Opinion

Dunzer v. Dept. of Rev.

  • 21 Or. Tax 479
Court
Oregon Tax Court
Filed
Sep 9, 2014
Status
Published
On the bench
Breithaupt
Cited by
4 cases
Authority
More cited than 65.1%

The opinion

No. 60 September 9, 2014 479

IN THE OREGON TAX COURT

REGULAR DIVISION

John DUNZER,

Plaintiff,

v.

DEPARTMENT OF REVENUE,

Defendant,

and

CLATSOP COUNTY ASSESSOR,

Defendant-Intervenor.

(TC 5200)

Plaintiff (taxpayer) appealed from a Magistrate Division decision as to real

market value (RMV) of property in Clatsop County. Taxpayer sought a lower

RMV than that determined by Defendant-Intervenor Clatsop County Assessor

(the county) and confirmed by the county board of property tax assessment.

Following trial, taxpayer’s valuation evidence was deemed credible but unpersua-

sive because taxpayer failed to provide support for the majority of his adjustment

values. At trial, the information in support of his adjustment values that tax-

payer attempted to provide the court was objected to as hearsay and ruled inad-

missible. Therefore even if taxpayer had successfully discredited the county’s val-

uation (which he did not) taxpayer would not have prevailed as he had failed to

provide evidence sufficient to convince the court that a lower RMV for the subject

property was warranted. Taxpayer’s appeal was therefore denied.

Trial was held by telephone on May 19, 2014.

John Dunzer, Plaintiff (taxpayer) argued the cause

pro se.

Heather L. Reynolds, Clatsop County Counsel, Astoria,

argued the cause for Defendant-Intervenor Clatsop County

Assessor (the county)

Decision for Defendant-Intervenor rendered on September 9,

2014.

HENRY C. BREITHAUPT, Judge.

I. INTRODUCTION

This matter is before the court following a trial held

by telephone on May 19, 2014. Plaintiff John Dunzer (tax-

payer) appeared pro se and requests a reduction in the real

480 Dunzer v. Dept. of Rev.

market value (RMV) of property identified as Account 14127

(subject property) for the 2012-13 tax year. Defendant-

Intervenor (the county), represented at trial by Clatsop

County Counsel Heather Reynolds, requests that the court

uphold the RMV determined by the board of property tax

appeals. Defendant Department of Revenue tendered its

defense of the case to the county.

II. FACTS

The subject property consists of a single-family res-

idence and 0.23-acre triangular-shaped lot in “the Cove”

neighborhood of Seaside, Oregon.

The subject property was built in 1994 and subse-

quently remodeled and improved. On the assessment date

the subject property featured four bedrooms, four and one-

half bathrooms,1 an attached finished garage,2 a central

vacuum system, a finished attic, and an elevator providing

access to all four floors.

Taxpayer appealed the 2012-13 tax year property

tax assessment for the subject property to the Magistrate

Division of the Oregon Tax Court. Dunzer v. Clatsop County

Assessor, TC-MD No 130276D, 2013 WL 6330893 (Dec 5,

2013). The magistrate found for the county. Id. Taxpayer

now appeals to the Regular Division.

At trial, the court granted the county’s pre-trial

Motion to Exclude Portions of Appraisal, and excluded

pages 25 to 28 and 33 to 35 of Plaintiff’s Exhibit 1 as

hearsay. Plaintiff’s Exhibit 2 was also excluded as hear-

say, except for pictures taxpayer took himself on pages

14 and 16. The court received in evidence an appraisal

report prepared by the county’s appraiser Michael Grant

(Grant).

1

Michael Grant testified that the subject property has three and one-half

bathrooms. Grant’s number is supported by an undated listing on page 27 of

Exhibit I-1, but contradicted by an undated listing on page 29 of that exhibit and

by taxpayer’s testimony. If Grant undercounted the number of bathrooms in his

appraisal, such error benefits taxpayer by resulting in lower adjustments to the

comparable properties.

2

Plaintiff describes the garage of the subject property as “detached” on page

9 of Exhibit 1, but describes the garage as “attached” on Exhibit 1 page 42, and

admits it is connected to the residence in page 8 of the same exhibit.

Cite as 21 OTR 479 (2014) 481

A. Taxpayer’s Position

Subject to the aforementioned exclusions, the court

received in evidence a document titled “Subject Property

Appraisal” prepared by taxpayer and purporting to support

taxpayer’s conclusion that the RMV of subject property is

$398,000. Taxpayer testified that he revised his adjustment

to $393,000 in response to information he learned from the

county’s appraisal. Taxpayer testified that he relied on the

Oregon Department of Revenue’s 2007 publication “The Sales

Comparison Approach to Value” (DOR Manual) to support

his RMV conclusion. Taxpayer’s comparable sales approach

considered two properties located on the same cul-de-sac

as the subject property. Comparable 1 sold for $400,000 on

October 31, 2012. Comparable 2 sold for $418,750 on April 5,

2012. The same properties were used as comparables in

Grant’s comparable sales approach.

Taxpayer adjusted the sale prices of the comparable

properties based on the criteria of lot features, home type,

construction quality, structural maintenance, building

area, covered porches, heating, number of bathrooms, eleva-

tor and central vacuum.

1. Lot Features

Taxpayer testified that he adjusted for “lot features”

because the only view of the nearby ocean from subject prop-

erty is from the roof, whereas in contrast, Comparable 1

enjoys a “direct ocean view” supporting a $5,000 negative

adjustment, and Comparable 2 enjoys an “expansive ocean

view” supporting a $15,000 negative adjustment. When

challenged in cross-examination to provide support for

those adjustment values, taxpayer testified that he relied

on studies found in Exhibit 2. Exhibit 2 was not admitted

into evidence; hence taxpayer’s adjustment values for lot fea-

tures are unsupported.

2. Home Type

Taxpayer testified that he made a $25,000 positive

adjustment for “home type” to Comparable 2 because, unlike

subject property and Comparable 1, it is a townhome with a

wall shared by an adjacent property. Taxpayer provided no

support for this adjustment value.

482 Dunzer v. Dept. of Rev.

3. Construction Quality

Taxpayer testified that he made a $15,000 nega-

tive adjustment for “construction quality” to Comparable 2

because, unlike subject property and Comparable 1, it was

built by a sophisticated owner and has numerous upgrades.

Taxpayer testified that he has been inside Comparable 2

numerous times, but did not provide any support as to how

the $15,000 adjustment value was determined.

4. Structural Maintenance

Taxpayer testified that he made a $35,000 nega-

tive adjustment to each comparable for structural mainte-

nance because “all of the deferred maintenance had been

eliminated” from those homes prior to being sold, whereas

the subject property continued to require similar mainte-

nance on the assessment date. When challenged in cross-

examination to provide support for those adjustment values,

taxpayer testified that he relied on his discussions with

contractors who performed the maintenance on the com-

parable properties, and pointed to the excluded Exhibit 2.

Information provided to taxpayer by contractors who are not

themselves before the court to testify is hearsay and as such

is not permissible evidence. As Exhibit 2 was not admitted

into evidence, taxpayer is without support for his structural

maintenance adjustment value.

5. Building Area

Taxpayer testified that the subject property is

larger in terms of “building area” than Comparable 1 and

that he made a $23,043 positive adjustment to that compa-

rable. Taxpayer testified that the subject property is larger

than Comparable 2 and that he made a $19,886 positive

adjustment to that comparable. Taxpayer calculated the dif-

ferences between the total cost per square foot of the subject

property and of each of the comparables using adjustment

values supported by tables in the DOR Manual.

6. Covered Porch

Taxpayer testified that Comparable 1 has a larger

covered porch than subject property and that he made a

$23,670 positive adjustment to Comparable 1 to account for

Cite as 21 OTR 479 (2014) 483

that difference. Taxpayer testified that Comparable 2 has

a larger covered porch than subject property and that he

made a $16,290 positive adjustment to Comparable 2 to

account for that difference. Taxpayer supported his covered

porch adjustment by testifying that he made his adjust-

ments using the values in the DOR Manual for covered

porch adjustments.

7. Heating

Taxpayer testified that improving the heating cov-

erage of his home to the same standard as the comparable

properties would require the installation of a new, larger-

capacity heating system. Taxpayer testified that the cost of

such a system would be $11,000 and that he has adjusted the

comparables negatively by that amount. When challenged in

cross-examination to provide support for the $11,000 adjust-

ment value, taxpayer testified that he relied on “contractor

costing information” which was contained in Exhibit 2 and

is not in the record. Accordingly, taxpayer’s $11,000 adjust-

ment for heating is without support.

8. Number of Bathrooms

Taxpayer testified that Comparable 1 has one less

bathroom than the subject property, and that he adjusted

Comparable 1 positively by $5,000 to account for this.

Comparable 2 and the subject property have the same num-

ber of bathrooms and taxpayer concluded no adjustment was

warranted for that comparable. When challenged to provide

support for the $5,000 adjustment value, taxpayer testified

that that value was “typically used in all of my appraisals,”

but taxpayer himself is not a certified appraiser and was not

qualified for purposes of the trial in this case as an expert in

real estate valuation. There are no other taxpayer apprais-

als in the record. Taxpayer’s $5,000 adjustment value for

number of bathrooms is without support.

9. Elevator and Central Vacuum

Taxpayer testified that the subject property has

an elevator, unlike either comparable, and that taxpayer

adjusted each comparable positively by $25,500 based on

what taxpayer paid to have his elevator installed. Taxpayer

484 Dunzer v. Dept. of Rev.

testified that the subject property and Comparable 1 have

identical central vacuum systems and no adjustment was nec-

essary, while Comparable 2 lacks a central vacuum system

and was adjusted positively by $1,500. However, taxpayer

adjusted both comparables positively by $27,000 for the cat-

egory of “elevator and central vacuum,” and thus incorrectly

adjusted Comparable 1 under the logic of his own approach.

During cross-examination, taxpayer supported his adjust-

ment value for the presence of an elevator by testifying that

he used the figure he believed that the subject property’s

elevator cost to install. Taxpayer did not substantiate this

figure. On cross-examination taxpayer testified that he did

not use the DOR Manual to determine his adjustment value

for the central vacuum system and offered no explanation as

to how he made his determination. Accordingly, taxpayer’s

adjustment values for both the elevator and central vacuum

are without support.

B. County’s Appraisal

Grant is a certified property appraiser for the county

and testified that he has performed numerous appraisals in

contested cases. In his appraisal, Grant considered the cost

approach, comparable sales approach and income approach,

and concluded that the income approach was not applica-

ble for valuing the subject property. Grant testified that the

highest and best use of the subject property is its current use

as a single-family home. Grant’s cost approach proceeded by

applying a 91.44 percent depreciation factor based on the

subject property’s original construction date to the values

found in the Department of Revenue’s 2005 Residential Cost

Factor Book. Grant’s cost approach supported a conclusion

that the RMV of the subject property was $565,000 as of the

assessment date.

In his comparable sales approach, Grant consid-

ered the same comparable properties as taxpayer. Grant

determined that for the year 2012 no adjustment for time

was warranted. Grant testified that the Department of

Revenue’s 2005 Residential Cost Factor book supported his

adjustments to the comparable properties to account for

their inferior square footage, the presence of an elevator and

interior vacuum system in subject property, and a number

Cite as 21 OTR 479 (2014) 485

of other inventory differences. Grant testified that the com-

parable sales approach was most indicative of the RMV and

that it supported the conclusion that the RMV of the subject

property was $529,588 on the assessment date.

III. ISSUE

The issue in this case is the RMV of the subject

property as of the assessment date of January 1, 2012.

IV. ANALYSIS

Real market value is defined as:

“[T]he 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).3 The RMV of real property is a question of

fact. As the party requesting affirmative relief in this pro-

ceeding, taxpayer bears the burden of proof on questions of

fact. ORS 305.427. To prevail in this appeal, taxpayer must

affirmatively prove that the requested RMV of $393,000 is

“more likely than not the value of the property.” Yarbrough v.

Dept. of Rev. (Yarbrough II), 21 OTR 40, 44 (2012).

Taxpayer has the burden of “proving his case by a

preponderance of the evidence,” which means “the greater

weight of evidence, the more convincing evidence.” Feves

v. Dept. of Revenue, 4 OTR 302, 312 (1971). This court has

stated that “it is not enough for a taxpayer to criticize a

county’s position. Taxpayers must provide competent evi-

dence 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 compe-

tent testimony from licensed professionals such as apprais-

ers, real estate agents and licensed brokers.” Yarbrough II,

21 OTR at 44.

Taxpayer provided the court with a document

styled as an appraisal and his own testimony in support. In

3

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

486 Dunzer v. Dept. of Rev.

contrast, the county provided the court with an appraisal

report and testimony from an appraiser qualified as an

expert. An appraiser’s role in a valuation dispute is “to

review and evaluate market data, and base conclusions on

such data.” McKee v. Dept. of Rev., 18 OTR 58, 64 (2004).

“Such a review of market data is the only way that the court

can reasonably choose between competing valuations for any

given parcel.” Yarbrough v. Dept. of Rev. (Yarbrough I), 20

OTR 400, 402 (2011). Both taxpayer and the county offer

competing valuations based on sales adjusted to be compa-

rable to subject property. The comparable sales indicator

of value is of primary importance in determining the out-

come of this case. Because of its importance, in a case such

as this one, “[p]ersonal conclusions with no basis in actual

market data are entitled to little or no weight.” McKee,

18 OTR at 64.

Taxpayer’s valuation was credible but unpersua-

sive. As described above, taxpayer failed to provide support

for the majority of his adjustment values. The information

in support of his adjustment value that taxpayer attempted

to provide the court was objected to as hearsay and ruled

inadmissible. Hearsay is defined as “a statement, other than

one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted.” ORS 40.450(3). A statement can either be “[a]n

oral or written assertion” or “[n]onverbal conduct of a per-

son, if intended as an assertion.” ORS 40.450(1). The pol-

icy underlying exclusion of hearsay is that hearsay deprives

the opposing party of the opportunity to confront the person

making the statement and to test the veracity and accuracy

of the statement by cross-examination. State v. Kendrick,

239 Or 512, 515, 398 P2d 471 (1965). Without evidence to

support taxpayer’s adjustments, the court regards these

adjustments as personal opinions and affords them very lit-

tle weight. See McKee, 18 OTR at 64. In this case, taxpayer’s

unsupported opinions are insufficiently persuasive to carry

his burden of proof.

Taxpayer made some criticisms of Grant’s appraisal.

Grant is a certified appraiser whose adjustments are made

based on the Department of Revenue 2005 Cost Factor Book.

The court finds Grant’s testimony to be both credible and

Cite as 21 OTR 479 (2014) 487

persuasive. Even if taxpayer successfully discredited Grant,

which he did not, taxpayer would not prevail where, as here,

he failed to provide evidence sufficient to convince the court

that a lower RMV for the subject property was warranted.

For the court to order a change to the RMV of the subject

property, taxpayer must persuade the court that the RMV

he is seeking is more likely than not the RMV of the subject

property. Taxpayer has not done so in this case.

V. CONCLUSION

Taxpayer has not borne the burden of proving his

proposed RMV for the property identified in the assessor’s

records as Account 14127. Now, therefore,

IT IS THE DECISION OF THIS COURT that tax-

payer’s appeal is denied.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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