Eastern American Energy Corp. v. Thorn, 21276

• Decision Date: 25 February 1993
• Docket Number: No. 21276,21276
• Citation: 428 S.E.2d 56,189 W.Va. 75
• Court: West Virginia Supreme Court
• Parties: EASTERN AMERICAN ENERGY CORPORATION, Petitioner Below, Appellant, v. Robert W. THORN, Assessor of Wirt County, and C. Richard Boice, Commissioner of the County Commission of Wirt County, Paul Bumgarner, Commissioner of the County Commission of Wirt County, and Harry Matheny, Commissioner of the County Commission of Wirt County, in Their Capacities as County Commissioners and in Their Capacities as Members of the County Board of Equalization and Review, Respondents Below, Appellees. James H. Paige, III, State Tax Commissioner, Intervenor.

Page 56

428 S.E.2d 56

189 W.Va. 75

EASTERN AMERICAN ENERGY CORPORATION, Petitioner Below, Appellant, v. Robert W. THORN, Assessor of Wirt County, and C. Richard Boice, Commissioner of the County Commission of Wirt County Paul Bumgarner, Commissioner of the County Commission of Wirt County, and Harry Matheny, Commissioner of the County Commission of Wirt County, in Their Capacities as County Commissioners and in Their Capacities as Members of the County Board of Equalization and Review, Respondents Below Appellees James H. Paige, III, State Tax Commissioner, Intervenor.

No. 21276.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 26, 1993.

Decided Feb. 25, 1993.

Syllabus by The Court

1. "It is a general rule that valuations for taxation purposes fixed by an assessing officer are presumed to be correct. The burden of showing an assessment to be erroneous is, of course, upon the taxpayer, and proof of such fact must be clear." Syllabus Point 7, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 (1983).

2. "The price paid for property in an arm's length transaction, while not conclusive, is relevant evidence of its true and actual value. Such evidence may not be rejected in favor of a Tax Commissioner's old appraisal." Syllabus Point 2, Kline v. McCloud, 174 W.Va. 369, 326 S.E.2d 715 (1984).

3. "An objection to any assessment may be sustained only upon the presentation of competent evidence, such as that equivalent to testimony of qualified appraisers, that the property has been under- or over-valued by the tax commissioner and wrongly assessed by the assessor. The objecting party, whether it be the taxpayer, the tax commissioner or another third party, must show by a preponderance of the evidence that the assessment is incorrect." Syllabus Point 8, Killen v. Logan County Comm'n, 170 W.Va. 602, 295 S.E.2d 689 (1982).

Tammy J. Owen, Rebecca L. Stafford, Goodwin and Goodwin, Charleston, for appellant.

William G. Mercer, Wirt County Pros. Atty., Elizabeth, for appellees.

Darrell V. McGraw, Jr., Atty. Gen., James J. Alex, Special Asst. Atty. Gen., Charleston, for intervenor.

PER CURIAM:

Eastern American Energy Corporation appeals the 1991 tax year assessment of $3,277,035 for its extraction or stripping plant, located in Wirt County. The basis for the assessment was a recent appraisal by the State Tax Commissioner. Eastern maintains that the plant should be appraised at $948,000, the amount it paid for the plant on October 1, 1989. After both the Wirt County Board of Equalization and Review and the Circuit Court of Wirt County affirmed the $3,277,035 assessment, Eastern appealed to this Court. Although we have considered the price Eastern paid for property in 1989, we find that under the circumstances of this case, the purchase price, standing alone, is insufficient to show by a preponderance of the evidence that the State Tax Commissioner's appraisal is incorrect and, therefore, we affirm the decision of the circuit court.

Effective October 1, 1989, Eastern Pipeline Corporation, a wholly owned subsidiary of Eastern, purchased an extraction or stripping plant, located primarily in Wirt County, from Kidde Industries, Inc., an unrelated company. The plant's total purchase price was $950,000, with $948,000 allocated for the portions located in Wirt County and with $1,000, each, allocated for the portions located in Wood and Ritchie Counties. During the fourteen to twenty-four months of negotiations before the agreement of sale, Eastern's offer of $950,000 remained constant. According to Charles Supcoe, Eastern's General Counsel and Vice President of Administration, Kidde sold the plant as part of an oil and gas property divestiture, although Kidde continues to operate an oil and gas equipment business. Mr. Supcoe said Kidde had "been shopping around for almost 2 years and hadn't been able to sell it, and the only way they were able to sell was when they came to terms with us on a purchase and sales agreement."

Mr. Supcoe testified that Eastern used an income valuation analysis of the plant's production to determine the plant's purchase price. Mr. Supcoe said that Eastern did not "individually look at the personal property per se, but the ability of cash flow and revenue that may be generated over a certain period of time and discounted back to the present value." Mr. Supcoe also said that in 1987 when Eastern initially offered $950,000, the plant was running at less than a third of capacity. Mr. Supcoe testified that he did not know the value of the plant's machinery, equipment or pipelines individually, but rather Eastern "valued the business as a whole relating to the net cash flow with the projected revenues."

On the 1990 personal property tax books, the plant's taxable assessment was $2,257,852, which included $6,174 for vehicles and $2,251,678 for other property. On September 19, 1990, Eastern filed its business property return with the Wirt County Assessor and the return listed the plant's new cost value as $938,031 and its current value as $902,342. ¹ By letter dated February 22, 1991, the Wirt County Assessor, on instructions from the Wirt County Commission, notified Eastern that "the assessed value of [Eastern's] pipe line" had been added for a total county assessment of $3,227,035, which would be taxed at 70% or $2,258,924.

The county's 1991 assessment of the plant was based on an appraisal of the State Tax Department. ² Although titled "1990 Appraisal of Darenco, Inc." (Darenco was a predecessor in the chain of title to Kidde and the State Tax Department did not have an update on ownership), the state appraisal notes February 1991 as the physical inspection date, 1990 as the base year and "910408" as the run date. ³ The state appraisal provided the following valuations:

4. The state appraisal's description of the booster station noted that the station consisted of:

5. The state appraisal's description of the gas processing plant noted the plant had a 3.5 MMCF per day capacity and consisted of:

Eastern protested the assessment and after the County Board of Equalization and Review refused to reduce the assessment, Eastern appealed to the circuit court. The circuit court conducted a full hearing during which Eastern was able to introduce evidence supporting its position. The circuit court found that Eastern failed to show by a preponderance of the evidence that the county assessment was incorrect. Eastern then appealed to this Court arguing that the proper indicator of the plant's true and actual value is the arm's length purchase price.

W.Va.Code 11-3-1 [1977] requires that property be assessed at the "true and actual value." ⁶ " 'True and actual value' means fair market value--what property would sell for if sold on the open market. (Citations omitted)." Kline v. McCloud 174 W.Va. 369, 372, 326 S.E.2d 715, 718 (1984). In the past we have generally presumed the official assessment to be correct and have placed on the taxpayer the burden of showing by a preponderance of evidence any error in the official assessment. In Syllabus Point 7, In re Tax Assessment Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 (1983), we said:

It is a general rule that valuations for taxation purposes fixed by an assessing officer are presumed to be correct. The burden of showing an assessment to be erroneous is, of course, upon the taxpayer, and proof of such fact must be clear.

See In re: National Bank of West Virginia at Wheeling, 137 W.Va. 673, 687, 73 S.E.2d 655, 664 (1952); Bankers Pocahontas Coal v. County Court of McDowell County, 135 W.Va. 174, 179, 62 S.E.2d 801, 804 (1950).

We have also recognized that as long as the property changes hands in an arm's length transaction, the price paid for the property is strongly indicative of its true and actual value. In Syllabus Point 2, Kline, supra, 326 S.E.2d 715 (1984), we said:

The price paid for property in an arm's length transaction,...