Hirschfelder v. Marion County Assessor

IN THE OREGON TAX COURT

MAGISTRATE DIVISION

Property Tax

C. JOHN HIRSCHFELDER )

and JANICE L. HIRSCHFELDER, )

)

Plaintiffs, ) TC-MD 120177C

)

v. )

)

MARION COUNTY ASSESSOR, )

)

Defendant. ) DECISION

Plaintiffs have appealed the real market value (RMV) of certain real property identified

in the Assessor‟s records as Account R93190 for the 2011-12 tax year. Trial in the matter was

held by telephone on August 27, 2012. C. John Hirschfelder (Hirschfelder) appeared for

Plaintiffs and testified on their behalf. Kara Driskell (Driskell) represented Defendant.

I. STATEMENT OF FACTS

The subject property is a two story single family dwelling with four bedrooms, two full

bathrooms, two half bathrooms, and an 824 square-foot attached three-car garage, sitting on a

0.34 acre lot in Salem, Oregon, on the south end of town. (Def‟s Ex B at 1.) The home was built

in 1978, but was partially remodeled approximately 20 years later. (Id. at 3.)

Hirschfelder testified that Plaintiffs acquired the property on December 13, 2010, from

The Federal Home Loan Mortgage Loan Corporation (Freddie Mac), through an online bid

conducted by a third party specializing in such matters. Hirschfelder testified that they paid

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DECISION TC-MD 120177C 1

$175,000 in cash for the property (i.e., no financing was needed). The parties agree the home

has 3,074 square-feet of living space.1 (Def‟s Ex B at 3.)

The home has some very nice features including hardwood and tile floors, vaulted

ceilings, and a bathroom described by Driskell as “upscale.” (See also Def‟s Ex C at 2-7.) The

Multiple Listing Service listing for the subject property at the time Plaintiffs were considering,

and ultimately bought, the home, includes the following description:

“Oasis in the city! Large lot with mature trees and vinyl fencing is very private!

Huge garage with extra tall RV bay and lots of parking in the huge driveway.

Covered pavilion with gas BBQ great for entertaining. Many updates inside

including breath-taking kitchen with slab[] granite counters, cherry cabinets,

appliances, trash compactor and gas fireplace.”

(Id. at 1.) Hirschfelder testified that the asking price for the home in October 2010, less than two

months before Plaintiffs purchased the property, was $250,000. (Ptfs‟ Ex 19; Def‟s Ex C at 1.)

The home was originally listed in July 2008 for $359,900. (Ptfs‟ Ex 19.)

The RMV on the assessment and tax rolls, as initially determined by the assessor, was

$274,380, with $80,340 allocated to the land and $194,040 to the improvements (the home).

(Def‟s Ex B at 4.) Plaintiffs purchased the home for $175,000 in December 2010. (Ptfs‟ Ex 17.)

Based on their then-recent purchase, Plaintiffs appealed the $274,380 RMV to the Marion

County Board of Property Tax Appeals (BOPTA), and BOPTA reduced the RMV to $250,000, a

reduction of more than $24,000. (Def‟s Ex B at 4.) The maximum assessed value (MAV)

remained unchanged at $261,070, but, by virtue of the applicable Oregon statute,

ORS 308.146(2), the assessed value (AV) was reduced from $261,070 to $250,000. Plaintiffs

1

Hirschfelder testified that he initially believed that the home was 2,851 square-feet because that was the

figure listed in the assessor‟s records. He acknowledged at trial that the home was slightly more than 3,000 square-

feet, and later stated he agreed with Defendant‟s corrected square footage of 3,074. Driskell acknowledged at trial

that the assessor‟s records initially contained an error regarding the size of the home; the assessor‟s office had not

adjusted its records to account for any increase in size following an earlier home addition and kitchen remodel that

appears to have occurred on or about 1998. (Def‟s Ex B at 3.)

DECISION TC-MD 120177C 2

have appealed that reduced BOPTA value to this court, requesting a reduction in the RMV to

their $175,000 purchase price. In its Answer, Defendant requested that the court sustain the

BOPTA RMV of $250,000. Defendant reiterated that request at trial, notwithstanding Driskell‟s

market value analysis, which found a value range between $280,642 and $315,030. (Def‟s Ex B

at 3.)

II. ANALYSIS

A. Applicable law

At issue in this case is the RMV, for the 2011-12 tax year, of a four bedroom, two-plus

bathroom home with an attached garage, built in 1978, and sitting on one-third acre lot. The

applicable assessment date is January 1, 2011. ORS 308.007; ORS 308.210.2

RMV “is the standard used throughout the ad valorem statutes except for special

assessments.” Richardson v. Clackamas County Assessor (Richardson), TC-MD No 020869D,

WL 21263620 at *2 (Mar 26, 2003) (citing Gangle v. Dept. of Rev., 13 OTR 343, 345 (1995)).

RMV is defined by statute as “the amount in cash that could reasonably be expected to be paid

by an informed buyer to an informed seller, each acting without compulsion in an

arm‟s-length transaction occurring as of the assessment date for the tax year.” ORS 308.205(1).

“Real market value in all cases shall be determined by methods and procedures in accordance

with rules adopted by the Department of Revenue * * *.” ORS 308.205(2).

While there are three recognized methods for valuing property, the sales comparison

approach is generally viewed as most appropriate for valuing residential property. OAR 150-

308.205-(A)(2). This is particularly true for older properties such as the subject, because

substantial adjustments must be made under the cost approach, and if the property is not

2

Unless otherwise noted, all references to the Oregon Revised Statutes (ORS) and Oregon Administrative

Rules (OAR) are to 2009.

DECISION TC-MD 120177C 3

generating income, the income capitalization approach is typically inapplicable .3 In this case,

both parties utilized the sales comparison approach. Plaintiffs also rely on their purchase of the

property approximately one month before the January 1, 2011, assessment date.

Under the sales comparison approach, the court looks at arm‟s-length sales transactions

of similar properties to determine a correct RMV. Richardson, TC-MD No 020869D. The

“similar properties,” typically referred to as “comparable sales,” must be adjusted to account for

differences between those properties and the property being appraised. Appraisal Institute, The

Appraisal of Real Estate 307 (13th ed 2008).

The value of property is ultimately a question of fact to be determined by the court.

Chart Development Corp. v. Dept. of Rev., 16 OTR 9, 11 (2001) (citation omitted).

In the Tax Court, “a preponderance of the evidence shall suffice to sustain the burden of

proof. The burden of proof shall fall upon the party seeking affirmative relief * * *.”

ORS 305.427. In this case, Plaintiffs are seeking relief and thus bear the burden of proof. This

court has previously stated that “preponderance” means “the more convincing or greater weight

of evidence.” Schaefer v. Dept. of Rev., TC No 4530, WL 914208 at *2 (July 12, 2001) (citing

Feves v. Dept. of Revenue, 4 OTR 302 (1971)).

In cases where a property‟s RMV is at issue, as here, “it is not enough for a taxpayer to

criticize a county‟s position. Taxpayers must provide competent evidence of the RMV of their

property.” Poddar v. Dept. of Rev., 18 OTR 324, 332 (2005) (quoting Woods v. Dept. of Rev., 16

OTR 56, 59 (2002)). “Competent evidence includes appraisal reports and sales adjusted for

time, location, size, quality, and other distinguishing differences, and testimony from licensed

3

An administrative rule promulgated by the Oregon Department of Revenue instructs that the three

approaches to value--sales comparison, cost, and income--be considered in determining a property‟s value, but

recognizes that all three approaches may not be applicable in a given case. OAR 150-308.205-(A)(2). Because the

subject property is owner occupied and does not generate any income, neither party used the income approach in

valuing Plaintiffs‟ property.

DECISION TC-MD 120177C 4

professionals such as appraisers, real estate agents and licensed brokers.” Lebeck v. Multnomah

County Assessor (Lebeck), TC-MD No 100404D at 3 (Feb 16, 2011).

Finally, the legislature has given the court jurisdiction “to determine the real market value

or correct valuation on the basis of the evidence before [it], without regard to the values pleaded

by the parties.” ORS 305.412.

B. Subject property

1. Plaintiffs’ purchase of the subject property

The sale of the subject property can provide a useful indication of the value of the

property. Kem v. Dept. of Rev. (Kem), 267 Or 111, 114, 514 P2d 1335 (1973) (citations

omitted). The Oregon Supreme Court in Kem ruled that “[a] recent sale of the [subject] property

* * * is important in determining its market value. If the sale is a recent, voluntary, arm’s length

transaction between a buyer and seller, both of whom are knowledgeable and willing, then the

sales price, while certainly not conclusive, is very persuasive of the market value.” Id. (Citations

omitted; emphasis added). However, the court in Kem emphasized “that a recent sale of the

subject property is not necessarily determinative of market value and does not foreclose other

methods of valuation[.]” Id. at 115 (emphasis added); see also Sabin v. Dept. of Rev., 270 Or

422, 426-27, 528 P2d 69 (1974); Equity Land Res. v. Dept. of Rev., 268 Or 410, 415, 521 P2d

324 (1974). The two important considerations are whether the sale was “recent” and whether it

was “arm‟s length.” Kem, 267 Or at 114.

Plaintiffs‟ December 2010 purchase for $175,000 was “recent” because the applicable

assessment date is January 1, 2011, less than one month after their purchase. However, Plaintiffs

purchased the property from Freddie Mac. According to their website, Freddie Mac is a

federally established entity chartered by Congress in 1970 “to provide liquidity, stability and

DECISION TC-MD 120177C 5

affordability to the U.S. housing market,” primarily through the “purchase [of] loans from

lenders to replenish their supply of funds so that they can make more mortgage loans * * *.”

Frequently Asked Questions About Freddie Mac, Freddie Mac, (Oct 12, 2012, 4:37 PM),

http://www.freddiemac.com/corporate/company_profile/faqs/?intcmp=AFCPFA. “Freddie Mac

was placed into conservatorship [in September 2008] in order to help restore confidence in the

company.” Id. That fact (conservatorship) suggests Freddie Mac was found to be operating

ineffectively. Moreover, because its primary business purpose is purchasing loans from lending

institutions, Freddie Mac, like the many lenders it supports, are not truly in the business of

buying and selling homes. When a home mortgage lender or the mortgage lien holder comes

into possession of a home, it is typically because the buyer(s) walked away from the home for

financial reasons or failed to keep up with the mortgage payments and the lender ultimately

foreclosed on the property, finding itself in the position of having to sell it to recoup all, or at

least some, of the outstanding loan balance.

As indicated above, Plaintiffs‟ acquisition from Freddie Mac was through an online bid

process conducted after the property had been unsuccessfully listed for sale for more than two

years (with an original list price of $359,900 in July 2008). Hirschfelder, who lives in Montana,

testified that in October or November of 2010, he looked into the purchase of the subject

property, which was listed for sale by a realtor at the time. The court was curious as to why a

Montana resident would be purchasing a fairly large residential property in Oregon, to which

Hirschfelder responded that his son lives in Oregon and moved into the subject property after

Plaintiffs‟ purchase. Hirschfelder visits his son a couple of times of the year “when it snows in

Montana.”

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DECISION TC-MD 120177C 6

Concerning the auction, Hirschfelder testified that before he could make an offer, the

property “went to bid,” with Freddie Mac as the seller. Hirschfelder submitted a bid through an

agent. Hirschfelder explained that he chose to use an agent because he was not familiar with the

bidding process. The bidding process in this case was an “online” auction at RealtyBid.com

through a company specializing in advertising and marketing properties owned by individuals

and financial institutions. (Ptfs‟ Ex 21.) Hirschfelder submitted his bid in early November 2012.

The auction closed on or about November 12, 2010. Hirschfelder testified that he was later

notified by email that his bid did not meet the reserve amount. He then spoke with his agent and

decided not to submit another bid. According to his testimony, Hirschfelder was notified four

days later through his agent that his original bid was accepted.

The question, then, is whether Plaintiffs‟ purchase was arm‟s-length. “The Appraisal

Institute explains that the term „arm‟s-length‟ involves „[a] transaction between unrelated parties

under no duress.‟ ” Hotchkiss Family Trust v. Linn County Appraiser, TC-MD No 120097D at 5

(Aug 6, 2012) (citing Appraisal Institute, The Appraisal of Real Estate 305 (13th ed. 2008)).

“This court has been reluctant to consider „foreclosure‟ sales as „arm‟s-length transactions‟

because such sales „may well involve an element of compulsion on the part of the seller.‟ ” Id.

(citing Kryl v. Lane County Assessor (Kryl), TC-MD No 100192B, WL 1197444 *2 (Mar 30,

2011)); see also Knight Bridge Crossing, LLC v. Washington County Assessor, TC-MD No

110238N, WL 176682 *4 (Jan 23, 2012) (concluding that a bulk sale of eight bank owned lots

involves “nontypical market conditions”); Yarbrough v. Marion County Assessor, TC-MD No

070229C, WL 4440216 at *4 (Dec 12, 2007) (discussing foreclosure sales and atypical market

conditions).

In at least one case, the Oregon Supreme Court considered the purchase of property by a

taxpayer from a lending institution that acquired the property through foreclosure of its mortgage

DECISION TC-MD 120177C 7

loan to be “a voluntary bona fide arm‟s-length transaction between a knowledgeable and willing

buyer and a willing seller.” Ward 293 Or at 588. In Ward, however, the lender that sold the property

had obtained an independent appraisal that valued the property at the same amount for which it

subsequently sold. In this case, Hirschfelder indicates that the reserve price for the public auction

was $250,000 and that his $175,000 bid was initially rejected and then later accepted. Thus, in the

end, Freddie Mac sold the property for 30 percent less than its minimum reserve price, which is

presumably the least amount of money Freddie Mac expected, or at least hoped, it would receive for

the property.

This court has also held that “[t]here are narrow exceptions determined on a case-by-case

basis to the holding that bank-owned property sales are not typically representative of real

market value.” Brashnyk v. Lane County Assessor (Brashnyk), TC-MD No 110308, WL

6182028 *5 (Dec 12, 2011). Such an exception may be recognized by the court “where the

majority of sales are distress, [because] it would seem that that kind of sale would provide a

more accurate reflection of the market.” Morrow Co. Grain Growers v. Dept. of Rev., 10 OTR

146, 148 (1985).

In Brashnyk the taxpayer succeeded in obtaining a reduction in the RMV of a 3,100

square-foot residential home purchased from a bank roughly four months after the applicable

assessment date for $247,500, and the court reduced the RMV from $395,997 to $280,000

($30,000 more than the $250,000 value the plaintiff requested at trial). Brashnyk, TC-MD No

110308. The court discussed the fact that the subject property was “bank-owned” at the time of

purchase and that such circumstances often make the sale suspect. Id. However, the court was

ultimately persuaded to reduce the RMV by the particular and somewhat compelling facts in that

case, including the fact that the property had been listed for sale for almost five years, that the

asking price had been reduced 12 times over that five-year period, and that the property‟s final

DECISION TC-MD 120177C 8

list price (less than two weeks after the applicable assessment date) was $273,900, a figure very

close to the court‟s $280,000 RMV determination. Id.

That case can be contrasted with Schnabel v. Clatsop County Assessor, TC-MD No

100618D (Feb 22, 2011), where the court rejected the taxpayers‟ request for a reduction in the

RMV of a residential condominium based on a purchase by the plaintiffs at an auction 11 and

one-half months after the applicable assessment date. The court in Schnabel noted that “[a]n

auction is defined as a „sale of property to the highest bidder.‟ ” Id. (citing Webster’s Third Int’l

Dictionary 142 unabridged ed 2002).) The court continued: “[a]n auction eliminates the

negotiation between the buyer and seller and requires buyers to negotiate with each other,

generally leaving the seller out of the negotiation process.” Id. Another relevant factor in that

case was that the taxpayers did not present any other value evidence, choosing instead to rely

solely on the purchase price, whereas the assessor presented a value report that utilized six

comparable sales of condominium units in the same building as the subject property. Id.

In another Decision of this court involving the sale of a bank-owned property, the court

rejected the plaintiff‟s request for a reduction in the RMV of a 4,000-plus square-foot two story

residential home built in 2000, stating that:

“[a] property purchased through foreclosure may well involve an element of

compulsion on the part of the seller. There are many practical reasons why the

sale of a property following foreclosure by the lender might involve an atypical

market condition rendering the transaction of little or no value as an indication of

market value. For example, the lender may have a policy of selling such property

only for the amount of the underlying debt, regardless of what the property may

actually be worth, particularly if it would take a few months or more to find a

buyer willing to pay a higher price.”

Kryl, TC-MD No 100192B.

In the present case, Hirschfelder argues that his purchase meets all of the requirements of

an arm‟s-length transaction because there was no duress and both parties were informed. In an

DECISION TC-MD 120177C 9

attempt to support that assertion, Plaintiffs submitted an excerpt from the Assessor‟s Certified

Ratio Study Procedures Manual, which notes in Chapter 5 that among the sales that are

“potentially usable” are “[t]ransfers by government agencies and financial institutions” provided

that the sales are “confirmed.” (Ptfs‟ Ex 2 at 3.) Hirschfelder also submitted excerpts from the

Board of Property Tax Appeals Manual written by the Oregon Department of Revenue, dated

January 2011. (Ptfs‟ Ex 3.) He drew the court‟s attention to page 16-2 of the Manual which, as

part of its discussion of an arm‟s-length sale, explains that duress “means the seller was not

compelled to sell the property for financial reasons, and the buyer was not compelled to purchase

the property within a time period that‟s considered unreasonable.” (Id. at 2.) Hirschfelder insists

there was no duress because both he and the seller Freddie Mac used agents in the sale of the

subject, and that duress is essentially doing something that someone “does not want to do.”

Hirschfelder testified that all owners make choices of whether or not to sell, although he

acknowledges that there is “some compulsion” if the homeowner fails to make the required

mortgage payments and the bank wants the home back. However, he insisted that that situation

is not duress because the homeowner in that scenario is not living up to his or her end of the

contract and “their actions caused them to be where they are.” Hirschfelder went on to testify at

length about what he believed to be an arm‟s-length transaction and what was and was not

duress, concluding that the market is “messy, but that‟s what makes it wonderful.” When

queried by the court as to whether Hirschfelder felt that he “got a deal,” he responded with the

words: “not really,” followed by the acknowledgment that he “got an extra 200 square-feet” of

living space that he “did not know [he] was buying.”

Given the facts outlined above regarding Plaintiffs‟ purchase of the subject property, the

court finds that the purchase was not arm‟s-length and is therefore not indicative of the

DECISION TC-MD 120177C 10

property‟s RMV as of January 1, 2011. The home was sold at auction through an online bid with

Freddie Mac being the record owner of the property. The home had been listed for sale for more

than two years prior to Plaintiffs‟ purchase, there was an interim foreclosure in May 2010 with

$285,000 owing on the property, followed by a new listing in June 2010 for $282,900, and the

eventual auction after the November 9, 2010, $250,000 listing was removed. (Ptfs‟ Ex 19.)

During the spring and summer months of 2010 (April through mid-September), the listing price

for the property was between $295,000 and $255,000. (Id.) Plaintiffs paid $175,000 for the

property, or approximately $57 per square-foot.4 Plaintiffs paid $75,000 less than the final

$250,000 listing price of early November 2010, which was the price just before the property was

removed from the open market; Freddie Mac‟s $250,000 minimum reserve bid price posted

roughly one week later (November 17, 2000). (Id.)

2. Deferred maintenance

In an attempt to establish the $175,000 purchase price as the market value of the

property as of the January 1, 2011, assessment date, Hirschfelder submitted a number of

documents he believed demonstrated that the property needed $60,500 worth of deferred

maintenance and repairs. (Ptfs‟ Exs 22-24.) Subtracting that amount from the $250,000 Freddie

Mac asking price, Hirschfelder contends that a more realistic “maximum fair market value

adjusted for condition at the date of sale” was $189,500, which is less than 10 percent more than

Plaintiffs paid for the subject property. (Ptfs‟ Ex 22.) The court has reviewed the testimony and

supporting documents submitted by Hirschfelder and finds them unpersuasive. Many of the

items are either simply cosmetic or typical for a 32-year-old home (built in 1978 and bought in

December 2010).

4

$175,000 ÷ 3,074 square feet = $56.92.

DECISION TC-MD 120177C 11

Defendant acknowledges that there were some “condition issues” affecting the property

at the time of Plaintiffs‟ purchase and argues that the RMV originally placed on the assessment

and tax rolls was based on an error in the square footage (2,844 square-feet in the records versus

the actual square footage of 3,074). Defendant states that the RMV “would have been $289,290”

if the value had been based on the correct square footage. (Def‟s Ex B at 4.) Defendant then

notes that the BOPTA-reduced RMV of $250,000 allowed “up to $39,290 of cost to cure value,”

which Driskell felt was reasonable given his value range. (Id.)

C. Comparable sales approach

The Department of Revenue (Department) may adopt rules “to regulate its own

procedure.” ORS 305.100. The Department promulgated OAR 150-308.205-(A)(2)(a), which

states: “For the valuation of real property all three approaches – sales comparison approach, cost

approach, and income approach – must be considered. For a particular property, it may be that

all three approaches cannot be applied, however, each must be investigated for its merit in each

specific appraisal.” In this case, both parties relied on the sales comparison approach, with

Plaintiffs also relying on their purchase price, discussed above.

1. Plaintiffs’ value evidence

Plaintiffs presented two types of valuation evidence. The first is a sales grid

listing five sales occurring between May and December 2010 for prices ranging from a low of

$200,000 to a high of $275,000. (Ptfs‟ Ex 18.) Hirschfelder adjusted the sales for age,

neighborhood, and size, and derived adjusted sale prices ranging from a low of $150,237 to a

high of $207,347. (Id. at 1.) Hirschfelder‟s largest adjustment was the single figure $32,953 for

neighborhood adjustments, which he applied as a deduction to all five of his sales based on his

determination that the subject property was in a “nonhomogeneous” neighborhood (whereas all

DECISION TC-MD 120177C 12

five of his comparable sales were in homogeneous neighborhoods). (Id.) Hirschfelder indicates

in his valuation grid sheet that the $32,953 negative adjustment was derived by taking 15 percent

of the absolute median sale price for all properties in Marion County in the “R46” class.5 (Id.)

Hirschfelder is not an appraiser and has no formal appraisal-type training. Hirschfelder did not

demonstrate that his adjustments were market based. For example, his comparable sale number

one was 18 years newer, and Hirschfelder made an $18,000 negative adjustment for the age

difference ($1,000 per year). (Id.) However, neither his testimony nor his exhibit explains how

he arrived at that figure. He adjusted his second comparable upwards $28,410 because that sale

involved a home 30 years older. (Id.) Hirschfelder made other unexplained adjustments for

differences in lot and home sizes where he felt the disparity was significant enough to warrant

some adjustment. (See id.) The court is not persuaded by Hirschfelder‟s comparable sales

valuation estimate.

Hirschfelder‟s second type of valuation evidence is a three-page table of all banks sales in

the same zip code as the subject property that occurred in 2010, which is the year just prior to the

applicable January 1, 2011, assessment date for the 2011-12 tax year. (Ptfs‟ Ex 6A.)

Hirschfelder testified that there were 13 such sales in his zip code area, excluding his purchase,

and that the bank made money on five of them. Hirschfelder also included bank sales data from

a nearby zip code area and testified at trial that of the 19 sales in that zip code area, the

institution made “some sort of profit” on 27 percent of the transactions. (See Ptfs‟ Ex 6B.)

Driskell responded that the sales price often includes additional fees and that the prices reflected

in the deed did not necessarily mean that the institution actually made a profit.

5

The “R” stands for residential and the first digit (4) represents the property class as reflected in the

assessor‟s records, the class scale ranging from a low of 1 to a high of 8. Driskell testified that a “5” would be “an

average home.” The court was a little unclear as to the meaning of the second digit (6); when asked by the court,

Driskell testified that the subject property fell into the “6” class because it was a two-story home with an attic over

the garage, etc. Hirschfelder simply testified that he “stayed with the R4 class.”

DECISION TC-MD 120177C 13

Frankly, the question of whether a seller makes a profit or suffers a loss is irrelevant to

the issue at hand, which is the RMV of the subject property on January 1, 2011. A person can

buy a property in a rising market and later sell it in a falling market, experiencing a considerable

loss in the process, but, if the sale price was an amount in cash (or equivalent terms) paid by an

informed buyer to an equally informed seller, neither of which is acting under any compulsion,

in a transaction that was truly at arm‟s-length (the price was not influenced by any type of

personal relationship between the parties, neither was under any duress, etc.), then the sales price

likely represented market value, which as this court has said in the past can vary by as much as

10 percent. Price v. Dept. of Rev., 7 OTR 18, 25 (1977) (noting that value is a range rather than

an absolute). Having concluded that the bank foreclosure sale information Hirschfelder

presented is irrelevant, the court finds Plaintiffs have failed to submit persuasive value evidence

based on the sales comparison approach and, as such, they have failed to meet their statutory

burden of proof under ORS 305.427.

As indicated above, the court has the statutory authority to determine the RMV of a

property “on the basis of the evidence before [it], without regard to the values pleaded by the

parties.” ORS 305.412.

2. Defendant’s value evidence

Turning to Defendant‟s evidence, its appraiser Driskell submitted a valuation

estimate based on four comparable sales, two occurring in mid-2011 (May and July) and the

other two in mid- and late-2010 (July and October). (Def‟s Ex at 1-2.) Driskell determined that

the RMV for the subject property was within the range of $280,642 (comparable # 4) and

$315,030 (comparable #1). Driskell‟s analysis is not without its own flaws. For example, he

made fairly significant “time” adjustments for the pre-assessment-date sales, comparables #3 and

DECISION TC-MD 120177C 14

#4 ($6,700 for a sale occurring on October 27, 2010 and $12,650 for a sale occurring on July 16,

2010), but no such adjustments for his two post-assessment-date sales, comparables #1 and #2,

which sold on May 31, 2011, and July 22, 2011, respectively. (Id.) However, Driskell‟s report

is, on the whole, more persuasive than any of the evidence submitted by Plaintiffs. Additionally,

Driskell stated during closing, as well as in his report, that the $250,000 RMV as reduced by

BOPTA from the original $274,380 RMV (that had appeared on the assessment and tax rolls

before the BOPTA reduction), should be sustained because that number incorporates an amount

to cure the condition issues (repairs and deferred maintenance) that both parties agree impacted

the property at the time of Plaintiffs‟ purchase.6

The final piece of relevant valuation information that the court was made aware of during

trial was that, roughly 30 days after Plaintiffs purchased the subject property, they had an

appraisal done and the independent appraiser estimated the value of the home to be $275,000.

That appraisal, which Hirschfelder refused to share with Defendant and did not submit into

evidence, was made on or about January 19, 2011, less than three weeks after the January 1,

2011, assessment date for the 2011-12 tax year. That value is remarkably close to the $274,380

RMV Defendant placed on the assessment and tax rolls for the 2011-12 tax year, a value

subsequently reduced by BOPTA to $250,000. As noted above, Defendant has simply asked the

court to sustain the $250,000 BOPTA-reduced RMV.

III. CONCLUSION

After a thorough review of the evidence, both documentary and testimonial, guided by

the relevant rules and regulations (legislative, administrative, and judicial) applicable to the issue

6

Hirschfelder insists that there were considerably more maintenance and repair problems than Driskell

found, and, after reviewing the evidence and in light of the testimony, the court finds that Driskell presented a more

realistic assessment of the condition of the property in December 2010.

DECISION TC-MD 120177C 15

presented, which is the real market value as of January 1, 2011, of the subject property identified

in the Assessor‟s records as Account R93190, the court concludes that the $250,000 value found

by the Marion County Board of Property Tax Appeals should be sustained. Now, therefore,

IT IS THE DECISION OF THIS COURT that Plaintiffs‟ appeal is denied.

Dated this day of October 2012.

DAN ROBINSON

MAGISTRATE

If you want to appeal this Decision, file a Complaint in the Regular Division of

the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR 97301-2563;

or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR.

Your Complaint must be submitted within 60 days after the date of the Decision

or this Decision becomes final and cannot be changed.

This document was signed by Magistrate Dan Robinson on October 25, 2012.

The Court filed and entered this document on October 25, 2012.

DECISION TC-MD 120177C 16