This dispute centers on the real property valuations of Brandon Bay and Kenmare Trace, two low-income apartment developments located in Payette County, opеrating under the provisions of the federal Low-Income Housing Tax Credit program (LIHTC). The principal issue in this case is whether the tax credits allocated under the LIHTC should be included in the real рroperty assessment of the apartments for taxation purposes. Appellants Payette County and Robert Mackenzie, the Payette County Assessor, (collectively, Payette) are before this Court on a permissive interlocutory appeal from a district court decision granting partial summary judgment to Brandon Bay, LP and Kenmare Trace, LP (collectively, Partnerships), the owners of the apartment complexes, concluding the tax credits cannot be considered when valuing the real property-
I.
FACTUAL AND PROCEDURAL BACKGROUND
The Partnerships each entered into аn agreement with the Idaho Housing and Finance Association (IHFA), pursuant to § 42 of the Internal Revenue Code (26 U.S.C. § 42), to develop low-income apartment complexes in Payette County. Pursuant to the agreements, a designated portion of the apartment complexes may only be rented to low-income persons who pay a reduced rental rate. In exchange for investing in the low- *683 income housing, the Partnerships are allocated an annual tax credit against federal income tax liability for a period of ten years. The Partnerships claim these tax credits on their limited partnership’s tax returns and may apply the credits to tax liability unrelated to the low-income housing projects for which the credits were awarded.
In assеssing the low-income apartment complexes for ad valorem tax purposes, Payette considered both the reduced rental payments as well as the value of the tax сredits allocated to each property. The Partnerships objected, arguing that although the reduced rents should be considered, the tax credits should not be included in the valuation of the real property. The Board of Tax Appeals disagreed with the Partnerships, affirming Payette’s decision to utilize the § 42 tax credits in assessing the apartment complexes. The Partnerships then appealed to the district court, this time arguing the tax credits were simply a contract right and, therefore, were specifically excluded by statute from consideration in assessing the low-income housing. The district court granted the Partnerships’ motion for partial summary judgment, agreeing the tax credits were a contract right and therefore excluded from consideration in the assessment. Payette was then granted permission to file this interlocutory appeal.
II.
STANDARD OF REVIEW
Idaho Code § 63—3812(c) provides:
Appeals [from the board of tax appeals] may be based upon any issue presented by the appellant to the board of tax appeals and shall be heard and determined by the court without a jury in a trial de novo on the issues in the same manner as though it werе an original proceeding in that court.
When this Court reviews a district court decision after the district court has conducted a trial de novo pursuant to I.C. § 63-3812(c), this Court will not review the record independently of the district court’s appellate decision.
Ada County Bd. of Equalization v. Highlands, Inc.,
In an appeal from an order granting summary judgment, this Court’s standard of review is the same as the standard used by the district court in ruling on a motion for summary judgment.
Thomson v. Idaho Ins. Agency, Inc.,
“The determination of the meaning of a statute and its application is a matter of law over which this [C]ourt exercises free review.”
Woodburn v. Manco Prods., Inc.,
III.
ANALYSIS
A. Valuation of real property
The Partnerships claim, and the district court agreed, that the § 42 tax credits fаll under the definition of “contract rights,” a type of exempt “intangible personal property,” which IDAPA 35.01.03.615.02 expressly excludes from consideration in the valuation of real property. “Contracts and contract rights” are defined by the Idaho Tax Commission as “enforceable agreements, which establish mutual rights and responsibilities, and rights created under such agreements.” IDAPA 35.01.03.615.01(a) (emphasis added). Under the plain language of the rule, a contract right by definition, must be created under the contract.
The State, however, has no power to create a federal tax credit and, therefore, such a *684 credit cаnnot be created by a contract between a State agency and the taxpayer. The authority for creating and imposing federal taxes is vested in Congress. The tax credits are created by Congress in § 42 of the Internal Revenue Code. While it is necessary for IHFA and the developer to enter into, a written agreement setting forth the low-income housing requirements and the allocаtion of the tax credits, this agreement does not create the credits. Instead, it is simply the vehicle through which the developer is able to claim the credits on a federal tax return. Sеction 42 tax credits are not a contract right exempt from consideration in the valuation of real property.
The tax credits are better characterized as “rights and privileges” belonging to the land under the definition of “real property” in I.C. § 63-201(18), as they do not exist separate from an ownership right in the low-income housing. For example, if the developer originаlly qualifying for the tax credits sells the property, the purchaser assumes the tax position of the seller: “a purchaser of creditworthy property steps into the seller’s shoes with respect to the unused credits.” 26 U.S.C. § 42(d)(7). Moreover, the tax credits are only received if the owner continues to comply with the requirements for the low-income housing project as set forth in thе agreement with the IHFA and governed by 26 U.S.C. § 42. Even after a taxpayer has used all of the tax credits, if the owner fails to comply with the low-income housing restrictions during the remaining duration of the compliаnce period, the IRS can recapture the credits. 26 U.S.C. § 42(j)(l).
Because the tax credits are rights and privileges that directly relate to the real estate, they are properly сonsidered in assessing the value of low-income housing. The Idaho Code requires that real property is assessed using its market value. Market value is defined as the amount of money that would еxchange hands between a willing seller, under no compulsion to sell, and an informed capable buyer with a reasonable time to consummate the sale. I.C. § 63-201(10). Market value, by definition, captures all benefits flowing from the property. Federal low-income housing tax credits are unquestionably part of the stream of benefits that flow from the property. As a practical matter, the tax credits can be considered equivalent to income.
This Court in
Greenfield Vill. Apartments, L.P. v. Ada County,
Other issues were raised on appeal by Payette that this Court need not address given our resolution of this case.
B. Attorney Fees
Both parties request attorney fees on appeal pursuant to I.C. §§ 12-117 and 12-121. Payette also requests fees below, arguing the Partnerships have frivolously pursued this case with no basis in fact or law. The Partnerships are not entitled to attorney fees on appeal because they are not the prevailing party. And, while we disagree with the Partnerships’ argument that tax credits should not be included in the valuation of real property, that issue has not previously been resolved by this Court and, therefore, the Partnerships’ argument was not frivolous. Payette’s request for attorney fees below and on appeal is denied.
*685 IV.
CONCLUSION
We reverse the district court decision granting partial summary judgment in favor of the Partnerships. When determining the market value of low-income housing developments, the value of § 42 tax credits should be included in the assessment. We award costs on appeal to Payette.