Rainsweet Inc. v. Marion County Assessor

IN THE OREGON TAX COURT

MAGISTRATE DIVISION

Property Tax

RAINSWEET INC. )

and RS GROWERS INC., )

)

Plaintiffs, ) TC-MD 130050D

)

v. )

)

MARION COUNTY ASSESSOR )

and DEPARTMENT OF REVENUE, )

State of Oregon, )

)

Defendants. ) FINAL DECISION

The court entered its Decision in the above-entitled matter on November 14, 2013. The

court did not receive a request for an award of costs and disbursements (TCR-MD 19) within 14

days after its Decision was entered. The court’s Final Decision incorporates its Decision without

change.

This matter is before the court on cross-motions for summary judgment from Plaintiffs

and Defendant Department of Revenue (department). Plaintiffs appeal the department’s

Conference Decision No. 11-0061, dismissing Plaintiffs’ petition for review because Defendant

Marion County Assessor (assessor) did not agree to facts indicating a likely error on the roll.

Oral argument on the motions was held via telephone on August 15, 2013. W. Scott Phinney,

Attorney, represented Plaintiffs. Douglas Adair, Assistant Attorney General, represented the

department.

I. STATEMENT OF FACTS

Plaintiffs’ “Property Appeal Petition” (petition) asked the department to exercise its

supervisory power to reduce the 2008-09, 2009-10, and 2010-11 tax roll values of Marion

FINAL DECISION TC-MD 130050D 1

County Account Nos. R26673, P118850, and R339457. (Conf Rec at 3-5;1 57-66.) Plaintiffs’

petition summarily alleged various legal justifications for the department to assume jurisdiction,

including the taxation of nonexistent items, errors in personal property reporting, reliance on

misinformation from the department, and “[a]greement on facts that indicate an error.”

(Id. at 58.)

The conference record contained responses to Plaintiffs’ petition from both the assessor

and the department’s valuation section, each of which stated that they declined to agree to any

facts asserted on the petition. (Id. at 49-54.) The assessor stated that “[t]he valuation of this

property is the responsibility of the Oregon Department of Revenue.” (Id. at 54.) The

department’s valuation section submitted similar responses, stating that it was unable to agree or

disagree to any facts because “[t]he filed complaint presents no detail regarding or supporting the

allegation.” (Id. at 49-53.)

The department’s supervisory conference was held July 18, 2012, with representatives

from the department and the assessor present. (Conf Rec at 3.) No testimony was received into

the record at the hearing. (Conference Recording.)

The only evidence offered by Plaintiffs in support its claim of an agreement to facts

indicating likely error is a department appraisal report for two of the three tax accounts:

machinery, improvements (R26673) and personal property (P118850) (the appraisal properties).

(Conf Rec at 9-22.) The appraisal properties included “[r]eal property improvements including

buildings, structures, yard improvements, machinery and equipment, and personal property” and

excluded “[l]and, inventory, and licensed vehicles.” (Id. at 12.)

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1

The court’s citations to the conference record are to Plaintiffs’ Exhibit 1.

FINAL DECISION TC-MD 130050D 2

The appraisal report determined a January 1, 2010, real market value for the appraisal

properties of $4,413,880 for buildings, structures, and machinery and equipment; and $578,714

for personal property. (Conf Rec at 12.) Those real market values were higher than the 2010-11

tax roll values, which were $4,157,630 for the improvements and $543,490 for the personal

property. (Id. at 62-63; see also id. at 53.)

The conference decision dismissed Plaintiffs’ petition for lack of jurisdiction, concluding

that

“the department does not find any agreement by all the parties to the petition to

any facts that indicate an assessment error is likely. Further, there is no

substantiated evidence that any of the other supervisory standards identified in

OAR 150-306.115 have been satisfied.”

(Id. at 5.)

Plaintiffs appeal the conference decision, requesting the court to direct the department to

hold a merits conference.

II. ANALYSIS

The primary issue in this case is whether the department abused its discretion by

dismissing Plaintiffs’ supervisory petition. A second issue is whether the department

permissibly denied review of the 2010-11 tax roll value of the “appraisal properties” for the

reason that the assessor did not agree to the existence of the department’s appraisal report of

those properties.

A. The department’s supervisory power

The department has statutory authority to “exercise general supervision and control over

the system of property taxation throughout the state.” ORS 306.115(1).2 In exercise of that

authority, the department

2

The court’s citations to the Oregon Revised Statutes (ORS) are to 2011.

FINAL DECISION TC-MD 130050D 3

“may order a change or correction applicable to a separate assessment of property

to the assessment or tax roll * * * if * * * the department discovers reason to

correct the roll which, in its discretion, it deems necessary to conform the roll to

applicable law * * *.”

ORS 306.115(3).

Pursuant to the rulemaking authority granted to it by ORS 305.100, the department

promulgated Oregon Administrative Rule (OAR) 150-306.115, which allows for taxpayer

petitions and regulates its consideration of those petitions. The relevant portion of that rule is as

follows:

“(4) The department will consider the substantive issue in the petition only when:

“(a) The assessor or taxpayer has no remaining statutory right of appeal; and

“(b) The department determines that an error on the roll is likely as indicated by at

least one of the following standards:

“(A) The parties to the petition agree to facts indicating likely error; or

“(B) There is an extraordinary circumstance indicating a likely error.

Extraordinary circumstances under this provision are:

“(i) The taxation of nonexistent property * * *

“(ii) Taxpayers’ computational or clerical errors in reporting the value of personal

property pursuant to ORS 308.290;

“* * * * *.”

OAR 150-306.115(4).

B. Standard of review

The court reviews the department’s use of its supervisory power under ORS 306.115 for

abuse of discretion. ADC Kentrox v. Dept. of Rev. (ADC Kentrox), 19 OTR 91, 98 (2006).

Abuse of discretion occurs when an agency “act[s] capriciously or arrive[s] at a conclusion

which was clearly wrong[,]” or when it “does not act upon the facts presented to it or fails to

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FINAL DECISION TC-MD 130050D 4

obtain the factual data necessary for a proper result.” Martin Bros. v. Tax Commission, 252 Or

331, 338, 449 P2d 430 (1969); Rogue River Pack. v. Dept. of Rev. (Rogue River Pack), 6 OTR

293, 301 (1976). So long as the agency’s findings are supported by the record before it, the court

will not substitute its judgment for that of the agency. Rogue River Pack, 6 OTR at 298.

The court’s standard for reviewing motions for summary judgment is provided in Tax

Court Rule (TCR) 47.3 The court grants motions for summary judgment where the pleadings and

evidence “show that there is no genuine issue as to any material fact and that the moving party is

entitled to prevail as a matter of law.” TCR 47 C.

Plaintiffs’ Motion for Summary Judgment (Motion) alleges three reasons this court

should find that the department abused its discretion: agreement to facts indicating likely error,

good and sufficient cause, and extraordinary circumstances.

C. Agreement of the parties to facts indicating likely error

The department must hold a merits conference if (1) the parties to the petition agree to

certain facts; and (2) those facts indicate a likely error on the tax roll. See Thomas Creek Lumber

& Log Co. v. Dept. of Rev. (Thomas Creek), 19 OTR 103, 106 (2006) (department “must” hold a

merits conference “[w]here the parties agree on facts indicating a likely error on the roll”);

OAR 150-306.115(4)(b)(A). The agreement of the parties is to facts, not to an error on the roll.

Ohio State Life Ins. Co. v. Dept. of Rev., 12 OTR 423, 426 (1993). The department determines

whether the agreed facts indicate a likely error. Id.

In the present case, Plaintiffs’ sole alleged agreed fact supported by evidence in the

conference record is the existence of the department’s appraisal report. Even though Plaintiffs’

3

TCR 47 is made applicable through the preface to the rules of the Magistrate Division, which states that

“[i]f circumstances arise that are not covered by a Magistrate Division rule, rules of the Regular Division of the Tax

Court may be used as a guide to the extent relevant.”

FINAL DECISION TC-MD 130050D 5

brief also alleges the parties have agreed that “the values at issue had been established by

trending” and that “a new appraisal was needed because of errors in the asset listing and

obsolescence[,]” there is no evidence in the conference record to support those allegations. (Ptfs’

Mot Summ J at 10.) Plaintiffs did not substantiate those allegations at the department conference

hearing or at oral argument before this court.

Although the conference decision’s conclusion is ambiguous, the discussion preceding

that conclusion indicates that Plaintiffs’ petition was dismissed because the conference officer

found that the parties to the petition did not agree to the existence of the appraisal report. (See

Conf Rec at 4.) The cornerstone of the conference decision’s reasoning is that the assessor,

which stated it did not agree to any facts, is a party to the petition:

“Regardless of whether or not the department considers the appraisal of

the subject property by the valuation section as a fact, to which the petitioner and

valuation section agree, indicating a likely error on the roll, the county assessor is

also a party to the petition. * * * In this case there is no evidence that the county

assessor has agreed to any facts.” 4

(Id.)

1. Is it abuse of discretion to find that the parties to the petition did not agree to

facts indicating likely error?

a. Is the assessor a party to the petition?

Plaintiffs argue that the agreement or disagreement of the assessor to the appraisal

report’s existence is irrelevant because the appraisal properties are industrial property and the

valuation of industrial property is the department’s responsibility. (Ptfs’ Mot Summ J at 10-11.)

The department, in response, asserts that this court, in ADC Kentrox, 19 OTR at 100, determined

4

The conference decision does not attempt to reconcile its finding of “no evidence” of agreement to facts

with the assessor’s written statement that “[t]he Oregon Department of Revenue did a complete physical reappraisal

for the 2010-11 tax year.” (Conf Rec at 54.)

FINAL DECISION TC-MD 130050D 6

that the county assessor is a necessary party to a property value petition. (See Def Depts’ Cross-

Mot Summ J at 5.) At oral argument, the department argued that because the assessor is a party

and the assessor did not agree to facts, the department concluded that there was no agreement to

facts and its denial of Plaintiffs’ request for a merits hearing was within its discretion.

The question presented in this case differs from that presented in ADC Kentrox. In ADC

Kentrox, the court was asked whether the predecessor to the current OAR 150-306.115(4)(b)(A)

was invalid as a de facto improper delegation of the department’s supervisory authority to the

counties. ADC Kentrox, 19 OTR at 99-100. The theory put forward by the plaintiff in ADC

Kentrox was that a county could unilaterally prevent the department from taking jurisdiction by

refusing to agree to facts. Id. The court rejected that argument, citing the department’s wide

discretion to determine its own procedure and also noting that the department had provided

“other avenues” for taxpayers to show error if the county refused to agree to facts. Id. at 100.

The court upheld the validity of the department’s regulation. In the present case, the validity of

OAR 150-306.115(4)(b)(A) has not been challenged; rather, the question is whether the assessor

is one of the “parties to the petition” of industrial property valued by the department. That

question has not previously been decided by this court.

In construing administrative rules, the court relies on the same methods it uses in

statutory construction. See Boardman Tree Farm v. Morrow County Assessor, TC 4990 (2011).

The court therefore examines the text and context of the rule to discern the intent of the

rulemaking agency. Cf. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143

(1993). In so doing, the court applies rules of construction, such as to not “insert what has been

omitted, or * * * omit what has been inserted[,]” and to give words of common usage “their

plain, natural, and ordinary meaning.” (Id.)

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Under OAR 150-306.126(1)(6), to the extent the department values industrial property

pursuant to ORS 306.126, it assumes sole responsibility to defend its valuation against appeals.

OAR 150-306.126(1)(6) states:

“The party that valued the property will be responsible for defending any

appeals. In all cases, the county is responsible for the defense of the land

valuation.”

That regulation’s second sentence shows that the department’s responsibility for defending

appeals of property it has valued is exclusive. Taken alone, the first sentence might have been

construed to grant the department concurrent responsibility for defending appeals without taking

away the county’s responsibility. However, that construction is not preferred because it would

render the second sentence superfluous. The alternate construction, which gives effect to all

provisions, is that the regulation simultaneously grants responsibility to the department and takes

away responsibility from the county for those appeals defended by the department. The court

therefore concludes that OAR 150-306.126(1)(6) grants the department sole responsibility for

defending appeals of industrial property it values, to the exclusion of the county.

In the case before the court, the petition is an appeal for the purpose of applying the rule

determining what entity will defend the roll value. When the question is not whether to allow a

petition but, rather, who will defend the roll value, the distinction between petitions and other

appeals is not pertinent. This court’s previous statement that a petitioner is not “ ‘appealing’ in

the usual sense from an action of an assessor or board” should not be understood to the contrary.

FSLIC v. Dept of Rev. (FSLIC), 11 OTR 389, 391 (1990). In FSLIC, the court found that

taxpayers are not precluded from petitioning the department despite having received a favorable

result from the board of equalization. Id. The way in which a petition is not “usual” is that it is

an appeal of the tax roll value itself rather than an appeal of the taxing authority’s adverse act.

The department, unlike a court, is “charged by law with the duty to correct errors regardless of

FINAL DECISION TC-MD 130050D 8

how it may discover them.” Id. A petition serves the department’s interest in discovering errors

no matter what prior determinations have been made by the taxing authority.

With respect to the 2010-11 tax roll value of the appraisal properties, the conference

decision misapplied its own rule by asserting the assessor was a party to the petition. See OAR

150-306.126(1)(6). In such a case, “[t]he court is unable to measure the department’s

discretionary decision against the facts” because the department “may have ignored important

facts which, if the department had applied the rule correctly, may have resulted in a different

decision by the department.” McGill v. Dept. of Rev., 14 OTR 40, 43 (1996).

b. Did the department agree to any facts?

At the conference, the department’s representative “stated that he did not agree to any

facts presented by [Plaintiffs].” (Conf Rec at 4.) The record contains no evidence supporting a

change of the 2008-09 and 2009-10 tax roll values of the appraisal properties, or the other

properties for any years at issue. The conference officer was within his discretion to find that the

parties did not agree to facts regarding those years and properties.

With respect to the 2010-11 tax roll value of the appraisal properties, the conference

decision’s conclusion about the parties’ agreement to facts is less clear. The conference decision

discusses whether the department agreed to the existence of its appraisal report, but stops short of

concluding that it does. It states that “at most, [Plaintiffs and the department] agree that an

opinion of value exists, but the appraisal was not relied on by the valuation section to determine

the 2010-11 real market value.” (Conf Rec at 4.) Although the department’s agreement to the

existence of the appraisal report it created could be a finding supported by the conference record,

the conference decision’s use of the qualification “at most” means that the department has not

yet made that finding.

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Depending on its answer to the question discussed immediately below, the department

might decide that finding agreement to the existence of the appraisal report is not “necessary for

a proper result” in this case. See Rogue River Pack, 6 OTR at 298. Pending the department’s

determination of whether the appraisal report indicates a likely error on the roll, the court need

not address the department’s agreement to its existence at this time.

2. Does the appraisal indicate likely error?

Aside from noting that “the appraisal was not relied on by the valuation section to

determine the 2010-11 real market value[,]” the conference decision does not address whether

the appraisal report indicates a likely error on the roll. (Conf Rec at 4.) The conference decision

gives no explanation of why the department did not rely on its appraisal report.

This court has addressed the question of whether an agreed fact indicates likely error in

Thomas Creek, 19 OTR at 108, where the court considered the size of the purported error

indicated by the agreed fact to be significant. In that case, the department abused its discretion

by not holding a merits conference where an agreed fact was that a department appraiser had

previously offered a stipulation reducing the roll value by half. Id. at 106-08. The court

reasoned:

“The department was ‘clearly wrong’ in concluding that the agreed upon fact of

[the department appraiser’s] proposed stipulation did not indicate a likely error on

the roll. Especially considering the size of the proposed reduction, the proposal

did, indeed, indicate a likely error.”

Id. at 108 (emphasis added).

The court’s holding in Thomas Creek does not state a bright line test for determining the

required “size of the proposed reduction” to create a likely error. The court concluded that

reducing the roll value by 50 percent does indicate a likely error. In contrast, an agreed fact

indicating a real market value differing by less than 10 percent from the tax roll would not

FINAL DECISION TC-MD 130050D 10

support a finding that an error is likely. See Price v. Dept. of Rev. (Price), 7 OTR 18, 25-26

(1977). In Price, the court noted that the appraisal process is “highly subjective,” a consequence

of which is that value is a range, not an absolute. Id. Thus, it is “almost impossible” to prove a

reduction in value of less than 10 percent of the tax roll value, and “[a] person experienced in

property valuation, having convinced himself that a 10 percent differential or less was involved,

would ordinarily seek to dissuade a client from an appeal.” Id. at 25.

In the present case, because the conference decision based its conclusion on the

assessor’s nonagreement to the appraisal report’s existence rather than on whether the appraisal

report indicated likely error, there is no discretionary act of the department for the court to

review.

D. Good and sufficient cause

Plaintiffs allege “good and sufficient cause” for failing to timely file the 2009-10 and

2010-11 appeals in the usual course as follows:

“The taxpayers relied on the Department to do an accurate and timely appraisal of

their property. This is what they were led to believe from their contact with

Department staff. The Department did not correct values based on the new

appraisal and did not complete the project in a timely manner.”

(Ptfs’ Mot Summ J at 11.) Plaintiffs have cited no legal authority and the relevance of their

argument is unclear. There is no evidence to support a finding that the department abused its

discretion.

E. Extraordinary circumstances

In its Motion under the heading “Extraordinary Circumstances,” Plaintiffs allege:

“The lower values reflected in the appraisal were due to corrected asset

lists and reevaluated depreciation. Since the values for all the years at issue were

based on trending the same errors are likely for all the years. The refusal to

address the taxation of non-existent or misclassified assets is an abuse of

discretion. The failure to address likely understated depreciation is an abuse of

discretion.”

FINAL DECISION TC-MD 130050D 11

(Ptfs’ Mot Summ J at 11.) Plaintiffs cite no authority. Plaintiffs may be referencing

OAR 150-306.115(4)(b)(B), which enumerates “extraordinary circumstances” under which the

department will take jurisdiction over a petition.

The conference record does not contain evidence to support Plaintiffs’ assertions.

Plaintiffs’ first statement, regarding “lower values reflected in the appraisal,” is actually

contradicted by the record: the appraisal report states higher real market values for the 2010-11

tax year, not lower real market values. The record does not contain evidence supporting the

allegation that asset lists were corrected and depreciation was reevaluated for any of the years at

issue. The evidence in the record does not show that “taxation of non-existent” assets took place.

Plaintiffs’ claims regarding “misclassified assets” and “likely understated depreciation” appear

not to be based in OAR 150-306.115(4)(b)(B) and the court is unaware of what legal authority

Plaintiffs rely upon.

Plaintiffs have not met their burden to show the department abused its discretion for any

of the above alleged and unsubstantiated “extraordinary circumstances.”

IV. CONCLUSION

With respect to the appraisal properties for the 2010-11 tax year, the court is unable to

determine whether the department abused its discretion because the department applied the

wrong standard. With respect to the 2008-09 and 2009-10 tax roll values for the appraisal

properties, the department did not abuse its discretion. With respect to the 2008-09, 2009-10,

and 2010-11 tax roll values of the remaining properties, the department did not abuse its

discretion. Now, therefore,

IT IS THE DECISION OF THIS COURT that Plaintiffs’ motion for summary judgment

is denied.

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IT IS FURTHER DECIDED that Defendant Department of Revenue’s motion for

summary judgment is granted with respect to the petition of the 2010-11 tax roll value of the

land, inventory, and licensed vehicles identified as Accounts R26673 and P118850.

IT IS FURTHER DECIDED that Defendant Department of Revenue’s motion for

summary judgment is granted with respect to the petition of the 2010-11 tax roll value identified

as Account R339457.

IT IS FURTHER DECIDED that Defendant Department of Revenue’s motion for

summary judgment is granted with respect to the petition of the 2008-09 and 2009-10 tax roll

values identified as Accounts P118850, R26673, and R339457.

IT IS FURTHER DECIDED that Defendant Department of Revenue’s motion for

summary judgment is denied with respect to the petition of the 2010-11 tax roll value of the real

property improvements, including buildings, structures, yard improvements, machinery and

equipment, and personal property identified as Accounts R26673 and P118850.

IT IS FURTHER DECIDED that the petition of the 2010-11 roll value of the real

property improvements, including buildings, structures, yard improvements, machinery and

equipment, and personal property identified as Accounts R26673 and P118850, is remanded to

the Department of Revenue for proceedings consistent with this Decision.

Dated this day of December 2013.

JILL A. TANNER

PRESIDING MAGISTRATE

If you want to appeal this Final 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 Final Decision or this

Final Decision cannot be changed.

This Final Decision was signed by Presiding Magistrate Jill A. Tanner on December 3, 2013.

The Court filed and entered this Final Decision on December 3, 2013.

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