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1 [00:00:00]

2 JUDGE CARNES: --to the Eleventh circuit. We are happy to have

3 you all here. Just a reminder that we do try to stick pretty

4 closely to the time limitations. And we would appreciate your

5 cooperation with that. All right, we're going to start with

6 Palmer Ranch Holdings. If council would begin. Thank you.

7 THOR HEARNE: Thank you, your honor. And if it may please the

8 court, I'm Thor Hearne and I am here for Palmer Ranch Holdings.

9 This case Palmer Ranch presents--and there's a bit of feedback I

10 think--is that--this case Palmer Ranch is raising a rather

11 limited appeal to Judge Goeke's decision in the Tax Court below.

12 The specific issue that Palmer Ranch has challenged has been

13 Judge Goeke's sua sponte adjustment in the property value in

14 what they call the before-taken condition and the lack of a

15 methodology or factual basis for that. We've cited the McCord

16 case. It's similar to also the White House case which is from

17 the Fifth Circuit.

18 But the issue is Judge Goeke did not have a sound methodology

19 and a sound appraisal methodology for the adjustment that he

20 made. And lacking that as well as lacking a factual basis for

21 it, we've asked this court to remand it with instructions to

22 adopt the value that wasn't acknowledged as the most accurate

23 appraisal which was that provided by the tax payer.

24 JUDGE CARNES: Well, the--if we were to remand it, we wouldn't

25 have to require the court to adopt your expert's--your expert's


1 appraisal, would we?

2 THOR HEARNE: No, you actually wouldn't. You could do, frankly,

3 what the court did I believe it was in the--I believe that the

4 [PH] Escars or the Elkins [PH 0:01:58] case where the evidence

5 and the record is sufficient for this court to say on the record

6 before it now, they could simply direct that that be the amount

7 that is--

8 JUDGE CARNES: Well, I guess I'm asking a slightly different

9 question. If we agreed that it needed to be remanded, we could

10 remand it for the court to reevaluate what the amount was,

11 right? I mean, the court wouldn't have to just simply accept

12 your expert's valuation, right?

13 THOR HEARNE: Correct. You could--the one thing that we're

14 saying in our appeal is the court can't just create its own

15 methodology with no factual basis. So it's certainly within

16 this panel's authority to remand it and say to Judge Goeke, you

17 have to use a methodology to support the value you came up with.

18 You have to explain your work, how you came up with this

19 number. Because as we've noted in our briefing, it doesn't make

20 mathematical sense even on a very basic level. And I think the

21 government has recognized that there's even that issue with--

22 JUDGE CARNES: Right.

23 THOR HEARNE: --the calculations that you made.

24 JUDGE CARNES: So just to be clear, I think we're both on the

25 same page. I just want to be sure. You're in agreement that as


1 long as--if we were to agree that it needed to be remanded, as

2 long as the District Court set forth what its methodology was

3 and it was an appropriate methodology, that is one that is

4 supported by the evidence, that it would be free to come up with

5 its own methodology.

6 THOR HEARNE: Correct--

7 JUDGE CARNES: Okay.

8 THOR HEARNE: --we're not saying that the court can't do that.

9 All we're saying in this appeal is that it must have both a

10 sound appraisal methodology for its conclusion and that it must

11 be obviously factually and mathematically coherent. And that

12 adjustment that Judge Goeke made fails on those points. But if

13 you remanded it, he could--he would have the authority to do

14 that.

15 JUDGE GOLDBERG: Let me follow up. Basically, what the Tax

16 Court judge did he initially agreed with the valuation

17 methodology employed by your people. And then he actually got

18 into the interest rate thing. And that's what brought it

19 brought from 25 to 21. And if you follow the interest rate

20 thing it would seem to me that that's not in accordance with the

21 way normal methodology would be. So I'd think you'd want to be

22 a little bit queasy about telling the good judge to develop

23 still another incorrect way of doing it. Is that about right?

24 THOR HEARNE: You're exactly correct, Judge Goldberg. And let

25 me make sure my position is clear--


1 JUDGE GOLDBERG: I'm just trying to--I'm not sure what we ought

2 to do.

3 THOR HEARNE: Judge Goeke recognized the correct methodology was

4 a comparable sales methodology. Where he departed from that

5 methodology and both this court and some prior precedential

6 Fifth Circuit decisions all say, here's how you do a comparable

7 sales valuation, is you look at sales that are close in time.

8 [00:05:00]

9 THOR HEARNE: Where Judge Goeke went off track was when he went

10 back and made these calculations using something in 2004--

11 JUDGE CARNES: The Underwood evaluation, right? The $200,000

12 number.

13 THOR HEARNE: Correct. In neglecting to use the comparable

14 sales that even he recognized, both appraisers said, are the

15 most current comparable sales. So to your point, Judge

16 Goldberg, that sending it back if this court were to remand it,

17 it wouldn't let him just do what he did before with the interest

18 rate--

19 JUDGE GOLDBERG: Well, it--

20 THOR HEARNE: --he would still have to--

21 JUDGE GOLDBERG: --I don't know whether that's a legal thing or

22 not but it's not a comparable sales calculation the way he did

23 it.

24 THOR HEARNE: That's correct.

25 JUDGE GOLDBERG: Now I'm not here to tell you that what he did


1 was the wrong way to do it. I couldn't find many reasons to

2 find why exactly why he did what he did.

3 THOR HEARNE: We didn't understand it either.

4 JUDGE GOLDBERG: I could him up and ask him, but I decided not

5 to do that.

6 THOR HEARNE: Well we sent it--we asked for a reconsideration

7 and really for that very reason because when we received his

8 decision we didn't understand it. So we moved for him to

9 reconsider. And he didn't accept that invitation.

10 JUDGE CARNES: What difference in money are we talking about,

11 and given what he did with what you think is the flawed

12 methodology and the amount correct or you think it should be?

13 THOR HEARNE: It's about $4.2 million that he took off the value

14 of the property using--

15 JUDGE CARNES: Per acre?

16 THOR HEARNE: --his calculation. A total of $4.2 million if I

17 were to put it in per acre value.


19 THOR HEARNE: He had roughly $250,000 per acre.


21 THOR HEARNE: The appraiser determined it was worth $307,000 an

22 acre. And then, as Judge Goeke found the closest comparable

23 property was $510,000 per acre.

24 JUDGE CARNES: I guess I'm a little surprised at your strategy

25 tactics here because if we do remand and he starts all over


1 again, the IRS has an argument that he hasn't--the Tax Court

2 didn't even allow for the--for any probability that the zoning

3 wouldn't occur. If he just came up with a value and he didn't

4 deduct it by even a 20% chance that the rezoning wouldn't occur.

5 And I would think, were I you, you might have been happy with

6 the numbers you got rather than starting all over again.

7 THOR HEARNE: Well, again, the reason that we're not happy with

8 it is because the appraisal itself was a very conservative

9 appraisal. The appraiser to your point, Judge Carnes, he did

10 take into account the probability of rezoning when he derived--

11 JUDGE CARNES: He said he did, but I don't see any math work

12 that shows how--what was the amount if it didn't get zoned

13 versus the amount that it did and what's the probability. I

14 didn't see any of that kind of mathematical exercise by the

15 appraiser.

16 THOR HEARNE: In the--in the record, the appraiser, Chad

17 Durrance did testify that he took all of that into account, the

18 cost of that. He did not put specific dollar amounts for them.

19 JUDGE CARNES: That's a problem. That's a problem. And I'm

20 surprised that you'd want to go back and have all that redone

21 again.

22 THOR HEARNE: Well I certainly don't want to have that redone.

23 And again the very limited appeal that we're making, Judge

24 Carnes is just to send it back. Well, first off, to ask this

25 court I think on the record before you, you can simply say that


1 on the evidence presented to this court as the court did, and I

2 believe it was Elkins' case, that the information is sufficient

3 to accept the value that the tax payer, in this case, Palmer

4 Ranch presented. And that that would be the end of the case.

5 If you are inclined to remand it for some explanation from Judge

6 Goeke, the explanation he would have to provide would just be on

7 those three paragraphs of his decision where he tried to explain

8 his deviation from the appraised value.

9 JUDGE CARNES: Or we can have him just do--have a total do-over.

10 THOR HEARNE: Our appeal doesn't ask for a total do-over or a

11 new trial. We certainly are not asking for that. I don't think

12 that would be necessary--

13 JUDGE CARNES: I believe the IRS might be interested in that.

14 All right.

15 THOR HEARNE: Well they might. But I don't know that it would

16 turn out any different. If you have no further questions, I'd

17 reserve the balance of my time.

18 PATRICK GERDA: May it please the Court, Patrick [PH] Gerda for

19 the Commissioner. Judge Carnes, you're right, the IRS would

20 like a total do-over because the Tax Court made three

21 substantial errors that led to a significant overvaluation here.

22 And I'm going to focus on those before turning to the arguments

23 raised on tax payers' appeals. So I'm going to start with our

24 arguments on cross appeal. We think that the errors are first

25 that there was--that the Tax Court erred in determining that


1 there was a reasonable probability of rezoning B-10 to allow 360

2 multi-family units two years after the Board rejected 240 spread

3 over B-9 and B-10. There's just no reasonable probability. Our

4 second allegation of error--

5 JUDGE GOLDBERG: Well, it was a--wasn't that the close-vote

6 issue or something? And then new people or something on the

7 Board? I can't remember all the details or the politics--

8 [00:10:00]

9 JUDGE GOLDBERG: --but it seems to me that that's a little bit of

10 a--you could argue in that light.

11 PATRICK GERDA: Sure. And I think that's a--that's a--that's a

12 good point to start off with, Judge Goldberg. It was a close

13 vote. It was 3-2. And it was rejected twice. I think that we

14 also have to remember that tax payers bear the burden of showing

15 a reasonable--

16 JUDGE ROSENBAUM: But I'm sorry to--sorry to interrupt. But the

17 second time it was interrupt--the second time it was rejected,

18 wasn't it--weren't all of the units supposed to be on B-9?

19 PATRICK GERDA: That's right. So, B-10 was the dead letter.

20 Everyone understood that--

21 JUDGE ROSENBAUM: Well, I mean, that doesn't necessarily mean

22 that B-10 was a dead letter. I mean--

23 PATRICK GERDA: Well--

24 JUDGE ROSENBAUM: --and how is that indicative then of what might

25 have happened on B-10 later?


1 PATRICK GERDA: Well, Judge Rosenbaum, I think that the

2 Ordinance 2004-55 really does give an indication of where the

3 Board was going. So I do think that it was a dead letter

4 because the Board at the very start said there's too much

5 density and there's not enough protection for B-10. Pulte

6 removed B-10 altogether and said we're not even going to go

7 there because we understand that B-10 is not developable. And

8 at that point in time, they tried to do 184 houses on B-9. The

9 Board again rejected it, saying there's not enough environmental

10 protection. And that's what B-10 is all about. It's an

11 environmentally sensitive area. And there's too much density on

12 B-9 and that could spill over to B-10. And that's exactly why

13 the Board--or the Board entered that Ordinance, which said if

14 you're ever going to do anything on B-9, you also have to take

15 into account B-10. Now to your point, Judge Goldberg, about the

16 composition of the Board. The composition of the Board did

17 change. It went from three votes, three commissioners who voted

18 against this proposal to actually four commissioners who had at

19 one point in time voted against it. There was a gentleman named

20 Commissioner Barbetta who was in the lower planning commission

21 who voted against this redevelopment twice. And he was added to

22 the Board of County Commissioners and he was serving in 2006.

23 So if anything, the numbers actually suggest that there was even

24 less of a possibility. And--

25 JUDGE CARNES: I guess I'm looking at the Ordinance and it seems


1 like--and I think this is what Palmer Ranch is--part of what

2 Palmer Ranch is arguing that the Ordinance actually gave a way

3 to go forward to obtain approval. And it said this

4 application--any future applications should include parcel B-10

5 and should endeavor to keep parcel B-10 intact as it relates to

6 the eagle preservation of the wetlands and the wildlife quarter.

7 In other words, those are the areas that it had to be a

8 comprehensive plan that cover both B-9 and B-10. And that was

9 the concern. And it wasn't a concern that you couldn't have

10 units on B-10. You just couldn't have them in areas that would

11 affect those three sort of sensitive--environmentally sensitive

12 areas.

13 PATRICK GERDA: Well and I would suggest that there isn't a

14 reasonable probability based on that language. Because if the

15 only problem, as the Tax Court seem to indicate and its taxpayer

16 seems to suggest is that the proposal didn't explicitly say we

17 are not building on the environmentally sensitive area that we

18 cannot build on. Then that--it doesn't seem to do much and it

19 makes no sense for Pulte to then say, hey B-10, as a whole is

20 undevelopable. The Planning Commission also said that--

21 JUDGE CARNES: I'm sorry. But, I mean it seems like what they

22 were looking for--and I may be misunderstanding and feel free to

23 correct me, was that they wanted a plan that said not only we're

24 building on B-9--we're only going to build on B-9 right now.

25 But we're building on B-9 and as part of our--as part of our


1 plan to build on B-9, we commit to not building in any way on

2 B-10. Or we commit to building in, you know, A, B and C way

3 that doesn't affect the three sensitive areas. Am I

4 misunderstanding that?

5 PATRICK GERDA: Well I think that that could be one way to do it

6 if they completely disclaim their interest in B-10. But I do

7 think that that's exactly how Pulte took it. And I think that

8 that's how the Land Planning Commission took it that B-10 was

9 off the table in terms of development. As Mr. Kempton, the Pulte

10 Vice President said, the existing wildlife quarter was not meant

11 to be changed and nobody can develop on B-10. And Pulte, when

12 they went back in 2004 after that rejection and readjusted their

13 contract, asked for the same amount for B-9 as B-10. This is

14 another indication that there was no developable--

15 [00:15:00]

16 PATRICK GERDA: --developable value of B-10. There was no

17 reasonable probability based on that whole rezoning history and

18 based on that ordinance. I think that of course it could be

19 read that the ordinance itself is saying all you have to do is

20 go back and say we're not going to build on stuff that we can't

21 build on anyway--

22 JUDGE GOLDBERG: Wait. Am I missing something here? My notes

23 say--tell me if I'm wrong. Palmer Ranch believes that the

24 highest and best-use of B-10 development of 360 dwelling-units.

25 That's how they get to their number. The IRS by contrast argues


1 that the highest best-use is 72 to 100.

2 PATRICK GERDA: That's right.

3 JUDGE GOLDBERG: That's on B-10.

4 PATRICK GERDA: That's right. We're not saying that it can't be

5 developed. And I'm sorry if I--if--

6 JUDGE GOLDBERG: That made me misunderstood.

7 PATRICK GERDA: Yes. I mean, I was probably lose in my

8 language. So I apologize. The IRS was actually--

9 JUDGE GOLDBERG: That could never happen.

10 PATRICK GERDA: The IRS was actually tracking about what they

11 thought the Pulte could--or Pulte proposed at the initial time,

12 84 units. Even that was rejection--rejected by the Board. So

13 if anything, the IRS was being extremely conservative itself and

14 extremely generous saying, hey, even though the Board rejected

15 84 units on B-10--

16 JUDGE GOLDBERG: Because that's not really binding on this

17 thing.

18 PATRICK GERDA: Well it's not really binding. But it does give

19 an insight into whether there's a reasonable probability of a

20 change in zoning. And that's what this court and 488 acres said

21 is the dispositive question. Whether it's--whether a zoning

22 regulation is likely to change. And based on the entire history

23 here, it doesn't look like this zoning regulation is likely to

24 change. But even putting this aside, Judge Goldberg, I think it

25 was you who said they didn't take into--the Tax Court didn't


1 take into account the fact that there was a strong uncertainty

2 regarding rezoning. The Tax Court just left that out of its

3 analysis. But that's an incredibly important question because

4 what we're looking at is what would a willing buyer and seller

5 agree on and--

6 JUDGE GOLDBERG: Right. That's where the Tax Court

7 on--yes--they kind of left the--they left the track.

8 PATRICK GERDA: Well the Tax Court left the track because, quite

9 frankly, the Tax Court didn't look at a consideration that every

10 willing buyer would look at. Whether you think that there's a

11 chance that rezoning could happen, a willing buyer would

12 definitely look to this entire proceeding, in which Pulte spent

13 $400,000 and could get no traction and eventually threw up its

14 arms and said we can't do this. We can't develop B-9, much less

15 B-10. But the Tax Court didn't take into account that pivotal

16 discount that any willing buyer would take into account.

17 JUDGE CARNES: How would you monetize that? Or how would you

18 reduce what would otherwise be the correct appraised value based

19 on the unlikely, but that the zoning Board might change?

20 PATRICK GERDA: Well I think that, quite frankly, I would get an

21 expert to monetize that. I would say what's the chance that I

22 think that if the Zoning Board--

23 JUDGE CARNES: I guess the question I should have asked is how

24 did you monetize that [INDISCERNIBLE]--

25 PATRICK GERDA: Well in this case we monetized it by looking at


1 kind of a lower amount of zone. So--

2 JUDGE CARNES: You sort of--you sort of went the other direction

3 which you just assumed it would never happen. You didn't give

4 any credence the fact it might happen.

5 PATRICK GERDA: No, we did. So what we did was--because

6 remember 72 to 100 was not the zoning at the time. The zoning

7 at the time was two acres for one unit. So it was 41. So the

8 IRS did put in the possibility of rezoning but based on the,

9 quite frankly, the Board's actions, they decided that the

10 possibility of rezoning was pretty distant and so came up with

11 something that resembled 72 to 100 units. So that was how they

12 monetized the discount here.

13 JUDGE ROSENBAUM: But, I guess and I think what Judge Carnes is

14 asking is how did you get to that? I mean, how did you

15 determine that 72 to whatever it was, was the adequate way to

16 monetize what the probability of rezoning was?

17 PATRICK GERDA: Well the experts, Mr. Doyle and Mr.--Mr. Doyle

18 was the person who said, you know, based on the probabilities of

19 rezoning this is what I think it is. And then--

20 JUDGE ROSENBAUM: Right. But--

21 PATRICK GERDA: --our expert then took that around.

22 JUDGE ROSENBAUM: But how did he get to what he thought the

23 probabilities of rezoning were?

24 PATRICK GERDA: I think that he actually just looked at the

25 zoning Board decisions and said based on what I'm reading here


1 and based on my expertise, this is what I think this is. So

2 that's what he did. I mean--

3 [00:20:00]

4 JUDGE CARNES: But he again didn't have a number and said I'm

5 going to reduce that or increase that number by a certain

6 percent?

7 PATRICK GERDA: That's correct--

8 JUDGE CARNES: Everybody's eyeballing it.

9 PATRICK GERDA: Everybody's eyeballing it. So that's what the

10 expert did here.

11 JUDGE CARNES: And given the fact this is so fact-intensive and

12 so complicated and we have so many unknown variables and the

13 standard is clearly erroneous, so tell me in a nutshell what

14 your best argument as for why the Tax Court was clearly

15 erroneous which is a high standard.

16 PATRICK GERDA: Okay. There are three things. The first is

17 what I've already talked about the entire zoning history and

18 Ordinance 2005-44 with the zoning history. Secondly is the lack

19 of a discount. There has to be a discount to reflect the

20 considerations any willing buyer would have with this type of

21 zoning history. The uncertainty of zoning has to be taken into

22 account. The Tax Court plainly did not consider it, whatsoever.

23 Third, and this is--this is another legal error. So this isn't

24 exactly a factual error so we're not in the clearly erroneous

25 context. It's the Tax Court completely failed to consider


1 whether this was needed or likely to be needed in the near

2 future. Again, Treasury Reg 26CFR Section 1.170A-14H32

3 specifies that this is a necessary inquiry in determining the

4 fair market value for a property. Okay? So the Tenth Circuit

5 recently in [PH] Escar said the exact same thing. It isn't just

6 a question of reasonable probability. It's a question of

7 whether this is likely or whether it's needed or likely be

8 needed in the near future. The Tax Court didn't do it,

9 whatsoever. And quite frankly, the evidence suggests that it

10 wasn't likely to be needed in the near future.

11 JUDGE CARNES: Except with two 3-2 votes and these are political

12 leaders who sometimes 3-2 can become 2-3. How, you know, how

13 would you evaluate that? Seems to me it's not as bleak as you

14 suggest.

15 PATRICK GERDA: Well, first of all I would--I would--push back a

16 little bit ton 3-2. I like 4-1. Because those are the number

17 of votes against it. But I would say the clear legal error of

18 not even taking into account whether this was needed or likely

19 to be needed, which was brought up by the Commissioner in their

20 opening brief 138 to 40. So it was presented. And the Tenth

21 Circuit says you have to do it. And you do have to do it. It's

22 mandated by the regulations for determining the before value of

23 the fair market value--

24 JUDGE CARNES: What you're doing again though is you're

25 anticipate--you're anticipating. If you're talking about the


1 zoning how Commissioners will view this maybe. But you're

2 talking about something a little bit different which is just how

3 would an objective person regard this as being needed.

4 PATRICK GERDA: I think, Judge Carnes, I'm making myself not

5 understood again. And I apologize. So there are two--there are

6 two necessary inquiries on determining the before value. First,

7 it's the reasonable probability of rezoning which we've talked

8 about. Okay, so let's put that to the side. Second, is whether

9 this property, whether there's a need or it's likely to be

10 needed to be developed. Okay? So that's a totally separate

11 inquiry. The Tax Court didn't do that at all. It's required by

12 Treasury Regulation 1.170A-14H32. The Olsen, the Supreme Court

13 Case recognized that this--

14 JUDGE CARNES: You're not talking about what a politician might

15 do on commission.

16 PATRICK GERDA: No. I'm talking--

17 JUDGE CARNES: --you're talking about what a buyer out in the

18 real world would say, well, you know, I'm a developer am I going

19 to do this? Do I need to do this?

20 PATRICK GERDA: What I'm talking about--so, for example, let's

21 talk about the [PH] Escar case. Because this is where the Tenth

22 Circuit said this is a separate inquiry. You have to do this

23 under the regulation. There it was--could they get this rezoned

24 for a gravel mine? And is there any need for this? Okay, the

25 Tenth Circuit said--and I realize I'm running out of time but


1 I--if it's okay--

2 JUDGE CARNES: You can finish your answer to the question.

3 PATRICK GERDA: Okay. The Tenth Circuit said, could they be

4 rezoned for a gravel mine? Sure thing. That can happen. Was

5 there any need for rezoning for a gravel mine? No. There are

6 four other gravel mines in the area. We don't need it. Okay,

7 so they're two separate inquiries. Here you have, is there a

8 need for a 360-unit development? The Taylor-Wudrow development

9 stagnated for six years on the market, which was bought in

10 January. We're talking about December. So that indicates that

11 there was no need. And also, Mr. Durrance the expert also said

12 the market had stagnated. There was no need for this. So even

13 aside from how the vote would come out and what the Board would

14 do, you have this separate legal error and this separate problem

15 with the Tax Court's decision that mandate remand.

16 JUDGE CARNES: Thank you.

17 [00:25:00]

18 THOR HEARNE: Thank you. The IRS is continuing to persist with

19 a fact-based theory, this Pulte-zoning theory that we had a

20 one-week trial about seven different experts all testified. The

21 issue was could this property be developed, what's called Parcel

22 B-10--be developed at the moderate density residential zoning

23 designation, which Sarasota County had designated this property

24 for zoning. Everybody agreed it could. The only person who

25 suggested otherwise was the IRS' single expert, a fellow who had


1 never done any land use planning ever in Sarasota County. Not

2 only that, the Justice Department themselves in the prior

3 litigation in the Court of Federal Claims said the property

4 should be valued as though it can be developed at MDR density.

5 Judge Williams agreed. And both appraiser, including the IR--or

6 the Justice Department's appraiser said the property should be

7 valued in that case $200,000 or more an acre because it could be

8 developed in this way.

9 JUDGE ROSENBAUM: So is it your position then--the government is

10 saying that the Court altogether failed to even to consider

11 whether this new development was needed or likely to be needed

12 in the future. Is it your position that the Court did consider

13 that? And if so, what part of the opinion would you point to?

14 THOR HEARNE: Well, it's a highest and best-use inquiry is what

15 it is under Olsen. Now, the government's trying to--IRS is

16 bringing in this sort of--they're trying to say they have

17 another way of calculating highest and best-use under Section

18 170. And that's just not correct. That's not what [PH] Escar

19 says. That's not what the Supreme Court says and Olsen. What

20 [PH] Escar actually says is we're going to use the same highest

21 and best-use approach in tax valuation cases as we use in

22 imminent domain cases. And if we follow that approach, you have

23 the four criteria. Is it legally possible? Is it physically

24 possible? Is it something that has the highest productivity for

25 the property? All of those criteria were met. Judge Goeke did


1 it exactly correctly on his highest and best-use analysis. He

2 had a very thorough opinion, correctly applying the highest and

3 best-use analysis as a factual finding which really is

4 fundamentally what we're saying this is not reversible error.

5 This is a--this court, under the Scottish American cannot

6 re-litigate the factual finding for highest and best-use. Judge

7 Goeke made that determination after all that evidence and again

8 including some prior consistent evidence from the government

9 itself that said this property should be valued as though it can

10 be developed at MDR. And yet they show up in Tax Court with

11 this Pulte theory, trying to read chicken entrails to predict

12 what different commissioners on the Zoning Commission would do

13 and infer from that on a different piece of property two years

14 earlier to have a conclusion that this property couldn't be

15 developed. It's just unfounded legal theory--factual theory.

16 And Judge Goeke properly rejected it. But I think that's the

17 province of Judge Goeke and the Tax Court--

18 JUDGE GOLDBERG: Let me ask a question. Setting aside the--I

19 call this case the 25-21-8 Case--setting aside the methodology

20 that the Tax Court used in reducing it from 25 to 21 for the

21 moment, is it your position that the methodology that the IRS

22 uses is all right? But they had, in your case, an inadequate

23 appraiser and that's what developed in the distance between the

24 number of units that you said could be developed and the number

25 of units that they say could be developed which is the


1 difference between the 25 and the eight?

2 THOR HEARNE: Well the IRS' position, as I understand it, is

3 that this property was worth only $94,000 an acre. And they

4 said that--

5 JUDGE GOLDBERG: Well that's their appraiser's idea, right?

6 THOR HEARNE: Right. And they actually--the lawyers argued it

7 was worthless, I mean, in terms of what they argued--

8 JUDGE GOLDBERG: And the lawyers, believe it or not, are not

9 appraisers.

10 THOR HEARNE: Sometimes they don't think that. But I understand

11 that that's truly critical. But so yes, the IRS, to Judge

12 Carnes question about is the IRS monetizing this risk of dome?

13 Absolutely not. That's not what they did. What they did is

14 they said, no development. It's not going to be approved for

15 any development. There's no likelihood of it being rezoned. It

16 can only be developed with this, what they call sort of

17 agricultural zoning of one house per every two acres. And

18 that's just not the realistic, factually or legally with

19 Sarasota and Florida land use and development particularly in

20 that community as we demonstrate I think in our reply brief, we

21 have a rather lengthy discussion of both the legal requirements

22 for Sarasota zoning.

23 [00:30:06]

24 THOR HEARNE: But we also note that this in a, what we call a

25 DRI, and it's a vested right to develop this property.


1 JUDGE CARNES: Thank you.

2 THOR HEARNE: So absolutely reasonable to expect that. Thank

3 you.

4 JUDGE CARNES: Thank you. All right, we'll hear next--

5 [00:30:25]

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44-1 17:1640 17:2041 15:7488 13:20

772 13:1 15:6,11,15

884 13:12,15

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