The opinion
[This opinion has been published in Ohio Official Reports at 78 Ohio St.3d 330.]
ZELL, TRUSTEE, APPELLEE, v. HAMILTON COUNTY BOARD OF REVISION ET AL.,
APPELLEES; CINCINNATI SCHOOL DISTRICT BOARD OF EDUCATION,
APPELLANT.
[Cite as Zell v. Hamilton Cty. Bd. of Revision, 1997-Ohio-213.]
Taxation—Real property valuation—Board of Tax Appeals’ valuation of property
reasonable and lawful, when—Scope of Supreme Court’s review of Board
of Tax Appeals’ decision.
(No. 96-935—Submitted October 31, 1996—Decided April 30, 1997.)
APPEAL from the Board of Tax Appeals, No. 94-N-27.
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{¶ 1} On March 15, 1991, Sam Zell, as a trustee filed a real estate valuation
complaint with the Hamilton County Board of Revision to contest his real property
valuation for the tax year 1990. In the complaint, Zell alleged that the real property
had a true value of $5,000,000. The Cincinnati School District Board of Education
(“BOE”) filed a countercomplaint alleging that the real property had a true value of
$5,760,600, as determined by the auditor.
{¶ 2} The real property at issue in this case is the same real property known
as the Gwynne Building which was described in case No. 96-934, Cincinnati Bd.
of Edn. v. Hamilton Bd. of Revision (1997), 78 Ohio St.3d ____, ___ N.E.2d ___.
The Gwynne Building was sold by Zell in May 1992, to the Gwynne Building
Partnership (“Gwynne”) for $2,200,000. On December 30, 1993 the Hamilton
County Board of Revision issued its decision valuing the real property at
$5,760,600. Zell filed an appeal with the Board of Tax Appeals (“BTA”) alleging
that the true value should be $2,200,000.
{¶ 3} At the hearing before the BTA, Gwynne presented the testimony of
Keith Bawolek and Jack Streitmarter, representatives of the seller and buyer,
SUPREME COURT OF OHIO
respectively. In addition, Zell also presented an appraisal prepared by Ronald P.
Davis of Dublin, Ohio. Davis appraised the real property at $4,000,000 on an
income basis, as if the mechanical problems with the building were rehabilitated,
and $2,200,000 if not rehabilitated. On a sales-comparison approach, Davis valued
the property at $4,100,000 if rehabilitated and $2,300,000 if not rehabilitated.
Davis also considered, but rejected, the cost approach. Davis’s final value was
$2,200,000 as of January 1, 1990.
{¶ 4} In opposition to Zell’s evidence, the Hamilton County Auditor
presented the testimony of Marlene McDaniel, his senior appraiser. Using the sales
comparison approach, McDaniel valued the property at $5,390,000. Using the
income approach McDaniel valued the real property at $5,260,000. Reconciling
the two approaches, McDaniel valued the real property at $5,300,000 as of January
1, 1990.
{¶ 5} The BTA determined the true value as of January 1, 1990 to be
$2,200,000. The BOE filed a notice of appeal with this court.
{¶ 6} This cause is now before this court upon an appeal as a matter of right.
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Fred Siegel Company, L.P.A., and Annrita S. Johnson, for appellee Sam
Zell.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Thomas J.
Scheve, Assistant Prosecuting Attorney, for appellee.
Wood & Lamping and David C. DiMuzio, for appellant.
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Per Curiam.
{¶ 7} The auditor did not file a notice of appeal, but in his brief as an
appellee he argues for reversal of the BTA’s decision. Sua sponte, the court strikes
the auditor’s brief.
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January Term, 1997
{¶ 8} The primary difference between this case and case No. 96-934 is that
in this case the seller was the appellant at the BTA, while in case No. 96-934 the
BOE was the appellant. Here, Zell, as the appellant, bore the burden of proving his
right to a reduction in value. Zindle v. Summit Cty. Bd. of Revision (1989), 44 Ohio
St.3d 202, 203, 542 N.E.2d 650, 651.
{¶ 9} The first contention raised by the BOE is that the rebuttable
presumption that sale price reflects true value arises in a valuation case only after
proof that the sale was an arm’s-length sale. This is the same contention raised by
the BOE as its first contention in Cincinnati Bd. of Edn.. We disagree with the
BOE’s contention for the same reasons as set forth Cincinnati Bd. of Edn.
{¶ 10} The BOE’s second contention is that Zell did not prove that he was
not selling under economic duress. We disagree with the BOE. The BTA is vested
with wide discretion in determining the weight to be given to the evidence and the
credibility of witnesses which come before it. Cardinal Fed. S. & L. Assn. v.
Cuyahoga Cty. Bd. of Revision (1975), 44 Ohio St. 2d 13, 73 O.O.2d 83, 336 N.E.2d
433. The proper scope of this court’s review of the BTA’s decisions is not a
substitution of the board’s judgment on factual issues, but to determine from the
record if the BTA’s decision is supported by reliable and probative evidence. Alcoa
v. Kosydar (1978), 54 Ohio St.2d 477, 8 O.O.3d 459, 377 N.E.2d 785. The BTA
found that the sale was an arm’s-length sale, thereby finding no economic duress.
The BTA’s finding is supported by testimony and evidence in the record. The best
example of the evidence supporting the BTA’s finding of no economic duress is
Bawolek’s testimony that Zell was not under duress to sell.
{¶ 11} The BOE’s third contention is that the sale was not exposed to the
open market. This is the same contention as the BOE raised in case No 96-934.
We disagree with the BOE’s contention for the same reasons set forth in Cincinnati
Bd. of Edn.
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{¶ 12} For the reasons stated above, we find that the decision of the BTA is
reasonable and lawful, and it is therefore affirmed.
Decision affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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