Moskowitz v. Cuyahoga Cnty. Bd. of Revision

Decision Date30 May 2017
Docket NumberNo. 2015–0313.,2015–0313.
Citation150 Ohio St.3d 69,2017 Ohio 4002,78 N.E.3d 870
Parties MOSKOWITZ, Appellant, v. CUYAHOGA COUNTY BOARD OF REVISION et al., Appellees.
CourtOhio Supreme Court

J. Alex Morton, Cleveland, for appellant.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Reno J. Oradini Jr., Assistant Prosecuting Attorney, for appellees.

PER CURIAM.

{¶ 1} Appellant, Marvin Moskowitz, after successfully obtaining from appellee Cuyahoga County Board of Revision ("BOR") a property-value reduction for tax year 2012 from $148,800 to $60,000, appealed to the Board of Tax Appeals ("BTA"), seeking a further reduction to $25,000. The BTA upheld the BOR's value, and on appeal to this court, Moskowitz contends that the record contains insufficient support for the BOR's value and clearly negates the Cuyahoga County fiscal officer's original assessment. On this basis, he urges us to accept his own opinion of value, $25,000. Because we find that the BTA acted reasonably and lawfully in retaining the BOR's reduced value, we affirm.

FACTUAL BACKGROUND

{¶ 2} Moskowitz filed a complaint challenging the $148,800 valuation found by the fiscal officer for tax year 2012. The complaint sought a reduction to $70,000 and asserted that the change was justified because "property values in general have declined in Cuyahoga County." The property is a two-family residence in Cleveland Heights.

{¶ 3} At the BOR hearing, Moskowitz identified pictures showing various rooms in the house that had been damaged by fire in December 2000, and he testified that the fire had reduced the livable area. Moskowitz further testified that he had not had the money to repair the damage and so he had not finished the repairs during the 11 years between the fire and the lien date of January 1, 2012. Moskowitz opined that the property's value was between $25,000 and $30,000 in 2012, and he amended his complaint to seek a reduction to $25,000.

{¶ 4} In support of his claim, Moskowitz presented a table showing sales of nearby properties and comparing the fiscal officer's valuations for 2012 with the respective sale prices. No authenticating testimony was offered, but the document on its face purported to derive the information from the fiscal officer's website, and through counsel, Moskowitz asked that judicial notice be taken of the information. The table showed sale prices for properties near Moskowitz's property between August 2008 and November 2013, with prices ranging from a low of $0, for a property donated to a land bank, to $93,000. No adjustments were performed to relate the sale prices to the value of the property at issue.

{¶ 5} After the hearing, the BOR sent a representative to visit the property. The BOR transcript contains the representative's notes upon viewing the property. The notes indicate that the property was viewed on January 31, 2014, that the property was in "very poor condition," and that the representative recommended that the condition of the property be changed from good to very poor in the fiscal officer's records. The representative suggested a reduced value in the range of $47,800 to $60,000.

{¶ 6} The BOR's "Oral Hearing Worksheet and Journal Entry" refers to a proposed reduction in the valuation of the home of $88,800, with the result that the total value was to be $60,000. That was the value adopted, and the worksheet predicates the reduction on "revised square footage and condition as of tax lien date."

{¶ 7} On appeal to the BTA, Moskowitz testified that when the county representative came to view his property, he asked Moskowitz how much money he had put into the property after the fire and Moskowitz told him $60,000. Moskowitz surmises that that was the basis for reducing the value of the property to $60,000. In its decision, the BTA rejected Moskowitz's list of comparable properties on the primary ground that no adjustments had been made to relate the sale prices to the value of the subject property. The BTA noted that the county had no duty to defend its valuations and that evidence of detrimental property characteristics was not sufficient to justify a reduction unless the complainant proved the effect of the characteristics on the property value. The BTA affirmed and adopted the BOR's reduced valuation, and Moskowitz appealed to this court.

ANALYSIS

{¶ 8} Moskowitz advances five propositions of law, but they can be distilled to two central contentions. First, Moskowitz argues that he should prevail because he shifted the burden of proof to the county and the county has not met its burden. Second, Moskowitz argues that his opinion of value, $25,000, must be accepted because the record, including the BOR's reduction and the alleged flaws in the county fiscal officer's valuation technique, negates the fiscal officer's original assessment. We conclude that Moskowitz is wrong on both counts.

{¶ 9} On the first point, the case law unequivocally refutes Moskowitz's burden-shifting theory. In W. Industries, Inc. v. Hamilton Cty. Bd. of Revision, 170 Ohio St. 340, 342, 164 N.E.2d 741 (1960), we stated that "[t]he burden is on the taxpayer to prove his right to a deduction" and that he is "not entitled to the deduction claimed merely because no evidence is adduced contra his claim." Numerous later cases develop this principle.See Zindle v. Summit Cty. Bd. of Revision,

44 Ohio St.3d 202, 203, 542 N.E.2d 650 (1989) (based on taxpayers' presentation, both the board of revision and the BTA reduced the true value of the property, and the court "defer[red] to the BTA's determination that the [owners had] not presented sufficient evidence to prove that a greater reduction [was] warranted"); Westlake Med. Investors, L.P. v. Cuyahoga Cty. Bd. of Revision,

74 Ohio St.3d 547, 549, 660 N.E.2d 467 (1996) ("the BTA may approve a board of revision's value if the taxpayer does not prove a right to a reduction in value"). See also

EOP–BP Tower, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 106 Ohio St.3d 1, 2005-Ohio-3096, 829 N.E.2d 686, ¶ 6 (in order to meet its burden of proof at the BTA, "the appellant must come forward and demonstrate that the value it advocates is a correct value " [emphasis added] ); Amsdell v. Cuyahoga Cty. Bd. of Revision, 69 Ohio St.3d 572, 574, 635 N.E.2d 11 (1994) (endorsing the BTA's declaration that a taxpayer "may successfully challenge a determination of a Board of Revision only where the taxpayer produces competent and probative evidence to establish the correct value of the subject property").

{¶ 10} Because of Moskowitz's failure to demonstrate a value below $60,000—the value found by the BOR—the BTA reasonably and lawfully retained the BOR's value under these circumstances.

{¶ 11} On the second point, Moskowitz takes primary aim not at the reduced value found by the BOR and adopted by the BTA but at the original value found by the fiscal officer. Moskowitz asserts that the county's mass-appraisal system is flawed and that his own "evidence of comparable sales [is] superior to that produced by the Fiscal Officer's [computer-assisted mass appraisal] methodology." But this argument must fail for the most fundamental of reasons: once the BOR replaced the mass-appraisal value with a lower value, Moskowitz was no longer aggrieved by the original mass-appraisal value, with the result that he cannot challenge that value through this appeal. In tax proceedings, a party may appeal a decision only to the extent that the decision aggrieves that party. See Dayton–Montgomery Cty. Port Auth. v. Montgomery Cty. Bd. of Revision, 113 Ohio St.3d 281, 2007-Ohio-1948, 865 N.E.2d 22, ¶ 31–33 (despite agreement of parti...

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    ...to support the county's valuation. Id. at ¶ 26. The court of appeals noted, however, that in Moskowitz v. Cuyahoga Cty. Bd. of Revision , 150 Ohio St.3d 69, 2017-Ohio-4002, 78 N.E.3d 870, ¶ 9-10, this court had held that the caselaw "unequivocally refutes" that burden-shifting argument.1 Sc......
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    ...N.E.3d 870, ¶ 9-10, this court had held that the case law "unequivocally refutes" that burden-shifting argument.[1]Schwartz II at ¶ 27. In Moskowitz, we reiterated our past holdings that appellant bears the burden of demonstrating that the value it advocates is correct and that if the appel......
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    ...property owner to adduce an appraisal to justify a reduction in value. However, as was true in Moskowitz v. Cuyahoga Cty. Bd. of Revision , 150 Ohio St.3d 69, 2017-Ohio-4002, 78 N.E.3d 870, ¶ 15, Jakobovitch confuses the BTA's finding that her nonappraisal evidence was not probative with an......
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