dissenting.
[¶ 32] I respectfully dissent.
[¶ 33] After trial, the district judge originally assigned to the case found:
Both parties have enjoyed a modest standard of living. Rodney has worked on the Rebel farm all his life. Helen worked on the farm, briefly, and then was employed-in town. Both • párties’ income and effort- contributed to the increase in the marital estate.
*267The circumstances and necessities of each' are equal. Both parties have worked hard all their adult lives.
At marriage, neither party owned any substantial property. The efforts of both have resulted in a substantial marital estate. The marital estate is almost entirely tied to the farming and ranching activities.
[¶ 34] Despite their joint efforts, Rodney- Rebel leaves this marriage with net property of $1,727,365, the use of which he enjoys immediately. Helen Rebel leaves this marriage with net property of $266,721 now and an additional $410,207, the full enjoyment of which is deferred for seventeen years, at an interest rate that is less than described by the district court, and which bears.the uncertainty that Rodney Rebel will fulfill his obligations to pay her. Helen Rebel’s affair and Rodney Rebel’s desire to farm land, which derived from his family, do not support this disparity. The justifications offered to support this disparity violate principles announced in our easelaw. Further, the testimony offered by both Rodney Rebel and his banker on remand would support a different result.
[¶ 35] The majority opinion, at paragraph 3, recites the directions of the majority opinion, in remanding the case, that the source of the property was not a sufficient reason for this disparate allocation when both spouses were purchasers and both contributed to the increase of the estate. However, the majority now seems to accept the “phantom arithmetic” of the district court that állows a liquidation that is never going to happen to justify the disparity. This “phantom arithmetic” is quoted^at length in paragraph 16 of the majority opinion to justify the ultimate number that the district court orders as a payment to Helen Rebel..
After reducing the net marital estate awarded to Rodney by 38% ■ Rodney’s equity would be $1,070,966.38 ($1,727,-365.13 X 38% = $656,398.75) ($1,727,-.365.13 - $656,398.75 = $1,070,966.36). Adding this amount to the assets awarded to Helen results in a total of $1,337,687.55 . ($1,070,966.36 + $266,721.17 = $1,337,687.55). Dividing this amount by two results in $668,843.78 which is the approximate amount of an equal distribution after a forced liquidation.. Subtracting what , Helen has already received from this amount leaves a balance due to Helen of $402,122.61.’ .
In fact, the taxes and costs of- a forced liquidation, the 38% computed by the district court, are never going to occur as a result .of this distribution. This phantom arithmetic is a mental exercise that benefits only Rodney Rebel to the detriment of Helen Rebel. .Given the legally false premise on which it is based, the district court’s finding that “$410,207.00 is a fair and equitable, cash, settlement payment amount” is clearly; erroneous.
[¶ 36] Our easelaw has indicated that “phantom tax consequences are not a relevant basis on which to djvide marital property, While we acknowledge that a properly informed trial court must consider tax effects in a divorce, the tax consequences should only be considered when the liability-is. certain to occur within a short time following the dissolution.” Linrud v. Linrud, 1998 ND 55, ¶ 15, 574 N.W.2d 875 (citing Kaiser v, Kaiser, 474 N.W.2d 63, 69 (N.D.1991)),
[¶ 37] In Kaiser, we stated:
[A] trial court in a divorce action should consider potential taxes in valuing marital assets only if (1) the recognition of a tax' liability is required by the dissolution or will occur within a short time; (2) the court need not speculate about a *268party’s future dealing with the asset; (3) the court need not speculate about possible future tax consequences; and (4) the tax liability can be reasonably predicted.
474 N.W.2d at 69-70. See also Conzemius v. Conzemius, 2014 ND 5, ¶ 19, 841 N.W.2d 716.
[¶ 38] Tax consequences and liquidation costs not only must not be used when they are not going to be incurred; they cannot be used as justification to inequitably reduce the property allocated to one of the spouses who has contributed to the acquisition of the property. It is simply unfair. As the majority notes, a different, but equitable, property allocation that avoids the tax consequences is appropriate. This one is different, but not equitable. Rodney Rebel gets net property of $1,727,365 today; Helen Rebel may get $676,928 at a' reduced interest rate in seventeen years.
[¶ 39] What is even more problematic is that both Rodney Rebel and his banker Dale Sayler testified at the hearing on remand that a greater payment was possible, while allowing Rodney Rebel to continue farming. The first judgment entered in this divorce action required Rodney Rebel to pay Helen Rebel $512,534.78, with 20% due within 90 days of entry of judgment and the balance without interest within 36 months of entry of judgment. Rodney Rebel paid $102,506.95, as required by the first judgment, which Helen Rebel was unable to receive in order not to have accepted the benefits of a judgment which she appealed. That amount is held in her attorney’s trust account. On remand, his banker, and later Rodney Rebel, were asked by Rodney Rebel’s lawyer, whether it was possible to fund an additional $500,000 from the farming operation over the $102,000 on deposit. Both acknowledged that it was. Dale Sayler, the banker, testified:
Q. So what if the Court were to award her an additional 500,000, in addition to the 102,000 that’s in a trust account?
A. It possibly could work.
Q. Okay. You’re saying, “possibly,” not probably?
The banker also offered the possibility that Rodney Rebel had the wherewithal to finance $500,000 against the land, allowing Helen Rebel to be paid immediately and benefitting Rodney Rebel to the extent Helen Rebel would not have any lien on the property.
Q. Okay. What I’m asking is this, is that are you saying that Rodney could borrow that amount of money and have it repaid to the bank over 30, 40 years and then pay Ms. Rebel in cash or is it — it would be structured so that he would be making those payments to her out of those earnings?
A. Yeah. You know, it can be done either way, but the bad thing about if you do it where he’s making a payment to Helen every year, I’m sure she would have some kind of lien on the land and what that would cause Rodney is if he would somewhere down the road, run into a little bit of a hiccup which is not uncommon in farming and ranching where loans need to be restructured. Helen would be calling the shots and probably — possibly wouldn’t allow that to happen. So it would be better to do somewhat of a — it might be better to do a cash settlement right now, up-front, and over with.
Q. All right. And, in your opinion, is the Rebel farm and ranch operation operating efficiently enough for Rodney to expect that he could go *269out and obtain a loan and pay Ms. Rebel the sum of $500,000?
A. I would venture to guess that Rodney could get that done someplace, yes.
Q. Okay. Whether your bank or another bank?
A. Right, yes.
Q. Do you think it would be possible for Mr. Rebel to obtain a loan beyond $500,000 under the current situation?
A. Possibly.
Q. But there’s no certainty there?
A. No certain — I mean — no.
[¶ 40] When Rodney Rebel testified, he also testified that he could pay Helen Rebel $500,000, in addition to the $102,000 that has been deposited to the trust account:
Q. Do you have in mind any amount of money that you would be able to afford to pay Helen as her share of an equitable distribution of your marital estate and be able to continue farming and ranching?
A. Yes.
Q. And what is that?
A. For what they — the stuff that they did, it was about $500,000.
Q. All right. Well, you’ve already paid Helen some money, correct?
A. $102,000, yes.
Q. And would that $500,000 be in addition to that, or—
A. Right. Yeah.
[¶41] Rodney Rebel wanted to pay $500,000 over time. This is consistent with the findings of the trial court after the original trial, “based upon the testimony of the parties’ banker, Dale Sayler, that the farm has a history as a successful farm with more than sufficient cash flow to service the debt against it and both provide means of support for the parties and allow for reinvestment back into the farm, which has resulted in an increasing value thereof.” While the district court must fashion an equitable distribution of property, it cannot be argued that the distribution ordered by the court is equitable when it is less than both the banker and Rodney Rebel argued is possible.
[¶ 42] To some extent, Helen Rebel did want a money payment and wanted Rodney Rebel to continue to farm the land and her own testimony supports the allocation of land to Rodney Rebel and money to Helen Rebel, although she did request that she receive some parcels of land. The district court was hampered at the first trial by appraisals that did not segregate parcels of land so that tax free distributions of land could be made to both parties. Rather, the evidence focused on the problems of reducing or changing the farming operation and concentrated on how much of a cash payment the operation could handle. However, the disparity of the amount ultimately awarded to Helen Rebel cannot be justified, particularly in light of Dale Sayler and Rodney Rebel’s testimony on remand,
[¶ 43] Further, the deferment of Helen Rebel’s enjoyment is problematic. This case was remanded, in part, because 80% of the $512,534.78 was deferred for three years without interest. The district court on remand extended the time period that Helen Rebel must wait to have her share of the property from three years to seventeen years. The district court purported to offset this delay by awarding Helen Rebel interest at the rate of 4.5%. In fact, payment at the rate of 4.5% amortized over 17 years would require an annual payment of $35,038.89, not $33,530, so the judgment even fails to award Helen Rebel the interest rate that the judgment facially states. Instead, the interest rate on the *270property allocated to her is approximately 3,93%.
[¶44] Normally, I would reverse and direct the court to fashion an equitable division of property, allowing the district' court the greatest latitude to distribute property as it found appropriate. However, in this case, given the lack of evidence about the values of individual parcels of land that would allow tax-free distributions of those parcels to either Helen Rebel or to Rodney- Rebel, I have to recognize the trial court was significantly hampered by the ■ lack of evidence it was provided. Therefore, -based upon the evidence heard on remand, I would reverse and direct the district, court to amend the following paragraphs .of the judgment dated January 23, 2015, to read as follows: •
In addition to the $102,506.95 previously paid, Rodney shall pay to Helen the sum of $500,000 with interest at the rate of 4,5% per an-num in 9 equal annual amortized installments of $68,787.24, with'the first payment due one year from the date of entry of this Amended Judgment. Should Rodney fail to make any of those payments within 10 days of the date the payment is due, Helen shall have the right to declare the entire balance due and owing.
. [6] At his sole election, Rodney is authorized to pay off,in full, at any time, whatever amount of the .. $500,000 that may then remain owing to Helen, without any additional interest or penalty.
Until such time as Rodney pays Helen the $500,000, she shall have a judgment lien against him and all of his property including the farm land as security for the balance- ow- ; ing. . )■
Rodney shall also be required to pay Helen interest at the rate of 4.5% per annum on the $500,000 from May 2, 2012 when the Judgment was entered, to the date this Amended Judgment is entered. The per diem amount of that interest carried out to four decimal places is $61.6438 per day. This interest payment shall be paid in full immediately upon entry of this Amended Judgment.
I would leave the other paragraphs of the amended judgment as originally entered on January 23, 2015.
[¶ 45] I do not regard the above as an equitable result for a long-term marriage where both parties fully contributed to the acquisition of the marital estate. However, it is more equitable than the order appealed from, it does not accept the improper logic forming the basis of the district court’s computation, and it recognizes the realities of the lack of evidence under which the district court had to construct a remedy. Therefore, I respectfully dissent.
[¶ 46] CAROL RONNING KAPSNER