IN THE SUPREME COURT OF OHIO

STEVEN N. AND TIFFANY J. QUEEN,et al.,

Appellees,

V.

WOOD COUNTY AUDITOR andWOOD COUNTY BOARI) OFREVISION,

Appellants.

Case No. 2013-1828

Appeal from Ohio Board of Tax AppealsBTA Case No. 2013-2762

MERIT BRIEF OF APPELLANTS WOOI) COUNTY AUI)ITOI2 ANDWOOD OUNTY BOARI) OF REVISION

Kelley A. Gorry (0079210)COUNSEL OF RECORDJames R. Gorry (0032461)Rich & Gillis Law Group, LLC6400 Riverside Drive, Suite DDublin, OI-I 43017PH: (614) 228-5822FAX: (614) 540-7476kgora y ('r.r;t°iclagiilislawgroup.cori.iCounsel, far Appellants Wood County

....., ^ ! S. lfi,.

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Steven N. & Tiffany J. Queen28855 I-lufford RoadPerrysburg, OI-143551Appellees

Razni Awadallah, Esq.P.O. Box 361771Cleveland, OH 44136C'vunsel_,for Appellant bejbre Boardof ReWsion

The Honorable Mike DeWine (0009181)Ohio Attorney General30 East Broad Street, 17th FloorColumbus, OH 43215PH: (614) 466-4986Cnunsel, foy- Appellee Ohio TaxCommissioner

TABLE OF CONTENTS

Table of Authorities .......................... ..... ... .. ................................................. ... iv

Statement of the Case and Facts .................................... ....... . ................................... ........ .1

Law and Argument ........................ .............. ........................................ ......... ...... ......4

Introduction ................. .. ........................................................ ......... 4

Proposition of Law No. 1 ..................................... .............. .................................... .........5

A Property Owner Who Attempts To Rely On The Sale Price Of Real PropertyAs The True Value Of The Property Must Provide Competent And ProbativeEvidence Of '1 he Sale And Of The Facts Relating To The Sale Set Forth InR.C. 5713.03 .................................... ................ ... . ....... . ........................ .. ....:.......5

Proposition of Law No. 2 ....... ....... ....... .............................................. ..... .............14

The Presumption Accorded A Sale Cannot Arise At The Board Of RevisionIn Favor Of A Property Owner Complainant Who Fails To Appear At TheBoard Of Revision Hearing Because It Effectively Shifts The Original BurdenOf Proof To The Auditor And BOR Who Do Not Bear Such Burcien ......... ......:.: ,.........14

Proposition of Law No. 3 ........................................................... .............................. ...................16

The Presumption Accorded A Sale Cannot Arise At The Board Of RevisionIn Favor Of A Property Owner Complainarit Who Fails To Appear A.t TheBoard Of Revision I.-Iearing Because The BOR Is Incapable Of Rebutting ThePresumption .......................... ................... ......... . .... ..... ....................................:...16

Proposition of Law No. 4 .................. ...... . ...... ............................................ .. .. .. .. .........17

The Court Did Not Hold In Its Recent Decision Of lvason City School .DistrictBoard of Education v. Warren County Board of Revision That A RebuttablePresumption Of Value Arises From A Notation Of. A Sale On The Auditor'sProperty Record Card ............... .... ............................................................ ...... ... ..17

ii

Proposition of Law No. 5 ..... .. . ...................................... .... . ...........................:.. ....... .20

The BTA Erred In Failing To Hold That Appellees Did Not Meet Their InitialBurden In. Proving That The Sale Of The Subject Property Was Voluntary........ . ............ 20

Proposition of Law No. 6 ...... ...... ...................................... ................................ . ...... .22

A Countg-° Board Of Revision Can Disnliss A Complaint For Failure ToProsecute When The Property Owner Fails To Appear At The Board OfRevision Hearing And Otherwise Fails To Present Competent And ProbativeEvidence Of The Tiue Value Of The Property................................. . ............................ . ... 22

Proposition of. Law No. 7.. ................................................. . .. . ......................... .................23

The I3TA Did Not Ilave Jurisdiction To Issue A Decision On Value When TheBOR Dismissed The Complaint ................................... ...... . ... ......... ............. ...23

Conclusion ............... .................................... .. ................................ .. . ..........23

Appen di x ... .. .. .. ... .. . . .. . . . . . ... .. ... . . .. . .. .. .. ... . .. ... . .. . .. . . .. . . . . . .. ... . . . .. .. . . . . . . .. . . .. ... . .. .... .. . . .. . .. .. . .. .. .. . .. .. . 1

iii

TABLE OF AUTHORITIES

Statutes:

R.C. 319.301 ........................... ..................................... .... . ...................... . .. .....4

R.C. 5713.03 .... .. ...... 9, 11... ............................... .................................................. .........4, 5,

R.C. 5713.04 .......... .................... ..... ... ................................,.,...................,................. ...11

R.C, 5715.01 ............... ..... ................................... ... .............,........,.......... .. ,................4

R.C. 5715.10 ........ ........ ............................ ....... ................................... . .......... ....... .5, 15

R.C. 5715.11 ..................... . .. ..... . ................................ ......... ......................... .4, 5, 9, 11, 22

R.C. 5715.19 ..... .................................................. ................................. .>........5, 6, 7, 9; 22

Cases:

AL'I <Vet Lease Income & Ur•Uwth Fund v. Erie Cty: l3d of Revision,

119 Ohio St. 3d 563, 2008-Ohio-5203. 895 N.E.2d 830 (2008)............................. . .......... 12

13edf'oYd Bd. ofEdn. v. Cuyahoga Cty. 73d. of'Revision,

132 Ohio St. 3d 371, 2012-Ohio-2844, 972 N.E,2d 559 (2012) ................... .. ........15

Casa 94 L. P. v. Franklin Cty. Bd, of Revision,

89 Ohio St. 3d 622, 734 N.E.2d 369 (2000) .......................................................... .........7

Cincinnati School Dist. I3d. of L+'dn v. Hamilton Cty. Bd. of Revision,78 Ohio St. 3d 325,677 N.E.2d 1197 (1997) ................................................:. -....13-14

Colonial Village, Ltd. v. lfashington Cty. Bd. of Revision,

123 Ohio St. 3d 268, 2009-Ohxo-4975, 915 N.E.2d 1196 (2009) ................. .. ..13, 14

Columbus Bd ofEdn. v. Franklin County Bd. ofRevision,

76 Ohio St. 3d 13, 665 N.E.2d 1098 (1996) ............................. ...>.......................... 9-10, 18

Columbus City School Dist, Bd of Edn. v. Franklin C. Bd of Revision;134 Ohio St. 3d 529, 2012-Ohio-5680; 983 N.E.2d 1285 (2012) ................................19-20

Cummins PropertyServices, L. L. C, v. Franklin Cty. Bd qf Revision,117 Ohio St. 3d 516, 2008-Ohio-1473, 885 N.E.2d 222 (200$) ......................10, 11, 12, 15

iv

Darcel, Inc. v. 1llanitoi-vac Bd. of Review,

137 Wis.2d 623, 405 N.W.2d 344 (1987) ... ........................... ..... .. ........................12

FirstCal Industrial 2 Acquisitions; L.L. C. v. Franklin Cty. Bd of Revision,

125 Ohio St. 3d 485, 2010-Ohio-1921, 929 N.E.2d 426 (2010) ................. ......;.. .11,15

Gayfield lllall Assoc. v. Cuyahoga C'ty. Bd of'Revision,

66 Ohio St. 3d 247, 611 N.E.2d 808 (1993) ........................... .... ....................... .... 6-7

I.iIN, L. L. C. v. Cuyahoga Cty. Bd. of Revision,1.24 Ohio St. 3d 481, 2010-Ohio-687, 923 N.E.2d 1144 (2010) .................. .....................12

LC:L Income Properties v. Rhodes,

71 Ohio St. 3d 652, 646 N.E.2d 1108 (1995) .................................................... 6; 11, 20-21

Leach v. Ilamilton Cty. Bd of Revision,94 Ohio St. 3d 170, 761 N.E.2d 36 (2002) ....................,................... ......... ................6, 21

Alason City School Dist. Bd of Fdn. v. Warren Cty. Bd of'Revision,

Slip Op. 2014-Ohio-104 (Jan. 21, 2014) ............. .....;................................. ..............16-18

aS'navelv v. Erie Cty. Bd of Revision,.78 Ohio St. 3d 500, 678 N.E.2d 1373 (1997) ...... ......................:................. ....,..>............21

Swetland Co. v. Evatt,139 Ohio St. 6, 37 N.E.2d 601 (1941) ......... ... ............................... .............. ..............6

Tanson Holdings, Inc. v. IJarke Cty. Bd. of *Revision,74 Ohio St. 3d 687, 690, 660 N.E.2d 1216 (1.996) ........................................ ........11

Western Industries, Inc. v. Hamilton Cty. Bd ofRevision,170 Ohio St. 340, 341, 164 N.E.2d 741 (1960) .................................. ........... .....13, 14

Worthington City Schools Bd of.Edn. v. Franklin Cty. Bd. of Revision,124 Ohio St. 3d 27, 2009-Ohio-5932, 918 N.E.2d 972 (2009) .........., ....10, 18

v

STATEMENT OF THE CASE AND r'ACTS

On March 28, 2013, Appellees Steven N. and Tiffany J. Queen filed a complaint with the

Wood County Board of Revision (the "BOW') for tax year 2012 seeking a reduction in value

upon that certain real property they ovvn located at 28855 Hufford Road in Perrysburg, Ohio and

identifzed as Auditor's Parcel Numbers P60-300-704402018000 and P60-300-704402019000

(the "Subject Property"). See Complaint, Record. On line 1.0 of the complaint, Mr. and iVlrs.

Queen indicated that they purchased the Subject Property for $80,000. Id.

Several days following the filizlg of the complaint, Appellees' attorney subsequently

submitted a letter presumably in support of their complai.nt, attaching a ntiniber of documents:

(1) an except of a BTA case;

(2) a copy of a website print-out of the sales data portion of the Auditor's property

record card for the Subject Property, which lists a sale of the Subject Property

from "Federal National Mortgage Association" (aka "Fannie Mae") to Mr. and

Mrs. Queen for $80,000 on August 19, 2011;

(3) an offer for a title commitment;

(4) an escrow agreement;

(5) a print-out from real estate website "Trulia";

(6) an unsigned HtTl7-1 settlement statenient;

(7) a Limited Warranty Deed; and

(8) a "desktop appraisal" by AppraiserSuite opining to a value of the Subject Property

of $78,000 as of December 21, 2012.

See Letter of Rami Awadallah, Esq. dated April 3, 2013, Record.

1

The BOR scheduled the hearing for May 20, 2013 and mailed notice thereof to Mr. and

Mrs. Queen and their attorney. See BOR t:Iearing Notices, Record. Hovvever, no one appeared

at the hearing. See BOR Hearing Record, Record. The BOR noted at the hearing that "there

were questions on the conditions of the sale since it was a foreclosure." BOR Hearing Record,

Record. The BOR also indicated that a representative of the Auditor's office phoned Mr. Queen

regarding a clarification of hearing date and to inquire as to whether he received the hearing

notice and Mr. Queen indicated that "Tax Compliance" [non-attorney tax consultants Tax

Compliance Services, LLC] told him that he did not need to appear. Id. Therefore, the BOR

voted to dismiss the complaint for failure to prosecute and notified. the Queens and their attornev

on June 26, 2013. See BOR Decision Letter, Record.

The Queens appealed the BOR's decision to the BTA through an unsigned Notice of

Appeal. See Notice of Appeal, Record. The Auditor and BOR moved to affirm the BOR's

dismissal of the complaint. See County Appellees' Motion to Affirm Dismissal of Board of

Revision, Record. Tax Compliance Services responded to the County's motion through a fax to

the BTA with handwritten notations, including "*Get facts straight before filing a motion" as the

County Appellees inadve-rtently misidentified the Queens' property in its motion. See Fax of Tax

Compliance Services dated September 23, 2013, Record. The County Appellees responded

through a fax to the BTA identifying the correct property and apologizing for their inadvertence.

See Fax of Kelley Gorry dated September 23, 2013. Mr. and Mrs. Queen did not otherwise

respond to the motion except as through their non-atl:orney tax consultants. On October 30, 2013

(prior to the BTA's scheduled hearing date of November 13, 2013), the BTA rendered its

decision, in which it not only reversed the BOR, holding that the BOR had no authority to

2

dismiss the complaint for failure to prosecute apparently because "the record discloses a

presumptively arm's-length sale" although no such evidence in the record was identified by the

BTA in its decision. Furthernlore, the B'I'A then directed the BOR "to value the property in

accordance with the aforelnentioned. sale." BTA Decision.

Appellants filed an appeal with this Court on November 19, 2013.

3

LAW ANl) ARGUMENT

Introduction

'I'he issue in this appeal is whether the BTA can force a county board of revision to

accept the purported sale price of real property as its true value in money when the property

owner: (1) fails to present to the board of revision any admissible or competent and probative

evidence concerning the sale of the property; and (2) when the owner fails to appear at the

hearing set by the board of revision and waives the hearing before the BTA. As indicated above,

Appellees provided no admissible evidence concerning the sale to the BOR in this case. The

only material submitted by Appellees were inadmissible hearsay, unsigned and incomplete

documentation regarding the sale. See Letter of Rami Awadallah, Esq. Record. These

inadmissible documents are not competent and probative evidence of anything and certainly do

not create any presumption that the facially distressed sale following foreclosure is arm's-length.

'I'he capricious nature of the BTA's decision is obvious. Not all sales of real property are arm's-

length sales; and not all sale prices of real property reflect the true value of the property. The

BTA has actually created a procedure in this case that would allow a property owner in many

cases to benefit by not showing up at a board of revision hearing and by not having to answer

any questions concerning the terms and conditions of what might be an entirely bogus sale of the

property.

The BTA's decision deprives the board of revision of its statutory duty to hear and decide

a complaint and to obtain relevant evidence that is sufficient to justify a reduction in the true

value of the property. The statutory requirement that a board of revision set a complaint for

hearing is not just for the benefit of the property owner who files a complaint. It is just as much

4

for the benefit of all other property owners in the county who pay their fair share of taxes and

have a right to insist that the board of revision and the BTA follow the law when.ever someone

else gets a tax break. Under the tax reduction factor set forth in R.C. 319.301, every tax dollar

that Mr. and Mrs. Queen saved as a result of the BTA's decision on voted millage will have to be

paid by the other taxpayers in the various taxing districts in which the property is located.

The BTA's decision to grant a reduction in value under these circumstances constituted a

violation of the "uniform rule" of Article XII, Section 2, of the Ohio Constitution, R.C. 5713.03

azid 5715.01, and this Court's prior decisions; all of which require that the BTA have before it at

least some competent and probative of the true value of the property before it reduces the true

value of the property.

Proposition of Law No. 1:

A Property Owner Who Attempts To Rely On The Sale Price Of RealProperty As The True Value Of The Property Must Provide Competent AndProbative Evidence Of The Sale And Of The Facts Relating To The Sale SetForth In R.C. 5713.03.

The BTA's decision in this appeal deprives a couiity board of revision of its statutory

right and duty to hear and investigate all complaints filed with it. The BTA does so by illegally

applying several "presumptions" to the mere filing of a complaint wlzich have the sole effeet of

relieving a property owner of any duty to attend a board of revision and to answer questions

conceming a sale of the property. There is no possibility that the BTA's decision in this case

could constitute sound principles of public policy.

A county board of revision h.as the statutory duty to hear all complaints filed with it. R.C.

5715.11. The board of revision, also has the power to "investigate all such coinplaints." Id. i'he

purpose of such a hearing is to obtain all of the facts necessary to lawfully decide the complaint.

5

The hearing is as much for the benefit of the complainant as it is for the benefit of the other

taxpayers in the county. R.C. 5715.11 states that "[t]he county board of revision shall hear

complaints relating to the valuation or assessment of real property" and that "[t]he board shall

investigate all such complaints and may increase or decrease any such valuation or correct any

assessment complained of ***." R.C. 5715.19(C), likewise states that "[t]he board of revision

shall hear" each complaint filed with the board. R.C. 5715.10 states that "[t]he county board of

revision shall be governed by the laws concerning the valuation of real property and shall make

no change of any valuation except in accordance with such laws."

R.C. 5713.03 creates the sale price definition of true value. The version of this section in

effect when the complaint arose states, in part, as follows:

In determining the true value of any tract, lot, or parcel of real estate under thissection, if such tract, lot, or parcel has been the subject of an arm's length salebetween a willing seller and a willing buyer within a reasonable length of time,either before or after the tax lien date, the auditor shall consider the sale price ofsuch tract, lot, or parcel to be the true value for taxation purposes.

This provision does not refer to, or create, any presumption relating to the arm's-length

n.ature of the sale or as to whether the sale was between a willing buyer and a willing seller: This

provision does not relieve a propertv owner of the duty to attend a board of revision hearing and

to provide admissible evidence concerning a sale of the property upon wllich the owner is

relying. Under standard principles of statutory construction, a property owner who claims the

benefit of R.C. 5713.03 must prove that he falls within the statute. Second, the party that has

exclusive knowledge of all of the legally relevant facts, such as, in this case, the terms and

conditions of a sale of the property, has the burden to prove those facts.

6

It is hardly an undue burden for a property owner who claims a reduction in the truc

value of his property based on a sale to attend a board of revision hearing, to submit admissible

evidence concerning the sale and to answer questions relating to the sale in order to prove that

the sale was an arm's-length sale. In LCL Income I'roperties v. Rhodes, 71 Ohio St. 3d 652, 646

N.E.2d 1108 (1995), this Court affirmed dismissal of the complaint for failure to prosecute

because neither the complainant nor its representative appeared at the board of revision hearing.

In doing so, this Court agreed with the statement made by the County Auditor in his brief:

"[W]e are talking about a reasonable procedural requirement. We are simply asking the taxpayer

to show up. It really is not too much to ask." Id. at 653; see also Leach v. Ilanjilton Cty. Bd. of

Revision, 94 Ohio St. 3d 170, 761 N.r.2d 36 (2002) ("The taxpayer fails to sustain the burden to

prove the value of the property when he or she fails to attend the hearing before the board of

revision"). Paragraph nine of the svllabusof S'rvetland Co. v. Evatt, 139 Ohio St. 6, 37 N.E.2d

601 (1941), reads, in part, as follows:

A county board of revision * * * is a quasi jtidicial body, and where a taxpayerfles a complaint against the assessed value of his real estate and thereafter fails toattend a hearing of which he had notice and no evidence in support of suchcomplaint is offered by or on behalf of the taxpayer, a county board of revision isj ustified in fixing the valuation complained of in the amount assessed by thecounty auditor.

In actual fact, of course, it did not make any difference in this case whether the BOR

dismissed Appellees' complaint for failure to prosecute or made no change in the value of their

property. Pursuant to R.C. 5715.19((i), Appellees could not present any evidence of the sale to

the BTA on appeal because it presented no such evidence to the BOR. R.C. 5715.19(G) prevents

a party from presenting evidence to the BTA on appeal if that evidence was not presented to the

board of revision, except for good cause. For instance, in Garfield Mall Associates v. Cuyahoga

7

County Board of Revision, 66 Ohio St. 3d 247, 611 N.E.2d 808 (1993), the Court held that R.C.

5715.19(G) prevented the testimony of a witness on appeal concerning a sale of a partnership

interest in the property when the "information or evidence within [the] witness' knowledge or

possession" was not presented to the board of revision. Id at 247. In Ca.sa 94 L.P, v. Franklin

C:ozinty Board of Revision, 89 Ohio St. 3d 622, 734 N.E.2d 369 (2000), the Court held that R.C.

5715.19(G) excludes additional evidence on appeal when the owner "did not attempt to show

good cause why it had not presented the cvidence or infortnation testified about to the BOR.". Id

at 625. In this case, this Court also stated the following:

The appellants contend that R.C. 5715.19(CT) precludes a property owner fromtestifying about the terms and conditions of a sale before the BTA if (1) the ownerdid not testify or otherwise present admissible evidence concerning the sale to theboard of revision and (2) the owner does not show good cause for the failure to doso. We agree.

Id at 624. Implicit in the Court's reference to the fact that "the owner did not testify or

otherwise present admissible evidenee concerning the sale to the board of revision" is the

requirement that a property owner must, at the very outset and at the very least, present some

"otherwise admissible evidence concerning the sale to the board of revision." Id. In this case,

Appellees presented no such evidence to the BOR.

The point is that the BOR had the duty to make no change in the true value of the Subject

Property because the property owners failed to appear at the BOR hearing and provide

admissible evidence at the hearing concerning the sale of the property. The BTA was required.as

a matter of law to affirm the decision of the Board of Revision. The BTA had no authority to

instruct the BOR to accept the sale price of the property as the true value of the property.

The BT'A holds that there was no need wllatsoever for Mr. and Mrs. Queen to attend the

8

board of revision hearing (or to attend the BTA hearing on its appeal since the decision was

issued prior to the scheduled hearing date and Tax Compliance Services waived Appellees' right

to appear at the BTA hearing) and that the board of revision was legally bound to reduce the true

value based solely on the mere claim on the face of the complaint that a sale of the property took

place. In fact, the BTA's decision actually discourages complainants relying upon a sale to

appear at the BOR hearing and testify regarding the sale of which they have exclusive personal

knowledge. Based upon the BTA's holding, a complainant relying tipon a non-arm's-length sale

for a reduction in value would be in a far better position to elect not to attend the BOR hearing or

BTA hearing.'

The B"I'A's first error in this case was to hold that the inadmissible hearsay documents

submitted by Appel.lees' attorney disclosed a "presumptively arm's-length sale." BTA Decision

at p. 3. These documents are inadmissible hearsay and the only admissible evidence concerning

the sale was the notation on the Auditor's property record card. Such notation is not competent

and probative evidence of anything and the Auditor is required to record any transfer occurring

after the prior appraisal on the property record card. O.A.C. 5703-25-09(F)(1).

More importantly, however, the BTA erred in holding that the BOR was compelled to

grant a reduction in the true value of the property. BTA Decision ("Accordingly, said dismissal

is hereby reversed and the board of revision is directed to value the subject property in

The BTA's decision also encourages fraudulent transfers of property to manipulate true valuefor ad vaiorem tax purposes. For example, an individual property owner could form a limitedliability company with itself as the sole member, transfer its property to the entity, fail to checkthe box on the conveyance-fee statement for "related parties," file a BOR complaint, and electnot to appear at the BOR or BTA hearing. Pursuant to the BTA's decision in this case, the BORis coinpelled to accept this non-arnl's-length transaction as true value and the property ownersucceeds in having its property valued at whatever value it desires.

9

accordance with the aforementioned sale"). The only admissible evidence in the record

regardizig the sale is the indication on the Auditor's property record card that the sale occurred.

See Property Record Card, Record. The presumption of true value accorded a sale price cannot

be applied by the BTA to deprive a county board of revision of its statutory duty to hear and

decide a complaint, to obtain evidence relating to the sale of the property, and to decide for itself

whether the sale meets the requireinents of R.C. 5713.03 based on the actual facts presented to

the board. This is precisely what the law requires a county board of revision to do. See R.C.

571. 5.11. The presumption cannot be applied by the BTA in order to relieve a property owner,

who attempts to rely on a sale to reduce the true value of its property, of the duty to attend the

BQR hearing and to provide some admissible evidence and testimony to the BOR. concerning the

terms and conditions of the sale.

The original purpose of the presumption that any sale is an arm's-length sale and that the

sale price reflects the true value of proper-ty appears to have been a response to the logic of R.C.

5715.19, which specifically allows a board of education to file a board of revision complaint, and

R.C. 5713.03, which makes the sale price of real property the true value of the property. A board

of education has no access to the evidence that shows that a sale was, in fact, an arm's-length

sale. Consequently, the presuznption authori7es a board of education to file a sale complaint and

then requires the property owner, as the otlly party having any evidence relating to the terms and

conditions of the sale, to come forward and present that evidence to the board of revision if it

wishes to contest the sale. In Colunabus Board of Education v, Franklin County Board of

Revision, 76 Ohio St. 3d 13, 665 N.E.2d 1098 (1996), the Court stated the following:

Therefore, once the Columbus Board of Education introduced into evidence acopy of the deed and conveyance fee statement, which listed the five parcels

10

being transferred for $1,575,000, the burden to prove a lesser value shifted toNestle.

Id at 16. In Worthington City Schools I3`oard qf Education v. Franklin County Board of

Revision, 124 Ohio St. 3d 27, 2009-Ohio-5932, 918 N.E.2d 972 (2009), this Court stated the

same thing:

Turning to the school board's burden of proof at the BTA, we conclude that theBTA was justified in viewing the conveyance-fee statement and the deed that theschool board had presented to the BOR as constituting a prima facie showing ofvalue. *** In the present case, the school board additionally presented to theB`I'A a ptirchase agreement that it had obtained through discovery. The troika ofdeed, conveyance-fee statement, and purchase agreenient formed an adequatebasis for the BTA to find a recent arm's-length sale, subject to rebuttal by theWeber Sisters.

Id at 34 (internal citations omitted).

In Cummins Property Services, L.L.C. v. Franklin County Board of Revision, 117 Ohio

St. 3d 516, 2008-Ohio-1473, 885 N.E.2d 222 (2008), this Court stated that the "[t]he initial

burden on a party presenting evidence of a sale is not a heavy one, where the sale on its face

appears to be recent and at arm's length." Id. at 526. The Court also noted that a party relying

on a sale was not required to "introduce appraisals and other extrinsic evidence showing the

absence of any reason not. to use the sale price to determine value" which would "defeat the

legislative purpose of R.C. 5713.03, wllich is to promote the use of the recent sale to determine

the value of the property and thereby minimize the need for other evidence when a recent sale

price is available." Ict

In citing this case in its decision, the BTA appears to disregard altogether the fact that

there is an "initial burden on a party presenting evidence of a sale" at the outset, and that a mere

claim on a board of revision complaint that a sale took place does not constitute any evidence at

11

all that an actual arni's-length sale of the property took place. In the appeal at hand, Mr. and

Mrs. Queen were not being asked to "introduce appraisals and other extrinsic evidence showing

the absence of any reason not to use the sale price to determine value." See id. Instead, they

were being asked to simply show up at the board of revision hearing and provide some

admissible evidence concerning the sale of the property. See ICL Income Properties, supra, at

653. Moreover, the Court has held previously held that a property owner relying upon a sale for a

reduction in value bears the burden in demonstrating that the sale was an arm's-length

transaction. Tanson Holclings, Inc. v. Darke Cty. Bd ofRevision, 74 Ohio St. 3d 687, 690, 660

N.E.2d 1216 (1996) ("The burden was on 'I'annson to convince the BTA that -the sale was an

arm's-length transaction, and it was unable to meet that burden").

There are obviously sound reasons why a property owner should be subject to

examination by a board of revision concerning the terms and conditions of any sale that the

owner relies in seeking a reduction in the true value of its property, and why the BTA's decision

if allowed to stand has the potential to result in numerous underserved and illegal reductions in

the true value of real property. For instance, R.C. 571.3.04 excludes an "auction" or a "forced

sale" from consideration under R.C. 5713.03, in that it states that: "[t]he price for which such

real property would sell at auction or forced sale shall not be taken as the criterion of its value."

A county board of revision has duty to inquire into relevant facts such as the terms and

conditions of the actual sale. See R.C. 5715.11. In FirstC'alIndustrial 2,4cquisitions, L.L.C. v.

F'rcznklin County Board of Revision, 125 Ohio St. 3d 485, 2010-Ohio-1921, 929 N.E.2d 426

(2010), this Court noted that "[w]e have acknowledged that the typical niotivation of the se11er

and the buyer constitutes an element in deternining whether a transaction constitutes an arm's-

12

length sale." Id. at 487, n. 4. A county board of revision has the duty to inquire into the

motivations of the buyer and seller. In Cufnnnins, supra, this Court cited from a Wisconsin

decision which stated that "[s]ale-leaseback situations, for instance, may be undertaken with

terms to avoid property tax and might not be entered at arm.'s-length." Cumnains. supra, at 523,

citing Z7orc.el, Inc. v. 1VIanitoivac .t3d, of Review, 137 Wis.2d 623, 405 N.W.2d 344 (1987). In

AEI iVet Lease Inconae & Growth Funtl v. Erie County Board of Revision, 119 Ohio St. 3d 563,

2008-Ohio-5203, 895 N.E.2d 830 (2008), this Court noted "the concern associated with sale-

leaseback transactions lies in collusion between the parties to depress property value for tax

purposes." ,tcl at 567. All of these principles dictate that a county board of revision is fully.

justified in setting a sale case for hearing and in making no change in the true value of the

property when the owner fails to appear and provide any admissible evidence concerning the

ternls and conditions of the sale upon which the owner relies.

The decision of the BTA, which required the BOR to accept the purported sale price of

the Subject Property as it true value in money, was unreasonable and unlawful. The BTA's

decision deprives a county board of revision of its duty to hear all complaints and illegally

relieves a property owner of the duty to present admissible, competent, and probative evidence

that is sufficient to justify a reduction in the true value of the property. As this Court held in

HIN, L.L.C. v. Cuyahoga C.'ounty BoaYd of Revision, 124 Ohio St. 3d 481, 2010-Ohio-687, 923

ME.2cl 1144 (2010), it will affirm a decision of the BTA only if the BTA correctly applies the

law. Id. at 485. In this case, the BT'A's decision was inconsistent with law

13

Proposition of Law No. 2:

The Presumption Accorded A Sale Cannot Arise At The Board Of RevisionIn Favor Of A Property Owner Complainant Who Fails To Appear At TheBOR Hearing Because It Effectively Shifts The Original Burden Of Proof ToThe Auditor And BOR Who Do Not Bear Such Burden.

The BTA's decision is unlaw-ful because applying the presumption in this instance

effectively shifted the original burden of proof to the County Auditor and BOR. At the outset,

this Court has long held that a taxpayer complainant bears the burden. of proof of asserting a

value other than the Auditor's original valuation when it files a board of revision complaint. W.

IndustYies, Ine: v. Ilantilton Cty. Bd. of Revision, 170 Ohio St. 340, 341, 164 NE.2d 741 (1960)

("The burden is on the taxpayer his right to a deduction. He is not entitled to the deduction

claimed merely because no evidence is adduced contra his claim"). Likewise, the Court aptly

held in C:olonial Village, Ltrl v. Washington C.`ty. Bd. of'Revision, 123 Ohio St. 3d 268, 2009-

Ohio-4975, 915 N.E.2d 1196 (2009) ("Colonial Village II ") that a county auditor does not have a

corresponding burden to support his or her original valuation:

Moreover, we reiterate that the county does not have the a.tfirmative burden toestablish as a general matter the accuracy of any appraisals that underlie itsvaluation of the property. *** But unlike a school board or a property owner thatseeks to depart from the county's valuation of the property, the board of revisionand the auditor do not themselves acquire the burden of proving the generalaccuracy of the appraisals on which they originally relied. This distinction arisesbecause of the settled principle that 'when a county auditor acts `within the limitsof the jurisdiction conferred by law,' the auditor's action is 'presumed, in theabsence of proof to the contrary, to be valid and to have been done in good faithand in the exercise of sou.nd judgment.' The county's appraised value thus formsin most cases a default valuation that must be preferred and adopted if theappellant before the BTA fails to prove a different value of the property

Id. at 276-277 (internal citations omitted, emphasis in original). The Court also discussed "the

concept of the burden of proof involved with a presumption" in Cincinnati School District Board

14

of Fducation v. Ilamilton County Board ofRevision, 78 Ohio St. 3d 325,677 N.E.2d 1197 (1997)

as follows:.

The concept of the burden of proof involved with a presumption is succinctly setforth in Evid. R. 301, which provides:

`A presiunption imposes on the party against whom it is directed the burden ofgoing forward with evidence to rebut or meet the presumptioti, but does not shiftto such party the burden of proof in the sense of the risk of nonpersuasion, whichremains throughout the trial upon the party on whom it was originally cast.'

Id. at 328.

Here, Mr. and Mrs. Queen bore the original burden of proof of departing from the

Auditor's original valuation. They failed to appear at the BOR hearing and did not present any

admissible evidence regarding their purchase of the Subject Property. Yet, with no other

admissible evidence than the transfer date and sale price as reported on the Auditor's property

record card, the BTA decision presumed that the sale was valid and the Auditor's original

valuation invalid. This is exactly what Calonial Village II prohibits since the Auditor's original

valuation is the default valuation and cannot be overcome until a property owner filing a

complaint presents admissible, competent and probative evidence of a different valuation. The

BTA decision imposed upon the. County an original burden of proof at the BOR hearing in

proving that the sale (for which it had no admissible evidence or witnesses to examine) was not

an arm's-length sale or recent. The decision directly runs afoul of Western Industries, suprcc; in

that it held that Appellees were entitled to a reduction in value merely because the BOR did not

introduce any evidence. Since the Auditor or BOR cannot bear an original burden of proof at the

BOR hearing, and have no obligation to defend the Auditor's original value, the BTA deeision is

unlawful as a matter of law.

15

Proposition of Law No. 3:

The Presumption Accorded A Sale Cannot Arise At The Board Of RevisionIn Favor Of A Property Owner Compiainant Who Fails To Appear At TheBOR Hearing Because The BOR Is Incapable Of Rebutting ThePresumption.

Next, the BTA unlawfully applied the presumption of true value accorded a sale price to

Appellees in this instance because the BOR is effectively incapable of rebutting the presumption.

As the Court noted in Cumrnins, supra, "the only rebuttal lies in challenging whether the

elements of recency and arm's-length character between a willing seller and a willing buyer are

genuinely present for that particular sale." Cummins, supra, at 519. The Cotu-t has recognized on

multiple occasions that the property owner, as seller or purchaser in the transaction, is uniquely

qualified to rebut a sale price as reported on a conveyance-fee statement because it is the "party

most likely to possess the information" regarding the sale. See FiYstCal, supra, at 491; see also

Bedford Bd. of Edn. v. Cuyahoga Cly: Bd. of Revision, 132 Ohio St. 3d 371, 2012-Ohio-2844,

972 N.E.2d 559 (2012), citing FirstCal, supra.

The presumption cannot arise in favor of a property owner filing a complaint based upon

its own purchase or sale of property because the BOR is incapable of rebutting the presumption

wlien the property owner voluntarily elects not to appear at tlle BOR hearing for cross-

examination and atithentication of any documents submitted. As the purchaser or seller in the

transaction, the property owner complainant possesses all the necessary information regarding

the sale. The Auditor and BOR lack any personal knowledge of the sale or the motivations of

the parties. The BOR cannot deterznine whether the parties were typically motivated, whether

the property was listed on the open market, whether any non-realty items were involved in the

sale, `vhether any subsequent improvements were made subsequent to the sale, etc. Simply put,

16

it is impossible for the BOR to negate the arm's-length nature or recency when the property

owner involved in the sale does not appear for the hearing. While the BOR may subpaena

witnesses to appear at hearings (see R.C. 5715.10), requiriiig the BOR to subpoena every

property owner who files a complaint based upon its own purchase or sale of the property to

ensure its appearance for cross-exaznination impermissibly shifts the original burden of proof to

the BOR as explained above. Moreover, applying the presumption here is in stark contrast to

applying the presumption to a board of education filing an increase complaint. When the board

of education files a complaint, the presumption is easily rebutted by the property owner with

personal knowledge of the sale appearing at the BOR hearing and presenting testimony and

authenticated documentation concerning the sale to challenge the arnl's-Iength nature or recency.

Since the BOR cannot "rebut" the presumption the BTA accorded the sale, its decision must be

reversed.

Proposition of Law ,No. 4.

The Court Did Not Hold In Its Recent Decision of Mason City School DistrictBoard of Education v. Warren County Board of Revision That A>;ebuttablePresumption Of Value Arises From A Notation Of A Sale On The Auditor'sProperty Record Card.

Subsequent to Appellants' appeal to the Court in this case, the Court issued its decision in

Mason City School District Board of Education v. Warren County Board vf Revision, Slip Op.

2014-Ohio-104 (Jan. 21, 2014). This case neither holds that a rebuttable presuinption of valtie

arises merely from the notation of a sale on the Auditor's property record card nor that such

presumption, even if so arising, would apply to a property ovtiner filing a complaint based upon

its own sale who fails to appear at the BOR hearin.g.

There, a property owner filed a complaint before the board of revision seeking a decrease

17

in value and the board of education filed a counter-complaint. Id. at ^4. The board of education

noted on its counter-complaint that the property sold in December of 2006 for $5,350,000. At

the BOR hearing, the county auditor recited the facts of the sale, including the date and price, as

appearing on the property record card. .Id at ^j 31. The BOR granted a reduction in value and the

board of education appealed to the BTA. Icl at € 5. At the BTA hearing, the board of education

relied upon the sale as evidence of value but failed to submit a conveyance-fee statement or

deed. Id at 6, 31. When the BTA accepted the sale price as the property's true value, the

property owner appealed to this Court, alleging as one of its assignments of error that the board

of education failed to present evidence of the sale such that "the BTA has an insufficient basis

for concluding that there was a December 2006 sale for $5,350,000." .Id. at ^ 41.

The Court denied the property owner's claim, initially noting that the record was sparse

concerning the sale:

There is limited evidence of the December 2006 sale in the record. At the hearingbefore the BOR on August 12, 2009, the county auditor stated on the record thatthe property record card indicated that the property sold on December 15, 2006for $5,350,000. That statement refers to an actual notatioti on the property recordcard. The parties have never contested the fact or timing of the sale or the amountof the sale price. Accordingly, we accept the stated facts concerning the 2006 salefor purposes of deciding this appeal, despite the absence of the usual elements ofproof, such as the conveyance-fee statement, the deed, and the sale contract.

Id. at 4^1 31. As the property owner was present at both hearings of the BOR and. the BTA and

never contested the existence of the sale, the Court held that the property record card fortned a

sufficient evidentiary basis for such existence:

The school board's failure to present evidence of the sale at the BTA does notmean that there is not sufficient evidence of the sale in the record. The propertyrecord card contains a notation referring to the sale (as property record cardstypically do), and although that notation is somewhat ambiguous, the auditorhimself recited the pertinent facts of the sale - the time and price - at the BOR

18

hearing. At no time was that recitation contested; to the contrary, the parties bothpresented arguments as if the sale was factual.

Under these circumstances, we conclude that the BTA has a sufficient evidentiarybasis for detennining that there was a December 2006 sale to Wasserpach for$5,350,000.

Icl at T^( 43, 44.

It is undoubtedly clear that the Court's holding in .t1%lason stands for nothing more than the

proposition that the property record card foims a sufficient basis for the BTA to find that the sale

existed. The Court does not hold that the notation of a sale on a property record card creates a

presumption of value. Also not without consequence is that the board of education in Mason

was relying upon the sale for evidence of value, not the property owner. Tlius even if the Court

were to interpret Mason as creating a presumption of value from a notation of a sale on a

property record card, it is entirely consistent with its prior precedent applying such presumption

to a board of education. See Colainabus Board of' Education, supra, at 16; Worthington City

Schools Board of Education, supt•rx, at 34. When the property owner was present at both the

BOR hearing and the BTA hearing discussing the sale and had an opportunity to dispute its

existence and arm's-lengtli nature, and did not, the BTA properly found that the evidence

supported the sale's existence.

The circumstances here are in stark contrast to those in Mason. Appellees filed their

complaint relying upon their own purchase of the Subject Property. The only admissible non-

hearsay evidence of the sale upon which the BTA could have possibly relied was the notation in

the property record card. Pursuant to Mason, the BTA may have properly found. that the sale

took place - a fact Appellants do not contest. Unlike in Mason, a party to the sale did not appear

at the BOR hearing and BTA hearing and concede to the sale's existence and arm's-length

19

nature. The Auditor and BOR were not parties to the sale aiid have no ability to acquire any

facts relating to arm's-Iength nature absent cross-examination of the property owner involved in

the sale. Thus, even if Mason is retroactively applied to the BTA's decision here, it does not

lend any credibility to the BT'A's application of a presumption of value to a sale noted on a

property record card.

Proposition of Law No. 5:

The BTA Erred In Failing T'o Hold That Appellees Did Not Meet TheirInitial Burden In Proving That The Sale Of The Subject Property WasVoluntary.

The I3TA also erred in failing to recognize that Appellees did not meet their initial burden

in proving that the facially distressed sale of the Subject Property was voluntary. In Colunibus

City School District Board of Education v. Franklin County Board of'Revision, 134 Ohio St. 3d

529, 2012-Ohio-5680, 983 N.E.2d1285 (2012), the Court discussed a short sale, which is

analogous to the sale here but where the lender has not yet taken title to the property through

foreclosure. The Court commented that the short sale raises an inference that the sale was

involuntary:

A sale price from a short sale raises suspicion about the voluntary character of thesale because a short sale is a transaction in which the sale generates less than theamount owed on the mortgage. A short sale often occurs in the context of amortgage-loan default, which is a distressed situation.

Although a short sale naturally raises the inference of distress and duress, theultimate character of a sale as voluntary or involuntary is a factual matter to beresolved by the finder of fact based on the entire record before it. The standardfor duress is whether compelling circumstances lead to the parties consummatinga transaction whose terms would likely be unacceptable to a typically motivatedseller or buyer. A finding of duress lies within the province of the fact-finder,whose determination we will uphold as long as the record contains sufficient

20

support.

Id. at 536 (internal citations omitted). In reviewing the short sale at issue and the testimony

presented by the buyer in the transaction, the Court specifically held that proponent of the sale

bore a burden to offer evidence regarding the sale's voluntary nature:

Although the proponent of a short sale does bear an initial burden to offerevidence that the sale is voluntary, that burden may be satisfied when theproponent presents specific testimony supporting the conclusion that the lenderacted as a typically motivated seller.

Id. at 537-53$ (emphasis added).

The Court's ratzonalein Columbus is applicable here as there is no practical difference

between a short sale and an REO (bank owned) sale where the lender or guarantor of the loan

takes title at the foreclosure sale and then subsequently sells the property for less than the aznount

owed on its mortgage or guaranty. Such is the case here as the Auditor's property record card

reveals that Fannie Mae took title to the Subject Property on September 30, 2010 for $86,000,

presumably its credit bid and the amount owed on the existing mortgage. ^S'ee Property Record

Card, Record. Fannie Mae then subsequently sold the property to Mr. and Mrs. Queen eleven

months later for $80,000, which is less than the amount of its credit bid. Id. Accordingly, as the

proponent of the Fannie Mae sale, Appellees Queen bore the burden in proving that the facially

distressed sale was voluntary. Since they did not present any "specific testimony" to the BOR

or BTA to satisfy such burden as is required by C,olumhus, the BTA erred as a matter of law in

concluding that Faztn.ie Mae acted as a typically motivated seller in disposing of the Subject

Property for less than the aznount due on its mortgage guaranty.

21

Proposition of Law No. 6:

A County Board Of Revision Can Dismiss A Complaint For Failure ToProsecute When The Property Owner Fails To Appear At The Board OfRevision Hearing And Otherwise Fails To Present Competent And ProbativeEvidence Of The True Value Of The Property.

The BTA's decision reversing the I3aR's dismissal of the complaint for failure to

prosecute was misguided. This Court has long recognized that a board of revision may dismiss a

complaint for failure to prosecute when the complainant fails to appear at the BOR hearing. In

LCL Income Praperties, supra, the Court explicitly agreed that requiring a property ounier to

appear at a hearing in support of its complaint was a reasonable procedural requirement and

"really not too much to ask." Id, at 653. More specifically, it held that it was unreasonable to

require a board of revision to revalue a property when the complainant does not appear or submit

any evidence in support of its claim:

The B'I 'A's decision requiring the board of revision to revalue every propertyconiplained of, even if the complainant does not appear at a hearing to contest thevaluation, and even if the complainant presents no evidence, is unreasonable.Moreover, it ignores the primary obligation of a property owner who challenges areal property valuation: to sustain the burden of proving that the property has beenovervalued.

Id. at 653; see also Leach, .sul)ra, at 170. The Court subsequently distinguished failure to

prosecute and failure to satisfy burden of proof where a complainant's attorney appeared at the

BOR hearing and presented an owners' opinion of value< Snavely iy. Erie Cty. Bd of Revision, 78

Ohio St. 3d 500, 678 N.E.2d 1373 (1997).

Here, Snavely is easily distinguishable. While Appellees' attorney submitted a letter and

inadmissible hearsay documentation after Appellees filed their complaint, no one appeared at

BOR hearing, unlike in Snavelv. I'he BOR properly dismissed the complaint when neither Mr.

22

and Mrs. Queen nor their attornegT appeared for the scheduled BOR hearing. The BTA's focus

on the record disclosing a sale is wholly irrelevant to whether the BOR's dismissal of the

complaint was improper, and as explained above, derives from the BTA's unlawful application

of the presumption to Appellees and impermissibly shifting the original burden of proof to the

BOR.

Proposition of Law No. 7:

The BTA Did Not Have Jurisdiction To Issue A Decision On Value WhenThe BOR Dismissed The Complaint.

Finally, even if the Court determines that the BOR's dismissal of the complaint for

failure to prosecute was improper, the BTA usurped the BOR's original jurisdiction to determine

value. A board of revision has original jurisdiction to hear and investigate valuation complaints

pursuant to R.C. 5715.11 and 5715.19(A)(1)(d). If the BOR's dismissal is deemed improper

upon appeal to the BTA, the BTA must remand to the board of revision to allow it to satisfy its

statutory duties to originally determine value upon the complaint filed pursuant to R.C. 5715.19.

I`he BTA cannot deprive the board of revision of its original valuation jurisdiction.

CONCLIJSION

For the reasons set for-tli herein., Appellants respectfiilly request that the Court reverse the

decision of the BTA determining that the BOR's dismissal of Appellees' complaint was

improper and directing the BOR to value the property in accordance with a facially distressed

sale price when Appellees failed to appear and did not present any admissible competent or

probative evidence concerning the sale. The BTA improperly applied a presumption of value to

a property owiter complainant relying upon its own purchase in support of a reductiotl in value

and impermissibly shifted the original burden of proof to the BOR who was effectively incapable

23

of rebut-ting it. The BTA's decision is unreasonable and unlawful and must be reversed.

Respectfully Submitted,

ICelley A. Gorry (007921James R. Gorry (0032461)Rich & Gillis Law Group, LLC6400 Riverside Drive; Suite DDublin, OH 43017PH: (614) 228-5822FAX: (614) 540-7476kgorryti,ri chgi l li s l awgrotRp. c omGounsel for <4ppellants Wood CountyA2zdiZor and Wood C'ounty Board of Revision

CERTIFICATE OF SERVICE

I hereby certify that a true and complete copy of the foregoing Merit Brief was served, byregular L7.S. Mail, postage prepaid, upon: Steven N. & Tiffany J. Queen, 28855 Hufford Road,Perrysburg, OH 43551; Rami Awadallah.. Esq., P.O. Box 361771, Cleveland, OH 44136; and theHonorable Mike DeWine, Ohio Attornev General, 30 East I3road Street, 17`h Floor, Columbus,OH 43215, this 7`i' day of March, 2014.

,.,

kellli'evy -^^'A. Gorry (007921 ^Counsel for Appellants

24

IN THE SUPREME COURT OF OHIO

STEVEN N. AND TIFFANY J. QUEEN, -et al.,

Appellees,

V.

Case No. 2013-1828

<Appeal from Ohio Board of Tax AppealsBTA Case No. 2013-2762

WOOD COUNTY AhDITC}.R andWOOD COLiNT^.' BOARD OFREVISION,

Appellants.

Kelley A. Gorry (0079210)COLT-NTSEL OF RI?CGRDJames R. Gorry (0032461)Rich & Gillis Law Group, LLC6400 Riverside Drive, Suxte DDublin.. OH 43017PH: (614) 228-5822FAX: (614) 540-7476k:^:oi^v ^l;ric:(^giliisla^v;roup.con^Counsel jor Appellants Yl'ood County

APPENDIX

Steven N. & Tiffany J. Queen28855 Hufforcf. RoadPerrysburg, nH. 43551Appellees

Raini Awadallah, Esq.P.O. Box 361771Cleveland, 0I-144136Counsel for Appellant before Boardqf Revision

The Honorable Ivlike DeWine (000918 1)Ohio Attorney General30 East Broad Street, 17th FloorColumbus, OH 43215PH: (614) 466-4986Car,cnsel foY Appellee Ohio TaxCommissioner

TABLE OF CC'rPwT'1'ENTS

Notice of Appeal ........ ........................................................ ...................................... 3

Board of Tax Appeals Decision ............................................... ........................ .......,............9

Board of Revision Decision .. ......... ...:........................................................................................11

Statutes

R.C. 319.301 . . .......................................... .................... .................................... . . .... .... .12

R.C. 5713.03 . .. ...................................... . . .... . .................................... . ......16

R.C. 5713.04 .................... ...................................................... ........................................... ..17

R.C. 5715.01 ............ ......................................................................................................................18

R. C. 5715.10 . . . .. ... .... . .. .. .. .. . . . . ........... . . . .. . ..... . .. . ... ....... .... ..... . .. .. .. .. .. .. ... . . . . . .. .. . . .. . ... . . ... .. .. .. ..... . ....19

R.C. 5715.11 .......................................... .. ... ............................................. ......................2Q

R.C. 5715.19 ......... ........................................... ...21

2

2

IN THE SI.JPREME COCTR'I' OF OHIO

STEVEN N. AND TIFFANY J. QUEEN, :

Appellees, : Case No.

V.

WOOD COUNTY AUDITOR ANDWOOD COUNTY BOARD OFREVISION,

Appellants,

TAX COMMISSIONER OF OHIO,

Appellee.

Appeal from. the Ohio Board of Tax AppealsBTA No. 2013-2762

NOTICE OF APPEAL, OF THE WOOD COUNTY ALTI)ITORAND WOOD COUNTY BOARD OF REVISION

Kelley A. Gorry (0079210)COUNSEL OF RECORDJames R. Gorry (0032461)Rich & Gillis Law Group, LLC6400 Riverside Drive, Suite DDublin, OH 43017PH: (614) 228-5822FAX: (614) 540-7476kgorryna,richgillislawgroup.cornAttorneys for Appellants Wood CountyAuditor and Wood Couniy Board ofRevision

The Honorable Mike DeWine (0009181)Ohio A.tttirney General30 East Broad Street, 17"' FloorColumbus, OH 43215PI-I: (614) 466-4986Attorney for Appellee Ohio Ta.x Commissioner

Steven N. & Tiffany J. Queen28855 Hufford RoadPerrysburg, OH 43551Appellees

Rarrzi Awadailah (0079468)P.O. Box 361771Cleveland, OH 44136Attorney for Appellees before Board ofRevision

v r

^^Gy.. .^^^.

-,.: .: . „^. .^^

3

IN THk.; SUPREME COURT OF OHIO

STEVEN N. AND TIFFANY J. QUEEN, e

Appellees,

v.

WOOD COUNTY AUDITOIt. ANDWOOD COUNTY BOARD OFREVISION,

Appe_llants,

TAX COMMISSIONER OF OHIO,

Case No.

Appeal from the Ohio Board of Tax AppealsBTA No. 2013-2762

Appellee.

NOTICE OF APPEAL. OF THE WOOD COUNTY AUDTTORAND WOOD COUNTY BOARD OF REVISION

Now come Appellants Wood County Auditor and Wood County Board of Revision and

give notice of their appeal to the Supreme Court from the decision of the Ohio Board of Tax

Appeals in the case of Steven M. & Tiffany J Queen v. YTTood Cty. Bd. of Revision, et al., BT'A

Case No. 201.3-2762, rendered on October. 30, 2013, a copy of which is attached hereto as

Exhibit B. The Errors complained of are set forth herein as Exhibit A.

Respectfully Submitted.,_

lelley A. Gorry (0:079210)( ^ j.l ames R. Gorry (0032461) ^/Rich & Gillis Law Group, LLC6400 Riverside Drive, Suite DDublin, OH 43017PH: (614) 228-5822FAX: (614) 540-7476k orr aqrich^illislaw raup.eoi^Attorneys. for Wood County Auditor and WoodCour7ty Boar•d of Revision

4

EXiEIIBIT A - S TATE1VIENT OF ERRO12S

The decision of the Ohio Board of Tax Appeals (the "BTA") was unreasonable and

unlawful for the following reasons:

(1) The BTA erred in failing to affirm the dismissal of the complaint by the Board of

Revision (the "BOR") when having been duly notified of the hearing, neither Appeliees nor their

counsel appeared for the BOR hearing.

(2) The BTA erred in failing to apply this Court's directive in LCL Income Properties

v. Rhodes, 71 Ohio St. 3d 652, 646 N.E.2d 1108 (1995) that requiring a taxpayer to appear at the

hearing in support of a complaint is a reasonable procedural requirement.

(3) The BTA erred in assuming jurisdiction over the value of the subject property

when the only issue on appeal was the propriety of the BOR's dismissal for failure to prosecute.

(4) The BTA erred in usurping the original jurisdiction of the BOR to issue a decision

upon the value of the subject property arising from Appellees' complaint pursuant to R.C.

5715.11 and R.C. 5715.19.

(5) The BTA erred in directing the BOR to value the subject property in accordance

with a sale price when the record does not contain any competent and probative evidence of the

sale.

(6) The BTA erred in impliedly holding that a presumption of value arises when.

Appellees filed a coznplaint based upon their own purchase of the subject property.

(7) The BTA erred in holding that Appellees are entitled to the benefit of a

presumption of value from a sale in which they were a party and possess all relevant ixiforrrAation

regarding the sale and fail to appear at the BOR hearing to testify regarding the sale.

5

(8) The BTA erred in impliedly holding that Appellees' presentation of

unauthenticated and inadmissible hearsay docuznez2ts creates a rebuttable presumption of value.

(9) The BTA erred in impliedly holding that Appellees' presentation of a settlement

statement and deed creates a rebuttable presumption of value.

(10) The BTA erred in holding that a presumption of value applies to a sale for which

the record is,devoid of any evidence regarding th.e ann's-length nature of the sale.

(11) The BTA erred in holding that there was evidence in the record to support a

finding that the sale was a"presuniptively arm's-length sale."

(12) The BTA erred in failing to hold that a presumption of the anngs-length. nature of

the sale can arise only when the property owner presents the BOR with the actual facts relating

to the sale in the form of competent and probative evidence.

(13) The BTA erred in impermissibly shifting the original burden of proof from

Appellees as Appellants are effectively incapable of rebutting a presumption accorded the sale

when Appellees fail to appear at the BOR hearing.

(14) The BT.A's decision violates the provisions of R.C. 5715.01, which require that

true value must be based on the "facts and circumstances relating to the value of the property,"

when there are no such facts and circumstances in the record before the BTA.

(15) The BTA erred in failing to hold that Appellees bore the burden of proving that

the sale of the subject property from Federal National Mortgage Association (aka Fannie Mae)

was voluntary pursuant to this Court's decision in Columbus City Sch. Dist. Bd. of Edn. v..

Franklin Cty. Bd. of Revision, 134 Ohio St. 3d 529, 2012-0hio 5680, 983 N.E.2d 1285 (2013).

6

PROOF OE SERVICE ON BOARD OF TAX APPEALS

I hereby certify that a tri.ie and complete copy of the foregoing notice of appeal uTas

served upon the Clerk of the Board of Tax Appeals as evidenced by its filing stamp set forth

hereon.

e11ey A. Gorry '007921

CERTIFICATE OF SERVICY BY C.ERTIFIED MAIL

I hereby certify that a true and complete copy of the foregoing notice of appeal was

served by certified mail, postage prepaid, with return receipt requested, this {^^day of

November, 2013, upon:

Steven N. & Tiffafl.y J. Queen28855 Hufford RoadPerrysburge, OH 43551Appellees

Ram:i ANvadallah, Esq.P.O. Box 361771 .Cleveland, O1-I44136Attor•raeyfor Appellees befareBoard ofRevision

The Tionorable Mike DeWine, Esq.Ohio Attorney General30 East Broad Street, 17h FloorColumbus, Oll 43215Attorney for Appellee Ohio Tax Commissioner

` ^i

elley A. Gorry1079210)-

7

IN THE SUPREME COURT OF OHIO

STEVEN N. AND TIFFANY J. QUEEN, :

V.

Appellees, Case No.

Appeal from the Ohio Board of Tax AppealsBTA No. 2013.-2762WOOD COUNTY AUDITOR. AND

WOOD COUNTY BOARD OFREVISION,

Appellants,

TAX COMMISSIONER OF OfitO,

Appellee.

REgUEST TO CE1Z. TIFY ORIGINAL PAPERS TO THE SUPREME COURT OF OHIO

TO: The Clerk of the Ohio Board of Tax Appeals:

The Appellants, who have filed a notice of appeal with the Supreme Court of Ohio, make

this written demand upon the Clerk and this Board to ceitify the record of its p.roceedings and tlie

original papers of this Board and statutory transcript of the Board of Revision in the case of

Steven N& Tiffizny ,I, Queen v. Wood C'ty. 13d. ofRevision, at al., BTA Case No. 2013-2762,

rendered on October 30, 2013, to the Supreme Court of Ohio within 30 days of service hereof as

set forth in R.C. 5717.04.

Respectfully Submitted,

1 elley A. Gorry " 007921 Q)James R. Gorry (0032461)Rich & Gillis Law Grou.p, LLC6400 Riverside Drive, Suite DDublin, OH 43017PH: (614) 228-5822FAX: (614) 540-7476

8

OHIO BOARD OF TAX APPEALS

Steven N & Tiffany J Queen,

Appellant(s),

vs.

Wood County Board of Revision, et, at.,

Appellees.

)))))))))

CASE NO. 2013-2762

(REAL PROPERTY TAX)

DECISION AND ORDER

APPEARANCES:

P°or the Appellants - Steveti N. & Tiffany J. Queen, Pro SeP.O. Box 361771Cleveland, OH 44136

For the County

Entered OCT 3 0 NS

- Pat3I A. DobsonWood County I'rosecuting AttorneyKelley GorrySpecial Prosecuting Attoi-neyRich & Gillis Law Group, LLC6400 Riverside Drive, Suite DDubtin, OH 43017

Mr. Williatnson, Mr. Johrendt, and Mr. Harbarger concur.

The appellees move this board to affirm the board of revision's dismissal of

appellant's 2012 tax year complaint due to a failure to appear at hearing. V4'hile a board of revision has

the discretion to dismiss a complaint when a conrplainant does not attend a llearing, see, e.g., LCL

Income Properties v, Rhodes (1995), 71 Ohio St.3d 652, sucll discretionary authority is not without

limits. See, e.g., Snavely v. Erie Cty. Bd. of Revision (1997), 78 Ohio St.3d 500. The Supi-eme Cout-t

has held that "[t]h.e best method of determining value, when such information is available, is an actual

sale of sucli property between one who is willing to sell but not compelled to do so and one who, is

willing to buy but not compelled to do so," State ex rel. Park Investments Co. v. Bd. of Tax Appeals

(1964), 175 Ohio St. 410, 412. Further, "a sale price is deemed to be the value of the propet•ty, and the

only rebuttal lies in chaIlenging whether the elements of recency and arin's-length character between a

willing seller and a willing buyer are genuihely present for that particular sale." Cummins Property

Servs., L.L.C. v. Franklin Cty. Bd. of.Revzsivn, 117 Ohio St.3d 516, 2008-Ohio-1473, at ¶13. In Iiglit

of these principles, and the fact that the underlying record discloses a px-esucnptively arm's-lengtlz sale

of the subject property recent to tax lien date, such transfer having occurred on August 19, LU i 0 for

$80,000, we conclude the board of revision's dismissal of the underlying complaint was improper.

See Ginter v. Augtaize Cty. Bd of Revision (Oct. 2, 2013), BTA No. 2013-Y-1782, unreported.

Accordingly, said disniissat is hereby reversed and the board of revision is directed to vahte the

subject property in accordance witli the aforementioned sale.

9

I hereby certify the foregoing to be a true andcomplete copy of the action this day taken by theBoard of Tax.. Appeals of the State of Ohio anden.tereci upon its journal this day, with respect tothe captioned matter.

--A.J. Groeber, Boai•d cretary

10

MICHAEL SIBBERSEN

WOOD COUNTY AUDITOR

ONE COURTHOUSE SQUAREp^^1Fp ^eyp,^^rP+ .O. BOX 36 !̂^er°q,

634+%^B6.4P^i7 GREEN, OH I O 47,02

Local to 8owling Green419-354-9150

Tol l Free '1-866-860-4140

Fax 419-.354-9370

www.comooel.oh.uslau;ditor auditor@co.wood.®h.us

June 26, 2013

Steven Queen28855 Hufford RoadPerrysburg OH 43551

Re: BQR: Case 2012-47

Upon consideration and a review of the property, the Wood County Board of Revision dismissedthis case due to failure to appear and/or failure to provide evidence of value requested.

Oragina! Decisio^ farParcel

Market VaEue Tax Year 1/1/2012P60-300-704402018000 123,400 123,400

--- ---------- -0---- 27,200 27,200

The Ohio Revised Code 5717.01 outlines the appeal process for a county board of revisiondecision to the Ohio Board of Tax Appeals. Any appeals must be fiied with the Board of TaxAppeals within thirty days of the mailing of this decision.

If you have any further questions please contact this office at 419-354-1925.

WOOD COUNTY AUDITOR

Michael Sibbersen

MS: bg

Real Estate = Valuations - Deed Transfers ® Speciat Assessments e Homestead ExemptionCun-ent. Agricultural Use Valuation * Real Estate Tax Exemptions Q Estate Taxes o Manufactured Home Registration

County Finances m 1"ax Settiement « Consumer Protection (Weights and Measure)Licenses -[)ogs, Cigarette, Vendor and Junk^&rd a County Payrofl®Agriculturai District

Lawriter - OIZC - 319.301 L?etermining and certifying tax redliction perc-ezitage for carryo... Page 1 of 4

319.301 Determining and certifying tax reduction percentage forcarryover property.

(A) The reductions required by division (D) of this section do not apply to any of the following:

("s.) Taxes levied at whatever rate is required to produce a specified amount of tax money, including a

tax levied under section 5705.199 , 5705.211, or 5748.09 of the Revised Code, or an amount to paydebt charges;

(2) Taxes levied within the one per cent limitation imposed by Section 2 of Article XII, OhioConstitution;

(3) Taxes provided for by the charter of a municipal corporation.

(B) As used in this section:

(1) "Real property" includes real property owned by a railroad.

(2) "Carryover property" means all real property on the current year's tax list except:

(a) Land and improvements that were not taxed by the district in both the preceding year and thecurrent year;

(b) Land and improvements that were not in the same class in both the preceding year and the currentyear.

(3) "Effective tax rate" means with respect to each class of property:

(a) The sum of the total taxes that would have been charged and payable for current expenses against

real property in that class if each of the district's taxes were reduced for the current year under

division (D)(1) of this section witl-iout regard to the application of division (E)(3) of this section dividedby

(b) The taxable value of all real property in that class.

(4) "Taxes charged and payable" means the taxes charged and payable prior to any reduction required

by section 319.302 of the Revised Code.

(C) The tax commissioner shall make the determinations required by this section each year, witfiout

regard to whether a taxing district has territory in a county to which section 5715.24 of the Revised

Code applies for that year. Separate determinations shall be made for each of the two classes

established pursuant to section 5713.041 of the Revised Code.

(D) With respect to each tax authorized to be levied by each taxing district, the tax commissioner,

arinually, shall do both of the following:

(1) Determine by what percentage, if any, the sums levied by such tax against the carryover property

in each class would have to be reduced for the tax to levy the same number of dollars against such

property in that class in the current year as were charged against such property by such tax in the

preceding year subsequent to the reduction made under this section but before the reduction made

under section 319.302 of the Revised Code. In the case of a tax levied for the first time that is not a

renewal of an existing tax, the commissioner shall determine by what percentage the sums that would

12http:licodes.ohio.gov/orci319.301 1/6I2014

Latvriter - ORC - 31 _9.301 Determining and certifying tax reduction percentage for carryo... Page 2 of 4

otherwise be levied by such tax against carryover property in each class would have to be reduced to

equal the amount that would have been levied if the full rate thereof had been imposed against the

total taxable value of such property in the preceding tax year. A tax or portion of a tax that is

designated a replacement levy under section 5705.192 of the Revised Code is not a renewal of an

existing tax for purposes of this division.

(2) Certify each percentage determined in division (D)(1) of this section, as adjusted under- division (E)

of this section, and the class of property to which that percentage applies to the auditor of each county

in which the district has territory. The auditor, after complying with section 319.30 of the Revised

Code, shail reduce the sum to be levied by such tax against each parcel of real property in the district

by the percentage so certified for its class. Gertification shall be made by the first day of September

except in the case of a tax levied for the first tii-ne, in which case certification shall be made within

fifteen days of the date the county auditor° submits tfie information necessary to make the required

determination.

(E)

(1) As used in division (E)(2) of this section, "pre-1982 joint vocational taxes" means, with respect to

a class of property, the difference between the following amounts:

(a) The taxes charged and payable in tax year 1981 against the property in that class for the current

expenses of the joint vocational school district of which the school district is a part after making all

reductions under this section;

(b) The following percentage of the taxable value of all real property in that class:

(i) In 1987, five one-hundredths of one per cent;

(1i) In 1988, one-tenth of one per cent;

(iii) In 1989, fifteen one-hundredths of one per cent;

(iv) Iri 1990 and each subsequent year, two-tenths of one per cent.

If the amount in division (E)(1)(b) of this section exceeds the amount in division (E)(1)(a) of this

section, the pre-1982 joint vocational taxes shall be zero.

As used in divisions (E)(2) and (3) of this section, "taxes charged and payable" has the same meaning

as in division (B)(4) of this section and excludes any tax charged and payable in 1985 or thereafter

under sections 5705.194 to 5705.197 or section 5705.199, 5705.213, 5705.219, or 5748.09 of the

Revised Code.

(2) If in the case of a school district other than a joint vocational or cooperative education school

district any percentage required to be used in division (D)(2) of this section for either class of property

could cause the total taxes charged and payable for curr-ent expenses to be less than two per cent of

the taxable value of all real property in that class that is subject to taxation by the district, the

commissioner shall determine what percentages would cause the district's total taxes charged and

payable for current expenses against that class, after all reductions that would otherwise be made

under this section, to equal, when combined with the pre-1982 joint vocational taxes against that

class, the lesser of the following:

(a) The sum of the rates at which those taxes are authorized to be levied;

13

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Lawriter -(ORC - 319.301 Determi-ning and certifying tax reduction percentage for carryo... Page :? of 4

(b) Two per cent of the taxable value of the property in that class. The auditor sha(l use suchpercentages in making the reduction required by this section for that class.

(3)

(a) If in the case of a joint vocational school district any percentage required to be used in division (D)

(2) of this section for either class of property could cause the total taxes charged and payable for

current expenses for that class to be less than the designated amount, the commissioner shall

determine what percentages would cause the district's total taxes charged and payable for current

expenses for that class, after aEl reductions that would otherwise be made under this section, to equal

the designated amount. The auditor shall use such percentages in making the reductions required bythis section for that class.

(b) As used in division (E)(3)(a) of this section, the designated amount shall equal the taxable value of

all real property in the class that is subject to taxation by the district times the lesser of the following:

(i) Two-tenths of one per cent;

(ii) The district's effective rate plus the following percentage for the year indicated:

WHEN COMPUTING THE TAXES CHARGED FOR ADD THE PERCENTAGE: FOLLOWING

1987

1988

1989

1990

1991

1992

1993

0.025%

0.05%0

0.075%

0.1%

0.125°!0

0.15%

0. 175°l0

1994 and thereafter 0.2%

(F) No reduction shall be made under this section in the rate at which any tax is levied.

(G) The commissioner may order a county auditor to furnish any information the commissioner needs

to make the determinations required under division (D) or (E) of this section, and the auditor shall

supply the information in the form and by the date specified in the order, If the auditor fails to comply

14http://codes:olZio.gov/orc/319.301 1/6/2014

Lawriter - ORC - 319.301 Determining and certify=ing tax reduction percentage for carryo... Page 4 of 4

with an order issued under this division, except for good cause as determined by the commissioner,

the commissioner shall withhold from such county or taxing district therein fifty per cent of state

revenues to local governments pursuant to section 5747.50 of the Revised Code or shall direct the

department of education to withhold therefrom fifty per cent of state revenues to school districts

pursuant to Chapter 3317, of the Revised Code. The commissioner shall withhold the distribution of

such revenues until the county auditor has complied with this division, and the department shafl

withhold the distribution of such revenues until the commissioner has notified the department that the

county auditor has complied with this division.

(Fi) If the commissioner is unable to certify a tax reduction factor for either class of property in a

taxing district located in more than one county by the last day of November because information

required under division (G) of this section is unavailable, the commissioner may compute and certify

an estimated tax reductiori factor for that district for that class. The estimated factor shall be based

upon an estimate of the unavailable information. Upon receipt of the actual information for a taxing

district that received an estimated tax reduction factor, the commissioner shall compute the actual tax

reduction factor and use that factor to compute the taxes that should have been charged and payable

against each parcel of property for the year for which the estimated reduction factor was used. The

amount by which the estimated factor resulted in an overpayment or underpayment in taxes on any

parcel shall be added to or subtracted from the amount due on that parcel in the ensuing tax year.

A percentage or a tax reduction factor determined or computed by the commissioner under this sectionshali be used solely for the purpose of reducing the sums to be levied by the tax to which it applies forthe year for which it was determined or computed, It shall not be used in making any taxcomputations for any ensuing tax year.

(1) In making the determinations under division (D)(1) of this section, the tax commissioner shall take

account of changes in the taxable value of carryover property resulting from complaints filed under

section 5715.19 of the Revised Code for determinations made for the tax year in which such changes

are reported to the commissioner. Such changes shall be reported to the commissioner on the first

abstract of real property filed with the commissioner under section 5715.23 of the Revised Code

following the date on which the complaint is finally determined by the board of revision or by a court or

other authority with jurisdiction on appeal. The tax commissioner shall account for sucii changes in

making the determinations only for the tax year in which the change in valuation is reported. Such a

valuation change shall not be used to recompute the percentages determined under division (D)(1) of

this section for any prior tax year.

Amended by 129th General AssemblyFile No.28,H6 153, §101.01, eff, 6/30/2011.

Amended by 128th General AssemblyFile No.9,HB 1, §101.01, eff. 7/17/2009.

Effective Date: 09-29-1995; 06-30-2006; 2008 HB562 09-22-2008

Reiate;c4 Legis9ative Provision: See 129th General AssemblyFlle No.28,HB 153, §757.90,

15

h.ttp://codes.ohio.gov/orc/3'19.3(31 1/6/2014

1•_,a,writer - ORC -5713.(;3 County aLiditor to detezmizxe taxable value of real property. Page 1 of I

5713d®3 County auditor to determine taxab^e vaiue of realpropertym

The county auditor, from the best sources of information available, shall determine, as neariy as

practicable, the true value of the fee simple estate, as if unencumbered but subject to any effects from

the exercise of police powers or from other governmental actions, of each separate tract, lot, or parcel

of real property and of buildings, structures, and improvements located thereon and the current

agricultural use value of land valued for tax purposes in accordance with section 5713.31 of the

Revised Code, in every district, according to the rules prescribed by this chapter and section 5715.01

of the Revised Code, and in accordance with the uniform rules and methods of valuirig and assessing

real property as adopted, prescribed, and promulgated by the tax commissioner. The auditor shall

determine the taxable value of all real property by reducing its true or current agricultural use value by

the percentage ordered by the comrnissioner. In determining the true value of any tract, lot, or parcel

of real estate under this section, if such tract, lot, or parcel has been the subject of an arm's length

sale between a willing seller and a willing buyer within a reasonable length of time, either before or

after the tax lien date, the auditor may consider the sale price of such tract, lot, or parcel to be the

true value for taxation purposes. However, the sale price in an arm's length transaction between a

willing seller and a willing buyer shall not be considered the true value of the property sold if

subsequent to the sale:

(A) The tract, lot, or parcel of real estate loses value due to some casualty;

(6) An improvement is added to the property. Nothing in this section or section 5713.01 of the Rev:sed

Code and no rule adopted under section 5715.01 of the Revised Code shall require the county auditor

to change the true value in money of any property in any year except a year in which the tax

commissioner is required to determine under section 5715.24 of the Revised Code whether the

property has been assessed as required by law.

The county auditor shall adopt and use a real property record approved by the commissioner for each

tract, lot, or parcel of real property, setting forth the true and taxable value of land and, in the case of

land valued in accordance with section 5713.31 of the Revised Code, its current agricultural use value,

the number of acres of arable land, permanent pasture land, woodland, and wasteland in each tract,

lot, or parcel. The auditor sitall record pertinent information and the true and taxable value of each

building, structure, or improvement to land, which value shall be included as a separate part of the

total value of each tract, lot, or parcel of real property.

Amended by 129th General AssemblyFile No.186,HB 510, §1, eff. 3/27/2013.

Amended by 129th General AssemblyFile No.127,HB 487, §101.01, eff. 9/10/2012.

Effective Date: 09-27-1983

Related Legss@ative Provision: See 129th General AssemblyFile No.186,HB 510, §3

See 129th General AssemblyFile No.127,H8 487, §757.51.

16

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Lawriter - ORC - 5713.04 Tracts to be valued separately - split listing for tax exemption - ... Page 1 of 1

5713004 Tracts to be vaiued separately - split listing for tax

exemption - deductions®

Each separate parcel of real property shall be valued at its taxable value, excluding the value of the

crops, deciduous and evergreen trees, plants, and shrubs growing thereon, and taking into account the

diminution in value as the result of the existence of any conservation easement created under sections

5301.67 to 5301.69 of the Revised Code. The price for which such real property wou!d sell at auction

or forced sale shall not be taken as the criterion of its value. If the fee of the soil of a tract, parcel, or

lot of land is in any person, natural or- artificial, and the right to minerals therein in another, the land

shall be valued and listed iri accordance with such ownership in separate entries, specifying the

interest listed, and be taxed to the parties owning the different interests.

If a separate parcel of improved or unimproved real property has a single ownership and is so used so

that part thereof, if a separate entity, would be exempt from taxation, and the balance thereof would

not be exempt from taxation, the listing thereof shall be split, and the part thereof used excfusive{y for

an exempt purpose shall be regarded as a separate entity and be listed as exempt, and the balance

thereof used for a purpose not exempt shall, with the approaches thereto, be listed at its taxable valueand taxed accordingly.

The county auditor shall deduct from the value of each separate parcel of real property the amount of

land occupied and used by a canal or used as a public highway at the time of such assessment.

Effective Date: 03-14-1980

17

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I,avvTiter -OIZC - 5715.01 T'ax cornmissioner to supervise assessnients by county auditors... Page 1 of 1

5715001 Tax commissioner^^^^^^^er to supervise assessments by countyauditors - rules and procedure ^ county board of revis^on.

(A) The tax commissioner shall direct and supervise the assessment for taxation of all real property.

The commissioner shall adopt, prescribe, and promulgate rules for the determination of true value and

taxable value of real property by uniform rule for such values and for the determination of the current

agricultural use value of land devoted exclusively to agricultural use. The uniform rules shall prescribe

methods of determining the true value and taxable value of real property and shall also prescribe the

method for determining the current agricultural use value of larrd devoted exclusively to agricultural

use, which method shall reflect staridard and modern appraisal techniques that take into consideration;

the productivity of the soil under normal management practices; the average price patterns of the

crops and products produced to determine the income potential to be capitalized; the market value of

the land for agricultural use; and other pertinent factors. The rules shall provide that in determining

the true value of lands or improvements thereon for tax purposes, all facts and circumstances relating

to the value of the property, its availability for the purposes for which it is constructed or being used,

its obsolete character, if any, the income capacity of the property, if any, and any other factor that

tends to prove its true value shail be used. In determining the true value of minerals or rights to

minerals for the purpose of real property taxation, the tax commissioner shall not include in the value

of the minerals or rights to minerals the value of any tangible personal property used in the recovery

of those minerals.

(B) 1"he taxable value shall be that per cent of true value in money, or current agricultural use value in

the case of land valued in accordance with section 5713.31 of the Revised Code, the commissioner by

rule establishes, but it shall not exceed thirty-five per cent. The uniform rules shall also prescribe

methods of making the appraisals set forth in section 571.3.03 of the Revised Code, The taxable value

of each tract, lot, or parcel of real property and improvements thereon, determined in accordance with

the uniform rules and methods prescribed thereby, shall be the taxable value of the tract, lot, or parcel

for all purposes of sections 5713,01 to 5713,26, 5715.01 to 5715.51, and 5717.01 to 5717.06 of the

Revised Code. County auditors shall, under the direction and supervision of the commissioner, be the

chief assessing officers of their respective counties, and shall list and value the real property within

their respective counties for taxation in accordance with this section and sections 5713.0-3 and 5713.31

of the Revised Code and with such rules of the commissioner. There shall also be a board in each

county, known as the county board of revision, which shall hear complaints and revise assessments of

real property for taxation.

(C) The commissioner shall neither adopt nor enforce any rule that requires true value for any tax year

to be any value other than the true value in money on the tax lien date of such tax year or that

requires taxable value to be obtained in any way other than by reducing the true value, or in the case

of land valued in accordance with section 5713.31 of the Revised Code, its current agricultural use

value, by a specified, uniform percentage.

Effective Date: 09-27-1983; 06-30-2005

18

http://codes.ohio.gov/ore/5715.01 1/6/2014

La,wsriter - ORC - 5715.10 Vaiuatioil of real property - county board of revision may sum.... Page 1. of 1

5715e 10 Valuation of reai property - county board of revision maysummon and examine persons as to pr®pertya

The county board of revision shall be governed by the laws concerning the valuation of real propertyand shali make no change of any valuation except in accordance with such laws.

The board may call persons before it and examine them under oath as to their own or another's real

property to be placed on the tax list and duplicate for taxation, or the value thereof, If a person

notified to appear before the board refuses or neglects to appear at the time required, or appearing,

refuses to be sworn or answer any question put to him by the board or by its order, the chairman of

the board shall make a complaint thereof in writing to the probate judge of the county, who shall

proceed against such person in the same manner as provided in section 5711.37 of the Revised Code.

Effective Date: 10-01-1953

19http:llcodes.ohio.gov/orct5715.10 1 f6,/2014

Lawriter - ORC - 5715.11 Duty of cauiity board of revision to Iiear complaints. Page 1 of 1

57i5411 Duty of county board of revision to hear complaantso

The county board of revision shall hear cornplaints relating to the valuation or assessment of real

property as the same appears upon the tax duplicate of the then current year. The board shallinvestigate all such complaints and may increase or decrease any such valuation or correct any

assessment complained of, or it may order a reassessment by the original assessing officer.

Effective Date: 10-01-1953

20http://codes.ohro.gov/orc/5715,11. 1/6/2014

Lawriter - ORC - 5715.19 Complaint agaiiist valuation or assessmeiit - determination of c... Page 1 of4

5715n19 Complaint against valuation or assessment -determ ination of complaint - tender of tax - determination ofcommon level of assessment.

(A) As used in this section, "member" has the same meaning as in section 1705.01 of the Revised

Code.

(1) Subject to divisiori (A)(2) of this section, a complaint against any of the following determinations

for the current tax year shall be filed with the county auditor on or before the thirty-first day of March

of the ensuing tax year or tiie date of closing of the collection for the first half of real and public utility

property taxes for the current tax year, whichever is later:

(a) Any classification made under section 5713.041 of the Revised Code;

(b) Any determination rnade under section 5713.32 or 5713.35 of the Revised Code;

(c) Any recoupment charge levied under section 5713.35 of the Revised Code;

(d) The determination of the total valuation or assessment of any parcel that appears on the tax list,

except parcels assessed by the tax commissioner pursuant to section 5727,06 of the Revised Code;

(e) The determination of the total valuation of any parcel that appears on the agricultural land tax list,

except parcels assessed by the tax conimissioner pursuant to section 5727.06 of the Revised Code;

(f) Any determination made under division (A) of section 319.302 of the Revised Code.

If such a complaint is filed by mail or certified mail, the date of the United States postmark placed on

the envelope or sender's receipt by the postal service shall be treated as the date of filing. A private

meter postmark on an envelope is not a valid postmark for purposes of establishing the filing date.

Any person owning taxable real property in the county or in a taxing district with territory in the

county; such a person's spouse; an individual who is retained by such a person and who holds a

designation from a professional assessment organization, such as the institute for professionals in

taxation, the national council of property iaxation, or the international association of assessing officers;

a public accountant who holds a permit under section 4701.10 of the Revised Code, a general or

residential real estate appraiser licensed or certified under Chapter 4763. of the Revised Code, or a

real estate broker licensed under Chapter 4735. of the Revised Code, who is retained by such a

person; if the person is a firm, company, association, partnership, limited liability company, or

corporation, an officer, a salaried employee, a partner, or a member of that person; if the person is a

trust, a trustee of the trust; the board of county commissioners; the prosecuting attorney or treasurer

of the county; the board of township trustees of any township with territory within the county; the

board of education of any school district with any territory in the county; or the mayor or legislative

authority of any rnunicipal corporation with any territory in the county may file such a complaint

regarding any such determination affecting any real property in the county, except that a person

owning taxabie real property in another county may file such a complaint only with regard to any such

determination affecting real property in the county that is located in the same taxing district as that

person's real property is located. The county auditor shall present to the county board of revision all

complaints filed with the auditor.

21http:/,Icodes.ohio.gov/orc,"5715.19 1/6/2014

Lawriter - ORC - 5715.19 Complaint against valuation or assessment - determination of c... Page 2 of 4

(2) As used in division (A)(2) of this section, "interim period" means, for each county, the tax year to

which section 5715.24 of the Revised Code applies and each subsequent tax year untii the tax year in

which that section applies again.

No person, board, or officer shall file a complaint against the valuation or assessment of any parcel

that appears on the tax list if it filed a complaint against the valuation or assessment of that parcel for

any prior tax year in the same interim period, unless the person, board, or officer alleges that the

valuation or assessment should be changed due to one or more of the following circumstances that

occurred after the tax lien date for the tax year for which the prior complaint was filed and that the

circumstances were not taken into consideration with respect to the prior complaint:

(a) The property was sold in an arm's length transaction, as described in section 5713.03 of the

Revised Code;

(b) The property lost value due to some casualty;

(c) Substantial improvement was added to the property;

(d) An increase or decrease of at least fifteen per cent in the property's occupancy has had a

substantial economic impact on the property.

(3) If a county board of revision, the board of tax appeals, or any court dismisses a complaint filed

under this section or section 5715_i3 of the Revised Code for the reason that the act of filing the

complaint was the unauthorized practice of law or the person filing the complaint was engaged in the

unauthorized practice of law, the party affected by a decrease in valuation or the party's agent, or the

person owning taxable real property in the county or in a taxing district with territory in the county,

may refile the complaint, notwithstanding division (A)(2) of this section.

(4) Notwithstanding division (A)(2) of this section, a person, board, or officer may file a complairit

against the valuation or assessment of any parcel that appears on the tax list if it filed a complaintagainst the valuation or assessment of that parcel for any prior tax year in the same interim period if

the person, board, or officer withdrew the complaint before the complaint was heard by the board.

(8) Within thirty days after the last date such complaints may be filed, the auditor shall give notice of

each complaint in which the stated amount of overvaluation, undervaluation, discriminatory valuation,

illegal valuation, or incorrect determination is at least seventeen thousand five hundred dollars to each

property owner whose property is the subject of the complaint, if the complaint was not filed by the

owner or the owner's spouse, and to each board of education whose school district may be affected by

the complaint. V`Jithin thirty days after receiving such notice, a board of education; a property owner;

the owner's spouse; an individual who is retained by such an owner and who holds a designation from

a professional assessment organization, such as the institute for professionals in taxation, the national

council of property taxation, or the international association of assessing officers; a public accountant

who holds a permit under section 4701.10 of the Revised Code, a general or residential real estate

appraiser licensed or certified under Chapter 4763, of the Revised Code, or a real estate broker

licensed under Chapter 4735. of the Revised Code, who is retained by such a per-son; or, if the

property owner is a firm, company, association, partnership, limited liability company, corporation, or

trust, ari officer, a salaried employee, a partner, a member, or trustee of that property owner, may file

a complaint in support of or objecting to the amount of alleged overvaluation, undervaluation,

discriminatory valuation, illegal valuation, or incorrect determination stated in a previously filed

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complaint or objecting to the curr-ent valuation. Upon the filing of a complaint under this division, the

board of education or the property owner shall be made a party to the action.

(C) Each board of revision shall notify any complainant and also the property owner, if the property

owner's address is known, when a complaint is filed by one other than the property owner, by certified

mail, not less than ten days prior to the hearing, of the time and place the same will be heard. The

board of revision shall hear and render its decision on a complaint within ninety days after the filing

thereof with the board, except that if a complaint is filed within thirty days after receiving notice from

the auditor as provided in division (B) of this section, the board shall hear and render its decision

within ninety days after such filing.

(D) The determination of any such complaint shall relate back to the date when the lien for taxes or

recoupment charges for the current year attached or the date as of which liability for such year was

determined. Liability for taxes and recoupment charges for such year and each succeeding year until

the complaint is finally determined and for any penalty and interest for nonpayment thereof within the

time required by law shall be based upon the determination, valuation, or assessment as finally

determined. Each complaint shall state the amount of overvaluation, undervaluation, discriminatory

valuation, ilfegal valuation, or incorrect classification or determination upon which the complaint is

based. The treasurer shall accept any amount tendered as taxes or recoupment charge upon property

concerning which a complaint is then pending, computed upon the claimed valuation as set forth in the

complaint. If a complaint filed under this section for the current year is not determined by the board

within the time prescribed for such determination, the complaint and any proceedings in relation

thereto shall be continued by the board as a valid complaint for any ensuing year until such complaint

is finally determined by the board or upon any appeal from a decision of the board. In such case, the

original complaint shall continue in effect without further filing by the original taxpayer, the original

taxpayer's assignee, or any other person or entity authorized to file a complaint under this section.

(E) If a taxpayer files a complaint as to the classification, valuation, assessment, or any determination

affecting the taxpayer's own property and tenders less than the full amount of taxes or recoupmentcharges as finally determined, an interest charge shall accrue as follows:

(1) If the amount finally determined is less than the amount billed but more than the amount

tendered, the taxpayer shall pay interest at the rate per annum prescribed by section 5703.47 of the

Revised Code, computed from the date that the taxes were due on the difference between the amount

finally determined and the amount tendered. This interest charge shall be in lieu of any penalty or

interest charge under section 323.121 of the Revised Code unless the taxpayer failed to file a

complaint and tender an amount as taxes or recoupment charges within the time required by this

section, in which case section 323.121 of the Revised Code applies.

(2) If the amount of taxes finally determined is equal to or greater than the amount billed and more

than the amount tendered, the taxpayer shall pay interest at the rate prescribed by section 5703.47 of

the Revised Code from the date the taxes were due on the difference between the amount finally

determined and the amount tendered, such interest to be in lieu of ariy interest charge but in addition

to any penalty prescribed by section 323.121 of the Revised Code,

(F) Upon request of a complainant, the tax commissioner shall determine the common level of

assessment of real property in the county for the year stated in the request that is not valued under

section 5713.31 of the Revised Code, which common level of assessment shall be expressed as a

percentage of true value and the commori level of assessment of lands valued under such section,

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which common level of assessment shall also be expressed as a percentage of the current agricultural

use value of such lands. Such determination shall be made on the basis of the most recent available

sales ratio studies of the commissioner and such other factLral data as the commissioner deemspertinent.

(G) A complainant shall provide to the board of revision all inforrriation or evidence within the

compfainant's knowledge or possession that affects the real property that is the subject of the

complaint. A complainant who fails to provide such information or evidence is precluded from

introducing it on appeal to the board of tax appeals or the court of common pleas, except that the

board of tax appeals or court may admit and consider the evidence if the complainant shows good

cause for the complainant's failure to provide the information or evidence to the board of revision.

(H) In case of the pendency of any proceeding in court based upon an alleged excessive,

discriminatory, or illegal valuation or incorrect classification or determination, the taxpayer may tender

to the treasurer an amount as taxes upon property computed upon the claimed valuation as set forth

in the complaint to the court. The treasurer may accept the tender. If the tender is not accepted, no

penalty shall be assessed because of the nonpayment of the full taxes assessed.

Amended by 129th General AssemblyFile hio.7.41,HB 509, §1, eff. 9/28/2012.

Effective Date: 03-04-2002; 09-28-2006

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