Pine Pointe Housing v. Lowndes County

• Decision Date: 12 March 2002
• Docket Number: No. A01A1825.,A01A1825.
• Parties: PINE POINTE HOUSING, L.P. v. LOWNDES COUNTY BOARD OF TAX ASSESSORS.
• Court: Georgia Court of Appeals

561 S.E.2d 860

254 Ga. App. 197

PINE POINTE HOUSING, L.P. v. LOWNDES COUNTY BOARD OF TAX ASSESSORS.

No. A01A1825.

Court of Appeals of Georgia.

March 12, 2002.

Coleman, Talley, Newbern, Kurrie, Preston & Holland, Thompson Kurrie, Jr., Edward F. Preston, Valdosta, for appellant.

Elliott & Blackburn, Valdosta, Walter G. Elliott, II, for appellee.

James F. Grubiak, Kelly J. Pridgen, Karen G. Thomas, Michael P. Ludwiczak, amici curiae. MIKELL, Judge.

In 1996, Pine Pointe Housing, L.P. completed construction of a 71 unit rental housing project in Valdosta. Through an agreement with the Georgia Financing and Housing Authority, the property received an allocation of low-income housing tax credits under Section 42 of the Internal Revenue Code of 1986, as amended. Pine Pointe's limited partnership structure allows the tax credits to "flow through" to the benefit of its limited partners. As required by federal law, Pine Pointe agreed to rent the property to low-income tenants at below-market rates for 15 years and filed a restrictive covenant in the county deed records to that effect. The maximum credits available to the project were $448,120 per year for ten years.

On July 28, 1997, Pine Pointe appealed the 1997 ad valorem tax assessment on the property to the Lowndes County Board of Equalization. The Lowndes County Board of Tax Assessors then appealed the ruling of the board of equalization to the superior court, which held a de novo hearing on November 20, 2000. At issue was the fair market value of the property as of January 1, 1997, and, in particular, how to value the property given the rental restrictions and federal tax benefits applicable to the project. On November 30, 2000, the trial court issued its order establishing the fair market value of the property at $4,709,000.

In making its calculation of fair market value, the trial court found that (1) the restrictive covenants of record and binding upon the property must be considered in determining the fair market value of the property, (2) the mortgage equity or debt equity income approach to valuation is legal under Georgia law and applicable to the property, (3) the tax credits associated with the property cannot be sold, but run with the property, and (4) the tax credits are associated with the restrictive covenants and must be considered in determining the fair market value of the property. The value of $4,709,000 was supported by testimony of Henry Wise, an expert witness presented by Pine Pointe. Under his "mortgage equity" income approach, Wise valued the property at $4,800,000, taking into account the value of the tax credits, the mortgage, and project cash flow. The witness confirmed that $91,000 must be deducted from this figure to account for nontaxable personalty included in the project value.

In this appeal, Pine Pointe claims that the trial court erred in (1) using Section 42 income tax credits in determining fair market value, (2) denying its motion for a directed verdict because the Lowndes County Board of Tax Assessors failed to present a permissible method for establishing fair market value, and (3) denying its motion to dismiss because the Board failed to ensure a timely hearing of its appeal to the superior court. We find no error and affirm.

1. Pine Pointe claims that the trial court erred in considering the Section 42 tax credits in calculating the property's fair market value. We disagree. In support of its claim, Pine Pointe argues that (1) the tax credits had, in economic if not technical effect, been sold, and thus had no value to Pine Pointe, (2) consideration of the tax credits is inconsistent with the Georgia appraisal procedures manual, (3) tax credits cannot be considered income for accounting purposes, (4) the trial court's ruling is inconsistent with principles established by the case law, and (5) OCGA § 48-5-2(3)(B.1), effective as of July 1, 2001, prohibits consideration of the tax credits. "[T]he standard of review of a non-jury trial of disputed material facts is the clearly erroneous test under OCGA § 9-11-52[;]... the plain legal error standard of review applies, where the appellate court determines that the issue was of law, not fact...."¹ With some exceptions, property is taxed at its fair market value.² For purposes of our review, we are guided throughout by the General Assembly's definition of fair market value: "the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm's length, bona fide sale."³

Under current law, a number of different factors must be considered in arriving at fair market value:

The tax assessor shall consider the following criteria in determining the fair market value of real property: (i) Existing zoning of property; (ii) Existing use of property, including any restrictions or limitations on the use of property resulting from state or federal law or rules or regulations adopted pursuant to the authority of state or federal law; (iii) Existing covenants or restrictions in the deed dedicating the property to a particular use; and (iv) Any other factors deemed pertinent in arriving at fair market value.⁴

The taxing authorities are required to apply external factors, such as zoning and deed restrictions, in determining fair market value, including "[a]ny other factors deemed pertinent."⁵ Evidence shows that the Section 42 tax credits were pertinent to the fair market value of the property. The credits have value to a taxpayer with federal income tax liability and can be "passed through" a partnership structure to those taxpayers. Because Section 42 tax credits are generated by a designated property, a third party would pay for the value as part of that property's sale price in a bona fide, arm's length transaction. Furthermore, the tax credits go hand in hand with restrictive covenants that require the property to charge below-market rent. By statute,⁶ these restrictions are required to be considered by the assessor. If viewed in isolation, the rental restrictions would artificially depress the value of the property for tax valuation purposes. The fair market value determined by the trial court is supported by an appraisal that takes into account both the value of the tax credits and the rental income from the property as reduced by the rental restrictions. Accordingly, we find that the trial court's calculation of fair market value was consistent with the law and the evidence. Although we will consider them in turn below, Pine Pointe's arguments to the contrary have no merit.

(a) Pine Pointe contends that the tax credits had, in practical if not legal effect, been sold, and so the tax credits had no value to Pine Pointe. Evidence shows that 99 percent of the tax credits were allocated by the partnership to its limited partner. Nevertheless, if a property eligible for Section 42 tax credits is sold, then the subsequent owner of the property is entitled to the future tax credits associated with the property.⁷ Furthermore, the ownership structure of Pine Pointe is irrelevant to the value of the project to a third party.⁸

Pine Pointe also argues that the Section 42 tax credit does not necessarily follow the property because a new purchaser could choose not to comply with the rental restrictions, and thus lose the credit, and that while the tax credits are payable for ten years, the rental restrictions are in place for fifteen years. The rental restrictions associated with the tax credits were taken into account by the expert witnesses in arriving at a valuation amount. The argument with respect to future noncompliance by a purchaser of the property is groundless. As a matter of pure speculation, a future owner could choose to act in a way that would eliminate the credit, but it does not change the law that any tax credit generated is associated with the property⁹ nor the evidence that an available tax credit has value to a third-party purchaser. Furthermore, the Internal Revenue Code has provisions which encourage a buyer and seller of property generating Section 42 tax credits to ensure the property continues to be operated as a low-income rental project.¹⁰

(b) Pine Pointe further argues that considering Section 42 tax credits in property valuation would not comply with the Georgia Department of Revenue's appraisal procedures manual.¹¹ Regulations require county property appraisal staff to follow this manual.¹² The manual provides: "Real property does not include the intangible benefits associated with the ownership of real estate, such as the goodwill of a going business concern."¹³ Nevertheless, the Section 42 tax credits are not the type of benefit associated with owning real estate, such as goodwill, that cannot be taken into account in determining the value of a property to a third party. Goodwill is a "favor which the management of a business wins from the public,"¹⁴ and as such is more associated with a business operation than the property on which the business is located. Anticipated rental income associated with a property, although intangible in nature, may clearly be used in property valuation.¹⁵ Section 42 tax credits provide a similar stream of value tied solely to the property.

Pine Pointe also argues that because the tax credits reduce income taxes, and because the manual provides that income taxes cannot be considered in using an income and expense analysis to value a property,¹⁶ that it would be inconsistent with the manual to consider the tax credits. However, an owner's income tax liability is an expense not directly related to property ownership, unlike the tax credits, which are generated as to amount by the property itself independent of the owner.

(c) Pine Pointe contends that the tax credits are not "income," and therefore cannot be used in valuing a property under the income method. Tax credits are not mentioned in the components which may be used to compute value...