The California State Board of Equalization recently released a draft of the proposed Guidelines for Substantiating Additional Obsolescence for Personal Property and Fixtures as part of a project to assist county assessors’ staff in identifying and quantifying obsolescence for personal property tax valuation.

Although the proposed guidelines do not offer anything that can be considered groundbreaking, they do serve as an overview of the process for identifying and calculating extraordinary obsolescence.

In the recent decision of Huang v. Department of Revenue The Oregon Tax Court denied a taxpayer’s request for a reduction in the property tax valuation of a motel due to the taxpayer’s failure to prove the valuation of intangible business property. 

The taxpayer purchased a motel and the sales agreement allocated a portion of the purchase price to “land and buildings” and a portion to “Trade Name and Goodwill”. The taxpayer sought to have the ”Trade Name and Goodwill”  portion excluded from the purchase price in order to arrive at the value for property tax purposes. The Tax Court found that: 

“Taxpayers’ actions and Huang’s testimony fail to provide an explanation for why the Sales Agreement allocated the sales price among ‘Land and Buildings’ and ‘Trade [N]ame and Goodwill’” 

In fact, the actions of the taxpayer both prior to the sale and subsequently seem to indicate the trade name had minimal, if any, value (they changed the name of the hotel after the sale) or that goodwill was properly valued (Haung testified that he did not know the manner in which the seller operated the business prior to the sale).

In the recent case of Level 3 Communications, LLC v. Arizona Department of Revenue, the Arizona Court of Appeals affirmed the Arizona Tax Court’s decision rejecting the taxpayer’s claims of obsolescence regarding the valuation of personal property. 

The taxpayer’s contention was that the utility and salability of its property were impaired as a result of  overbuilding its network of fiber and conduit. 

The Court of Appeals agreed with the Tax Court’s opinion that obsolescence cannot be established by factors within the taxpayer’s control. In its decision the Tax Court states: 

“Taxpayer’s evidence did not satisfy its requirements because ‘the loss in value of the property was not caused by obsolescence.’ Rather, ‘Level 3 simply underestimated the future supply of fiber-optic capacity. Mere erroneous business judgment does not create obsolescence.’” 

The Tax Court relied heavily upon the Eurofresh case in arriving at its decision.

In the recent post A Good Big Box Property Tax Appeal Case I discussed a decision by the Supreme Court of Ohio that I thought was a taxpayer friendly opinion that accurately reflected the realities of the big box retail market. Well, it appears as though the Supreme Court has said, “not so fast” with the decision of Meijer Stores Ltd. V. Franklin Cty. Bd. of Revision, in which an almost complete reversal of position was taken regarding obsolescence and the market for big box retail stores. 

It is interesting to note that the BTA decided both the Target case and the Meijer case on the same day. The major difference being that in the Target case the school board did not appear and the county did not present any evidence to counter the appraisal and testimony of the taxpayer’s expert. 

So, I guess what the BTA and Supreme Court are saying is that if you want to make this argument you better hope that no one shows up to rebut the evidence.

Two fairly recent actions taken by state legislatures have “addressed” (I use the term very loosely) the effects of foreclosures on property tax assessments. 

Tennessee recently enacted H.B. 2175, which states: 

“In a year of reappraisal, if the number of foreclosures is of a significant number in any area or neighborhood, the assessor of property may recognize the effects of such foreclosures on the values of other properties located within the affected area or neighborhood.” 

Texas passed H.B.1038 stating: 

“Notwithstanding Section 1.04(7)(C), in determining the market value of a residence homestead, the chief appraiser may not exclude from consideration the value of other residential property that is in the same neighborhood as the residence homestead being appraised and would otherwise be considered in appraising the residence homestead because the other residential property: (1) was sold at a foreclosure sale conducted in any of the three years preceding the tax year in which the residence homestead is being appraised and was comparable at the time of sale based on relevant characteristics with other residence homesteads in the same neighborhood; or (2) has a market value that has declined because of a declining economy.” 

I bring these up because, although I think they are fairly weak statements when it comes to addressing the current economy’s effects on assessments and property taxes, I think that they are examples of tools to keep in our pockets when it comes to protesting excessive tax assessments. 

The way I see it is that, even though both of these bills specifically address foreclosures and the TX bill specifically addresses resident homesteads, taxpayers should apply these bills to virtually any property type. It’s not as though the residential sector is the only sector of real estate that is in turmoil. If foreclosures are going to be addressed, then it is only reasonable to address distressed assets, bankruptcies, etc. Just about every type of real estate is feeling pain these days and tax assessments should be addressed accordingly.

These days I find myself having a plethora of conversations with clients regarding the status of property tax appeals. Everyone wants reductions and refunds NOW! Although I can understand the urgency, it is also important to realize that pursuing property tax reductions can take time.

There are many things to consider when estimating the timeframe of a property tax appeal. Can appeals be resolved informally? Does the local/administrative board typically grant reasonable reductions? How big is the reduction being sought? What is the appeal volume/backlog in the jurisdiction? Is it likely that the case will go to court? Is there no chance of the case going to court? These are just a few of the myriad factors that are important to consider regarding the timeframe of an appeal.

I understand that, in the current economy, companies are attempting to achieve savings as fast as possible. However, speed should not be such a driving force that it negatively impacts the result of the appeal.

The California State Board of Equalization has issued a Property Taxes Information Directory containing contact information (email & phone numbers) for property tax contacts at the BOE.

In the recently decided case of Ace Hardware Corp. v. Little, the State of New York Supreme Court, Appellate Division agreed with the Supreme Court’s dismissal of the taxpayer’s petitions for failing to meet it’s burden by a preponderance of evidence. The trial court found the taxpayer’s appraisal inappropriate, in large part, due to the fact that the taxpayer’s appraiser utilized a “reconstruction cost approach” which was “not included in the treaties traditionally relied upon by real estate appraisers”. I was hoping there would be more details describing the “reconstruction” approach, but the decision does not offer an explanation.

In the case of Aida Renta Trust v. Maricopa County the Arizona Court of Appeals recently affirmed a trial court decision finding that Maricopa County engaged in unconstitutional, discriminatory property tax valuation procedures. It appears as though Maricopa County decided to value properties within the same class (apartments) differently. The Decision states: 

“The County did not merely make an appraisal error; it applied a wholly different valuation procedure to properties within the same class. The County acted purposefully. The multiple incidences reaffirm the belief that they are systematic and intentional. We do not believe repeated taxation conduct is a random mistake.”

This past weekend I came across two interesting articles: 

Programs across county at risk if GM wins tax appeal focuses on the potential impact of Genesee County municipalities if GM wins it’s tax appeals seeking a cumulative reduction of it’s assessments from $140.5 million to $36.1 million. 

Mercer rocked by tax appeals; corporate giants contest their bills provides opinions on tax appeals by Bristol-Myers, Merrill Lynch, J.C. Penny, Macy’s and other “corporate giants”. 

It’s interesting how two articles that were published a day apart, focusing on different areas of the country with very different tax systems and pertaining to different property types are actually quite similar. 

Call it a glimpse into the current property tax appeal environment.