court reduced the assessed valuations placed upon plaintiffs’ properties and the structures situated thereon. Plaintiffs appeal only from those portions of the trial court’s decree concerned with the assessed value of the elevator structures and other buildings for the years 1971 and 1972.
The issues presented by this appeal involve section 441.21, The Code, 1971, which provided in part:
“1. All real and tangible personal property subject to taxation shall be valued at its actual value * * *.
“The actual value of all property subject to assessment and taxation shall be the fair and reasonable market value of such property. ‘Market value’ is defined as the fair and reasonable exchange in the year in which the property is listed and valued between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and each being familiar with all the facts relating to the particular property. Sale prices of the property or comparable property in normal transactions reflecting market value, and the probable availability or unavailability of persons interested in purchasing the property, shall be taken into consideration in arriving at its market value. In arriving at market value, sale prices of property in abnormal transactions not reflecting market value shall not be taken into account; or shall be adjusted to elimi*96nate the effect of facts which distort market value, * * *.
a * 9k *
“Notwithstanding any other provision of this section, the actual value of any property shall not exceed its fair and reasonable market value.
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“In the event market value of the property being assessed cannot be readily established in the foregoing manner, then the assessor may consider its productive and earning capacity if any, industrial conditions, its cost, physical and functional depreciation and obsolescence and replacement cost, and all other factors which would assist in determining the fair and reasonable market value of the property but the actual value shall not be determined by use of only one such factor. * * *
ii * * *
“The burden of proof shall be upon any complainant attacking such valuation as excessive, inadequate, inequitable or capricious; however, in protest or appeal proceedings when the complainant offers competent evidence by at least two disinterested witnesses that the market value of the property is less than the market value determined by the assessor, the burden of proof thereafter shall be upon the officials or persons seeking to uphold such valuation to be assessed.”
The provisions of section 441.21(1) were interpreted by this court in Juhl v. Greene County Board of Review, 188 N.W.2d 351, 352-353 (Iowa 1971), as follows:
“ * * * We held in the Tiffany case [188 N.W.2d 343 (Iowa 1971)] that this statute defines market value initially according to the ‘willing buyer-willing seller’ formula. Thus the statute contemplates the willing buyer-willing seller standard shall be first used. Other denominated methods may be used only if the property has no readily ascertainable market value under the buyer-seller test. Stated otherwise, the assessor (and later the court) may use one or more of the formulae based on productivity, earning capacity, industrial condition, cost, depreciation and the like if, and only if, the market value cannot be readily ascertained, under the willing buyer-willing seller formula.
i( * * *
“In this review de novo, § 441.39, Code, 1971, we hold the taxpayer carried his burden to show a readily ascertainable market value under the buyer-seller test, and produced two disinterested witnesses to show that the market value was less than that determined by the assessor. The burden shifted to the assessor to show one of two things: (1) that the fair market value of the elevator under the buyer-seller test was as assessed, or (2) that the grain elevator had no readily ascertainable market value defined according to the willing buyer-willing seller standard. In the event the assessor showed there was no readily ascertainable market value under the buyer-seller test he could use the criteria referred to by the statute as a second method. Absent such showing the second method could not be used. * * (Emphasis in original).
Donald F. Shepherd, Sioux City Assessor, testified as to the methods used to arrive at the 1971 assessed valuations of plaintiffs’ properties. Initially it was determined there were no sales of comparable properties and “therefore, the market value could not be used.” Since the “willing buyer-willing seller” valuation method was thus unavailable, Shepherd established the 1971 valuations by relying upon a replacement cost appraisal of plaintiffs’ properties “done a number of years before” with the assumption “that the appreciation in replacement cost was offset, more or less, by the depreciation of the facility.” Minor modifications of these figures were then undertaken to reflect individual characteristics of the different properties involved herein.
As to the 1972 assessment of plaintiffs’ properties Shepherd testified as follows:
“A. The examination for assessment of 1972 was made by Vanguard Appraisal *97Company, Incorporated, for our office; and, after they had submitted their appraisal, it was accepted by my office and our assessment was made based on that.
“Q. * * * The physical inspection of the premises made by Vanguard and the results taken from that inspection and the opinion arrived at by Vanguard was incorporated as your assessment, is that correct?
“A. Yes, I think so.
“Q. It was adopted?
“A. It was adopted, yes, sir.”
Willard A. Stewart, president of Vanguard Appraisers, Inc., a Cedar Rapids real estate appraisal firm, related the procedures used by his firm in determining the values attached to plaintiffs’ properties. Stewart, like Shepherd, did not find any sales of comparable properties which would enable the assessments to be ascertained by way of the “willing buyer-willing seller” valuation method. This fact was attributed to the “special-purpose” character of the properties in question. According to Stewart, sales of special purpose property “are hardly ever” at arm’s length. The properties were ultimately appraised by reducing replacement cost by a figure for normal depreciation “and then analyzing the grain handled to arrive at obsolescence factor.”
Plaintiffs’ principal witnesses and those whose testimony is most important to a resolution of this appeal were George L. Patchin, president of Patchin Appraisals, Incorporated, of Minneapolis, Minnesota and Fred A. Herrington, sole proprietor of Fred Herrington Company, a Lincoln, Nebraska real estate appraisal firm. As in the case of Shepherd and Stewart, plaintiffs’ experts were well qualified in their field.'
These witnesses each employed the market value approach under the “willing buyer-willing seller” formula. In order to justify this market value approach it was incumbent upon the taxpayers to initially show there was a readily ascertainable market value for their properties. The record discloses Patchin and Herrington took into consideration sales of what they maintain were comparable properties in arriving at their conclusion the subject properties had a readily ascertainable market value under the “willing buyer-willing seller” standard less than the assessor’s determination. As previously noted, Patchin had also utilized the replacement cost approach and income approach as supportive techniques to confirm his opinion of the market value of plaintiffs’ properties.
The majority’s handling of the burden of proof issue in division II is at best confusing and, possibly, contravenes previous statements of this court.
The majority assigns to taxpayers challenging an assessment valuation (1) the burden of going forward with the evidence and, initially, the burden of persuasion on the exchange values of the subject elevators, and (2) the burden of persuasion on the comparability of the allegedly comparable properties. The tax officials are assigned (1) the burden of persuasion on the exchange values of the subject properties if the taxpayers meet the requirements of section 441.21 and (2) the burden of persuasion on the issue of whether the sales price approach is readily establishable. This allocation of the various burdens appears to run contrary to the following statement, set out earlier, from Juhl v. Greene County-Board of Review, 188 N.W.2d at 353:
“In this review de novo, § 441.39, Code, 1971, we hold the taxpayer carried his burden to show a readily ascertainable market value under the buyer-seller test, and produced two disinterested witnesses to show that the market value was less than that determined by the assessor. The burden shifted to the assessor to show one of two things: (1) that the fair market value of the elevator under the buyer-seller test was as assessed, or (2) that the grain elevator had no readily ascertainable market value defined according to the willing buyer-willing seller standard. * * (Emphasis supplied).
Before any burden shifts to the tax officials, taxpayers must establish that a readily ascertainable market value for their properties exists. To satisfy this initial burden, taxpayers here relied upon sales of *98allegedly comparable properties. It is evident that to satisfy their initial burden as to a readily ascertainable market value, taxpayers must establish that the alleged comparables are in fact comparables. The majority assigns to the taxpayers the burden of persuasion on the issue of comparability. It is clear from the statute and from this court’s prior decisions that a readily ascertainable market value must be established by the taxpayer before any burden-shifting takes place. Instead, the majority assigns this burden to the tax official.
The first issue is whether the sales relied on by the taxpayers involved comparable properties since they cannot under the record here establish existence of a readily ascertainable market value of the assessed property under the “willing buyer-willing seller” approach when there is no sale of the subject property without offering competent evidence regarding sales of comparable property for the purpose of showing the fair and reasonable exchange value of the assessed property.
As to the sales of allegedly comparable elevators considered therein, the majority opinion holds the differences are “insufficient to render the elevators incomparable.” However, this statement at best minimizes and at worst ignores significant dissimilarities demonstrated by the record herein.
The district court held the allegedly comparable elevators were not comparable, relying most heavily upon the fact none of the alleged comparables “were in the drawing area" of plaintiffs’ elevators. The court was persuaded by the following language from Iowa Development Co. v. State Hgwy. Comm., 252 Iowa 978, 986-990, 108 N.W.2d 487, 492-494:
“Other similar sales need not be identical but must have a resemblance in order to be shown in evidence. Size, use, location and character of the land and time, mode and nature of the sale all have a bearing on the admissibility of such evidence. Much must be left to the sound discretion of the trial court in determining whether the other properties and conditions surrounding sale thereof are sufficiently similar so evidence of such sales is admissible. * * * [citing authorities].
“ * * * [Redfield v. Iowa State Highway Comm., 251 Iowa 332, 99 N.W.2d 413] involved a tract of 97.2 acres near the north edge of Des Moines. We held a five-acre tract, apparently sold for $4000 an acre, ‘was hardly comparable to appellants’ larger and more remote tract.’ * * * The development company’s land here was three and one-half times as large as Redfield’s. Most of the tracts listed above contain five acres or less and in other respects are dissimilar to the development company’s tract. We agree with defendant that the listed tracts were not shown sufficiently similar to the development company’s tract so evidence of these sales was admissible for any purpose in its case. * * *
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“We are satisfied receipt of this evidence over defendant’s objection was error. The Roseport tract was more than 18 times as large as the 342 acres under consideration here. Improvements had been installed upon it like those still in the planning stage for the property in Iowa. The Roseport land is near a population center some four times as large as Des Moines, over 200 miles distant, in another state. Lack of similarity of the two tracts seems apparent.” See also Perry v. Iowa State Highway Commission, 180 N.W.2d 417, 420 (Iowa 1970).
The district court’s finding that none of the allegedly comparable elevators were within the drawing area of plaintiffs’ elevators is based upon a diagram included in the appraisal report compiled by plaintiffs’ witness Patchin. That diagram demonstrates that the Sioux City grain drawing area is almost entirely north and west of Sioux City and extends only approximately 125 miles in those directions. As the appraisal report states, “ * * * considerable grain that you might expect to move toward Sioux City actually does not, but flows to Minneapolis, Rapid City, Des Moines, Council Bluffs, Omaha, St. Joseph and Kansas City, Missouri.”
The majority opinion does not mention the undisputed fact the subject elevators *99and the alleged comparables draw grain from different areas. Clearly this fact affects the value of the various elevators and consequently the comparability thereof. This significant dissimilarity must be considered in determining whether the elevators involved herein are comparable within the meaning of section 441.21(1).
Although the district court appears to have weighed most heavily the differences in the drawing areas of the elevators concerned, it also pointed out other dissimilarities established by the record herein. The court noted the different locations of the alleged comparables and the distances involved. In addition, the court pointed out the diverse ages, construction materials and general conditions of the facilities. Plaintiffs’ contention the district court erroneously based its decision solely upon the distance factor is clearly without merit. The court considered many factors one of which was the distance separating plaintiffs’ properties from those alleged to be comparable thereto. Such distance is an appropriate consideration in determining the comparability of properties. See Perry v. Iowa State Highway Commission, 180 N.W.2d at 420; Iowa Development Co. v. State Hgwy. Comm., 252 Iowa at 990, 108 N.W.2d at 494; Buzzard v. Mapco, Inc., 499 S.W.2d 352, 358 (Tex.Civ.App.1973); Ford v. State, 432 S.W.2d 720, 721 (Tex.Civ.App.1968); Commonwealth v. Oakland United Baptist Church, 372 S.W.2d 412, 414 (Ky.1963).
The following table, compiled from the appraisal report of plaintiffs’ witness Patchin, is set out to assist in the comparison of plaintiffs’ elevators with those considered in the majority opinion:
Licensed Capacity; (Bushels) Date Built Date Sold Price Condition Relative Price/ To Bushel Subjects
Bartlett 4,076,000 Various
Farmers 848,552 Various
Terminal 3,785,000 Various
Waterloo 1,000,000 1937-1945 6/71 $ 120,000 $ .12 Superior
Omaha 1,847,077 Various 9/68 $ 237,500 $.129 Superior
Havelock 8,219,200 1959 1966 $1,200,000 $.146 Superior
Kansas City 1,895,365 1970 $ 162,000 $.0855 Similar
Emporia 450,000 1960 1970 $ 35,000 $.078 Inferior
Hutchinson 4,500,000 1928 to date 7/66 $ 450,000 $ .10 Superior
Minneapolis X 600,000 1969 $ 70,000 $.1167 Inferior
St. Louis Park 2,200,000 1969 $ 180,000 $.082 Similar
Minneapolis II 2,000,000 5/1/72 $ 815,000 $.092 Superior
St. Joseph 2,500,000 1918 1/1/73 $ 125,000 $ .05 Superior
As demonstrated by the table set out above, the allegedly comparable elevators differed as a group in many respects. For instance the storage capacity of each facility ranged from 8.2 million to 450,000 bushels, whereas plaintiffs’ elevators had capacities of 4.08 million bushels, 850,000 bushels and 3.8 million bushels. The sale price of the subject elevators ranged from $1,200,-000 to $1.00. In addition to the size, location, age, date of sale and condition dissimilarities it should also be pointed out the construction materials used in building the alleged comparables varied from exclusively concrete (Waterloo, Omaha, Kansas City, Hutchinson and St. Louis Park), to concrete and steel (Havelock and Minneapolis I) and exclusively steel (Emporia).
*100As noted in the majority opinion, the sale price of the Waterloo facility could be considered to be the $120,000 figure utilized in the table above or it could be considered to be that figure plus the $60;000 credit granted the purchaser for lease payments made to the date of sale. It would appear to be more appropriate to consider the actual sale price of that facility as $180,000 or $.18 per bushel capacity.
Pertinent to this discussion is the following from Perry v. Iowa State Highway Commission, 180 N.W.2d at 420:
“The purpose of showing other sales is to assist the jury in finding the value of the subject property by showing what similar property is bringing. Jurors are men and women of the world, and when the differences between the properties are brought out in evidence, as they were here, the jurors can make comparisons in value. Admissibility does not require a showing of the sale yesterday of the farm across the fence precisely like the subject farm. On the other hand, conditions must be similar so that the other sales are actually helpful to the jury in arriving at the value of this farm. * *
Although many of the authorities cited herein deal with the issue of comparability as a foundational requirement for the introduction of evidence in a trial at law, the definitional language is pertinent hereto. However, any language referring to the function of the jury or concerning discretion vested in the trial court is inapplicable here. This court’s review is de novo, and therefore, an independent examination of the alleged comparability of the properties concerned herein must be undertaken.
In Fairfield Gardens, Inc. v. United States, 306 F.2d 167, 172-173 (9 Cir. 1962), the court dealt with the issue of comparability as follows:
“ * * * In the field of real estate valuation it has long been the rule that sales of other property are not admissible unless the other property is comparable. And comparability, while it does not mean identity, because each parcel of real property differs from every other parcel, does mean, at the very least, similarity in many respects. Here, the dissimilarities seem to us far more striking than the similarities. *
In the instant case, as in Fairfield Gardens, the dissimilarities appear far more striking than the similarities. In fact the only apparent similarity between plaintiffs’ properties and the allegedly comparable properties is the fact all are grain elevators located in the Midwest. On the other hand, an examination of the well-documented record discloses diverse structural components, locations, grain drawing areas, bushel capacities and dates of construction. The alleged comparables are far more dissimilar to plaintiffs’ properties than similar.
A review of the evidence of record herein, including the appraisal reports, testimony and exhibits, demonstrates that the alleged comparables are more dissimilar than similar to plaintiffs’ elevators.
From a de novo review I would conclude plaintiffs did not sustain their initial statutory burden of showing a readily ascertainable market value of their properties under the “willing buyer-willing seller” formula by reason of their failure to show the sales relied on to establish such market were in fact sales of comparable properties as contemplated by the statute. Hence, it was proper for the assessor to consider and use the other criteria permitted under the statute in arriving at the market value of plaintiffs’ properties.
Without reaching the other issues mentioned in the majority opinion I would affirm.