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Property Tax Resources

Jul
27

New Jersey Tax Court Supports Taxpayers’ Rights

A New Jersey township learns that tax courts don't always buy into theoretical constructs.

Our tax courts live in a hypothetical world where they review property tax assessments in a theoretical manner to mimic the actual marketplace. Often municipal officials use this paradigm to distort concepts and achieve high values that cannot be realized in the market. The case of CIBA Specialty Chemical Corp. vs. Township of Toms River highlighted this dichotomy.

The subject property is an industrially zoned, 1,211-acre former chemical plant in Toms River, New Jersey. The plant produced industrial dyes and resins for over 40 years. Unfortunately, the manufacturing process also created significant industrial waste that was treated and disposed of on site, significantly contaminating the soil and groundwater.

The environmental contamination was so severe and pervasive that the entire property was designated a Superfund Site and was placed on the U.S. Environmental Protection Agency's (USEPA) National Priorities List in 1983.

Commercial operations at the site ceased in 1996, but environmental remediation work has been both active and ongoing. The controversial nature and extent of the contamination has embroiled the property and township in public controversy, federal criminal prosecution, and a number of civil lawsuits initiated by both public entities and private citizens.

Further complicating matters, the subject property is in a protected coastal zone adjacent to a tributary known as Toms River. This added layer of government oversight by the New Jersey Department of Environmental Protection serves to safeguard sensitive coastal areas and endangered species from overdevelopment. When put into practice at the subject property, these regulations either completely prohibit or severely restrict redevelopment activity on most of the property.

Any proposed redevelopment at the property would require the prospective developer to navigate this labyrinth of federal and state regulations, obtain consent and cooperation from a number of federal and state agencies, and garner support from the local municipality and public interest groups to avoid politicization of the zoning and planning processes at all levels.

Undaunted by these regulatory restrictions, the town asserted that not only could the property be developed, but that numerous residential housing units could be constructed on the site despite the current zoning or the pervasive contamination. And, of course, the town sought to tax the property on its potential residential value.

It was undisputed that the USEPA was the primary regulatory authority from whom a market participant would have had to obtain approval before attempting to redevelop any portion of the site. The town's own expert conceded this fact. The USEPA has total control over the property while remediation is taking place and will reject any proposal it believes may interfere with selected remedial action, or that would lack public support.

Despite overwhelming evidence that USEPA regulations would prohibit any development, that the zoning didn't allow residential construction, and that the public opposed the site's redevelopment, the town was undeterred. Its leaders argued that high-density housing could have been developed on the property with a rezoning, justifying its revaluation as residential rather than industrial real estate.

The frequent use of hypothetical scenarios encourages assessors to fly far from the reality of the marketplace to justify otherwise unsupportable assessments and increased tax burdens. Finding comfort in this hypothetical world, the town appealed to the perceived taxing-authority bias of the New Jersey Tax Court.

To create their hypothetical world in court, the town redefined key words in the USEPA regulations to establish results that were completely inappropriate for a rational reading of the rules. They stretched logic and applied to the subject property actions that USEPA had taken at other Superfund Sites. In doing so, they assumed that all contaminated sites can be treated the same, and that the case workers at this site will make decisions based on events at other remote Superfund sites, rather than basing decisions on the facts related to the subject property.

The town contrived its self-serving arguments to satisfy an outrageous assessment. It is all too often that the hypothetical nature of the court's standards and the theatrical nature of appraisal theory invite the clear distortion of marketplace reality.

The only saving grace in the system is that the courts assigned to decide these cases are trusted to end the nonsense and craft a decision based on fact and actual dealings. That does not always happen, but here, it did. In a detailed and thorough decision, the court summarized the overwhelming data that proved the taxpayer's case.

The court concluded that the entirety of 1,211 acres was development-prohibited, due to its status as an active Superfund Site and USEPA's ongoing institutional controls. The USEPA's oversite documents, which are legally enforceable and filed with the county clerk, restrict any development at the property unless the USEPA approves, or the site is partially or fully delisted as a Superfund site.

Reality finally hit home for the municipality when it was compelled to refund the taxpayer over $18 million.

These types of rulings in taxpayers' favor are rare. Nonetheless, taxpayers must continue to press courts to recognize market reality. It is not the courts' job to protect the municipal tax base.

Brian A. Fowler, Esq.
Philip Giannuario, Esq.
Philip Giannuario and Brian A. Fowler are partners at the Montclair, New Jersey, law firm Garippa Lotz & Giannuario, the New Jersey and Eastern Pennsylvania member of American Property Tax Counsel, the national affiliation of property tax attorneys.
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Deck - Summary for use on blog & category landing pages

  • A New Jersey township learns that tax courts don't always buy into theoretical constructs.
Jul
16

Minimize Taxation of Medical Office Buildings

Nuances of ownership and operations can reduce or eliminate ad valorem liability for property owners.

How municipalities and counties tax medical real estate can vary by modes of ownership, location and how a property affects the local economy. Much, however, depends on each taxing entity's goals and its degree of interest in attracting hospitals, creating medical hubs, enlarging commercial areas or encouraging excellent health care locally.

A typical approach to achieving some or all of these goals is for local government to control the property. This can be through outright ownership, where the facilities are leased out. Governments can also create an economic zone and issue bonds to finance the area's development. Each of these methods poses property tax issues.

In a direct ownership scenario, the government owner is exempt from taxation. The operating and management company that leases the property has tax liability for its going concern, however. That going concern has untaxed intangible value, but also will have onsite assets such as medical equipment that can be taxed under standard code approaches at fair market value. They can also be taxed under a modified fair market value, which is a common incentive designed to entice investment by medical businesses.

If the local government chooses a development-bond approach, it will create a development district entity to issue bonds, with proceeds from bond sales paying for construction of the hospital or other facility. A private entity would lease the facilities under the cost of the bonds, with lease payments going toward retiring the bonds. Lease provisions would set out agreed-upon valuations for property tax purposes. These valuations can be flat or adjusted over time. Once the bonds are paid off, the terms of the lease can be extended or modified.

After using one of these favorable property tax techniques to establish a footprint for a healthcare district, development or zone, the governmental body may widen its impact by offering lower taxes within the area. These adjustments would favor medical facilities that support hospitals or medical practices nearby.

For example, a community could use tax breaks to encourage construction of medical office buildings. If the economic district includes other buildings that would be useful to the healthcare industry, it can offer similar tax incentives to encourage development and use of those facilities. Likewise, such incentives can be used for standalone facilities within the economic district.

For governments that do not envision a medical district but want to foster broader access to healthcare providers, tax policy can create special tax methods without uniformity restrictions. This would encourage small medical investments throughout the community. Examples would include free-standing treatment facilities such as "doc in a box" walk-in clinics, urgent care facilities and small medical office buildings.

Strategies for tax exemption

In Georgia, hospitals can be owned in a couple of ways to avoid taxation. First, the government can own the hospital and lease it to a non-profit manager or operator. So long as the lessee remains a non-profit, the real property is tax exempt. If the leasehold transfers to a for-profit entity, the tax exemption disappears and the management or operational entity becomes responsible for the property tax.

Second, the local government can create an economic development zone using bonds. Within any leaseholds created by the bond issuer, property tax responsibility can be addressed by contract. This can range from zero liability to points on a sliding scale, and will usually correlate to the gradual elimination of the bonds.

Another scenario involves an exempt property that is then acquired by a for-profit operator. In Michigan and Georgia, such a transfer will void the tax exemption, subjecting the facility to full taxation at fair market value. A question remains about a retransfer of the operations to a non-profit, which may or may not restore the tax exemption. In Minnesota and Kansas, the ownership is through the government but the facility must be operated as a non-profit.

In some jurisdictions hospitals can be a taxing authority. In Texas and Iowa, rural hospital districts can levy a component of the property tax millage rate. The hospital district then uses that portion of the millage rate to pay part of its operating expense. This allows rural hospitals to maintain their operations by spreading costs throughout the community, rather than to the users of the system. In recent years states have tended to reduce property taxes overall, which has squeezed revenue for rural health systems in states that allow hospitals to participate in taxation.

Personal property, which is movable property such as medical equipment, can be treated in different ways. If the operation is a non-profit, the personal taxes are exempt. Liability is more complicated if the owner of the personal property is a for-profit entity operating within an exempt property; in such instances the personal tax rates apply.

On the other hand, a non-profit may operate within a taxable medical office building, in which case the personal property is still exempt. In fact, a building may have multiple tenants, some of which are non-profits and some of which are for-profit. In such a scenario, each business would have to be examined to determine whether personal tax exemptions apply.

Brian J. Morrissey is a partner in the Atlanta law firm of Ragsdale Beals Seigler Patterson & Gray LLP, the Georgia member of American Property Tax Counsel, the national affiliation of property tax attorneys.
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Deck - Summary for use on blog & category landing pages

  • Nuances of ownership and operations can reduce or eliminate ad valorem liability for property owners.
Jul
11

2022 Annual APTC Client Seminar

2022 Client Seminar - Chicago, IL
The American Property Tax Counsel is proud to announce that Chicago, Illinois will be the site of an in-person meeting for the 2022 Annual APTC Client Seminar.


Save the Dates! October 19-21, 2022 - Fairmont Chicago, Millennium Park - Chicago, Illinois

THEME - Managing the Future in a Changing World

APTC seminars provide an exclusive forum where invited guests can collaborate with nationally known presenters and experienced property tax attorneys to develop strategies to successfully reduce and manage property taxes.

Event Information

This year's seminar will address recent developments and current trends in the areas of property taxation and real estate. We will bring together nationally-known economic, technological, appraisal, and legal experts to provide valuable insight on managing the future of property taxation in a system that continues to change based on economics and other influences.

See the Featured Speakers appearing at the 2022 Seminar.


Featured Speakers


Anthony Barna 

Anthony Barna is Managing Director and consulting appraiser for Integra Realty Resources-Pittsburgh. He has been actively engaged in valuation and consulting since 1991 and his practice specializes in complex assignments for litigation support, eminent domain, tax assessment and financing.


Mr. Barna us a certified general real estate appraiser in Pennsylvania and holds the MAI and SRA professional designations from the Appraisal Institute and the CRE designation from the Counselors of Real Estate. He has been qualified to provide expert witness testimony before courts throughout the Commonwealth of Pennsylvania, as well as in Virginia, West Virginia and Connecticut. Mr. Barna was trained as a biomedical engineer at Boston University (B.S. 1984) and has a graduate degree in finance from Duquesne University (MBA 1988).

Economist and Futurist Kiernan "KC" Conway, CCIM, CRE, MAI is the mind trust behind Red Shoe Economics, LLC, an independent economic forecasting and consulting firm furthering KC's mission as The Red Shoe Economist by providing organic research initiatives, reporting and insights on the impact of Economics within the commercial real estate industry. KC is a nationally recognized industry thought leader and Subject Matter Expert with expertise in Macro Economics, Valuations, Ports & Logistics, Banking Regulation, Real Estate Finance, MSA level market monitoring, Environmental Risk Management, Housing Economics and Tax Appeals.

A proud graduate of Emory University with more than 30 years' experience as a lender, credit officer, appraiser, instructor, and economist; KC is recognized for accurately forecasting real estate trends and ever-changing influences on markets all across the United States. With credentials from the CCIM Institute, Counselors of Real Estate and the Appraisal Institute, KC currently serves as Chief Economist of the CCIM Institute and as an Independent Director for Monmouth REIT MNR.

He is a gifted and prolific speaker having made more than 850 presentations to industry, regulatory and academic organizations in the last decade, and has been published in many national and regional newspapers and journals with frequent contributions to radio and television programming.

KC Conway, MAI, CRE 


William R. Emmons, PhD

Bill Emmons is Lead Economist in Supervision at the Federal Reserve Bank of St. Louis and President of the St. Louis Gateway Chapter of the National Association for Business Economics (NABE). He conducts research and speaks frequently on topics including the economy, housing and mortgage markets, banking, financial markets, financial regulation, and household financial conditions.

Mr. Emmons received a PhD degree in Finance from the Kellogg School of Management at Northwestern University. He received bachelor's and master's degrees from the University of Illinois at Urbana-Champaign. Mr. Emmons is married with three children.

Pam is the Associate Presiding Judge for the Arizona Superior Court in Maricopa County, which is the fourth largest trial court system in the country. Prior to her appointment as the Associate Presiding Judge, Pam served as the Presiding Civil Judge, the Associate Criminal Presiding Judge, and the Associate Presiding Judge (Downtown) for Family Court. She chairs Arizona's Task Force on Jury Data Collection, Policies, and Procedures and the Statewide Jury Selection Workgroup. She also co-chaired the Maricopa County Superior Court's committee tasked with improving access to justice and reforming the Court's resource center. Her committee work also includes the Advisory Committee on the Rules of Evidence, the Steering Committee on Arizona Case Processing Standards, the Task Force on the Arizona Rules of Criminal Procedure, the Committee on Superior Courts, the Committee on Time Periods for Electronic Display of Superior Court Case Records, Data Quality Standards Committee, Our Courts Arizona, Arizona Task Force to Supplement Keeping of the Record by Electronic Means, National State Court Remote Jury Pilot Group, the Superior Court Records Retention Schedule Revision Committee, and the Civil Practice and Procedure Committee. Pam also serves on the Maricopa County Superior Court Jury Committee and chairs the Court's Data Integrity Committee. She was awarded the Chief Justice Outstanding Contributions to Arizona Courts Award in 2022, Judge of the Year by Phoenix Chapter of the American Board of Trial Advocates (2021) and the Maricopa County Bar Association (2018), and the Mark Santana Award for exceptional contributions in law-related education (2008). Prior to becoming a judge, Pam worked as a partner at Bryan Cave LLP.

Pamela S. Gates


David Lennhoff, MAI, SRA, AI-GRS

David is a principal with Lennhoff Real Estate Consulting, LLC, which is officed in Gaithersburg, Maryland. His practice centers on litigation valuation and expert testimony relating to appraisal methodology, USPAP, and allocating assets of a going concern. He has taught nationally and internationally for the Appraisal Institute. International presentations have been in Tokyo, Japan; Beijing and Shanghai, China; Berlin, Germany; Seoul, South Korea; and Mexico City, Mexico. He has been a development team member for numerous Appraisal Institute courses and seminars and was editor of its Capitalization Theory and Techniques Study Guide, 3rd ed. He was the lead developer for the Institute's asset allocation course, Fundamentals of Separating Real and Personal Property from Intangible Business Assets, and edited the two accompanying business enterprise value anthologies. He also authored the Small Hotel/Motel Valuation seminar. David is a principal member of the Real Estate Counseling Group of America, a national organization of analysts and academicians founded by the late William N. Kinnard, Jr., PhD. He is a past editor-in-chief of and frequent contributor to The Appraisal Journal, and a past recipient of the Journal's Armstrong/Kahn Award and Swango Award.


Kevin Reilly serves as a Managing Partner for evcValuation LLC. In this capacity, he provides direction, technical support, and oversight on the valuation of complex income-producing properties.

Mr. Reilly has valuation experience in property tax valuation, purchase price allocation, insurance, pre-deal buy/sell, end-of-lease, pretrial and litigation support, and appraisal reviews. Properties he has appraised include power plants, utility property, oil refineries, petrochemical plants, pipelines, refined product terminals, telecommunications networks, cement plants, and general manufacturing and support facilities.

Mr. Reilly joined the appraisal industry in 2002 as an associate appraiser with American Appraisal Associates. From 2006 until 2009, he was a Vice President with Duff & Phelps working as a property tax consultant. In 2009, he rejoined American Appraisal and led an independent property tax valuation practice focused on energy-related properties. In 2015, Mr. Reilly founded evcValuation, which is focused on providing independent, unbiased appraisals of complex income-producing properties.

Kevin S. Reilly, ASA


Member Speakers


Jay W. Dobson, Esq.

Jay W. Dobson is a partner with the law firm of Elias, Books, Brown & Nelson, P.C. in Oklahoma City. His practice is focused primarily on property tax, oil and gas law, commercial litigation, and real property law. Jay has a diverse property tax practice including wind and solar, natural gas power plants, mining facilities, pipeline systems, agriculture, commercial and retail properties, hotels, and apartments. Along with Bill Elias, Jay won the first wind farm ad valorem trial in the State of Oklahoma.

Jay received a B.S. in Business Administration and a M.B.A. from Oklahoma State University and a J.D. from Oklahoma City University. He is a member of the Oklahoma County Bar Association, the Oklahoma City Mineral Lawyers Society, and the Tax, Mineral, and Real Property Law Sections of the Oklahoma Bar Association.

Mr. Fowler's practice includes representation of taxpayers in Pennsylvania, New York and New Jersey with respect to a wide variety of property types and valuation issues.

Brian has pursued appeals on Class A regional malls, Breweries, complex industrial, petroleum tank farms, corporate headquarters, apartments, hotel, cell sites, aviation hangers and properties affected by environmental contamination.

He has appeared before the New Jersey Tax Court, Pennsylvania Court of Common Pleas and the Supreme Court of New York. In addition to assessment appeal cases, Brian has also represented numerous clients in property tax matters involving exemptions, abatements, and farmland assessments. He frequently counsels clients with respect to property tax issues relating to the purchase and sale of real estate, and assisting clients with property tax projections for budgetary purposes.

Prior to joining GLG, he gained valuable experience clerking for Judge Peter D. Pizzuto J.T.C of the New Jersey Tax Court. Brian received his Juris Doctor from Widener University (1999), and a Bachelor of Science, cum laude, from Temple University (1996).

Brian Fowler, Esq.


Gilbert C. "Gib" Laite, III, Esq.

Gib Laite is an attorney at Williams Mullen who has practiced in the real estate, construction and commercial dispute areas for 38 years. He frequently assists clients with the negotiation and litigation of cases involving real and personal property taxes and the assessment of tax-exempt properties.

Gib graduated from the University of Southern Maine with a degree in Business Administration. After working in his family's real estate business, he attended Wake Forest University School of Law where he graduated cum laude. Upon graduation he clerked for the United States District Court before entering private practice where he started out trying condemnation cases and railroad title disputes. Over time his real estate and construction litigation experience led him to the property tax arena where he has for the past decade enjoyed success working on a variety of matters. Representative cases included but are not limited to industrial facilities, shopping malls, big box stores, apartment complexes, and office buildings. Gib is recognized by Best Lawyers of America in eight categories involving real estate, construction and litigation.

Paul Moore is a commercial litigator who practices primarily in valuation-related matters, including contract disputes, and state and local tax controversies. He has handled a wide variety of valuation matters, representing clients in business disputes, and property, transaction privilege and use tax disputes before state and local taxing authorities, the Arizona Tax Court, and the Arizona Court of Appeals and Supreme Courts. He is licensed in Arizona and Colorado.

He represents taxpayers owning state-assessed properties such as pipelines, telecommunications companies, electric generation facilities and airlines, and all types of locally-assessed real and personal property including hotels, shopping malls, department stores, high-rise office buildings and campuses, apartment complexes, theaters, residential subdivisions, commercial greenhouses, land and hospitals.
Paul is rated AV Preeminent by Martindale-Hubbell, and enjoys an excellent reputation with his peers and the bench. As one judge noted, "Mr. Moore is a very experienced tax attorney. He is always prepared and professional in the courtroom. I recommend him very strongly."

Paul is originally from Manchester, England. He holds doctorate and undergraduate degrees in chemistry. He came "stateside" to Texas in 1986 for a year of teaching undergraduate chemistry, but while there he met his future wife Janet and the rest, as they say, is history. Paul became a US citizen in 1997. In his life before the law, he worked for 6 years as an environmental/analytical chemist for a Fortune 500 Company.

Paul Moore, Esq.


Cris K. O'Neall, Esq.

Cris K. O'Neall focuses his practice on ad valorem property tax and assessment counseling and litigation (appeal hearings and trials). For over 30 years he has represented a variety of California taxpayers in proceedings before county assessment appeals boards, the State Board of Equalization, the Superior Court, the California Court of Appeal, and the California Supreme Court. Cris received his J.D. from the University of California at Los Angeles in 1986 and a B.A., summa cum laude, from Claremont McKenna College in 1982. He has represented property taxpayers in over a dozen California appellate court cases that resulted in published opinions, including DFS Group LP v. County of San Mateo (Court of Appeal, 1st Dist., 2019), Elk Hills Power LLC v. Board of Equalization (Calif. Supreme Court, 2013), and SHC Half Moon Bay LLC v. County of San Mateo (Court of Appeal, 1st Dist., 2014). Cris is active in the following professional property tax organizations: California Taxpayers Association (CalTax), Member, Board of Directors; California Alliance of Taxpayer Advocates (CATA), Chair, Board of Directors; and American Property Tax Counsel (APTC), Treasurer and California Member. In 2018, he received the "Advocate of the Year" Award from CATA for his leadership in amending several of California's Property Tax Rules, and in 2021 he received the "Lifetime Achievement" Award from CATA. Cris has co-authored the California Chapter of the American Bar Association's Property Tax Deskbook for over 20 years and he has published numerous articles on property tax matters. He is also the Co-Editor of the treatise Taxing California Property (4th Edition). Finally, over the past 30 years Cris has taught and spoken before many audiences on property tax-related topics.

Molly is a partner in the Chicago Office of Siegel Jennings, a national property tax law firm. She is a third-generation property tax attorney from Chicago. As a litigator and trusted advisor, she collaborates with Owners, Asset Managers, Acquisition teams and Tax Departments to identify, create and execute property tax reduction strategies. She becomes a member of her clients' management team. Her goal is to maximize and protect the full potential of real estate assets, minimize related tax liabilities, and resolve disputes with tax authorities and government entities.

Molly's client experience ranges from family owned 1031 portfolios to national commercial investment funds, including special use properties such as hospital campuses to multi-million-dollar manufacturing facilities.

Her comprehensive understanding of the commercial real estate market was developed in part through her time as a real estate broker in the Chicago area prior to starting her legal career. Molly regularly represents clients in hearings before review boards, local assessors' offices, the Illinois Property Tax Appeal Board, and the circuit courts.

Molly Phelan, Esq.


Steven P. Schneider, Esq.

Steve Schneider is an ad valorem property tax counselor and litigator. He has obtained several landmark decisions for property taxpayers through trials lasting as long as 130 days and as short as 1 day. His clients have received more than $100 million of property tax savings throughout the country. Steve works extensively with industrial, commercial, telecommunications, and energy taxpayers where thorough knowledge of the changing regulatory and business environments is essential for a proper presentation of a taxpayer's valuation case.

Lisa Stuckey is a partner in the law firm of Ragsdale, Beals, Seigler, Patterson & Gray, LLP, and is Chair of the Property Tax Group of the firm, as well as their Designated Representative in the American Property Tax Counsel. She has practiced in the area of property taxation for over 35 years, and for the past 23 years, her practice has been devoted exclusively to representing local, national, and international commercial and industrial taxpayers, on real and personal property tax issues, appearing for hearings, arbitrations, mediations, trials, and arguments in administrative tribunals, the Georgia Tax Tribunal, the Superior Courts throughout Georgia, and the Georgia appellate courts.

Ms. Stuckey frequently speaks on the topic of property taxation to attorneys for legal education seminars, and to industry groups. She also frequently writes property tax articles appearing in such publications as the National Real Estate Investor, and Southeast Real Estate Business, as well as the quarterly publication of the American Property Tax Counsel Newsletter.

Lisa Stuckey, Esq.


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May
04

Three Keys to Protesting Retail Property Tax Assessments

Shopping center owners need to be especially vigilant regarding unfair taxation in 2022.

Property owners should expect to receive a Notice of Appraised Value from their appraisal district by mid-April. This year it is imperative that retail property owners submit an assessment protest prior to the deadline and help to establish fair taxable valuations in the post-pandemic marketplace.

Since March of 2020, COVID-19 has brought uncertainty and ongoing challenges to real estate owners. People often discuss the commercial real estate "winners and losers" of COVID-19, and of the four commercial real estate food groups, retail certainly suffered one of the heaviest initial blows. But how has the property type recovered as the pandemic has evolved? This article explores where exactly retail falls, and then offers strategies to argue more effectively for reduced assessments.

Evolving trends

To develop a full picture of the current state of shopping centers, one must look back to 2019 and early 2020 before the pandemic. In 2018, approximately 5,800 retail stores closed nationwide and only 3,200 opened, for an overall deficit of 2,600 locations. In 2019, the size of the annual store deficit nearly doubled with 5,000 more closures than openings. Ecommerce sales volume rose steadily from 2010 through 2019, which, coupled with accelerating physical store closures, clearly indicate a slowdown in the need for traditional storefronts.

In 2021, county assessors were generally conservative in raising values, primarily due to pandemic-related issues such as tenants going out of business and owners being forced to defer and abate rent. Additionally, shopping center transaction volume dropped throughout 2020, which forced appraisal districts to rely on limited data to arrive at market rents and capitalization rates for their 2021 models.

County appraisal districts preparing assessments for 2022 will most likely attempt to significantly raise taxable values to reflect what they view as a retail rebound that occurred during 2021. While assessors may conclude that retail is recovering well as the pandemic evolves, the data and overall trends fail to support that position.

If an appraisal district takes an aggressive stance in raising values, citing the "booming return of in-person retail shopping," it will be crucial for appellants to show the lingering state of uncertainty in the retail real estate market. Toward that end, the following three strategies will be keys to successfully arguing for reduced assessments.

1. Consider the tenant mix. When appealing taxable assessed values, either during the administrative process or later in district court, property owners must consider the tenant mix of their shopping centers and how the pandemic affected their retailers.

For instance, a center containing a drycleaner and a trampoline park will take much longer for those tenants to recover from the pandemic than many other properties. With work-from-home becoming the norm, many people no longer need pressed clothes. In addition, ball pits and trampolines crowded with children fail to appeal to a pandemic-conscious society. These trends are reflected in rents, with rates for specific uses such as these flattening or even declining since the onset of the pandemic.

2. Review the property's classification. The second strategy for appealing values is to review how the property is classified on the tax rolls. As many owners begin to utilize space in alternative ways, the center may no longer be operating entirely as a retail center. In other words, it may be more appropriate for it to receive either a light industrial or fulfillment center classification.

Amazon, for example, has been converting shopping malls into last-mile distribution centers steadily for the past six years. Amazon converted about 25 shopping malls into distribution centers between 2016 and 2019, Coresight Research reported. Converting stores to distribution spaces in a shopping center will drastically reduce foot traffic for any remaining retail tenants and negatively affect the customer experience, resulting in a lack of desirability for retail investors.

3. Demonstrate shrinking retailer footprints. It is no secret that consumer visits to physical retail locations is nowhere near pre-pandemic levels. Black Friday foot traffic in 2021, for instance, was down approximately 28 percent from 2019 levels, according to Sensormatic Solutions data. While in-person shopping will likely remain an element of the retail experience, there is a lingering sense of uncertainty surrounding its significance, especially with the strong adoption of curbside pickup.

Some major retailers have addressed this issue by downsizing stores. Target stores, for example, have historically averaged 130,000 square feet, but of the 30 stores the brand opened in 2020, all but one used a smaller format, according to pymnts.com. These small-format and college campus stores average 40,000 square feet, while some are much smaller.

It is reasonable to suspect that other retailers will follow suit, rendering many larger, anchor spaces within shopping centers obsolete and harder to fill with tenants. As the tide shifts to a "less is more" philosophy when it comes to store footprints, both appraisal districts and taxpayers should incorporate this increased risk into value calculations by raising cap rates in their models. Not only do shrinking store footprints and conversion of space to distribution uses bring an increased level of uncertainty to the asset class, but last-mile distribution centers also fail to command retail rents.

When shopping center owners receive assessed values for property taxation in the coming months, they should compare the assessments to values received in prior years, especially 2019. If the valuation trend of a particular property fails to make sense – either due to the overall uncertainty and risk surrounding brick-and-mortar retail or due to property-specific issues such as tenant mix and use of space – it will be extremely important for the taxpayer to act by protesting the property's taxable assessed value. 

Sam Woolsey is a property tax consultant at Austin, Texas, law firm Popp Hutcheson PLLC., which focuses its practice on property tax disputes and is the Texas member of American Property Tax Counsel (APTC), the national affiliation of property tax attorneys.
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Deck - Summary for use on blog & category landing pages

  • Shopping center owners need to be especially vigilant regarding unfair taxation in 2022.
Apr
27

How to Dispute Unfair Property Assessments in Six Steps

Multifamily owners can avoid excessive property taxes by being prepared with the right research and documentation.

Property tax systems vary from state to state across the country, with differing procedures in each assessor's jurisdiction. Complicating things further, the personalities of assessors and their staff influence the way they interact with property owners or their agents.

It is the responsibility of the property owner or their agent to learn and adapt to the procedures and behaviors at work in their assessor's offices. However, there are universal preemptive steps that property owners in any jurisdiction can take to combat excessive valuations. These property-specific action items and best practices can significantly increase the chances of a successful valuation protest.

1. Document Property Financial Statements

In most appraisal systems, income-producing apartment property will be valued using the income approach. Arguably the most important pieces of information the apartment owner can present in protesting assessed values are the property's rent rolls and profit-and-loss statements. The timely preparation and completion of these documents prior to a protest is essential to any discussion of fair market value. Key line items such as potential gross income, vacancy and collection loss, and net operating income can assist in negotiating lower assessed values. Market rent, in-place rents, and occupancy are key indicators on a rent roll and should be shared with assessors, in most cases, to help them determine how a property is performing.

2. Conduct Market Rent Surveys

Collaborating with property managers to finalize market rent surveys can provide extremely valuable evidence to discuss with the assessor. Most jurisdictions rely on general market data to compute values across the submarket. Market surveys specific to a property typically entail more reliable data and can be used to strengthen the property owner's market value analysis.

3. Vet Comparable Sets

In addition to a market value analysis, many jurisdictions allow taxpayers to present an equity argument. In an equity claim, property owners or their agents will be looking at assessed values of the subject property's set of comparables, which are similar properties in the area that can provide reference points in determining market value. If the appraiser's list of comparables contains apartments not found on the market survey, the taxpayer will have a good reason to request that those be removed from the set being discussed. This strategy is valuable when an appraiser or assessor is using higher-class apartments in the subject property's submarket, thereby inflating the equitably assessed value.

4. Document Deferred Maintenance and Bids

An argument often heard during valuation protests is "my property has deferred maintenance, and therefore should be valued at a discount." This argument will be more likely to succeed if the taxpayer validates their assertions using contractor bids, pictures, or some proof of the amount of maintenance that needs to be done. Obtain bids before the valuation date, detailing work that needs to be done, including the cost of materials and labor. Also before the valuation date, document damages with pictures, if possible. Following this advice will differentiate the subject property from a long list of others claiming deferred maintenance with no support for the cost of repairs.

5. Learn Relevant Tax Laws

Property owners should educate themselves about the property tax system in their property's state and specific jurisdiction. Deadlines play a very important role, so make sure to meet and understand them. Missing a deadline can forfeit the opportunity to contest an assessed value, precluding relief for an excessive appraisal. Property tax laws and local regulations can be daunting, and the avenues that lead to success can be easily overlooked. In some situations, the property owner will want to speak with a local property tax professional to explore available options.

6. Build and Maintain Assessor Relationships

It is important to realize that the assessor assigned to a protest will likely be someone the taxpayer will be interfacing with throughout the valuation process and potentially for the entire term of property ownership. Integrity and honesty in every interaction with the assessor will help to establish trust and strengthen this relationship over time, which will benefit the taxpayer in the long run. The simple act of beginning a dialogue with the assessor early in the protest process can increase a property owner's chances of reaching a timely and successful settlement.

Advance completion of financial statements that could support a tax protest should be an annual priority for any property owner, as this data is invaluable in arguing for a lower assessment. While this sounds like a routine process for most property owners, the assessment timeline is different in every jurisdiction and may not coincide with your typical year-end financial audit. Finalizing market rent surveys and collecting bids for deferred maintenance will add to the chances of success. Learning the property tax rules and deadlines affecting the property, or having an educated team versed in the state or local market, will directly impact success. Finally, building long-lasting relationships with assessors based on openness and reliability is not only common courtesy, but can make assessors more receptive during the appeal process, and therefore increase the likelihood of achieving desired results.

James Johnson is a senior property tax consultant in the Austin, Texas law firm of Popp Hutcheson PLLC, which focuses its practice on property tax disputes and is the Texas member of American Property Tax Counsel, the national affiliation of property tax attorneys.
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  • Multifamily owners can avoid excessive property taxes by being prepared with the right research and documentation.
Apr
19

7 Post-Pandemic Commercial Property Tax Tips

Consider each of these proven strategies to minimize ad valorem tax bills.

Record-breaking commercial real estate trading activity during 2021 is having a marked impact on property values in 2022. Transactions in 2021 were up 88% from 2020 and were 35% above 2019 levels, according to Ernst & Young. The large number of sales in 2021 extended to all categories of real estate, and many commercial property types experienced significant price increases.

Market values are the basis for property tax assessments in most taxing jurisdictions. As post-pandemic market values fluctuate due to higher prices, property owners need to adopt strategies to keep their assessed property values down. As we emerge from COVID-19 here are seven key considerations to minimize property tax assessments even as prices increase.

1. Report Property Operating Metrics. A commercial property's market value is based on its financial performance. A weak property will have poor performance indicators, such as excessive vacancy or below-market rental rates. Poor performance is usually the basis for a reduced assessment and a lower property tax bill. Where possible, property owners should report these types of performance indicators to taxing authorities each year before assessed values are set and tax bills go out.

2. Allocated Prices in Real Estate Portfolios Are Not Market Values. A buyer purchasing a real estate portfolio will typically allocate the total price paid over all the acquired real properties as well as other, non-real-estate assets. Investors create these portfolio purchase allocations for income tax, accounting, financing or other purposes, and they may commission an "allocation" appraisal for bookkeeping or underwriting purposes. Allocations of total portfolio price or value to individual properties in a portfolio are rarely a good indication of a property's market value, however. Likewise, allocation appraisals are unhelpful or even detrimental in determining taxable market values because they may not account for the unique aspects of an individual property.

3. Transaction Type May Affect Value. Market values can also be impacted by the nature of the transaction and its participants. For example, REITs set purchase prices for real estate portfolios based, in part, on income tax considerations. Similarly, when a transaction involves the acquisition of an entity that holds various types of assets, the price paid will include payment for assets other than real estate alone. Non-real-estate motivations for purchasing properties and non-realty components of a transaction must be removed in order to determine the market value of the real estate alone. Otherwise, the values for the real estate will be above market.

4. Only Real Estate Is Subject to Property Taxation. As previously mentioned, property portfolios will sometimes convey with other assets. These can include personal property, such as fixtures and equipment, or intangible assets and rights like contracts, licenses and goodwill. Market values for these non-real-estate items are evaluated differently from real property and some, such as intangible assets and rights, are not subject to property taxation at all. In addition, any "synergy" or "accretive" value from a portfolio sale is intangible and should be excluded when assessing a specific property's value for property tax purposes.

5. Properties May Not Stabilize at Pre-Pandemic Levels. Properties that were hardest hit by changes related to COVID-19 may take years to return to pre-pandemic performance levels, and some may never fully recover. Awareness of a particular industry's recovery will be key to understanding whether market values and property tax assessments for that property type will return to pre-2020 levels. Uncertainties about time to stabilization reduce real estate values. The knowledge that some properties may never achieve pre-pandemic performance levels puts long-term investment value into question, which decreases the current value of those properties and lowers their taxable value.

6. Leasehold Interest Values May Not Match the Market. Investors buy and sell commercial properties based on the net income they produce. However, if the leases generating that income are above or below market, the value derived from rents will not be at market. In addition, lease rates from synthetic or operating leases used to finance the purchase of a portfolio of properties will not produce market value for individual properties unless those lease rates happen to be set at market levels.

7. If All Else Fails, File a Property Tax Appeal. Taxpayers who work proactively with their local tax assessor are often able to achieve reduced assessed values and lower property tax bills. Property owners should address each of the previous six points with the local assessor. Nevertheless, there will be times when attempts to reduce assessed values are unsuccessful. In those cases, property owners should be prepared to file an appeal by the deadline and pursue it, preferably with the assistance of a knowledgeable property tax advisor.

Cris K. O'Neall is a shareholder in the law firm of Greenberg Traurig LLP, the California member of American Property Tax Counsel, the national affiliation of property tax attorneys.
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Deck - Summary for use on blog & category landing pages

  • Consider each of these proven strategies to minimize ad valorem tax bills.
Apr
06

Pitfalls in Price Disclosure on Real Estate Acquisitions

Reported transaction prices tend to show up again as overstated taxable property values, advises attorney Jerome Wallach.

The old maxim that no good deed goes unpunished might well be applied to official disclosure of the acquisition price on real estate.

Many jurisdictions require the disclosure of a property's sale price after the sale closes. All too often, buyers respond by reporting a number which includes non-real-estate components. Although they are acting in good faith, these investors seldom realize that the local tax assessor may use the acquisition price they report in determining the property's market value for ad valorem tax purposes. That can result in an overstated assessment when the price reflects the value of the going concern constructed on the property rather than the real estate alone.

Disclosure exposure

There are several reasons a buyer will broadcast the exchange price for acquired real estate to the public domain. The new owner may want the number known because it will enhance the public image of the buyer's business. It may be a legal requirement to report the purchase price. Many jurisdictions require the filing of a certificate of value, for example. Whatever the reasons, the buyer and soon-to-be owner closing on a real estate acquisition should be careful how the deal is characterized when reported.

Tax assessors, appraisers and other real estate professionals are skilled at tracking down sale prices. There are also services that regularly publish sale prices gleaned from a variety of sources. Taxpayers should assume that the assessing authorities will learn the price of their property acquisition.

While purchasers of real property typically factor in the effect of property taxes on the net cash flow, they may not consider the impact the exchange price can have on property taxes in the coming years. Frequently, the higher the published transaction value, the more that news will bolster the buyer's business reputation. Not so for property tax consequences, however, because assessments and ongoing property tax liability will often increase in proportion to the published transaction amount.

An assessor seeing a certificate of value or reading a published sale price can and frequently will rely on that number as the property's market value, against which ad valorem taxes are levied. Unfortunately, that number may not fairly represent the taxable value of the real estate if it includes value from non-real-estate components, which are not subject to ad valorem taxes.

Differentiate real estate value

Hotels provide an example of how the reported sale price differs from the real estate value. Appraisers cite comparable hotel sales in terms of value per room, which may include the television, beds and other items in each room as well as the hotel's brand and other components of business value that are exempt from property taxation. Some analysts adjust for the non-realty components of per-room sales data, but most do not.

However, the problem isn't unique to the hospitality sector and may apply equally to other property types.

In the larger view, the same miscalculation could apply to other properties where non-realty components were part of the transaction. Non-real-estate sources of transaction value can include leases in place, brand recognition, in-place management and trained workforce, personal property such as vehicles and furniture, and ongoing business operations within the property. The assessor may have included all these elements, inappropriately, in the value of the real estate. This is a situation the taxpayer could have avoided by correctly reporting that the price exchanged for the property included non-real-estate items.

Disclose with care

Exercising some foresight in describing the elements of the sale at the time of closing could mitigate the unwanted effect of triggering an inflated tax assessment on the subject property. In reporting, the buyer should pay attention to how they characterize the acquisition price, with a view toward how the information may influence an assessor's calculation of taxable value.

It is predictable that the assessor will be aware of the purchase price. In fact, the number is required public disclosure and will, in all probability, become the assessor's opinion of market value. At any hearing or proceeding resulting from the taxpayer challenging the assessor's opinion of market value, the assessor will likely put forth the public disclosure document as prima facie evidence of market value.

The new owning entity can protect itself by laying the groundwork for assessment appeals when it discloses the transaction amount. When appropriate, the closing statement should clearly represent that the acquisition is for going-concern value, which encompasses both real estate and the business operating in that real estate. An asterisk after the number, with an accompanying footnote, would suffice as long as there is a clear indication that the number relates to enterprise value.

Assessors frequently rely on the acquisition price of a going concern as equaling the value of the real estate alone. When that occurs, a buyer's footnote on a price disclosure can pay dividends in any proceeding challenging the assessor's opinion of value.

Jerome Wallach is principal at The Wallach Law Firm in St. Louis. The firm is the Missouri member of American Property Tax Counsel, the national affiliation of property tax attorneys.
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Deck - Summary for use on blog & category landing pages

  • Reported transaction prices tend to show up again as overstated taxable property values, advises attorney Jerome Wallach.
Mar
16

The Tax Appeal Life Cycle

District of Columbia taxpayers can appeal assessed property valuations through three levels of review.

In the District of Columbia, a prudent taxpayer must observe important steps and deadlines to appeal a real property tax assessment. Strict code provisions, government policies and procedures govern the appeal process, so understanding the typical lifecycle of an appeal provides a head start in making sure a property is fairly assessed.
Here is a look at what to expect as a case advances:

Assessment and notification
Assessors reassess all real property in the District each year using a Jan. 1 valuation date that precedes the start of that tax year. For example, Tax Year 2023 runs from Oct. 1, 2022 through Sept. 30, 2023. Thus, corresponding assessed values are as of Jan. 1, 2022.

The District typically will mail assessment values and update the MyTaxDC.gov website on or around March 1 each year, sending its estimate of market value to the owners of more than 205,500 parcels. This will be the taxpayer's first glimpse of the valuation and potential tax liability for the following tax year.

These assessed values are released without supporting documentation, however.

To determine how an assessor derived the value, the taxpayer or a duly authorized agent must contact the Office of Tax and Revenue to request a copy of the assessor's workpapers. These documents will be critical in formulating the basis for any possible appeal.

1.) Office of Tax and Revenue
The first-level tax appeal deadline is April 1. While the property owner may not have all the relevant documents they need to properly analyze their assessment by this time, the taxpayer must meet the filing deadline or waive their right to any further appeal for the tax year.

Fortunately, the first-level petition is a one-page form completed online and requires only basic property information to satisfy the requirement. Continuing with a first-level appeal, however, demands further analysis.

The assessor may use one of the three common approaches to derive a proposed value — the income, cost and/or sales comparison approach — or any other approach that can be supported. For large commercial properties, the most common practice is to use the income approach in conjunction with the District's mass-appraisal model.

Mass appraisal uses market assumptions based on property type, submarket and classification. These assumptions derive from taxpayer-submitted income and expense reports (I&E) for the previous tax year. The assessor derives the property's net operating income using market assumptions and divides the result by a market capitalization rate loaded with the applicable tax rate. Or, in the case of retail properties, the assessor uses a net lease rate and an unloaded capitalization rate to arrive at taxable value.

Consequently, the yearly filing of income and expense reports is an integral part of the assessment process and is mandatory for most owners of income-producing properties. At the beginning of each calendar year, the District issues its notice of income and expense report filing requirements, along with unique access and submission codes for taxpayers to report their sensitive financial information using an online portal.

This portal opens in January, giving taxpayers adequate time to comply with the I&E submission deadline, which is on or about April 15 each year. (Due to a holiday, Tax Year 2023 I&Es are due Monday, April 18, 2022.) Timely compliance with this requirement is imperative, as failure may result in a 10 percent penalty on the subsequent tax year's liability. A local tax advisor can be a great help with this complicated process.

Once complete, and when applicable, the I&E will be a vital component to the analysis and validity of a tax appeal. If the taxpayer believes an appeal is warranted, they can move to a first-level hearing. This administrative appeal to the assessor of record generally occurs in May or June. The assessor reviews information the taxpayer provides and can adjust the value by first-level decision.

2.) Appeals Commission
If the initial appeal does not provide a satisfactory result, property owners may continue to the next administrative level. The taxpayer must initiate an appeal to the Real Property Tax Appeals Commission (RPTAC) within 45 days of the first-level decision or forfeit additional appeal rights.

Filing a petition with RPTAC requires the taxpayer to produce specific information such as property and financial data as well as supporting evidence to prove the current assessment is incorrect.

In other words, the assessment is presumed correct unless and until the taxpayer proves otherwise. RPTAC hearings generally occur between early October and the end of January. Hearings before a panel of two or three commissioners allow both parties to argue their positions and to answer commissioners' questions. The Commission should issue its decisions by Feb. 1 of the relevant tax.

3.) D.C. Superior Court
The District issues real property tax bills in March and September of the relevant tax year. This means, barring extraordinary disruptions that can include global pandemics, administrative appeals should be completed prior to the issuance of these bills.

If an administrative appeal does not achieve a result the taxpayer believes is fair, a further appeal to D.C. Superior Court is available.

To appeal to the Superior Court, the taxpayer must first pay all taxes in full and file a petition by Sept. 30 of the related tax year.
The proceeding will ostensibly become a "refund" lawsuit and may take several years to reach a resolution. However, if successful, taxing entities will be required to provide an additional 6 percent interest with any refund amount.

Importantly, any tax representative must be an active member of the D.C. Bar Association to handle this stage of appeal, which is a court proceeding. Therefore, to maximize the effectiveness of a tax appeal, a local tax attorney is best situated to guide a taxpayer through the life cycle of a property tax appeal.

Sydney Bardouil is an associate at the law firm Wilkes Artis, the District of Columbia member of American Property Tax Counsel, the national affiliation of property tax attorneys.
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Deck - Summary for use on blog & category landing pages

  • District of Columbia taxpayers can appeal assessed property valuations through three levels of review.
Mar
09

New York City Tax Assessments Disregard Reality

New York City has published three tax-year assessments since COVID-19 swept into our world. The New York City Tax Commission and New York City Law Department have had ample opportunity to reflect and refine their thinking on those assessments.

The disease broke out in Wuhan, China, in late 2019 and soon spread around the world. Most of New York City noticed its impact in February and March of 2020 as businesses shut down at an accelerating rate, warranting government mandates and additional closures.

So, what did New York City do for the 2020-2021 tax year? It significantly raised tax assessments. The Tax Commission and other review bodies refused to base their valuations upon the devastating catastrophic effects of COVID-19 that had ravished the city.

Why do this? The answer is technical. New York City values real estate on a taxable status date, which is Jan. 5 each year. On Jan. 5, 2020, COVID-19 did not exist in assessors' evaluation process. Nor did it exist in the review of assessments later in the year.

Employment restrictions, mask mandates and lockdown requirements made it impossible to operate theaters, hotels, restaurants and many other businesses. These restrictions took effect long before the first installment of property tax payments for the 2020-2021 year had to be paid. Yet hotels found that their tax bills exceeded their total revenue. Other businesses had similar experiences.

The city's next assessment, for the 2021-2022 tax year, reduced assessments by 10 to 15 percent in some sectors, and by as much as 20 percent for hotels. It was too little, too late, and many businesses were failing. The assessment review process was slow and unsympathetic to the plight of businesses devastated by COVID-19.

The Jan. 5, 2022 assessment roll attempted to recoup a modest amount of the value trimmed from taxpayers' properties the previous year in spite of the destructive effects of the Omicron variant that were at their height on the Jan. 5 valuation date. That is the truth: New York City's newly released fiscal 2022-2023 property tax assessment roll presents a market value of almost $1.4 trillion, an 8 percent increase in taxes and estimated taxable assessments of $277.4 billion. That sounds like too much!

Real estate tax increases have come at a time when most property owners and businesses have not even begun to recover from the pandemic's economic impact. Foreign and business travel have disappeared; street traffic is down and empty storefronts abound.

Commercial rents in Herald Square, for example, are down 27 percent from pre-pandemic levels. However, high bills due to ever-increasing inflation remain to be paid. Mortgages, payrolls and maintenance costs add to the burdens of businesses in New York City. Most properties are still struggling, and many are falling behind.

The hospitality sector has been hit especially hard. Hotel revenues and prices have dropped to unsustainable levels. COVID-related rules and fears have evaporated any sustainable growth in tourism. One example of the pandemic hotel market value decline is the recent sale price of the DoubleTree Metropolitan at 569 Lexington Ave., which was 50 percent less than the price it sold for in 2011.

While a few market values have increased, tax increases should have been delayed. For Class 1 real estate, which includes residential properties of up to three units, total citywide market value rose 6.7 percent to $706.8 billion from the previous year's tax roll.

For Class 2 properties­ — cooperatives, condominiums and rental apartment buildings —the total market value registered $346.9 billion, an increase of $27.8 billion, or 8.7 percent, from the 2022 fiscal year. For Class 3 properties, which include properties with equipment owned by gas, telephone or electric companies, market value is tentatively set by the New York State Office of Real Property Tax Services at $43.6 billion.

Last but definitely not least, total market value for commercial properties (Class 4) increased by 11.7 percent citywide to $300.8 billion. Manhattan had the smallest percent increase in market value at 10.3 percent. Class 4 market value is down $25.2 billion, or 7.7 percent, below its level for the 2021 fiscal year. Hotels registered a market value increase of only 5.3 percent.

These slight increases in market value do not warrant this year's increase in taxes. Businesses are still being affected by the economic impact of the pandemic and need time to recuperate. The city's Department of Finance admits that although values increased for the 2023 fiscal year, they remain below the 2021 fiscal year values for many properties due to the impact of the pandemic.

The Department of Finance also acknowledged in its announcement of the tentative tax roll that commercial property values remain largely below pre-pandemic levels. This underscores why the increase in taxes should have been delayed, at least until properties and businesses attain pre-pandemic values.

Strategies for Relief

In appealing assessments, property owners can improve their chances for obtaining relief by quantifying property value losses. For hotel owners and operators, this means gathering documentation showing closure dates, occupancy rates and any special COVID-19 costs incurred. Most industry forecasts anticipate at least a four-year recovery period for hotels to reach pre-pandemic revenues.

Retail and office property owners should be prepared to show any declines in gross income and rents received or paid on their financial reports filed with the city. Residential landlords should list tenants that vacated and those that are not paying rent.

In conclusion, tax assessments must reflect the entirety of what this pandemic has done to the real estate industry over the past 24 months. New York City authorities must provide tax relief for property owners, and taxpayers and their advisors will need to take an active part in obtaining reduced assessments.

Joel Marcus is a partner in the New York City law firm Marcus & Pollack LLP, the New York City member of the American Property Tax Counsel, the national affiliation of property tax attorneys.
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Mar
02

Fresh Ideas for Reducing Your Self-Storage Property Taxes

There's a spotlight on self-storage real estate values these days, which means owners need to make sure they're receiving a fair assessment of their property. Consider the following strategies to counteract excessive property taxes.

Since the arrival of COVID-19, no real estate sector has seen property values rise faster than self-storage. It's even outpacing warehouses, which are skyrocketing in the face of demand for fulfillment centers to handle spiking e-commerce volumes.

Simply put, self-storage is booming, and it isn't going unnoticed by investors; nor will assessors, who are charged with valuing properties for ad valorem tax purposes, ignore the trend. For this reason, owners and their advisors should be revisiting tried-and-true tax strategies and considering new ways to combat excessive property assessments.

Historically, many self-storage owners have been content to fly under the radar, accepting their assessed values without protest to avoid drawing too much attention. Given the recent industry growth, however, assessors will likely shine a light on the segment, pushing for higher assessed values. When that spotlight hits, it'll be time for taxpayers to fight for fairness. Until then, you should explore the tactics that have worked previously and new ones that might now be beneficial.

An Apartment for Your Stuff

One traditional method of lowering tax liability is to value self-storage like apartments. Most assessors and multi-family owners rely on the income approach, looking at rents, subtracting expenses, and capitalizing net operating income (NOI) based on the amount of risk in the investment.

The rental rates for apartments, like those for self-storage, are easily obtained online. But a key to accurate valuation is differentiating between asking rents and actual rents. The latter are always lower. If the owner or assessor isn't using actual rents or fails to fully consider all concessions, the property is being over-assessed.

Another strategy is to attack the cost approach, which assessors sometimes use instead of the income approach. It determines the replacement cost as if new of all the property's improvements, depreciates those improvements, and adds in the land value as if vacant. Almost everyone who employs the cost approach uses the Marshall & Swift Valuation Service cost manual (M&S). This practice has flaws, particularly when used by assessors in a mass appraisal setting. While M&S determines physical depreciation based on age, it can't and doesn't consider functional or economic obsolescence.

Functional obsolescence is a method of depreciating replacement cost based on issues within a facility, such as design flaws or property aspects that aren't as desirable in the marketplace as they once were. Economic obsolescence, also referred to as external obsolescence, is a method of depreciating the replacement cost based on factors outside of the property, such as a recession or, say, a global pandemic. Since M&S doesn't take these obsolescence features into account—and neither do assessors—self-storage owners and their representatives had better make sure they do.

If these time-tested methods don't yield the desired market value, the owner may choose to employ newer methods that've helped to achieve assessment reductions for other property types.

A Hotel for Your Stuff

When valuing hotels, many owners and assessors will use the income approach. They'll take the room revenue, subtract expenses, factor in risk and capitalize the NOI to reach a value. The problem with this method is some revenue in the income stream comes from intangible, non-taxable sources.

For example, a hotel's franchise or flag and the management agreement, among other items, can add to the revenue stream. These intangible elements should be identified and removed from the income approach to preclude valuing or taxing something that's intangible and, therefore, non-taxable.

There's a corollary argument to be made when it comes to self-storage. The "Big 5" brands in the market are publicly traded real estate investment trusts, each with an easily recognizable name and reputation that's likely to drive more traffic and revenue than an off-brand or non-branded facility. And a brand is an intangible asset, exempt from property tax.

As the Big 5 are also involved in the management side of the business, they're likely to bring intangible value from their operational expertise into the income stream. That revenue has nothing to do with the property's real estate value. The same can be said of the income generated from the sale of packing items such as boxes, tape and locks. These sales don't indicate value to the real estate, but rather value to the business.

Hotels can also suggest comparison metrics applicable to other property types. In addition to comparisons by price per square foot, hotel analyses can consider value per key, room revenue multipliers and revenue per available room. Like hotels, self-storage properties can be compared to each other in several ways. These can include value per lock, unit revenue multipliers and revenue per available unit. Of course, an appraiser or assessor would need to adjust for factors like interior vs. exterior access, climate-controlled vs. non-climate-controlled space, and single vs. multi-story improvements.

Which units of comparison to use for the most advantageous outcome will vary by taxing jurisdiction and the type of self-storage property. If it's in an area that requires all individual property types to be valued fairly and equitably, these units of comparison and the adjustments become ever more important to arrive at the correct value.

With nowhere to hide from the assessor's spotlight, the hope is that self-storage owners and their representatives will actively protest their increasing assessments. It's time for them to be proactive and creative in their arguments to achieve reductions.


Greg Hart is a Director at Austin, Texas, law firm Popp Hutcheson PLLC. Popp Hutcheson, which focuses its practice on property tax disputes, is the Texas member of American Property Tax Counsel, the national affiliation of property tax attorneys.
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Deck - Summary for use on blog & category landing pages

  • There’s a spotlight on self-storage real estate values these days, which means owners need to make sure they’re receiving a fair assessment of their property. Consider the following strategies to counteract excessive property taxes.

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