"It was not of constitutional moment, the court decided, that the Indianapolis lump-sum payers were stuck for the full amount of their assessments while the installment payers received forgiveness reductions. Terminating the installment payers' obligations to make their remaining installments, the court observed, permitted the city to avoid "maintaining an administrative system for years ..."

By Elliott B. Pollack, Esq., Commercial Property Executive, January 2013

Property owners frequently raise legitimate questions about hard-to-fathom differences between assessments of similar properties, as well as the failure of municipal and county assessors to equalize values. Property owners may question the constitutionality of such unreasonable governmental actions in court. Attorneys, however, have long counseled clients that attempting to toss out an assessment, or a valuation system, on constitutional grounds is a very steep hill to climb. The U.S. Supreme Court underscored the accuracy of this advice last June in a rather prosaic piece of litigation involving sewer assessments.

The city of Indianapolis' policy to pay for sewer construction and line extensions was to apportion the cost among abutting lots. After assessing the initial project, the city divided the cost among the number of affected lots. The city also made adjustments to reflect differences in lot size and configuration. Upon completion of the project, each lot received a final assessment. So far, so good.

Once in receipt of the proposed assessment, a lot owner could choose to pay the amount due in a lump sum or in installments, a choice typically given to property owners facing capital assessments in most U.S. jurisdictions. One particular sewer extension project affected 180 Indianapolis homeowners; 38 chose to pay their obligations at once, and the remainder opted for installments.

Just one year later, the city abandoned the lot apportionment assessment methodology, instead adopting a complicated payment plan based on project bond financing, which need not be discussed here. The key to the new system was that it reduced the liability of the individual lot owners affected by this project.

This was good news for the 142 homeowners who had opted for the installment payment plan, but it went over like a lead balloon for the 38 homeowners who had paid in full. Why? Because in the course of adopting the new financing plan, the city forgave all remaining installments owed under the old format but did not attempt to make refunds to those homeowners who had paid in full.

Understandably upset that they did not receive the same financial consideration that the installment payers received, the lump sum payers initiated refund litigation. The property owners met with initial success but lost the case in the Indiana Supreme Court, which ruled that the city had a rational basis for forgiving the remaining installment payments. Among the reasons the city offered, and the court approved, was a reduction in the city's administrative costs because the cost of calculating refunds to the lump sum payers and making refunds did not warrant doing so. The city also indicated an interest in providing financial relief to the installment payment homeowners. The homeowners took their case to the U.S. Supreme Court, which agreed to hear their appeals.

The Supreme Court concluded that as long as "there is any reasonably conceivable state of facts which could provide a rational basis for the decision" made by Indianapolis, it was constitutional. This thinking is in keeping with a long line of rulings that make it clear the justices are almost always unwilling to wade into the tax-fairness swamp. Commentators suggest that this reluctance is based on the court's perception that once it starts deciding whether a particular tax or tax refund plan is constitutional, it will be deluged with hundreds of cases from all over the country. As a result, the court has developed a jurisprudence that requires it to defer broadly to the judgment of local taxing authorities, except in extreme circumstances.

It was not of constitutional moment, the court decided, that the Indianapolis lump-sum payers were stuck for the full amount of their assessments while the installment payers received forgiveness reductions. Terminating the installment payers' obligations to make their remaining installments, the court observed, permitted the city to avoid "maintaining an administrative system for years ... to collect debts arising out of (many different construction) projects involving monthly payments as low as $25 per household."

The fact that Indianapolis authorities were concerned about potential financial hardships that might be suffered by certain installment payers if their remaining obligations were not forgiven stuck in the craw of the lump sum payers and probably made them wonder why the city did not think of their potential financial hardship, as well. Nevertheless, the Supreme Court ruled that the "city's administrative concerns are sufficient to show a rational basis" for its action. Once the court discerned a rational basis, it refused to take its fairness and constitutional analysis any further.

The June 4, 2012, ruling was signed by Justices Breyer, Kennedy, Thomas, Ginsburg, Sotomayor and Kagan. Justices Scalia and Alito joined Chief Justice Roberts' vigorous dissenting opinion.

Elliott B. Pollack is chair of the Property Valuation Department of the Connecticut law firm Pullman & Comley L.L.C. The firm is the Connecticut member of American Property Tax Counsel, the national affiliation of property tax attorneys. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

"The first step toward making a tax-informed decision on a real estate purchase is to consult with a property tax professional knowledgeable in the market..."

By Sharon DiPaolo, Esq., as published by rebusinessonline.com, January 2013

Someone buys a commercial property after months of research and negotiation, and soon afterward the property's real estate taxes skyrocket. The pattern — or at least the degree of the tax increase — often catches even sophisticated buyers unaware because rules that govern real estate assessments vary from state to state and town to town.

Investors who blindly assume that real estate taxes will remain flat after a sale risk disastrous consequences. Tax increases of 50 percent or more are not uncommon following a sale. A clear understanding of how the taxes could change can significantly influence what a buyer is willing to pay for real estate.

"It happens every day," says J. Kieran Jennings, managing partner of Cleveland-based law firm Siegel Jennings, which specializes in commercial property tax. "The phone rings and it's the new owner of a property who has just been hit with a huge tax increase, wanting to know what happened. Sometimes we can fight the tax increase after the fact, but it's always better to know what to expect before you buy. We prefer to get the phone call before the purchase, when we can help plan."

Know the market

Real estate taxes are based on a property's assessment, but tax rules vary widely by location. Some states ban the assessor from changing a property's assessment to match the sale price. Other states automatically raise the assessment to the sale price. Some states have a hybrid system in which a taxing district can file an appeal to increase the assessment after a sale. Knowing the rules of the particular jurisdiction is critical to proper tax planning.

Pennsylvania, for example, has a hybrid system. Pennsylvania law prohibits the county assessor from spot assessing, or independently changing the assessment of only one property. Under another Pennsylvania statute, however, taxing districts can file appeals to increase specific assessments, and many districts use sales to cherry-pick which properties to appeal.

Within Pennsylvania, and even within a particular county, school districts diverge in their practices of filing appeals. In Pittsburgh alone, one district might file appeals on all properties with sales greater than a certain percentage of the assessment, while another district might not file any appeals where the sale price is less than $1 million. A few districts have decided not to file any appeals.

Across the state line, in Ohio, the situation is a little different. Ohio has 88 counties and county auditors set assessments. "It boils down to knowing the county," says Jennings. Ohio has a six-year reappraisal cycle when every property gets a new assessment, and a three-year update cycle when the assessment can be modified.

Owners should expect the sale to be taken into account in a reappraisal year. Mid-cycle, the county auditor also can change an assessment to reflect a sale price. Just as in Pennsylvania, districts can file increase appeals, and many do. Generally, Pennsylvania and Ohio see more increase appeals by taxing districts than do other nearby states.

In New Jersey, the law is similar to Pennsylvania's, but the practical effect is different. "It's a trap for the unwary," says Philip J. Giannuario, a property tax lawyer with Garippa Lotz & Giannuario in New Jersey.

Giannuario cautions property owners to investigate the tax climate carefully before buying. Under New Jersey law, assessments are set by towns. A town's assessor cannot use a recent sale as a reason to change a property's assessment.

Just as in Pennsylvania, such spot assessments are banned. The towns can, however, opt to file assessment appeals to increase the assessments of properties that sell. With more than 650 towns in the state, Giannuario says that whether a particular town actually files increase assessment appeals depends on the town. The key is to know each town's practice.

Budget for worst-case scenario

The first step toward making a tax-informed decision on a real estate purchase is to consult with a property tax professional knowledgeable in the market. Based on the nuances of the particular jurisdiction, if an increase in an assessment is a possibility the tax professional can help the buyer to project a budget as if the assessment were raised to the potential sale price. That analysis could reduce the sum that the potential buyer is willing to offer for the property.

Knowing the worst-case scenario also can help the buyer notify tenants about potential outcomes so that they, in turn, can budget or even escrow funds. A little preparation goes a long way and is an easy step to avoid surprises down the road.

Sharon F. DiPaolo is a partner in the law firm of Siegel Jennings Co., L.P.A., the Ohio and Western Pennsylvania member of American Property Tax Counsel, the national affiliation of property tax attorneys. She can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

How to Save Money by Allocating Prices in Real Estate Transactions

"Federal regulators recognize operations account for a significant component of hotel income and value..."

By Morris A. Ellison, Esq., as published by Commercial Property Executive, December 2012

Commercial real estate investors generally acquire properties based on total cash flow, rather than on the perceived value of the property's individual components generating that cash flow. Increasingly, however, lenders are attempting to underwrite real estate loans through component analyses by breaking down a property into income-generating elements under the theory that separately valuing components reduces risk.

Taxing authorities already generate separate tax bills, often at different rates, for real property, personal property and business licensing fees. A similar approach from lenders, which are under increasing regulatory pressure to reduce risk, may impinge on commercial real estate financing and slow the industry's recovery.

A purchaser often analyzes components of cash flow when evaluating how to improve a property's operational performance and the impact of taxes on potential returns. Common considerations include real estate transfer taxes, allocation of basis for income tax purposes, real and personal property tax assessments, and segregation of readily depreciable or amortizable assets from non-depreciable or non-amortizable assets. Allocation generally involves four components: (i) land (non-depreciable); (ii) buildings or improvements (generally depreciable); (iii) tangible personal property (generally depreciable); and (iv) goodwill or ongoing business value represented by intangible personal property or business enterprise value (BEV).

Hotel properties are prime examples of component analysis, as the analysis is often a major negotiating point. Hotels are generally sold as going concerns—that is, operating businesses with a value distinct the underlying real estate. Integrating a well thought- out allocation into a purchase agreement potentially simplifies recordkeeping yields significant savings on income, property and transfer taxes, sometimes worth tens millions of dollars. The federal Internal Revenue Code applies different depreciation rates and tax calculations to different property types. Commercial businesses with substantial goodwill associated with operations (such as hotels, shopping centers, healthcare facilities and marinas) can significantly benefit from a comprehensive allocation analysis.

For example, much of the value of healthcare facilities rests in operating licenses. These and other intangible assets are generally not subject to ad valorem taxation, and accurately reflecting value will prevent overpaying property taxes due to an incorrect allocation of value. In states where the federal income tax basis is used to calculate property taxes for purchased assets, an allocation analysis is critical. For federal income tax purposes, the tax basis of purchased assets is allocated according to the residual method, which generally allocates a purchase price into classes of assets. Except for land, certain tangible assets are depreciable for federal income tax purposes.

Valuing such assets typically involves obtaining a real estate appraisal, extracting improvement values from land value and valuing tangible personal property such as furniture using the most appropriate methodology for that asset type. Because the federal income tax basis of property is determined at the time of acquisition, allocating the purchase price should be part of due diligence and not put off until after closing. Closing is a great opportunity to establish the various business assets' tax basis, and separate conveyance documents should be prepared for each major asset to document allocated value.

Property Tax Implications

After closing, governments generally separately assess taxes against the real property, tangible personal property and intangible personal property (usually in the form of a business licensing fee).

Tangible personal property, which is subject to a faster depreciation schedule, includes furniture, fixtures, equipment and supplies. Business enterprise value might include startup costs, an assembled workforce, a reservation system and residual intangible assets. The Uniform Standards of Professional Appraisal Practice (USPAP), promulgated by the Appraisal Standards Board of the Appraisal Foundation, require separation of a hotel's business value from other components. However, there is no consensus on the method for calculating BEV.

Some taxing authorities contend BEV is an illusion conjured by disreputable appraisers and property owners seeking to reduce ad valorem taxes, but the Appraisal Institute and federal regulators recognize that the operating business of a hotel, for example, accounts for a significant component of its income and overall value.

Since Oct. 1, 2011, the Small Business Administration has required affiliated lenders to obtain a going-concern appraisal for any real estate involving an ongoing business. Affected property types include hospitality, healthcare facilities, restaurants and nightclubs, entertainment venues, manufacturing firms, office buildings, shopping centers and apartment complexes. SBA lenders must obtain an appraisal valuing the separate components from an appraiser who has taken specified courses in valuing going concerns.

The Office of the Comptroller of the Currency, which regulates commercial banks, simply requires lenders to use a competent appraiser and does not specify course requirements for the appraiser. While OCC appraisals need only comply with USPAP, stricter standards may apply if required by what the OCC calls "principles of safe and sound banking."

USPAP does not specifically require appraisers to value component elements when appraising going-concern properties. Although USPAP Rule 1-4(g) states, "(w)hen personal property, trade fixtures or intangible items are included in the appraisal, the appraiser must analyze the effect on value of such non-real property items," the Appraisal Foundation has made it clear that this standard does not mandate an appraisal of the property's individual components of value. However, "the appraiser may be required to value the individual components because of what the analysis produces and/or the manner in which the analysis was applied." Thus, USPAP implicitly require an appraiser to allocate values under certain circumstances.

The OCC appears to be seeking to require more. The Federal Deposit Insurance Corp. Improvement Act of 1991 imposed additional requirements on institutions subject to OCC regulations, which require each institution to adopt and maintain written real estate lending policies "consistent with principles of safety and soundness and that reflect consideration of the real estate lending guidelines." Exactly what this means is unclear.

A recent article published by the Appraisal Institute contends that appraisals of going concern properties must allocate values. Although not attributable to USPAP requirements, the FDIC, as well as the Financial Institutions Reform, Recovery and Enforcement Act of 1989, may require allocation in order to ensure "safety and soundness." Whether these principles require different interest rates for different components of value remains an open question.

Component analysis makes sense in analyzing operations and in calculating taxes. The ongoing debate over how to calculate BEV, however, illustrates the difficulty of transporting component analysis into transactions and real estate lending. For example, large hotel loans are typically made by a lender's corporate loan department, not the real estate department, and with good reason. Furthermore, incorporating the concept of component analysis into real estate lending seems likely to increase interest rates at a time when available credit is already scarce. That debate is just beginning.

Morris A. Ellison is a member of the Charleston, S.C., office of the law firm Womble Carlyle Sandridge & Rice L.L.P., and is the South Carolina member of American Property Tax Counsel, the national affiliation of property tax attorneys. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

"The taxing jurisdictions argued that "accounting goodwill is not intangible property but rather taxable tangible property..."

David J. Crapo Esq., as published by Commercial Property Executive Blog, November 2012

A recent Utah Supreme Court decision may influence taxes throughout the country by clarifying whether goodwill is a component of taxable real estate value. Most states exclude intangible property from taxation, so identifying intangible components of a business can significantly reduce property tax liability.

In T-Mobile vs.Utah State Tax Commission, the Court declared that accounting goodwill is intangible property and not subject to property tax. The Court defined goodwill as "a business' reputation, patronage, and other intangible assets that are considered when appraising the business."

The taxing jurisdictions argued that "accounting goodwill is not intangible property but rather taxable tangible property." They relied on a 2000 Utah Supreme Court decision in Beaver County vs. WilTel to argue that the synergistic value of a company's intangible property, working together with the tangible property, constituted enhanced value and was taxable because the enhancement value was directly attributable to tangible property.
As the taxing jurisdictions saw it, goodwill was enhancement value, and therefore taxable.

The Court disagreed with the counties and held that goodwill constitutes intangible property and is therefore not subject to taxation. The Court stated that goodwill includes such items as "customer base, customer service capabilities, presence in geographic markets or locations, nonunion status, strong labor relations, ongoing training programs, and ongoing recruitment programs." The Court then stated that these items "are associated with the business being conducted on the property; they are not directly attributable to tangible property."

By clarifying the accounting of goodwill, the Utah case provides a reference point and reminder for taxpayers nationwide. To ensure that property is not over-assessed and thus overtaxed, it is important to make sure the taxing jurisdictions have made all the proper adjustments to remove intangible property. And that entails the exclusion of business value attributable to goodwill.

David J. Crapo is a partner in the Bountiful, Utah law firm of Crapo Smith, the Utah member of American Property Tax Counsel, the national affiliation of property tax attorneys. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

"A critical question for the taxpayer is when, if ever, to share that documentation. Appraisal evidence properly prepared with an attorney in advance of litigation will often protect that document from individuals with whom the owner does not wish to share it, and should allow the owner's team the opportunity to present the evidence at the time and place that is most advantageous to the owner..."

By J. Kieran Jennings, Esq., as published by Commercial Property Executive, November 2012

Since 2001, major retailers have closed about 5,000 stores per year. Certainly there are more closings in challenging times, and in other years there are more store openings than closings. There is one constant, however: Real estate owners and operators must determine what to do with vacated space. Assessors also should weigh the impact on the property, and taxpayers should decide how to reduce taxes based on inevitable tenant turnover.

For many years, the assessing community refused to fully recognize the devaluation of a shopping center due to vacancies. Assessors argued that vacant space has worth, and that an income approach to valuation ignores the income-producing potential intrinsic to empty space. In certain instances, the assessor's argument is true, and including an estimate of potential income for vacant space is an integral part of a shopping center assessment. But what should be done when the space no longer has value or becomes a detriment to the property?

Assessors are often reluctant to acknowledge the nominal or negative value of space that no longer adds to a property's value. When that occurs, a financial study of highest and best use can prove that the space simply cannot be reused economically. Specifically, the property owner can show that build-out and other costs required to prepare the space for the highest and best use outweigh the potential rent the space would earn.

Take for instance a small cinema complex that must update to digital projectors or go out of business. An article in the Sept. 30 edition of USA Today described the owner of a four-screen theater who lamented that he lacked the profit margin to support the $250,000 conversion. The cinema operator's plight should raise a question for the real estate assessor. Is the current usage designation of the space, in its current condition, financially feasible? If the answer is no, then the highest and best use study takes a look at the financial viability of either upgrading — in this example, to digital projection — or renovating the space for a different use and user.

When looking at potentially renovating and changing the use of the property, the appraiser or assessor must determine whether the conversion is physically possible. There may be demand for rentable space, but can the existing structure be adapted for that use? Other considerations include whether the use is legally permissible. A bar, hotel or casino may be a great idea, but do zoning and other laws permit the use? The proposed use should also be reasonable and probable. A conversion to a use that harms the rest of the shopping center is not appropriate.

In many secondary markets in particular, the cost of renovation may exceed the amount of rent that would be collected at market rates over the life of the potential lease. Repurposing a cinema, for example, incurs costs that competing retail properties don't have to bear, such as the expense of leveling sloped floors, adjusting ceiling heights and removing lobbies. If the costs do not justify the change, then the appraiser as well as the owner will need to determine if the building is a detriment to the center. In some cases, the only avenue available is demolition of the property, after which the land can be held for future development.

The days of just discussing the issues of obsolete spaces with the assessor are long since over. Chinese Gen. Sun Tzu's famous admonition, "Know your enemy and know yourself, in a hundred battles you will never be in peril," is apropos in tax contests. A successful appeal requires knowing how the opponent ticks and what proof is necessary.

Owners are often best served in preparing for a hearing or meeting by obtaining an appraisal from a reputable third party. A critical question for the taxpayer is when, if ever, to share that documentation. Appraisal evidence properly prepared with an attorney in advance of litigation will often protect that document from individuals with whom the owner does not wish to share it, and should allow the owner's team the opportunity to present the evidence at the time and place that is most advantageous to the owner.

The final question is, when should the taxpayer raise these arguments? Experience suggests that the taxpayer should attack the issue of obsolete space as soon as the market begins to question the existing use. Tax contests can be lengthy, and profitability — or even survival — may depend upon minimizing non-productive expenses such as taxes.

Kieran Jennings is a partner with the law firm of Siegel & Jennings, which focuses its practice on property tax disputes and is the Ohio and Western Pennsylvania member of American Property Tax Counsel, the national affiliation of property tax attorneys. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Have Your Intangible Assets Been Included in Your Property Tax Assessment?

"It is important to identify and remove potential intangible assets in any property tax valuation."

By Mark S. Hutcheson, Esq., CMI, as published by Commercial Property Executive, October 2012

What's the difference between an income tax and a property tax? The answer seems simple, but it is one lost on many assessors when valuing property for ad valorem taxation. Most people understand that income taxes reflect the income a business generates. Property taxes, by contrast, are based on the value of the tangible assets of a business. Some assessors lose that distinction when applying the income valuation approach, however, and fail to identify and properly remove non-taxable intangible assets.

As a general rule, assessors determine property tax value using one or more of three methods: the sales comparison, income and cost approaches. For commercial properties, assessors and appraisers favor the income approach because it mirrors the method buyers most often use in the open market. When this approach is used to determine the value of taxable property, however, the net operating income (NOI) must exclude any income stream attributable to an intangible asset. 

Intangible property includes assets that have value but are nonphysical, including franchises, trademarks, patents, copyrights, goodwill, equities and contracts, according to The Dictionary of Real Estate Appraisal. Intangible value cannot be imputed to any part of the physical property.

Many commercial businesses have franchise agreements, contract interests and goodwill. These intangible assets are separate and distinct from the physical assets of the business and are generally nontaxable, so the assessor must remove them when determining a property's taxable value. The first step toward that end is to identify the specific intangible assets that contribute to business income.

The operation of a hypothetical hotel provides a simple illustration. A hotel's income stream clearly includes the owner's taxable return from the land and building, but it may also include a host of intangible items that must be removed before the NOI is capitalized into a taxable value. These items may include the hotel's brand; the assembled and trained workforce; maid, concierge and security services; food and beverage outlets; and spa services. Just as the building and underlying land of a McDonald's should not be valued based on the number of hamburgers the restaurant sells, the service and brand components of a hotel's income must be excluded from the value of the taxable assets. While hotels and restaurants are clear examples, it is important to identify and remove potential intangible assets in any property tax valuation.

The proper identification of intangible assets can be more difficult in properties that primarily derive rental income. The tendency is to assume that if a property rents, all of the income is directly attributable to its tangible assets. While this is generally true, there are a few notable exceptions. Above-market leases are properly classified as intangible assets and should be excluded from property tax valuation. An above-market lease creates a contract right that may not be reproducible on the open market.

The Appraisal of Real Estate, published by the Appraisal Institute, provides that "a lease never increases the market value of real property rights to the fee-simple estate. Any potential value increment in excess of a fee-simple estate is attributable to the particular lease contract, and even though the rights may legally 'run with the land,' they constitute contract rather than real estate rights."

This concept can be expanded to other rental-related agreements, like anchor concessions and a shopping center's tenant mix. For example, assume the owner of a shopping center has relationships with several national tenants that rent space in the owner's centers in other locations. If the owner can persuade a few national tenants to rent space in a new center (possibly through concessions or other business agreements), the result is often a synergy that allows for higher overall rents and less vacancy. In this example, the higher rents are attributable to the owner's business relationships, rather than the location or condition of the center, and must be adjusted to remove the intangible enhancements. Intangible assets are generally nontaxable and exist in almost every business. If your property tax assessment is based on the income approach, make sure the income being capitalized is attributable solely to the taxable, tangible assets of the property.

Mark S. Hutcheson is a partner with the Austin law firm of Popp Hutcheson P.L.L.C., which focuses its practice on property tax disputes and is the Texas member of the American Property Tax Counsel, the national afi liation of property tax attorneys. Reach him at This email address is being protected from spambots. You need JavaScript enabled to view it..

While the taxing jurisdictions' consultants maintain that they are not doing appraisal work or appraisal consulting work, a review of USPAP definitions suggests differently. The Uniform Standards define appraisal consulting as "the act or process of developing an analysis, recommendation, or opinion to solve a problem, where an opinion of value is a component of the analysis leading to the assignment results."

By John E. Garippa, Esq. & Brian A. Fowler, Esq., as published by National Real Estate Investor - Online, October 2012

As U.S. Supreme Court Chief Justice John Marshall observed two centuries ago, "the power to tax involves the power to destroy." That statement applies today in the Delaware Valley, where taxing jurisdictions are delegating the tax assessment function to outside consultants.

Incredibly, these consultants are compensated on a contingent fee basis for the additional tax revenue they can accumulate for the jurisdiction. In a typical contract, the fee has been 25 percent of the additional revenue received over a three-year period.

In practice, these consultants can pick and choose which properties to recommend for reassessment. It's not surprising that the most valuable commercial assets, which offer the largest potential for gain in a reassessment, attract the most attention from these bounty-hunting consultants.
Here's how the process typically works. Once consultants have determined which properties are under-assessed, the school districts file affirmative appeals to raise the assessments on the affected properties. Property owners who choose to defend their existing assessments must hire attorneys and independent appraisers at considerable cost.

This system of taxation grows less uniform with each reappraisal. And while it may seem absurd to hand over the reins of tax policy to an outside consultant, the practice is becoming routine under current Pennsylvania law.

Taxing questions

Experience has shown that at any given time there will always be disparities in tax assessments within a given jurisdiction. However, most taxpayers assume that the assessment function is being performed by tax assessors in an ethical and uniform manner, and that those assessors are not paid based on the increased revenue they find.

The increasingly prevalent use of tax assessment consultants raises serious issues that communities must address.
First, the Pennsylvania legislature has prohibited contingent fee agreements where it has deemed them to be contrary to public interest. Specifically, Pennsylvania law prohibits real estate appraisers from accepting an appraisal assignment where the fee is contingent on the valuation reached.
While consultants to taxing entities might argue that they are not appraisers, the fact that they are concluding to a value or value range arguably makes their work product an appraisal.

Second, Pennsylvania has adopted the Uniform Standards of Professional Appraisal Practice (USPAP), which can help to level the playing field for the property owner in appealing an assessment. Those rules include minimum standards for the retention of records, referred to as the "record-keeping rule." An appraiser or consultant must prepare a work file for each appraisal, appraisal review or appraisal consulting assignment.

A work file must exist prior to the issuance of any conclusion, and a written summary of any oral report must be added to the work file within a reasonable time after the issuance of the oral report. Any appraiser or consultant who willfully or knowingly fails to comply with the obligations of this record keeping rule is in violation of the state's ethics rule.

While the taxing jurisdictions' consultants maintain that they are not doing appraisal work or appraisal consulting work, a review of USPAP definitions suggests differently. The Uniform Standards define appraisal consulting as "the act or process of developing an analysis, recommendation, or opinion to solve a problem, where an opinion of value is a component of the analysis leading to the assignment results."

The Uniform Standards also indicate that an appraisal may be numerically expressed as a "range of numbers or as a relationship (e.g. not more than, nor less than) to a previous value opinion or numerical benchmark (e.g. assessed value, collateral value)." Clearly, concluding that certain properties are under-assessed requires a conclusion of value and a comparison to an existing assessment benchmark. The point is, if it looks like a duck, walks like a duck, and quacks like a duck, it is a duck--or in this case, an appraisal.

Allowing consultants to wander the tax lists on the basis of bounty hunting for under-assessed properties is essentially a free trip for the taxing authorities, which bear no burden of cost. When the targets are identified and appeals are filed to increase the assessments, the consultants are rewarded for their efforts by being paid a fee contingent on whatever additional revenue is raised.

If taxing authorities had to fund these efforts on an ongoing basis, rather than on a contingent fee basis, much of this bounty hunting would end. Moreover, if state licensing authorities would examine this conduct under existing appraisal law and the Uniform Standards, the inevitable conclusion would be that appraisal consulting services are taking place. Again, this would serve to restrain the current, unbridled practice of targeting large taxpayers.

	John E. Garippa is senior partner and Brian A. Fowler is an associate in the law firm of Garippa, Lotz & Giannuario with offices in Montclair, N.J., the New Jersey member of the American Property Tax Counsel, the national affiliation of property tax attorneys.

The uneven recovery of the Bay Area real estate market over the past year has created opportunities for real estate owners to challenge their property tax assessments. Areas that have experienced the strongest growth, as well as markets in which the recovery is lagging, may be ripe for challenges to property tax assessments.

By Cris K. O'Neall, as published by National Real Estate Investor - Online, October 2012

Pregnant propositions

Under California's Proposition 13, property taxes are based on the purchase price paid for a property or on the cost of constructing the property. Thereafter, Proposition 13 caps value increases (and property tax increases) at 2 percent annually.When property values decline, Proposition 8, the bookend to Proposition 13, requires county assessors to reduce taxable property values below Proposition 13 value caps to reflect current market conditions. As real estate values recover following a downturn, assessors restore taxable values back to Proposition 13 levels.

Over the past year or so, core Bay Area markets (primarily San Francisco and the Silicon Valley) have experienced strong growth in market rents and declines in capitalization rates, particularly as compared to other Bay Area real estate markets. Because of the brisk recovery in core markets, county assessors have aggressively moved to restore 2012 values, determined as of Jan. 1, 2012, back to Proposition 13 levels. Such value restorations can bring major increases in assessments and taxes.

Assessors exercise value judgment

In order to restore property values to Proposition 13 levels, California requires county assessors to evaluate market sales and rental information. In so doing, assessors consider ranges of information on sales and rentals, and exercise their judgment as to whether values should fall in the top, middle or bottom of a range.
While assessors generally determine values for residential properties using computerized mass appraisal techniques, commercial properties tend to be more complex and require individual attention by assessor staff.

This year, the assessors in San Francisco and Santa Clara County have restored property values and assessments to levels at or near Proposition 13 amounts, which, in some cases, has dramatically increased tax bills as compared to 2011. In doing so, assessors may have justified assessments using more recent rental rates or cap rates, rather than using average rates during the 12 months prior to Jan. 1, which tends to accelerate value increases.

In 2012, most Bay Area counties announced increases in their property tax rolls.
The 2012 roll increases are due, at least in part, to increasing sales and leasing activity, which tend to be reflected in higher property tax values and assessments. However, these increases also reflect Proposition 13 value restorations described previously, and highlight those counties which merit increased consideration as far as whether to review and appeal property tax assessments.

Property tax appeal opportunities

The current situation presents several types of property tax appeal opportunities. First, for properties in San Francisco, San Mateo and Santa Clara counties, it is possible that assessors have been overly aggressive in restoring values to Proposition 13 levels. Taxpayers should request backup information supporting full or partial restoration of Proposition 13 levels and if the assumptions appear excessive, file an appeal.

This same advice goes for properties in secondary and tertiary markets, particularly where there have been Proposition 13 value restorations. Properties in these markets should also be reviewed, however, to determine whether they have participated in the economic recovery that San Francisco and the Silicon Valley have experienced. Economic recovery among Bay Area counties has been uneven, and hasn't benefited every city within a county consistently. In San Mateo County, for example, property values in Atherton have increased significantly, but values in East Palo Alto have continued to decline. Similarly, in Contra Costa County, values in five cities increased while in the county's remaining 14 cities values generally declined.

Finally, property owners should not assume that a "no change" assessment or that a lower assessment by the local assessor is correct. Values in some areas declined during 2011, which means that market values as of Jan. 1, 2012 may be lower than 2011 values, and should not reflect value increases that have occurred during the first nine months of 2012.

Cris K. O'Neall specializes in property and local tax matters as a partner in the law firm of Cahill, Davis & O'Neall LLP, the California member of American Property Tax Counsel, the national affiliation of property tax attorneys. He may be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

"Just because a value may have decreased from a previous year assessment doesn't translate into a correct assessed value. Make sure that the property is being valued correctly with the appropriate approaches to value—income, cost and sales comparison..."

By John Murphy, as published by National Real Estate Investor - Online, September 2012

Since the beginning of the economic decline in 2008, property values have fluctuated in many Texas counties, including Dallas County. Now that the Dallas commercial real estate market is on the mend, commercial property owners must continue to monitor their property values and consider remedies available to appeal errant assessments.

Generally, the Dallas County real estate market has fared well over the past five years, having proven itself largely immune to the effects of the recession. In fact, the Dallas Central Appraisal District (DCAD) in July announced that overall property values increased this year for the first time since 2008, climbing by 1.4 percent. Commercial real estate drove the increase with a 4.6 percent gain that trumped a slight decline in residential values to boost the total tax roll.

Each July, DCAD produces an estimated value report which, after certification by the Dallas County Appraisal Review Board, is published as the Certified Estimated Value Report. This report summarizes tax roll estimates by property type, including commercial, business, personal and residential property. The report also provides a total value for all classes.

It is important to note that the appraisal district bases values on an effective date of Jan. 1 for each year, and that the certified estimated value is 100 percent of market value.

Popp Hutcheson conducted a market research study to determine changes in asking price per square foot for commercial properties in Dallas as of Jan. 1 for each year from 2008 through 2012. Please note, in the chart below, the research data represents an average of the three dominant commercial property types: office, industrial and retail.

Asking price per sq. ft. has fluctuated over the five years measured but does not correspond directly to the Dallas County Certified Estimated Values. Although the Dallas market did not suffer nearly as much as most counties in Texas and the U.S., it is clear that the market failed to adjust asking prices appropriately during and after the recession. This is especially true in 2009, when the average asking price increased despite market-wide value declines at the deepest point of the downturn. Arguably, DCAD tracked the recession more appropriately with decreases in Certified Estimated Values for each year.

What does this mean for the taxpayer?

The apparent disconnect between market value and asking prices in Dallas underscores the potential for overestimating taxable property values. While this is a macro-level view of certified values and asking prices, the point of all this is quite simple. The property owner must be diligent in tracking assessed value. Carefully review each notice of appraised value from the appraisal district and watch for any increases in assessments.

Just because a value may have decreased from a previous year assessment doesn't translate into a correct assessed value. Make sure that the property is being valued correctly with the appropriate approaches to value—income, cost and sales comparison. For example, an appraiser may value a 15-year-old, income-producing commercial property via the cost approach. That typically isn't the most appropriate method, because an assessor seldom appropriately captures all forms of depreciation (physical, functional and external) using the cost approach.

The income approach may be the most appropriate method for appeal purposes, and careful consideration should be taken in applying a true market rent, vacancy rate, collection loss, expense ratio and, of course, capitalization rate to arrive at an appropriate market value. Cost can be used as additional support, however, provided that all forms of depreciation are properly captured. The value indicated via these approaches should be very close, thus arriving at a reasonable concluded value.

Also make sure that the appraisal district has the correct building square footage, age, physical characteristics and land size on its record cards. DCAD, like most jurisdictions, has a difficult job tracking and making sure that each and every property is valued correctly. As with anything, mistakes happen and more often than a property owner may realize.

Additional remedies

Dallas taxpayers, as well as all Texas property owners, have a right to equal and uniform appraisals. Taxpayers need to seek professional help to determine whether their property is valued the same, from an equality and uniformity perspective, as competing properties in Dallas County.

DCAD's shrinking value estimates over the years do not ensure accurate assessments. Inappropriate valuation methods, clerical errors and unequal appraisals can all inflate taxable values, and it is extremely important to keep these risks in mind.

John Murphy is director of real estate assessments at the Austin, Texas-based law firm Popp Hutcheson which represents taxpayers in property tax disputes and is the Texas member of American Property Tax Counsel, the national affiliation of property tax attorneys. He can be reached This email address is being protected from spambots. You need JavaScript enabled to view it.

"In Chicago specifically, the most telling statistic may be the lack of property sales. From an average of 50,000 to 55,000 Cook County sales per year in the boom years, sales in the last three years have not exceeded 5,500 per year..."

By James P. Regan, Esq., as published by National Real Estate Investor - Online, September 2012

Cook County, Ill. systematically revalues all properties for taxation every three years, and 2012 is the reassessment year for Chicago. The last revaluation took place in 2009, shortly after the collapse of Lehman Brothers and the beginning of the Great Recession. The county has already sent reassessment notices to real estate owners in the northern sections of Chicago and will notify those in the rest of the city of the proposed assessed value of their properties over the next six months. The 2012 assessment will be used to determine each Chicagoan's real estate taxes through 2014.

Homeowners and business owners alike should pay close attention to this year's revaluation. Real estate has undergone a significant value loss since 2008, and that alone makes the 2012 revaluation a defining event for Chicago's property owners.

Assessment officials strive to make the process as transparent as possible, and the notices contain a wealth of information about the property and its assessment history. At neighborhood meetings throughout the city, officials stress that the proposed 2012 assessment contained in the notice is only the first step in a process, and that every taxpayer has the opportunity to provide evidence which shows that the proposed assessment inaccurately reflects the property's value. The assessor calculates values using mass appraisal techniques applied to data amassed on all segments of the city's real estate markets, but recognizes that each property is unique and that market data can be made more precise by information provided by the property owner.

Despite the efforts at transparency, the process of producing a final tax bill is not restricted solely to valuation. The budgets of local agencies funded by real estate taxes affect the bill as well.

The assessment process

Real estate taxes are an ad valorem tax, or dependent upon how much the property is worth. Illinois relates taxes to the fair cash value of the property. Simply said, the assessor must determine how much the property would have sold for as of Jan. 1, 2012. The primary purpose for assessment valuation is to determine the fair share of taxes and to assure that each property is uniformly taxed in accord with its value.

Value loss must be considered in that context. The real estate markets—residential and commercial—were at the heart of the boom of the last decade. In the last three years real estate has, in turn, felt the full force of the burst bubble. According to the Moody's REAL Commercial Property Price Index, as of the first quarter 2011, office, industrial, apartments and retail properties had all fallen back to 2003 value levels.

In Chicago specifically, the most telling statistic may be the lack of property sales. From an average of 50,000 to 55,000 Cook County sales per year in the boom years, sales in the last three years have not exceeded 5,500 per year.

Office vacancy rates in the Central Business District have gone from 11.5 percent in 2008 to more than 20 percent as of the first quarter of 2012, according to MB Real Estate Services. Concessions and rent abatements continue for new tenants.

Retail rents declined from $18 per sq. ft. in 2009 to $16 per sq. ft. by 2011, according to Colliers International. And the S&P/Case-Shiller Home Prices Indices show that Chicago condominium prices in 2010 had fallen to 2002 levels, and that home prices closely followed the downturn in condos. Home prices were down 18.7 percent on an annual basis.

One could strongly argue that the decline in value, together with the paucity of sales, demands new methods to arrive at fair cash value. Income data is available to determine values more accurately determine, even for the residential and condo markets, and extraordinary times require extraordinary solutions.

The budget process

The other contributor to the real estate taxpayer's bill is the aggregate budget requirement of local schools, police, fire, county, city governmental, park districts and libraries, which determines the dollars that must be collected from real estate taxes. The assessment determines the proportion of that aggregate amount the individual taxpayer owes, based on property value.

Chicago's usage classifications further obfuscate the process: Residential properties are assessed at 10 percent of value while commercial properties are assessed at 25 percent. That triggers a state equalization factor, which is included in the computation of every taxpayer's bill. Experienced tax counsel can help taxpayers evaluate all these factors and determine whether to protest their assessment.

James Regan is the managing partner of the Chicago law firm of Fisk Kart Katz and Regan, the Illinois member of the American Property Tax Counsel. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.