Tysons Intern. Ltd. Partnership v. Board of Sup'rs of Fairfax County

• Citation: 241 Va. 5,400 S.E.2d 151
• Decision Date: 11 January 1991
• Docket Number: No. 900673,900673
• Parties: TYSONS INTERNATIONAL LIMITED PARTNERSHIP, et al. v. BOARD OF SUPERVISORS OF FAIRFAX COUNTY. Record
• Court: Supreme Court of Virginia

Page 151

400 S.E.2d 151

241 Va. 5

TYSONS INTERNATIONAL LIMITED PARTNERSHIP, et al. v. BOARD OF SUPERVISORS OF FAIRFAX COUNTY.

Record No. 900673.

Supreme Court of Virginia.

Jan. 11, 1991.

Thomas F. Farrell, II, Alexandria (Haynie S. Trotter, McLean, Joan B. Tucker, Alexandria, McGuire, Woods, Battle & Boothe, on briefs), for appellants.

A. Robert Cherin, Deputy County Atty. (David T. Stitt, County Atty., on brief), for appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, RUSSELL, WHITING and LACY, JJ., and COCHRAN, Retired Justice.

CARRICO, Chief Justice.

In this appeal, we decide whether the trial court erred in finding that the Fairfax County tax assessor properly considered contract rent as relevant evidence of economic rent ¹ in assessing two pieces of income-producing property. We have examined the Fairfax County economic-rent methodology of assessing commercial property in four previous cases: Fairfax County v. Nassif, 223 Va. 400, 290 S.E.2d 822 (1982) (Nassif I ); Bd. of Sup. v. Donatelli & Klein, 228 Va. 620, 325 S.E.2d 342 (1985); Nassif v. The Board of Supervisors, 231 Va. 472, 345 S.E.2d 520 (1986) (Nassif II ); and Smith v. Board of Supervisors, 234 Va. 250, 361 S.E.2d 351 (1987). In all four instances, we held that the County assessor had not properly considered contract rent in assessing the particular property involved. We make the same holding here and reverse.

The record shows that Tysons International Limited Partnership (Tysons International) is the owner of several parcels of real estate improved by a commercial office building in the Tysons Corner area of Fairfax County and that Tysons Office Center Limited Partnership (Tysons Office Center) owns several other similarly improved parcels about two blocks away in the same area. The International building contains approximately 164,000 square feet of leasable space and the Office Center structure contains approximately 144,000 square feet.

In late 1988, pursuant to Code § 58.1-3984, Tysons International and Tysons Office Center (collectively, the taxpayers) filed applications for relief from allegedly erroneous real estate assessments on their property for the tax years 1986, 1987, and 1988. Later, Tysons International withdrew its application for the year 1986.

The two applications were consolidated for trial. Following a hearing, the trial court by order dated February 28, 1990, denied the taxpayers any relief and dismissed their applications. We granted this appeal.

For the years in dispute, the County assessed the two buildings as follows:

International Office Center

1986 N/A $18,171,915

1987 $21,344,755 $18,543,415

1988 $25,639,660 $22,856,415 ²

In making its assessments, the County employed the capitalization of income method of appraising property, and the taxpayers agree this was the proper method. The taxpayers do not agree, however, that the County used the proper income and expense figures in capitalizing income. The taxpayers contend the assessor used only market rent and disregarded contract rent in violation of our prior decisions on the subject.

The County concedes it assessed the taxpayers' property according to the market approach. The County insists, however, that it properly considered contract rent, and it says that the trial court found it had indeed " 'reviewed' and 'considered' the actual income and expenses." Furthermore, says the County, the court "made no finding that [its] review and consideration were defective in any way." (Emphasis in original.)

In a letter opinion, the trial judge cited Arlington County Board v. Ginsberg, 228 Va. 633, 640, 325 S.E.2d 348, 352 (1985), and noted that the assessments in question are "clothed with a presumption of validity which can be rebutted only upon a showing of the tax assessor's manifest error or total disregard of controlling evidence." The judge also noted that "the burden is upon the taxpayer to show his property is assessed at more than fair market value or that the assessment is not uniform in its application or that it is otherwise invalid or illegal."

Continuing and citing Smith, 234 Va. at 258, 361 S.E.2d at 355, the trial judge stated that "[t]he taxpayer's burden is satisfied where [he] is able to show that actual income and expenses were ignored, or given only token consideration in the formulation of an assessment." Further, quoting from the same case, the judge said that "[a]t that point, the assessing authority must 'go forward with evidence tending to prove that the actual rent and expenses do not fairly reflect economic net income for the particular property being appraised.' Id. (emphasis in original)."

After stating that actual income and expenses are not controlling in the determination of the taxable value of real estate but are relevant factors to be considered by a trial court in deciding whether a particular assessment is excessive, the trial judge described the County's market-rent methodology as follows:

[T]he County relied on surveys of the actual rental income and expenses County taxpayers reported they were achieving. The County also relied on information derived from deeds and deeds of trust reflecting the sales price of buildings, and from on-site inspection of buildings, throughout the County and in the specific areas at issue. The County then deducted 'normal' vacancy losses as well as expenses, in the form of an expense ratio, to achieve a net operating income for the building to be assessed. According to the County's testimony, a taxpayer's particular rental income and expenses are compared to this figure and adjustments may be made to reflect the taxpayer's actual data. The resulting net operating income is then capitalized into value. The resulting figure is also compared with the sales price of similar properties to assure that the assessment of the particular property fairly reflects the value of the fee simple and is uniform.

The trial judge then noted the taxpayers' argument that the County " 'did not consider' their actual income and expenses as required under Virginia Law." The judge observed that the County "justified its refusal to base its assessments on the taxpayers' actual rent on the ground that the actual rent did not fairly reflect economic rent, arguing inferentially that the legal requirement to consider actual rent is not a mandate to adopt actual rent as its assessment basis under all circumstances." (Emphasis in original.) Concluding this part of her discussion, the trial judge made this statement: "Clearly, under Virginia Law, having considered the taxpayers' actual rent, the County is not required to adopt it in its assessment if it determines, as it did, that the taxpayer's actual rent does not fairly reflect economic rent."

We think it is clear from the foregoing excerpts that the trial court made three important findings. First, the court found that the taxpayers satisfied their burden of showing the County ignored or gave only token consideration to actual income and expenses. Next, the court found that the burden then shifted to the County to go forward with evidence showing it considered actual rent and expenses, but determined they did not fairly reflect economic net income. ³ Finally, the court found that the County produced sufficient evidence to show it properly "considered the taxpayers' actual rent," but determined it did not fairly reflect economic rent.

We find no fault with any of these findings except the last one. The finding that the County properly considered contract rent represents the determinative point in the case, and we question whether sufficient evidence supports the finding. ⁴

We need not look beyond the trial judge's opinion itself to discern the character of the evidence the County submitted to show it had properly considered contract rent. The trial judge stated:

In applying the [market-rent] methodology to arrive at the assessments in this case, the County did not use the taxpayers' actual income and expenses. While taxpayers' actual income and expense data were reviewed by the tax assessor in preparing the ... assessments, the taxpayers' figures were not accepted as the basis for further calculations on the ground that the figures were too low and were not reflective of economic rent. The tax assessor thus adopted as economic rent the figures generated from the County's data base comprised of information from the sources described above.

(Emphasis added.) Significantly, the County's refusal to use the taxpayers' actual rent figures because they were "too low and were not reflective of economic rent" is the same sort of treatment we found improper in Nassif I, Donatelli & Klein, Nassif II, and Smith.

Nassif I and Nassif II demonstrate the point. In Nassif I, "the record [showed] conclusively that the assessor ignored contract rent in appraising the property," 223 Va. at 404, 290 S.E.2d at 824-25, and "used instead enhanced figures representing estimated 'economic rent,' as derived from market data," id. at 402, 290 S.E.2d at 823. The trial court held that contract rent alone should be used and ruled the assessment invalid. We reversed, saying that "as a general rule, economic rent is the measure to be used in capitalizing income for fair-market-value determination; however, contract rent is relevant as evidence of economic rent." Id. at 405, 290 S.E.2d at 825. We remanded for further proceedings consistent with the views expressed in our opinion. Id.

Nassif II was appealed to this Court after a retrial in response to our remand. At the retrial, the taxpayers' expert, who originally appraised the property using only contract rent, testified that he had made new calculations and arrived at a higher valuation by using economic rent and considering contract rent as relevant evidence of economic rent. 231 Va. at 476, 345 S.E.2d at 522. On the other hand, the County's assessor testified on retrial he felt " 'contract rent ... is low and does not...