Cardinal Federal Sav. and Loan Ass'n v. Cuyahoga County Bd. of Revision

• Decision Date: 15 October 1975
• Docket Number: No. 74-1117,74-1117
• Citation: 44 Ohio St.2d 13,73 O.O.2d 83,336 N.E.2d 433
• Parties: , 73 O.O.2d 83 CARDINAL FEDERAL SAVINGS & LOAN ASSN., Appellant, v. CUYAHOGA COUNTY BOARD OF REVISON et al., Appellees.
• Court: Ohio Supreme Court

Page 13

44 Ohio St.2d 13

336 N.E.2d 433, 73 O.O.2d 83

CARDINAL FEDERAL SAVINGS & LOAN ASSN., Appellant, v. CUYAHOGA COUNTY BOARD OF REVISON et al., Appellees.

No. 74-1117.

Supreme Court of Ohio.

Oct. 15, 1975.

Syllabus by the Court

1. A county board of revision may consider a claim to decrease valuation only where the claimant has complied with R.C. 5715.13 and 5715.19. (Stanjim Co. v. Bd. of Revision, 38 Ohio St.2d 233.)

2. The Board of Tax Appeals is not required to adopt the valuation fixed by any expert or witness. (Hibschman v. Bd. of Tax Appeals, 142 Ohio St. 47; Benedict v. Bd. of Revision, 170 Ohio St. 62; Shaker Square Co. v. Bd. of Revision, 170 Ohio St. 369, approved and followed.)

3. The Board of Tax Appeals is vested with wide discretion in determining the weight to be given to evidence and the credibility of witnesses which come before the board. (American Steel & Wire Co. of New Jersey v. Bd. of Revision, 139 Ohio St. 388; Shaker Square Co. v. Bd. of Revision, 170 Ohio St. 369; Benedict v. Bd. of Revision, 170 Ohio St. 62, approved and followed.)

4. The fair market value of property for tax purposes is a question of fact, the determination of which is primarily within the province of the taxing authorities, and this court will not disturb a decision of the Board of Tax Appeals with respect to such valuation unless it affirmatively appears from the record that such decision is unreasonable or unlawful. (Db. of Revision v. Fodor, 15 Ohio St.2d 52, approved and followed.)

This case involves tax valuations for parcels 2, ¹ 10 and 27, which are shown on the following map of certain real estate located in the city of Cleveland:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

By March 1972, the Cardinal Federal Savings & Loan Association, ² appellant herein, had acquired parcels 1, 3 4-7, 11-13 and 18, in an attempt to obtain ownership of every parcel located on the foregoing map.

Edward J. Wagner, an officer of appellant, testified as to the purpose of the land acquisition, as follows:

'(A)ll of our actions were based upon the assumption, and the belief that once the properties were acquired, and if all the properties were acquired, then we would be in a position to undertake a privately sponsored urban renewal program with assistance from the city of Cleveland.'

The remainder of the subject property was subsequently acquired by appellant as follows: Parcels 16 and 17 on December 15, 1972, for $53,400; parcel 9 on May 29, 1973, for $41,000; parcel 2 on July 2, 1973, for $45,000; parcels 10 and 27 on July 6, 1973, for $45,000; parcels 14 and 15 on October 12, 1973, for $65,000; and parcel 8 on January 18, 1974, for $46,500.

Albert Robinson, another officer of appellant, had made certain appraisals of parcels in the subject area 'back in 1969,' but did not testify as to such appraisals. Rather, Robinson submitted his written appraisals of fair market value for the various parcels as of their respective dates of sale. Those parcels were valued by Robinson as follows: Parcels 16 and 17, $47,500 ($5,900 less than sale price); Parcel 9, $23,100 ($17,900 less than sale price); parcel 2, $34,500 ($10,500 less than sale price); Parcels 10 and 27, $30,000 ($15,000 less than sale price); parcels 14 and 15, $38,000 ($27,000 less than sale price); and parcel 8, $35,500 ($11,000 less than sale price). Mr. Robinson listed 'current market values' of $30,000 as to parcel 2, and $30,000 as to parcels 10 and 27.

In addition, the appraisal reports recite 'no comparables' under the section designated 'Market Approach' for parcels 2, 9, 14-17, but do list 'comparable land sales' for parcels 10 and 27. The appraisal for parcel 8 does not mention the market approach to valuation.

Complaints were filed with the Cuyahoga County Board of Revision, an appellee herein, by the Cleveland Board of Education and the city of Cleveland, the other appellees herein, which cited the 1973 sale prices of parcels 2, 10 and 27, and requested, pursuant to R.C. 5715.19, that the tax valuation of those parcels be increased for the tax year 1973.

The board of revision increased the tax valuation of the subject parcels.

Appellant, in its appeal to the Board of Tax Appeals, argued that such purchase prices were 'not indicative of the fair market value of such property because said * * * (purchase prices are) artificially higher than fair market value for the reason that appellant was the sole purchaser of property in this area and as appellant purchased an increasing number of these parcels in a fixed area the purchase price artificially exceeded the fair market value.'

The board overruled appellant's motion to dismiss grounded upon Stanjim Co. v. Bd. of Revision (1974), 38 Ohio St.2d 233, 313 N.E.2d 14, reasoning that Stanjim applies only to complaints which request a decrease in valuation, and ruled that the tax valuation of the subject parcels should be increased to reflect a true value equivalent to the sale prices.

The cause is now before this court pursuant to an appeal as of right.

Parks, Eisele, Lawrence & Bates, Ralph C. Anzivino and G. Del Bates, Cleveland, for appellant.

John T. Corrigan, Pros. Atty., and Thomas P. Cyrus, Cleveland, for appellee Cuyahoga County Bd. of Revision.

James B. Davis, Director of Law, and Jeffrey B. Marks, Cleveland, for appellee city of Cleveland.

Kelley, McCann & Livingstone, Walter C. Kelley and Michael L. Gordon, Cleveland, for appellee Cleveland Bd. of Ed.

WILLIAM B. BROWN, Justice.

At the outset we direct our attention to the jurisdictional question presented by appellant's second proposition of law, which reads:

' Full compliance with Ohio Revised Code 5715.19 and 5715.13 is necessary to confer jurisdiction upon a county board of revision, notwithstanding that the complaint seeks an increase rather than a decrease of the taxable value of real estate.'

In support thereof, appellant relies upon Stanjim Co. v. Bd. of Revision, supra (38 Ohio St.2d 233, 313 N.E.2d 14), a per curiam opinion, wherein this court stated, at page 235, 313 N.E.2d at 16, that: '* * * (F)ull compliance with R.C. 5715.19 and 5715.13 is necessary before a county board of revision is empowered to act on the merits of a claim.'

The specific citations of statutory noncompliance on the part of appellees city of Cleveland and Cleveland Board of Education, are that the Board of Revision Form No. 1 (hereinafter BTA Form 1), used by both appellees in filing their complaints as to the assessment of real property, allegedly failed to 'state the amount of overvaluation, undervaluation, discriminatory valuation, illegal valuation or incorrect determination complained of' as required by R.C. 5715.19, and failed to show the facts upon which such claims are based, as required by R.C. 5715.13.

R.C. 5715.13 ³ only affects the power of a county board of revision to decrease valuations. Inasmuch as this case involves an increase in valuation, appellees were under no mandate to comply with R.C. 5715.13 and its concomitant requirement to 'show the facts' upon which their claims were based.

In an action to increase land valuation, R.C. 5715.19 requires that '(e)ach complaint shall state the amount of * * * undervaluation * * * complained of.' The BTA Form 1 filed by the Cleveland Board of Education concerning parcels 10 and 27 recites a 'current assessed value' of $6,880, the 'increase asked' as $7,970 and the 'taxable value claimed' as $14,850. The BTA Form 1 filed by the city of Cleveland concerning parcel 2 recites a 'current assessed value' of $5,180, the 'increase asked' as $9,220 and the 'taxable value claimed' as $14,400, and contains a notation which reads: 'The requested increase is based upon the sale of the subject property. Further information will be submitted at the time of the hearing.'

It is opinion of this court that appellees satisfied the requirement of R.C. 5715.19 to specify 'the amount of * * * undervaluation,' when they specified sums for 'increase asked.'

In its reply brief, appellant has raised, for the first time, the question of whether the city of Cleveland had standing to file the initial complaint with the board of revision. This court does not consider such tardily presented arguments (Neil House Hotel Co. v. Bd. of Revision (1946), 147 Ohio St. 231, 70 N.E.2d 646, paragraph one of the syllabus; R. R. Donnelley & Sons Co. v. Porterfield (1972), 30 Ohio St.2d 219, 222, 284 N.E.2d 171; Wesleyan University Press v. Donahue (1966) 8 Ohio St.2d 4, 5, 221 N.E.2d 590), and we therefore proceed to the merits of the appeal.

The ultimate question presented is whether the decision of the Board of Tax Appeals, which increased the assessed valuation of the subject parcels, is unreasonable or unlawful. Buckeye Power v. Kosydar (1973), 35 Ohio St.2d 137, 298 N.E.2d 610, paragraph one of the syllabus.

In support of their claims for increasing the assessed valuation of parcels 2, 10 and 27, appellees rely upon the prices for which appellant purchased those parcels in July of 1973.

Appellant concedes that those sales were voluntarily negotiated between a willing seller and a willing buyer, but argues that 'special or necessitous circumstances' existed which caused the sale prices to exceed the fair market value ⁴ of those parcels.

In determining the value of property for the purpose of taxation, the tax assessor must take into consideration all factors which affect the value of the property. B. F. Keith Columbus Co. v. Bd. of Revision (1947), 148 Ohio St. 253, 74 N.E.2d 359, paragraph one of the syllabus; Western Industries v. Bd. of Revision (1960), 170 Ohio St. 340, 342, 164 N.E.2d 741; American Steel & Wire Co. of New Jersey v. Bd. of Revision (1942), 139 Ohio St. 388, 392, 40 N.E.2d 426.

The price paid by appellant is one such factor, but '* * * is not a controlling factor in determining the assessed valuation of the property on the tax duplicate.' (Emphasis added.) Ramsey...