O'NEILL v. Department of Revenue

                                          No. 00-791

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2002 MT 130



DANIEL J. and SHEILA M. O'NEILL,
As Trustees of the SHEILA M. O'NEILL
FAMILY TRUST,

              Petitioners and Respondents,

         v.

THE DEPARTMENT OF REVENUE,
STATE OF MONTANA,

              Respondent and Appellant.




APPEAL FROM:         District Court of the Second Judicial District,
                     In and for the County of Silver Bow,
                     The Honorable James E. Purcell, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Daniel J. Whyte, Tax Counsel, Montana Department of Revenue,
              Helena, Montana

              For Respondents:

                     Mollie A. Maffei, Maffei Law Firm, Butte, Montana


                                                        Submitted on Briefs: August 16, 2001

                                                                 Decided: June 18, 2002
Filed:


                     __________________________________________
                                       Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.


¶1     The Department of Revenue (DOR or Department) appraised three properties owned by

Daniel and Sheila O'Neill and assessed a value to each property. The O'Neills claimed the properties

had been overvalued and challenged the values through appropriate administrative procedures and

then to the Montana Second Judicial District Court. The District Court agreed with the O'Neills and

assigned significantly lower values to the subject properties. The DOR appeals the District Court's

ruling. We reverse.

¶2     The issue before this Court is whether the District Court erred in overturning the State Tax

Appeal Board and substituting its assessment of value in place of the Department of Revenue's.

                      FACTUAL AND PROCEDURAL BACKGROUND

¶3     At issue are two parcels of property, designated for purposes of this decision as the

Dental Clinic and Vacant Land. In the original administrative proceeding, the value of a

third parcel known as Big A was also disputed. This parcel was subsequently sold and will

not be addressed here.

¶4     In 1989, the O'Neills purchased over twenty-five contiguous and non-contiguous lots in

Block Number 11 of the Atherton Place on the Lakes Addition in Butte, Montana, for $85,000. Six

contiguous lots were subsequently used in 1991 for construction of the Dental Clinic at a completed

construction cost of $177,762. The remaining undeveloped lots constitute the Vacant Land parcel.

At the time of the District Court proceedings, the O'Neills were attempting to sell the Vacant Land

for approximately $179,000.

¶5     In 1993, the DOR performed an original assessment of the properties and assigned market



                                                 2
values to the Dental Clinic land, the Dental Clinic itself, designated the "Dental Clinic

improvements," and the Vacant Land. The O'Neills, believing that the properties had been

overvalued, requested that the DOR review and revise its original assessments. After review in

1994, the Department reduced the land values for both parcels but did not change the assessed value

of the Dental Clinic improvements.

¶6        The O'Neills continued to maintain that the properties had been overvalued and appealed to

the Silver Bow County Tax Appeal Board (CTAB). CTAB denied their appeal.

¶7        The O'Neills then appealed to the State Tax Appeal Board (STAB) which granted further

reductions to the land values and ordered that the properties be entered into the Silver Bow County

tax rolls.

¶8        Dissatisfied with the reductions assessed by STAB, the O'Neills, in accordance with § 15-2-

303, MCA, appealed STAB's ruling to the Montana Second Judicial District Court. The District

Court conducted a hearing in November 1996 during which additional evidence was presented in the

form of the testimony of appraiser Jack McLeod, who testified on behalf of the O'Neills. McLeod,

who had appraised the Dental Clinic in 1990 but had not appraised the Vacant Land, testified that

the DOR had overvalued the O'Neills' properties and that comparable sales in the area proved a

lower value should have been applied. The District Court vacated STAB's values and assigned

significantly lower values to the O'Neills' properties. DOR appeals.

¶9        The table below reflects the various values assigned to these two parcels and the Dental

Clinic improvements from the time of purchase to June 2000 when the District Court issued its

ruling.

                                   Dental Clinic-         Dental Clinic -         Vacant Land

                                                   3
                                        land             improvements
 Purchase/construction          Included in price            177,762                 85,000
 price                          of Vacant Land
 DOR 1993                             62,790                 220,200                357,750
 DOR Review 1994                      45,450                 220,200                289,350
 CTAB                           denied appeal - no reassessment
 STAB 1995                            44,250                 220,200                246,000
 Requested by O'Neills                21,617                 175,975                 81,066
 District Court                      $190,000                                        85,000
 June 26, 2000


                                  STANDARD OF REVIEW

¶10    A district court reviews an administrative decision in a contested case to determine whether

the findings of fact are clearly erroneous and whether the agency correctly interpreted the law.

Laudert v. Richland County Sheriff's Dept., 2000 MT 218, ¶14, 301 Mont. 114, ¶14, 7 P.3d. 386,

¶14. We employ the same standards when reviewing a district court order affirming or

reversing an administrative decision. Laudert, ¶14 (citing Langager v. Crazy Creek

Products, Inc., 1998 MT 44, ¶13, 287 Mont. 445, ¶13, 954 P.2d 1169, ¶13.)

                                         DISCUSSION

¶11    The Legislature has mandated that the DOR assess all property subject to taxation at 100% of

its "market value," except under certain circumstances that do not apply to this case. Sections 15-8-

101 and 15-8-111, MCA. "Market value" is statutorily defined as "the value at which

property would change hands between a willing buyer and a willing seller, neither being



                                                 4
under any compulsion to buy or to sell and both having reasonable knowledge of

relevant facts." Section 15-8-111(2)(a), MCA. In addition to defining "market value,"

the Legislature also addressed approaches to be used to determine market value:

       (b)    If the department uses construction cost as one approximation of
              market       value, the department shall fully consider reduction in
              value caused by depreciation, whether through physical
              depreciation, functional obsolescence, or economic obsolescence.

       (c)    If the department uses the capitalization of net income method as
              one approximation of market value and sufficient, relevant
              information on comparable sales and construction cost exists, the
              department shall rely upon the two methods that provide a similar
              market value as the better indicators of market value. (Emphasis
              provided) Sections 15-8-111(2)(b) and (c), MCA.

¶12    The DOR explained that it consistently utilizes, as it did in this case, one of the three

approaches specified by the Legislature when appraising property to determine market value,

i.e., the cost approach (§ 15-8-111(2)(b), MCA), the market data approach (i.e., comparable

sales, § 15-8-111(2)(c), MCA), and the income capitalization approach (§ 15-8-111(2)(c),

MCA). The DOR maintained that this Court has specifically accepted these appraisal

approaches in Albright v. Montana Dept. of Revenue (1997), 281 Mont. 196, 933 P.2d 815.

¶13    The Department explained that it appraised the Vacant Land as well as the land on

which the Dental Clinic is located at $500 per foot of Monroe Avenue street frontage, and a

significantly lesser per foot figure for lots not facing Monroe Avenue. The DOR claimed

that its "per foot land values" were appropriately derived from market data acquired from the

sales of comparable property between 1988 and 1992. Using this market data, the DOR then

utilized the Computer Assisted Land Pricing program and derived the square foot land

                                               5
values.

¶14    For the Dental Clinic improvements, the DOR had no comparable sales available. Therefore,

the Department used the cost approach which took the estimated value of the land, based on

market data, and added to it the current construction or replacement costs of the

improvements. The Department then subtracted the amount of depreciation from the

improvements. This method is known as "Replacement Cost New Less Depreciation."

¶15    The O'Neills argued that the Dental Clinic improvements should have been assessed at the

same value as the neighboring veterinary clinic's improvements. Both clinics had been built at

approximately the same time, on the same size parcel of land, for approximately the same

construction costs, and were similarly structured. The DOR contended, however, that while

similarities did exist, the clinics were not comparable for several reasons, including but not limited

to, major differences in construction, interior finish, layout, roof structure, partitions, type of

plumbing, the existence of Dental Clinic outbuildings, as well as paving and landscaping

differences.

¶16    The O'Neills presented the DOR with various "comparable properties" in an effort to show

that their parcels had been overvalued compared to these other properties. The DOR concluded,

however, that the presented properties were not "comparable sales" nor were they similar enough in

size or property class; for example, some of the presented comparables were agricultural and

residential properties.

¶17    During the District Court hearing, authorized pursuant to § 15-2-303(5), MCA, Jack

McLeod, an experienced real estate broker, developer and appraiser, testified on behalf of the

O'Neills. Mr. McLeod offered testimony that based upon comparable sales figures with

                                                  6
which he was familiar, the DOR had overvalued the O'Neills' property. He also stated that

the Dental Clinic and the veterinary clinic should have comparable assessments based on

construction costs and the other similarities of the buildings. The DOR countered that Mr.

McLeod had never appraised the value of the veterinary clinic and had appraised the Dental

Clinic six years earlier, making that appraisal, by Mr. McLeod's admission, stale. The DOR

further argued that Mr. McLeod was testifying to values of other properties for which he had

not performed assessments, lacked awareness of zoning, and was missing other pertinent

information necessary to form reliable appraisals and assessments.

¶18    In its Findings of Fact/Conclusions of Law issued pursuant to Rule 52(a), M.R.Civ.P.,

the District Court concluded that the DOR's approach was "theoretical" and adopted instead

an "acquisition value" approach, stating that "true market value can only be determined when

the property is eventually sold, and until it is sold, the purchase price of the property should

be uses [sic] as the market value."

¶19    Upon concluding that the acquisition value was the appropriate method to use to determine

the value of the O'Neills' property, the District Court ruled that the assessed value of the Vacant

Land and the land beneath the Dental Clinic should be its purchase price of $85,000. The court

further concluded that the price a taxpayer may be asking for a parcel of property for sale has

nothing to do with the present value, and until the land is sold, the value of the land is a matter of

conjecture. The District Court also concluded that the different uses of the Dental Clinic and

the veterinary clinic "do not justify [a] higher value when the construction costs of both is

[sic] the same." The District Court therefore determined that the assessed value of the Dental


                                                  7
Clinic should be its 1991 construction cost of $177,000+, plus the cost of paving, resulting in

a total assessment value of $190,000.

¶20      Moreover, the District Court opined in its legal conclusions that:

         STAB concludes that the tax payer has not produced sufficient evidence to establish
         that any of his proposed land values are true market values. However, STAB uses its
         theoretical approach based on appraiser manuals to determine what it concludes is
         true market value. True market value can only be determined when the property is
         eventually sold, and until it is sold, the purchase price of the property should be uses
         [sic] as the market value.

¶21      On appeal, the DOR maintains that it specifically does NOT use the acquisition value as the

market value, defining "acquisition value" as the price at which a parcel of property most recently

sold on the market. It argues that the acquisition value was not a statutorily-authorized method for

determining market value. Moreover, the DOR contends that this Court has specifically held that

"Montana does not have an 'acquisition value' system of taxation." Roosevelt v. Montana Dept. of

Revenue, 1999 MT 30, ¶43, 293 Mont. 240, ¶43, 975 P.2d 295, ¶43. Further, the DOR argues that

the acquisition value system of taxation results in significant disparity among similarly

situated properties, and that the District Court's assessment of the O'Neills' properties based

on acquisition value in Silver Bow County only, contravenes § 15-7-112, MCA, which

requires that the same method of appraisal and assessment be used in each county of the

State.

¶22      In reaching our decision in this matter, we are guided by § 2-4-704, MCA, which provides:

         (2)    The Court may not substitute its judgment for that of the agency as to
         the weight of the evidence on questions of fact. The court may affirm the
         decision of the agency or remand the case for further proceedings. The court
         may reverse or modify the decision if substantial rights of the appellant have
         been prejudiced because:

                                                    8
       (a)   The administrative finding, inferences, conclusions or decisions are:
       ...
       (v)   clearly erroneous in view of the reliable, probative, and substantial
       evidence on the whole record.

Under this statute, the District Court as a reviewing court could have reversed or modified

STAB's decision and remanded the case for further proceedings if it concluded that the

O'Neills' substantial rights had been prejudiced because the administrative findings were

clearly erroneous in view of the reliable evidence of the record. Dept. Of Revenue v. Grouse

Mt. Development (1985), 218 Mont. 353, 707 P.2d 1113. However, the District Court

reached no such conclusion. It simply applied its own analysis in place of that applied by

STAB.

¶23    Section 2-4-704, MCA, does not contemplate a wholesale substitution of the District Court's

opinion for that of the agency. This Court has stated that "it is not a judicial function to act as an

authority on taxation matters. Tax appeal boards are particularly suited for settling disputes over the

appropriate valuation of a given piece of property, and the judiciary cannot properly interfere with

that function." Grouse, 218 Mont. 355, 707 P.2d 1115 (citing Northwest Land v. State Tax Appeal

Board (1983), 203 Mont. 313, 661 P.2d 44, overruled on other grounds by Devoe v. Department Of

Revenue (1993), 263 Mont. 100, 866 P.2d 228). Moreover, we have held that "[a]ssessment

formulations are within the expertise of the State Tax Appeal Board and we will uphold their

decisions unless there is a clear showing of an abuse of discretion." Grouse, 218 Mont. 355-56, 707

P.2d 1115 (citation omitted).

¶24    There was no showing in the District Court that STAB's findings and conclusions were



                                                  9
clearly erroneous in view of the evidence of record, nor was an abuse of discretion

demonstrated. Rather, the O'Neills simply sought and received the application of a different

analysis more favorable to them. We conclude that, absent the finding required under § 2-4-

704, MCA, STAB's values must be upheld. Grouse, 218 Mont. 355, 707 P.2d 1115 (citation

omitted).

¶25    Accordingly, we reverse and remand for reinstatement of the STAB assessments.




                                                               /S/ PATRICIA COTTER


We Concur:


/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART




                                            10