CAF Investment Co. v. Saginaw Township

Fitzgerald, J.

(dissenting). We are asked to determine whether the Tax Tribunal complied with our holding in CAF Investment Co v State Tax Comm., 392 Mich 442; 221 NW2d 588 (1974), in the remand proceedings held in this case.

In our 1974 opinion, we stated that actual income which was "relevant to a determination of 'usual selling price1 or "demonstrably related to fair market value”2 must be considered by the Tax Tribunal in determining true cash value.3 Thus, the relationship to true cash value having been established, we required only that actual income be considered; not that it necessarily be used in all circumstances and certainly not that it be used exclusively. CAF Investment Co v State Tax Comm, supra, 392 Mich 455-456. We set forth a nonexhaustive list of other factors which may be *482considered in addition to those listed in MCL 211.27; MSA 7.27. Another factor not mentioned earlier, which may properly be taken into account here, is the value of the lessee’s interest in the property.4

In the instant case, the Court of Appeals misconstrued the holding in our 1974 opinion by requiring that actual income "must constitute the basis for the valuation”. CAF Investment Co v Saginaw Twp, 79 Mich App 559, 564; 262 NW2d 863 (1977). As stated above, we required only that actual income be considered by the Tax Tribunal.

I reiterate our holding that actual income, if relevant to a determination of "usual selling price”, must be considered in arriving at true cash value.5 It is only one of many factors to be considered and it may be rejected if it is inappropriate as applied to the facts of a particular case. CAF Investment Co v State Tax Comm, 392 Mich 456.

The Tax Tribunal considered actual income in *483the remand proceedings and rejected its use as inappropriate in this case. Among other things, the tribunal noted in its opinion that the relationship and the lease between C.A.F. and its tenant were not typical of the normal market because of the favored status enjoyed by the limited number of K-Mart developers and because the lessee, being a highly desirable commercial tenant, could receive more favorable lease terms than a more marginal tenant.6 Furthermore, the tribunal was correct in rejecting C.A.F.’s appraisal since it was predicated solely on thé income from the lessor’s interest in the property and not on other relevant factors.

I conclude that the Tax Tribunal sufficiently complied with the holding in our 1974 opinion.7 I, *484therefore, would reverse the Court of Appeals and reinstate the findings of the Tax Tribunal.

CAF Investment Co v State Tax Comm, 392 Mich 442, 454; 221 NW2d 588 (1974).

Id., 455.

For the definition of cash value, see MCL 211.27; MSA 7.27.

In In re Petition of Auditor General, 260 Mich 578, 581; 245 NW 522 (1932), this Court stated:

"It is the rule in this State that a parcel of real estate must be assessed as an entirety ([1929 CL] 3390, 3391), at cash value, including worth of standing timber, mineral rights, 'water power and privileges,’ etc. (§ 3415). This legislative policy is emphasized by the fact that the statute mentions only a single exception, i.e., the interests of tenants in common, § 3394.”

To assess this "parcel of real estate * * * as an entirety” requires that the lessor’s and the lessee’s interest be considered. A review of the General Property Tax Act discloses no attempt by the Legislature to distinguish between and tax separately the interests created by the lease. Rather, the tax is levied on the property itself.

As Justice Moody’s opinion notes, a majority of states permits the consideration of actual income along with full potential earning capacity: CAF Investment Co v State Tax Comm, Moody, J., p 495. See, also, Anno: Income or rental value as a factor in evaluation of real property for purposes of taxation, 96 ALR2d 666, §§ 2, 4a, 8b, 8c, where the annotator concludes that it is well settled that ordinarily actual income may be considered in determining value for taxation purposes. The relative weight to be accorded actual income is left to the discretion of the taxing authority to be determined on the particular facts of each case.

"Petitioner’s appraiser testified that there are only 3 or 4 developers in the county [sic] who can develop 'K-Mart’ stores for S.S. Kresge Company. Although this somewhat cryptic comment was not elaborated on or explained, that fact suggests that certain developers enjoy a favored status with S.S. Kresge Company, and as such the relationship and the lease between Petitioner and its tenant is not typical of the normal market.”

"The testimony indicated that S.S. Kresge from a financial standpoint is a highly desirable commercial tenant. The evidence suggests and we conclude therefore that S.S. Kresge Company, as such a favored tenant, could receive more favorable lease terms as to the amount of rent per square foot it would be required to pay, which in turn, unless recognized by use of a lower capitalization rate would result in a subnormal valuation. We find no evidence in Petitioner’s appraisal that this factor was given any consideration and conclude as such that the resulting appraisal is questionable by reason thereof.”

I disapprove of that portion of the Tax Tribunal’s opinion which states:

"Accordingly, guided and controlled as we are by the Supreme Court’s prior determination in this case that 'economic income’ means 'actual income’ we therefore conclude that in providing for its consideration it was not within the contemplation of the Legislature that such a method be used when the actual income realized under adverse lease terms represented only a portion of the commercial income potential of the property involved.”

The tribunal may not reject the consideration of actual income, as a general rule, in cases involving adverse lease terms. In all cases, actual income must be considered together with all other relevant *484factors and it may only be rejected on the basis of particular facts of the case involved. In this case, because the tribunal considered and rejected actual income on the basis of the unique facts involved here, I do not believe that this gratuitous statement affected the outcome of this case.