Simmons v. Cuyahoga Cty. Bd. of Revision

[This opinion has been published in Ohio Official Reports at 81 Ohio St.3d 47.]

SIMMONS, APPELLANT, v. CUYAHOGA COUNTY BOARD OF REVISION ET AL.,

APPELLEES.

[Cite as Simmons v. Cuyahoga Cty. Bd. of Revision, 1998-Ohio-443.]

Taxation—Real property valuation—Where Board of Tax Appeals rejects the

evidence presented to it as not being competent and probative or credible,

and there is no evidence from which the BTA can independently determine

value, it may approve the board of revision’s valuation, without the board

of revision’s presenting any evidence.

(No. 97-765—Submitted October 28, 1997—Decided February 11, 1998.)

APPEAL from the Board of Tax Appeals, No. 95-B-951.

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{¶ 1} In February 1995, appellant, Milton L. Simmons, filed a real property

valuation complaint with the appellee, Cuyahoga County Board of Revision

(“BOR”), for tax year 1994, concerning his home in Brecksville, Ohio. Simmons

alleged in his complaint that his property had a true value of $294,000. The auditor

had valued the property at $320,000.

{¶ 2} Simmons’s house is located on a 60,000-square-foot lot and contains

approximately 4,000 square feet of living area on two floors, excluding the

basement. Simmons described his house as a Tudor style, with the front faced with

brick, stucco, and beams. The sides and back of the house are covered with

aluminum siding. The rear of the garage is also Tudor style. The house has four

bedrooms, three full baths, and two half-baths. In addition, the house has a living

room, dining room, and family room, a kitchen, and an attached four-car garage.

The walkout basement of Simmons’s house is unfinished; however, it contains a

finished half-bath.

SUPREME COURT OF OHIO

{¶ 3} In an affidavit submitted to the BOR and in his testimony before the

Board of Tax Appeals (“BTA”), Simmons stated that a house on an adjoining lot

sold in June 1993 for $349,800. Simmons testified that this house had 5,100 square

feet of finished space composed of 1,800 square feet for a walkout finished

basement, which Simmons described as “essentially completely finished,” 1,800

square feet on the first floor, and 1,500 square feet on the second floor. This house

also has a dining room, living room, and family room, with a kitchen, plus four

bedrooms and four full baths. Simmons described the front as brick with cedar

siding elsewhere. By dividing the selling price of $349,800 by 5,100 square feet,

Simmons calculated a value for this house at $68.60 per square foot. Simmons next

multiplied the value per square foot determined for the house on the adjoining lot

times 4,000 square feet, and determined a value of $274,400 for his house.

However, because his house has additional garage space, Simmons added $12,100

to the value. Furthermore, because Simmons’s house has three fireplaces, while

the house on the adjoining lot has only two fireplaces, he also added $4,000 to the

value of his house for the extra fireplace, to arrive at a total value for his house of

$290,500.

{¶ 4} The BOR granted no reduction in the auditor’s appraised value. On

appeal, the BTA affirmed the BOR’s value, finding that Simmons had not presented

competent probative evidence that would sustain his burden of proof. The BTA

found that the BOR’s determination of value was reasonable and best reflected true

value as of the tax lien date.

{¶ 5} The case is now before this court upon an appeal as of right.

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Milton L. Simmons, pro se.

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January Term, 1998

Per Curiam.

{¶ 6} Simmons contends that the BTA could not fulfill its obligation to

determine true value when the BOR did not offer any evidence to justify its

valuation. We disagree.

{¶ 7} Simmons was the appellant in this matter and therefore the burden

was upon him to convince the BTA that his opinion of value was the value that it

should accept. In Western Industries, Inc. v. Hamilton Cty. Bd. of Revision (1960),

170 Ohio St. 340, 342, 10 O.O.2d 427, 427, 164 N.E.2d 741, 743, we stated, “The

burden is on the taxpayer to prove his right to a deduction. He is not entitled to the

deduction claimed merely because no evidence is adduced contra his claim.” Thus,

the burden of persuasion before the BTA was on Simmons, not the BOR.

{¶ 8} As the owner, Simmons was competent to present his opinion of the

value of his property. Amsdell v. Cuyahoga Cty. Bd. of Revision (1994), 69 Ohio

St.3d 572, 635 N.E.2d 11. However, the BTA was not required to accept his

opinion of value. WJJK Investments, Inc. v. Licking Cty. Bd. of Revision (1996),

76 Ohio St.3d 29, 665 N.E.2d 1111.

{¶ 9} The BTA found that Simmons did not adequately compare and

contrast his property to the property which he was attempting to use as a basis for

establishing the true value of his property. In addition, the BTA had serious

questions about the comparison methods used by Simmons for valuing his property.

Finally, the BTA found that Simmons had not presented competent, probative

evidence that would demonstrate his right to the value claimed.

{¶ 10} The BTA as the finder of fact has wide discretion to determine the

weight and credibility of witnesses; thus, it may accept all, part, or none of the

testimony of a witness. R.R.Z. Assoc. v. Cuyahoga Cty. Bd. of Revision (1988), 38

Ohio St.3d 198, 527 N.E.2d 874; Witt Co. v. Hamilton Cty. Bd. of Revision (1991),

61 Ohio St.3d 155, 573 N.E.2d 661. The burden was on Simmons to produce

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competent probative factual evidence to persuade the BTA that the value which he

proposed was the true value. The BTA found he did not meet his burden.

{¶ 11} This court is not a “ ‘super Board of Tax Appeals’ ” and does not sit

as a trier of fact “de novo.” Youngstown Sheet & Tube Co. v. Mahoning Cty. Bd.

of Revision (1981), 66 Ohio St.2d 398, 400, 20 O.O.3d 349, 351, 422 N.E.2d 846,

848. In Natl. Church Residence v. Licking Cty. Bd. of Revision (1995), 73 Ohio

St.3d 397, 398, 653 N.E.2d 240, 241, we stated, “We will not reverse the BTA’s

determination on credibility of witnesses and weight given to their testimony unless

we find an abuse of this discretion.” No abuse of discretion has been alleged in this

case.

{¶ 12} Simmons’s second contention is that since the BOR presented no

evidence, and the BTA rejected Simmons’s evidence, the BTA could not affirm the

BOR’s valuation. We disagree.

{¶ 13} In Westlake Med. Investors, L.P. v. Cuyahoga Cty. Bd. of Revision

(1996), 74 Ohio St.3d 547, 660 N.E.2d 467, the BTA rejected the taxpayer’s

evidence of value and approved the board of revision’s valuation. In affirming the

BTA’s decision we stated, “the BTA may approve a board of revision’s value if the

taxpayer does not prove a right to a reduction in value.” Id. at 549, 660 N.E.2d at

468. See, also, Cleveland Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision (1994), 68

Ohio St.3d 336, 626 N.E.2d 933. Where the BTA rejects the evidence presented to

it as not being competent and probative, or not credible, and there is no evidence

from which the BTA can independently determine value, it may approve the board

of revision’s valuation, without the board of revision’s presenting any evidence.

{¶ 14} Simmons cites Zazworsky v. Licking Cty. Bd. of Revision (1991), 61

Ohio St.3d 604, 575 N.E.2d 842, as being dispositive of his position that his

valuation should be accepted because no evidence was introduced in support of the

BOR’s valuation. However, a review of Zazworsky shows that we reversed the

BTA not because of lack of evidence by the board of revision, but because there

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was no evidence to support the BTA’s factual finding of peculiar circumstances for

the sale in question. Therefore, Zazworsky does not support Simmons’s position.

{¶ 15} Finally, Simmons contends that the county auditor did not follow

certain statutorily mandated procedures in determining his valuation. Simmons

relies on a letter written to him by the auditor. However, as Simmons states in an

explanatory note to his supplement to the briefs, the letter on which he relies was

not part of the transcript sent from the BOR to the BTA, nor was it entered into

evidence and filed as part of the BTA’s transcript to this court. Simply put, the

letter has never been part of the record of this case. We will not consider any

argument based upon a document that is not part of the record.

{¶ 16} For all of the foregoing reasons, the decision of the BTA is

reasonable and lawful and is, therefore, affirmed.

Decision affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

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