Clapp v. Cass County

VOGEL, Justice, joined by PEDERSON, Justice (dissenting).

The question to be decided in this case is simply whether the North Dakota Tax Commissioner must follow the statutory definition of “market value” in arriving at the assessed valuation of “flower” bonds, or whether he is at liberty to substitute a different valuation, par value, simply because the bonds can be used at a higher valuation for the specific purpose of paying Federal estate taxes.

I

North Dakota’s basic scheme for estate taxation was established in 1927 by Chapter 267, 1927 Session Laws. It provided, in Section 6:

“All assessments shall be made upon appraisals of the full and fair cash value of the property to be transferred as of the date of the death of the decedent.”

In 1965, this provision was amended as follows:

“The value of the gross estate of the decedent shall be determined by including to the extent provided in this chapter, the value at the time of his death of all property, real or personal, tangible or intangible.” Ch. 410, S.L.1965.

In 1969, a further amendment, which remained in effect at the time of Mrs. Clapp’s death, provided:

“The value of the gross estate of the decedent shall be determined by including to the extent provided in this chapter, the value at the time of the decedent’s death of all property, real or personal, tangible or intangible. The term ‘value’ shall mean, for the purposes of this chapter, the fair market value at date of death unless provided otherwise by the provisions of this section.” Ch. 503, 1969 S.L.

Since the Legislature in 1969 used the term “fair market value,” which had a clear and well-defined meaning established by statute and case law [see Section III below], we are required to conclude that it used the words in the light of their established definition.1

*859We must presume that the Legislature had in mind these definitions of “market value” when it used the term “fair market value” in Chapter 503, 1969 Session Laws.

“In construing statutes the courts must take judicial notice of the history of the terms employed and, where statutes have been in existence for a long period of time, it must be presumed that the Legislature has at all times been aware of the meaning originally attaching to those terms. [Citations omitted.]” Horst v. Guy, 219 N.W.2d 153, 157 (N.D.1974).

Where a statute includes a term which is clear, certain, and unambiguous, there is no room for either administrative interpretation of that meaning [Secs. 1-02-02 and 1-02-03, N.D.C.C.; Sands, 2A Sutherland Statutory Construction (4th Ed., 1973), pp. 48, 238 — 239], or for judicial interpretation of it [Sec. 1-02-05, N.D.C.C.; In re Dilse, 219 N.W.2d 195 (N.D.1974); Horst v. Guy, supra; Rausch v. Nelson, 134 N.W.2d 519 (N.D.1965); Gipson v. First National Bank of Bismarck, 97 N.W.2d 671 (N.D.1959)].

II

The fact that the executor can put the property to a special use and obtain a benefit not available to anyone else is a special circumstance which has no bearing upon market value. Market value is unaffected by the needs of one particular buyer or the special circumstances of one particular seller. This basic principle is well stated in the standard jury instruction in eminent domain cases in use in this State (North Dakota Jury Instruction 905):

“In determining market value you must give no consideration to the fact that the [State of North Dakota] desires the [interest in the] property for a particular purpose. You must disregard any special value it may have to the [State of North Dakota] as distinguished from others who may or may not have the power to take this property. In other words, you must not consider the necessity of the taking authority. On the other hand, you must not take into consideration any peculiar value of the [interest in the] property to the owner. Any special or peculiar value to either the buyer or seller is not the measure of market value. You cannot consider the willingness or unwillingness of the landowner to have his property taken for [highway] purposes. The only question with respect to the property [interest] taken is the reasonable market value on the date of [taking] [trial].” (Emphasis added.)

See 4 Nichols, The Law of Eminent Domain, §§ 12.1, n. 19, 12.22[2] (3d Ed., 1975); United States v. Easement & R. of Way, 447 F.2d 1317, 1319 (6th Cir. 1971).

Ill

As the trial court pointed out, the term “fair market value” is a term well known to the law. In North Dakota the term “market value” has been defined both by judicial opinion and by statute. Little v. Burleigh County, 82 N.W.2d 603, 608 (N.D.1957), defines “market value” as “the highest price for which property can be sold in the open market by a willing seller to a willing purchaser, neither acting under compulsion and both exercising reasonable judgment.”

The term was defined in exactly the same way in Chapter 177, 1953 Session Laws, now codified as Section 24-01-01.1(23), N.D.C.C., relating to the code title “Highways.”

We have held that the terms “market value” and “actual cash value” are synonymous. Butler v. Aetna Insurance Co., 64 N.D. 764, 256 N.W. 214, 218 (1934). See also Public Service Commission v. Montana-Dakota Utilities Co., 100 N.W.2d 140, 146 (N.D.1959). Other courts have held that *860the precise term “fair market value” is synonymous with “market value” [Bridgeport Gas Co. v. Town of Stratford, 153 Conn. 333, 216 A.2d 439, 440 (1966)], or means exactly the same thing [In re Valuation and Equalization of Urban and Rural Real Estate, 180 Neb. 478, 143 N.W.2d 890, 892 (1966)]. And it has been held that the terms “market value,” “fair value,” and “fair market value” are synonymous and interchangeable. Kansas City Star Co. v. Wisconsin Department of Taxation, 8 Wis.2d 441, 99 N.W.2d 718, 723 (1959).

IV

The precise question before us has been presented to a number of courts, both State and Federal. The leading Federal case, Bankers Trust Co. v. United States, 284 F.2d 537, 538 (2d Cir. 1960), held that the bonds were to be valued at par for Federal estate tax purposes. The decision was based in large part upon a Federal statute permitting reference to other relevant facts and elements of value in determining market value.

State court decisions upholding assessment of tax based upon par value include In re Estate of Eggert, 82 Wash.2d 332, 510 P.2d 645 (1973); In re Estate of Hart, 30 Ohio Misc. 57, 277 N.E.2d 248 (1971); In re Estate of Young, 16 Ohio Misc. 332, 243 N.E.2d 123 (1969); In re Behm’s Estate, 19 A.D.2d 234, 241 N.Y.S.2d 264 (1963), affirmed per curiam 14 N.Y.2d 826, 251 N.Y.S.2d 475, 200 N.E.2d 457 (1964); In re Rosenfeld’s Estate, 62 Cal.2d 432, 42 Cal.Rptr. 447, 398 P.2d 783 (1965).

Cases taking the opposite view, that valuation for State tax purposes is to be based on market value and not par value, include In re Estate of Voss, 55 Ill.2d 313, 303 N.E.2d 9, 62 A.L.R.3d 1266 (1973); Department of Revenue v. First National Bank of Oregon, 4 Or.App. 477, 479 P.2d 256 (1971); In re Estate of Power, 156 Mont. 100, 476 P.2d 506 (1970).

The latter cases hold that market value is the test, and that “market value” means what it says.

The cases adhering to the par-value rule take one of several tacks. They either argue that there are “two markets,” one being the open market and the other being the United States Government [Eggert and Young, supra], or they rely upon special language in the State statutes or regulations to the effect that “other relevant facts and elements of value” or similar language may be considered in arriving at market value [Bankers Trust Co., Hart, Young, and Rosenfeld, supra], or they rely upon a special State policy established by many court decisions to conform to Federal estate tax law [Behm, supra]. We find none of these arguments applicable or persuasive here.

(a) Our statutory definition has been stated. It speaks of one market, not multiple markets. To say that there are two markets, and that one of them is the United States Government, is to ignore the fact that such a “market” is open to only one particular type of holder, who must die to take advantage of it, and that there is only one buyer, while at the same time there is a genuine market, with many buyers and sellers and an established price elsewhere.

(b) We have no State policy of conforming to Federal estate tax law. The Tax Commissioner asserts that such a policy is established in this State by Section 57-37-22, N.D.C.C., the second paragraph of which reads:

“It shall be the further duty of the executor, ... to file an amended estate tax return within ninety days after any amended estate tax return is filed pursuant to the provisions of the United States Internal Revenue Code. If no amended federal estate tax return is filed but the federal estate tax return is changed or corrected, such change or correction shall be reported to the county court and to the state tax commissioner within ninety days after the final determination of such change or correction is *861made and the court shall reassess the estate tax thereon. Upon receipt of an amended estate tax return or, upon notification of any change or correction made on the federal estate tax return, the county court, having jurisdiction over the estate, shall reassess the estate tax.”

We understand this statute to require a report of amendments to Federal estate tax returns or assessments of Federal estate taxes, and a reassessment of the State estate tax, but we do not interpret the statute as requiring that the State reassessment be in accordance with the Federal assessment.

Our prior decisions do not indicate a general conformity of State estate tax law to Federal law, even though they are similar in some respects. See In re Dilse, supra, and Messner v. Dorgan, 228 N.W.2d 311 (N.D.1974).

(c) Nor does North Dakota law include a provision that “other relevant facts and elements of value” be taken into account. As we mentioned above, such provisions are found in the statutes or ease law of several of the States adhering to the par-value rule. The Tax Commissioner points to his regulation R-57-37-21 as containing similar language. It is true that R-57-37-21 includes the following:

“All relevant facts and elements of value as of the date of decedent’s death should be considered in every case in determining the value of any property.”

We find no authority for inclusion of such language in this regulation, and we particularly find no authority for extension of the language to the facts of the present case. Further, the statute which the regulation purports to interpret contains this sentence:

“The term ‘value’ shall mean, for the purposes of this chapter, the fair market value at date of death unless provided otherwise by the provisions of this section.”

Under the guise of interpretation an administrative agency cannot alter the meaning of a statute. Messner v. Dorgan, supra, syllabus ¶ 3.

A provision of the 1965 statute (Ch. 410, § 1, 1965 S.L., codified as § 57-37-21, subd. 2) remaining in effect at the time of Mrs. Clapp’s death provided:

“In the case of stock and securities of a corporation the value of which, by reason of their not being listed on an exchange and by reason of the absence of sales thereof, cannot be determined with reference to bid and asked prices or with reference to sales prices, the value thereof shall be determined by taking into consideration, in addition to all other factors, the value of stock or securities of corporations engaged in the same or a similar line of business which are listed on an exchange.”

It was suggested in argument that this statute, by its use of language permitting the consideration of “all other factors,” creates a parallel with the Federal cases and State cases which rely upon language in statutes or regulations permitting reference to “other relevant facts and elements of value.” However, we fail to see the applicability of this statute to the case before us. Even if we could consider United States bonds as “stock and securities of a corporation,” a doubtful proposition at best, we have no doubt that the bonds in question are listed upon stock exchanges daily and the value can be determined with reference to bid and asked prices, as reference to any daily stock market report will show.

The use of the term “fair market value,” synonymous with “market value,” which has been repeatedly defined by statute and court decision in this State, provides a clear and concise rule of valuation.2

*862Neither a court not the Tax Commissioner is at liberty to disregard the plain language of a statute using words defined by another statute. Secs. 1-02-02, 1-02-03, and 1-02-05, N.D.C.C. Further, we believe that the use of the par value as a valuation for tax purposes, even though there is a definite market value different in amount, substitutes in place of the market value a “peculiar value to an individual executor” or an “inflated value to a particular executor” [In re Estate of Power, supra, 476 P.2d 506, at 509]. We agree with Department of Revenue v. First Nat. Bank of Oregon, supra, that we are required, where the statute is not ambiguous, to value the property in question as if there were no Federal estate tax.

We are unpersuaded by the cases to the contrary, cited herein, for the reason that they rely either upon a State policy of conformity to Federal estate tax law or upon language such as “other relevant facts and elements of value” not present in our statutes, or they rely upon the dubious doctrine that there can be two markets and two market values for the same security at the same time.

If the statutory definitions of “market value” were unclear, we would adhere to the rule that tax statutes are to be construed against the government and in favor of the taxpayer. In re Dilse, supra; Great Northern Railway Co. v. Flaten, 225 N.W.2d 75 (1974). But we believe the statute is clear, and we are not at liberty to construe it at all.

PEDERSON, J., concurs.

. It surely is more reasonable to assume that the Legislature intended to use “fair market value” in its accepted sense, than to assume that it meant to include “other rele*859vant factors” when it repealed a method of determining value by twelve-month averaging, as the majority does. Furthermore, the term “fair market value” was put into the law two years after the repeal of the provision for averaging, so the later provision must prevail if there is any inconsistency.

. Other jurisdictions agree that “market value” has a plain, definite, and well-understood meaning. Atlantic Baggage & Cab Co. v. Mizo, 4 Ga.App. 407, 61 S.E. 844, 847 (1908); State ex rel. Snidow v. State Board of Equalization, 93 Mont. 19, 17 P.2d 68, 74 (1933); Tidal Western Oil Corp. v. Blair, 39 S.W.2d 1103, 1105 (Tex.Civ.App.1931). It has an established legal meaning. Huber v. Moran, 140 F.2d 823, 824 (8th Cir. 1944).