Kline v. McCloud

• Decision Date: 14 December 1984
• Docket Number: No. 16042,16042
• Citation: 174 W.Va. 369,326 S.E.2d 715
• Court: West Virginia Supreme Court
• Parties: Michael KLINE, et al. v. Jim McCLOUD, et al., etc.

Page 715

326 S.E.2d 715

174 W.Va. 369

Michael KLINE, et al. v. Jim McCLOUD, et al., etc.

No. 16042.

Supreme Court of Appeals of

West Virginia.

Dec. 14, 1984.

Dissenting Opinion Jan. 8, 1985.

Syllabus by the Court

1. The equal and uniform clause of Section 1 of Article X of the West Virginia Constitution requires a taxpayer whose property is assessed at true and actual value to show more than the fact that other property is valued at less than true and actual value. To obtain relief, he must prove that the undervaluation was intentional and systematic.

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.

Jacqueline A. Kinnaman, W.V.E.A., Charleston, for appellants.

James E. Cain, Pros. Atty., J. Fred Queen, Elkins, Lee O. Hill and Charlotte R. Lane, Jackson, Kelly, Holt & O'Farrell, Charleston, for appellees.

MILLER, Justice:

This case involves the valuation of approximately 35,000 acres of timberland in the Middle Fork and Roaring Creek Districts of Randolph County, West Virginia owned by Westvaco Corporation (hereinafter Westvaco). The appellants are citizens and taxpayers of Randolph County who challenged the value of Westvaco's property, as set by the county assessor, before the Randolph County Commission, sitting as the Board of Review and Equalization (hereinafter Board of Review). ¹ They sought to have the assessor's value placed on Westvaco's property increased to reflect its purchase price. Both the Board of Review and the circuit court concluded that deed values could not be used as evidence of true and actual value because there had been an appraisal of the property in 1965 by the State Tax Commissioner. We believe this ruling to be in error.

The facts are not basically in dispute. For the 1982 tax year, this land was valued at an average of approximately $13 per acre. The appellants contend that this valuation is far below the true and actual value of the land, as shown by the fact that Westvaco, by its deed values, paid more than eight million dollars for it. ² They also allege that approximately 7,670 acres owned by Westvaco were omitted from the tax books for 1982.

In February, 1982, the appellants applied for relief to the Board of Review, which set the matter for hearing. During the hearing, the appellants introduced deeds given to Westvaco by the McMullans, former owners of the land. One deed conveying 11,776 acres recited a consideration of $2,148,994, or approximately $180 an acre. A second tract covering 23,366 acres was subject to a lease purchase agreement involving a rental of $480,000 a year pending the purchase at a price of six million dollars, or approximately $260 an acre. The appellants also introduced entries from the 1982 land books for the tracts involved, showing that Westvaco's assessments on the various tracts ranged from a low of $9.60 per acre to a high of $33 per acre.

Westvaco admitted purchasing the property, and indicated that it paid $8,000 a year in taxes on the property. One of Westvaco's witnesses was Sherman Stalnaker, who had been the assessor of Randolph County for twenty-one years. He testified that he used a 1965 State Tax Department appraisal as the basis for his valuation, and that he did not change the valuation on property when it was sold. Under the 1965 appraisal, timberland was valued at $15 an acre. Mr. Stalnaker also stated that if he raised the value of Westvaco's land, he would have to increase the value on residential property in order to preserve equality of taxation.

Counsel for the appellants took issue with some of Mr. Stalnaker's statements, asserting that recent sale prices had been considered in valuing some property not belonging to Westvaco, and that the values on the appellants' properties were closer to true and actual value than the value on Westvaco's land. Counsel for both Westvaco and the appellants repeatedly urged the Board of Review to examine the tax records concerning other property in Randolph County. The Board refused, stating that the only issue properly before it was the true and actual value of Westvaco's property, and that evidence concerning the value of other property was irrelevant.

After hearing evidence and examining the various deeds submitted in this case, the Board of Review upheld the valuation used by the county assessor. Its ruling was affirmed by the Circuit Court of Randolph County.

I.

Westvaco argues that we should affirm the decision of the lower court because there was substantial evidence to support the assessment. This, however, is not our traditional test for appellate review in tax assessment cases. We have historically utilized a two-pronged inquiry: first, whether there was sufficient evidence to support the circuit court's findings; and, second, whether there was an error of law. We summarized this rule in the single Syllabus Point of In Re Assessment of Union Carbide Corp., 157 W.Va. 631, 203 S.E.2d 370 (1974):

" 'This Court will not reverse the order of a circuit court by which the valuation for taxation purposes of ... property was reduced on ... appeal, except [for] an error of law, or where the court's action was clearly not supported by a preponderance of the evidence.' Syllabus pt. 2, Western Maryland Railway Company v. The Board of Public Works, 124 W.Va. 539, 21 S.E.2d 683 (1942)."

See also Application of Sprinkle, 122 W.Va. 611, 11 S.E.2d 757 (1940); Liberty Coal Co. v. Bassett, 108 W.Va. 293, 150 S.E. 745 (1929).

In this case the lower court has acted under an erroneous conception of the law, i.e., that property cannot be appraised at a value greater than that set by the State Tax Commissioner under an old appraisal. ³

As we have said in earlier decisions, determining "true and actual value" is the first step in taxing real property. See W.Va.Code, 11-3-1; Killen v. Logan County Comm'n, W.Va., 295 S.E.2d 689, 695 (1982); Great A. & P. Tea Co., Inc. v. Davis, W.Va., 278 S.E.2d 352, 355 (1981); Tug Valley Recovery Center, Inc. v. Mingo County Comm'n, W.Va., 261 S.E.2d 165, 173 (1979). "True and actual value" means fair market value--what property would sell for if sold on the open market. W.Va.Code, 11-3-1; ⁴ Syllabus Point 3, Killen v. Logan County Comm'n, supra. In determining the fair market value of a piece of land, a county assessor must "seek out all information which would enable him to properly fulfill his legal obligation." In Re Shonk Land Co., 157 W.Va. 757, 761, 204 S.E.2d 68, 70 (1974).

We also said in Shonk Land, 157 W.Va. at 761, 204 S.E.2d at 70, that: "Although the assessor is under the supervision of the state tax commissioner he is not restricted in his search for information leading to the true and actual value of properties to questions formulated by that state official." In Killen, we reaffirmed that county assessors are not limited to following the State Tax Commissioner's appraisals, saying that:

"Similarly, we recognize that the statute uses the term 'a basis' in reference to use of the appraisal. Therefore, we interpret this term to mean that county assessors may consult other credible and reliable sources of information, e.g., the property owner's sworn valuation and appraisal by bona fide appraisers, in determining the assessed value." 295 S.E.2d at 705-06. (Emphasis in original).

Furthermore, in Crouch v. County Court of Wyoming County, 116 W.Va. 476, 477, 181 S.E. 819, 819 (1935), we recognized that the price paid for real estate was a substantial indicia of its true and actual value, so long as the property changed hands in an arm's length transaction: "The price paid for property is not conclusive as to value, but it may be a very important element of proof where there has been an open transaction between competent parties dealing at arm's length as appears from the evidence herein." In many jurisdictions, evidence of current market value is given substantial, if not conclusive, weight. See, e.g., Department of Revenue v. Anaconda Amer. Brass Co., 435 S.W.2d 65 (Ky.1968); Schleiff v. County of Freeborn, 231 Minn. 389, 43 N.W.2d 265 (1950); W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 420 N.E.2d 953, 438 N.Y.S.2d 761 (1981); Conalco, Inc. v. Monroe County Bd. of Revision, 50 Ohio St.2d 129, 363 N.E.2d 722 (1977); Kem v. Department of Revenue, 267 Or. 111, 514 P.2d 1335 (1973); State ex rel. Lincoln Fireproof Warehouse Co. v. Bd. of Review, 60 Wis.2d 84, 208 N.W.2d 380 (1973); 72 Am.Jur.2d State and Local Taxation § 759 at 84 (1974); Annot., 89 A.L.R.3d 1126 (1979).

Westvaco contends that in Tug Valley, we indicated that real property must be assessed at the amount established by the State Tax Commissioner. We do not believe that Tug Valley, Killen, or any of our other tax cases stand for the proposition that a tax assessor must always use the Tax Commissioner's appraisal no matter how old or erroneous it may be with regard to an individual parcel's true and actual value.

Tug Valley dealt with a situation where the county tax assessor was utilizing an average assessed value of $18 an acre on certain coal property. The Tax Commissioner's 1977 coal appraisal summary indicated an average value per acre of $168. There was some evidence that a later summary had placed the average value per acre at $360. We held that the local assessor could not ignore the Tax Commissioner's appraisal. What we said in Tug Valley is that an assessor cannot establish a value for real property which is below the State Tax Commissioner's appraisal.

We pointed out in Killen that county assessors were not limited to the commissioner's appraisals and that they could "consult other credible and reliable sources of information, e.g., the property owner's sworn valuation and appraisal by bona fide appraisers, in determining the assessed value." 295 S.E.2d at 706 (emphasis in original). Regarding...