In Re Tax Assessment of Foster Foundation's Woodlands Retirement Community

sentencing require- of the meets all ror plain doctrine.5 ments of our own error TAX In re: FOSTER ASSESSMENT OF Second, First, error. sentencing was an FOUNDATION’S WOODLANDS Third, the plain. sentencing error RETIREMENT COMMUNITY. appellant’s affected the substantial error No. 33891. penalty him of incar- rights- subjecting to a — provided years longer un- five than ceration Supreme Appeals Court of 61-3-11(b). W.Va.Code, Finally, the er- der Virginia. West fairness, seriously integrity, affected the ror Sept. Submitted: 2008. public reputation proceedings. of the Decided: Nov. 2008. foregoing on the we conclude that Based Dissenting Opinion of Justice appellant’s burglary conviction for under Benjamin Jan. 2009. and that Five should be reversed case Count court should be remanded to the circuit with to mold the verdict conform

instructions W.Va.Code, 3—11(b),and that

with 61— appellant accordingly. should be re-sentenced

Finally, from our of the examination rec- remaining we any

ord find no merit in as-

signments of error.

III. conclusion, appellant we hold that respect

waived claim to error with 404(b) prose- evidence

Rule and to claims misconduct. hold

cutorial We further appellant’s burglary conviction under

Count Five should be and that reversed

case should be remanded the circuit court

to mold the verdict to conform with W.Va. 61-3-ll(b).

Code,

Affirmed, Reversed, in part, part,

Remanded. participating. ALBRIGHT not

Justice McHUGH, sitting by Status Justice

Senior

temporary assignment. Miller, (3) Syllabus rights; plain; Point 7 of State that affects substantial (1995): (4) fairness, W.Va. 459 S.E.2d 114 seriously integrity, affects the trigger application "plain To error” doc- reputation judicial proceedings. public trine, error; there must be that is procedure

the Foundation contends that the challenging and the bur- assessments imposed upon taxpayers den of violate process due and that neither the Board nor properly the circuit court considered the unique nature of the Woodlands as a tax- exempt corporation obtaining its assessed Upon parties’ argu- value. a review of the ments, designated appellate the record Konrad, Camper, D. Hud- J. Chad Daniel authorities, consideration, pertinent LLP, Ap- Huntington, for the dleston Bolen we affirm the decision of the Cabell pellant. Circuit Court. Watson, Huntington, for the T. William Appellee. I.

DAVIS, Justice:1 AND FACTUAL PROCEDURAL HISTORY below, petitioner and appellant The herein (hereinafter The Foster Foundation is “the Foundation the Foster 501(e)(3)2 Foundation”), Sep- non-profit organization § that has entered appeals an order by 6, 2007, Operated since 1922.3 Court of Ca- been existence the Circuit tember Foundation, order, Retirement the circuit court Woodlands County. In that bell Community by the Foundation appellee herein is described the decision of affirmed below, County aged a “home for the not conducted for the Cabell as respondent and (hereinafter private profit.” The facilities ac County “the Com- Woodlands Commission Commission”) sitting approximately commodate 300 residents and as the or “the mission” (hereinaf- housing indepen provide such the form of Equalization and Review Board of facilities, facilities, Board”), living living assigned an as- dent assisted “the which had ter nursing and home facilities. All residents of value to the Foster Foundation’s sessed (herein- Community are assured of continued the Woodlands Retirement Woodlands Woodlands”) $29,759,000.00 housing the remainder of their life at the for for after “the Court, ability pay.4 regardless of their year. appeal to this Woodlands the 2007 tax On profit not be held or leased out for to an administrative order entered on must 1. Pursuant 11, 2008, 11-3-9.”). provided § September E. in W. Va.Code the Honorable Thomas Cf. Justice, (“Real exclusively assigned property McHugh, that is used Senior Status id. Supreme Appeals purposes and held or leased for Court of charitable is not sit as a member of property Virginia commencing September profit exempt real from ad valorem of West (1990).”). § continuing Chief de- W. Va.Code 11-3-9 until the Justice taxation. longer necessary, termines that assistance is no Joseph light P. Al- 501(c)(3) of the illness of Justice § Foundation received its 3. The Foster bright. status in 1923. Foundation, quali entity, An such as the Foster 2. provision is a of lifetime care for residents exemption if from federal income tax it is fies for requirement aged for homes for the that have exclusively "organized operated ... 501(c)(3) explained § in footnote status. As we 501(c)(3) purposes.” 26 U.S.C. charitable Craig: Maplewood Community, Inc. v. 30 of (2005) Property belonging (Supp.2007). to such however, corporation providing entity, subject proper residential ser- For a still 501(c)(3) aged ty satisfy exemption to be viewed as a if it criteria. vices for the does organization exempt Unity Apartments, federal Syl. pt. Wellsburg from Inc. charitable tax, County, re- County income the Internal Revenue Service Comm'n Brooke ("In (1998) organization quires be able to must S.E.2d 851 order for real "operates de- property that it in a manner property exempt demonstrate from ad valorem taxation, primary signed satisfy needs of two-prong the three must be met: test care, housing, aged persons” health entity which are corporation or other must be deemed to be security. part proving organization As 26 U.S.C. and financial a charitable under 501(c)(3) 501(c)(4) security need of its resi- provided it meets the financial as is in 110 3-19.1; dents, organizations property "must be committed must be C.S.R. policy, exclusively whether written or in to an established used for charitable comprised ap- Following The Woodlands ble to the Woodlands. the hear- Commission, Board, proximately ing, sitting 93 acres of real as the buildings5 square 22, 2007, with a numerous combined February order entered further 331,993 footage roughly square feet. reduced the assessed value of the Woodlands $29,759,000.00. controversy began The instant when the Foster received a letter dated Foundation The Foster appealed Foundation then 2, 2007, January from the Cabell ruling Commission’s adverse to the Circuit notifying it Assessor’s Office of the assessed County. Court of Cabell The circuit court value for the for the 2007 tax Woodlands and, hearing, held a order Sep- entered $38,137,300.00. year in the amount of On 6, 2007, tember affirmed the Commission’s 31, 2007, January the Foundation filed an decision, concluding that “the Plaintiff [Fos- “Application Property for Review of Assess- prove by ter Foundation] failed to ment” with the Cabell Commission convincing evidence that the Assessor erro- assessment; challenging the amount of this a neously property. valued Accordingly, hearing February was set for before the determination of value the Assessor sitting the Cabell Commission as the stand[,] must requested by and the relief Equalization Board and Review.6 Prior to taxpayer must be denied.” From the circuit 9, 2007, February hearing, the Assessor ruling, court’s adverse the Foster Foundation reduced the assessed value of the Woodlands appeals now to this Court. $31,190,000.00 because, as the Assessor claimed, erroneously a modifier had been applied original to obtain the assessed value II. property.

for this STANDARD OF REVIEW 9, 2007, February At the Board’s case, In this the Foster Foundation hearing, the Foster Foundation presented requests this Court to review the circuit expert testimony by Withers, Robert K. a ruling adopting court’s the Board’s revised general appraiser.7 certified real estate Mr. assessment of the value of the Foundation’s provided appraisal Withers report a written that, Woodlands and and raises issues re opinion, testified in his the fair garding constitutionality market value8 the Woodlands is $14,900,000.00. appeals process questioning and provided The Assessor the correct evi through testimony property. dence ness of the assessed value of employee, of its Daniels, Generally, Brian who is certified multifaceted standard of but not li review applicable censed appraiser. real estate Mr. Dan to decisions of a circuit court: iels testified as to the he methods had em “This Court reviews the circuit court’s final ployed arriving at the assessed order disposition value and ultimate under an properties he had compara- considered as abuse of discretion standard. We review practice, maintaining actual any persons 8. residence Assessments of for taxation pay who become unable to their property's are based on the "true and actual” 72-124, regular charges.” Rev. Rul. 1972-1 value, (1977) (Repl.Vol. W. Va.Code 11-3-1 I.R.B. 145. 2008), which has been defined as "its market 216 W.Va. 283 n. 607 S.E.2d n. Syl. pt. part, Logan County value.” Comm’n, Killen v. (2004) curiam). (per (1982). 295 S.E.2d 689 building complex comprised 5. The main Section III.C. for further discussion of infra 283,693 square feet. The Woodlands also has these authorities. homes, twenty-three single-structure additional 2,100 square each of which has feet. (c)(5) (2001) (Repl.Vol. 9. W. Va.Code 30-38-1 2002) exempts employees officers and "of the (1979) generally 6. See W. Va.Code 11-3-24 Virginia political state of West or a subdivision (Repl.Vol.2008). For further discussion of this III.A., statutory thereof” from the real estate language, licensure certi- see Section infra. requirements employee fication "when the or Mr. Withers is certified as a real estate performing officer is his or her official duties!-]” Ohio, appraiser Virginia, in the States of West Kentucky. clearly challenges findings of fact under a sessment For the Tax Year (1994). standard; of law are conclusions 446 S.E.2d 912 But erroneous see In re 4, Burgess Syl. pt. Against reviewed de novo.” Tax Assessment Am. Bituminous Partners, L.P., Porterfield, 196 Power W.Va. (“[Jjudicial Walker v. West Accord review Comm’n,

Virginia Ethics of a equalization decision of a board of (“In reviewing challenges S.E.2d 167 regarding review challenged tax-assess of the circuit findings to the and conclusions ment roughly valuation is limited to the same court, apply two-prong we deferential stan- scope permitted Virginia under the West Ad the final order dard of review. We review Act, ministrative Procedures W. Va.Code. ch. disposition and the ultimate under an abuse circumstances, 29A. In such a circuit court standard, of discretion and we review the primarily discharging appellate function underlying findings factual un- circuit court’s little different from that undertaken clearly Questions der a erroneous standard. Court; consequently, our review of a circuit review.”). subject law are to a de novo ruling court’s in proceedings under [W. Va. (footnote § 11-3-25 is de Code] novo.” questions respect to the of law With omitted)).11 citation concerning raised Foundation con statutes, stitutionality governing we standards, light of these proceed we employ a standard of “[in de novo review: parties’ arguments. consider the terpreting a statute or an administrative rule regulation presents purely legal question III. subject Syl. pt. Appa to de novo review.” Dep’t lachian Power Co. v. State Tax West DISCUSSION Virginia, 195 Court, appeal On to this the Foster Foun- (1995). Syl. pt. Chrystal Accord R.M. v. assigns dation three errors to the circuit A.L., Charlie 194 W.Va. 459 S.E.2d 415 (1) ruling: procedure court’s for chal- (1995) (“Where appeal the issue an on from lenging process tax assessments violates due clearly question the circuit court is of law Commission, County sitting because the as statute, involving interpretation an or we Review, Equalization the Board of and is not review.”).10 apply a de novo standard of (2) impartial; proof required the burden of Finally, plainly wrong we utilize a taxpayer challenging a tax assessment vio- assign to review the standard Foundation’s process; lates due and the Board and the challenging ment of error the assessed value spe- circuit court both failed to consider the property: of its 501(e)(3) § cial status of the as a Woodlands made a board “‘[a]n assessment corporation obtaining its assessed value. equalization approved by review and and alleged We will consider each of these errors the circuit court will not be reversed when in turn. supported by substantial evidence unless Impartiality County A. Commission plainly Syl. pt. wrong.’ West Penn Pow Sitting Equalization as Board of Equaliza er Co. v. Board and Review and Review tion, (1932).” 164 S.E. 862 Syl. pt. Properties, Western Pocahontas argues Foster Foundation first The County County, Ltd. v. Comm’n Wetzel sitting that the Cabell Commission as 431 S.E.2d 661 Equalization the Board of and Review is not tribunal, thus, Syl. pt. Maple impartial In re Petition an and the Founda Meadoio Mining Prop. process by having Co. Real As- tion was denied due to for Relief from review, 10. A more specific applicable specifically review 11. An standard standard of additional assessments, challenges regarding constitutionality regarding challenges to also statutory provisions governs applicable judice. also and the case That standard this case sub fully parties’ fully will be more with the will be more in connection with discussed discussed III.A., arguments regard. arguments parties' in this See Section on that issue Section III.C., infra. infra. by filing application for review real ment its ad valorem present appeal of its Commission, body. which Al thereof with the property tax assessment specifically challenges re- reviewing court did not though responsible the circuit rendering particular garding property issue the amount of tax assess- decide this order, because the Foun probably requires county most all Legislature final The ments. procedure assign error to this dation did not annually sit as a board of commissions to we nevertheless during proceedings,12 those purpose of equalization and review “for the appeal time on may it for the first consider reviewing equalizing and the assessment as it raises an issue this Court insofar by the 11—3— made assessor.” W. Va.Code disposi constitutionality central to our that is (1979) (Repl.Vol.2008). It this dual role case. See Louk tion of this in- County Commission in the of the Cabell Cormier, case, both the Commission stant (“A properly issue that was constitutional Review, Equalization and the Board of may, in the the trial court level preserved at objects upon which the Foundation Court, on be addressed discretion of process due claim. The bases its issue is the appeal when the constitutional establishing dual function of statute controlling issue the resolution describing county commissions and the com- ease.”). duties, 11-3-24, W. Va.Code missions’s aggrieved by Virginia, provides, pertinent part: In West to be an erroneous tax what believes county annually he/she The commission shall protest with the asses file purpose reviewing meet for the regarding the classifica sor “for information equalizing the assessment made assessor____At taxability property.” hisITher] tion and W. meeting, the first the as- (1961) (Repl.Vol.2008). Va.Code ll-3-24a submit the books for sessor shall ques Then assessor shall decide the “[t]he year, complete the current which shall be sustaining protest tion either every particular, except that the levies corrections, by stating, in making proper shall not be extended. The assessor writing requested, if the reasons for his re and render ev- his assistants shall attend judice, In the ease sub it is not fusal.” Id. ery possible in connection with assistance apparent applied Foundation that the Foster the value of assessed them. to the Assessor for relief from its assessment proceed commission shall to examine property, but the Assessor the Woodlands personal property and review the and the review, correct, and reduce its initial did description and value of real estate liable assessment. which was omitted the to assessment They Instead, pursued shall correct all errors Foster Foundation assessor. persons, description in the allegedly erroneous assess- the names of relief from required by appraiser Appeal” censed real estate as In its "Petition for filed the Circuit 23, 2007, law, County Virginia March West can assess the value of a Court of Cabell on Error,” "Assignments taxpayers’ property place two real and then Foundation lists challenges constitutionality taxpayer neither of which rebut the assessed burden on the sitting County hiring ap- of the Commission as the Board of duly value licensed real estate Equalization taxpayers’ Review to decide Virginia pre- praiser law. under West appeals of tax assessments: sumption validity given to an unlicensed appraiser’s assessed value breaches real estate assigns The Foster Foundation as error process safeguards due afforded the tax- County refusal to lower the as Commission’s Virginia payers and im- of the State of West to its fair mar sessed value of the Woodlands Virgi- properly purpose frustrates the of West $14,900,000 pursuant ket value to West Vir appraising 11-3-1, nia Code section 11-3-1 of real ginia requires Code section property that, at its fair market value. annually "All shall be assessed Thereafter, 9, 2007, Foundation, April on ... at true and actual value.” True and its (1923) value, compliance with W. Va.Code 58-3-3 actual means fair market which is value Exceptions” (Repl.Vol.2005), "Bill of filed a property would sell for if it were sold what the McCloud, assign- of Review’s decision. The the Board open market. See Kline v. on the error set forth therein are identical to ments of S.E.2d for assigns contained in the Foundation’s "Petition error that those The Foster Foundation quoted county, Appeal,” employee a li- above. an of the who is not they process by depriving al of due it property, and shall valuation of opportunity a fair hearing to receive before a whatever else cause to be done See, impartial body. e.g., neutral and Con comply make the valuation necessary to Prods, Pipe California, crete & Inc. v. chapter. But in provisions of this with Laborers Pension Construction Trust S. any question of classification no case shall for 602, 617, California, 508 U.S. 113 S.Ct. taxability or reviewed. If or be considered (1993) (“[D]ue process 124 L.Ed.2d 539 any determine [s] the commission requires judge a ‘neutral and detached in the is assessed at more or property or interest ” (quoting Village first Ward v. instance!.]’ value, it shall less than its true and actual Monroeville, 57, 61-62, 409 U.S. 93 S.Ct. true and actual value.... fix at the (1972))). sup 34 L.Ed.2d 267 In further county The clerk of the commission shall port argument, of its the Foundation refer time, place publish gener- notice of the duty county ences the commissions to purpose meeting al as a Class II “supervise general management publica- legal advertisement and the county.” fiscal affairs and of each business publication area for shall be the tion (Repl.Vol.2006). W. Va.Code 7-1-5 county involved.... Const, IX, § See also W. Va. art. any person apply If fails to for relief (“[C]ounty commissions ... shall ... have meeting, right he have waived his shall superintendence and administration of to ask for correction his assessment list counties!.]”). the ... fiscal affairs of their year-, and not thereaf- for the current shall that, argues The Foundation because the permitted question the correct- ter be unquestionably inter Commission finally of his list as fixed ness revenue, maximizing through ested in commission, county except appeal on to the otherwise, taxpayers assessments and chal circuit court.... lenging tax assessments will not have a hear scheme, ing by impartial an when tribunal respect statutory With Commission sits as the Board. See Rawl argues Foundation that the tribunal Foster Processing Sales & Co. v. Comm’n impartial hearing appeals is not Mingo County, 191 W.Va. appealing taxpayers consti and thus denies J., (Neely, dissenting) tutionally guaranteed process due of law. (“[T]he county expertise lacks XIV, (“[N]or commission § 1 See U.S. Const. amend. extraordinarily evaluation but life, deprive any person shall State knowledgeable government’s about the need liberty, property, process of or without due Const, money, ingrained particu bias (“No law[.]”); Ill, § art. Va. W. entities.”). larly non-voting harmful to life, deprived liberty, person shall be law, property, process without due and the responds appeals The Commission peers.”). Syl. judgment pt. of his See also procedure does not create a conflict of inter- Kelly, State ex rel. Ellis v. unconstitutionally deny ap- est does (1960) (“Due law, process S.E.2d 641 of with pealing taxpayers process of law. due With meaning in the the of State Federal ease, regard year to the tax in issue to provisions, constitutional extends actions 2007, that, in Cabell the Commission asserts tribunals, of administrative officers and 27,000 County, pieces over of had judicial govern of the values; well as to the branches those, only increased assessment ments.”). regard, In this the Foundation twenty-one property requested a owners suggests assessments, that because the Commis except all hearing on their sion, beneficiary county’s which is the of the had one of those owners either resolved, tax revenues and has a direct financial inter dispute appear for the their did cases, appeals in tax as the est also sits hearing, or received a lower assessment. Equalization Board of of Review to hear and The received a lower tax assess- Woodlands taxpayers’ appeals challenging decide the Although as ment. the Commission concedes in- property, might appear sessed value of their it is not an to be a conflict of there terest, impartial impartiali pecuniary of the hearing tribunal. Such interest Commis- Foundation, every ty, slight: in tax revenues is one claims the constituted a deni- sion 22 “ ‘[wjhen revenue, constitutionality stat tax in ad valorem

dollar every questioned ute is reasonable con sixteen cents while the receives Commission struction of the statute must be resorted receives County Board of Education Cabell Thus, by a court in order to sustain consti to argues the Com- cents. sixty-seven tutionality, any doubt must be re artificially mission, incentive to it has no real constitutionality of solved in favor of the The Commission inflate tax assessments. 3, Syl legislative enactment.’ Point Legislature has des- finally contends O’Brien, labus, 628[, v.Willis 151 W.Va. County Commission to sit as the ignated the Syllabus 178 Point ].” and Review to hear Equalization Board Auming State ex rel. Haden v. Calco practice to if this is determined appeals; Corp., & Window unconstitutional, 153 W.Va. suggests the Commission be (1969). Legislature until that chaos will result another, body. independent appoint can Co., Mining v. U.S. Steel LLC Syl. pt. Helton, (2005), S.E.2d 559 determine, then, whether W. Va. We must denied, cert. 547 U.S. S.Ct. as it § 11-3-24 is constitutional insofar Code (2006). L.Ed.2d 279 requires county commissions to sit as boards specific respect legislative With en purpose for the equalization and review taxation, pertaining actments we have held deciding appeals taxpayers’ hearing and “Lsjtatutes governing imposition prior Our deci- property tax assessments. generally against are construed taxes repeatedly counseled that statutes sions have government taxpayer. and in favor of the be constitutional. presumed are However, establishing statutes administra constitutionality considering the of a “In procedures tive collection and enactment, legislative courts must exercise taxes will be construed in favor of restraint, recognition princi of the due government.” Calhoun Syl. pt. ple separation powers govern Supply Corp., Assessor v. Consolidated Gas judicial, legislative among ment (empha Every reasonable executive branches. added). challenged sis Insofar as the statute must be resorted to construction procedure taxpayers establishes constitutionality, in order to sustain courts taxes, must follow to contest their assessed reasonable doubt must be resolved § 11-3-24 W. Va.Code must construed constitutionality legis in favor of the government, represented favor of the here question. enactment Courts are lative Nevertheless, by the Commission. questions relating with not concerned presumption overcome Foundation legislative policy. powers and establish W. Va.Code 11-3-24 is limits, legislature, within constitutional if it unconstitutional satisfies the considering plenary. are almost Syllabus point reiterated 1 of constitutionality legisla act of the Helton, Schmehl ture, negation legislative power (2008): appear beyond must reasonable doubt.” “ statute, taxing ‘To establish that a val- Appalachian rel. State ex Power Syl. pt. face, id on its is so unreasonable or arbi- Gainer, Company trary as to amount denial of due S.E.2d 351 process applied particular of law when in a Cormier, case, Louk v. prove by must Thus, cogent13 establishing 622 S.E.2d 788. evidence facts unrea- amendment); "Cogent” "[c]ompelling vincing” by statutory Baum v. Du is defined as or con bord, (8lh vincing.” Dictionary Black’s Law No. 1998 WL at *1 Thus, curiam) (ex ed.2004). 1998) cogent (Mich.Ct.App. Aug. (per "clear and evidence” “ cogent' proof plaining 'clear also be construed as "clear and that and is See, convincing' e.g., very evidence.” to the 'clear and stan McKesson Water Prods. Co. similar Taxation, Director, (citation omitted)); Dreyfus Corp. Louis v. Div. 23 N.J.Tax dard” Huddleston, (Tenn.Ct. (N.J.Super.Ct.App.Div.2007) (recognizing n. 3 933 S.W.2d 468 n. 5 (observing change cogent” App.1996) "[t]he of “clear and to "clear and con that clear and co- Point Foundation been successful before the or arbitrariness.’ sonableness Commission, Railway County County’s the tax base and Western Syllabus, Norfolk Field, 219[, by approximately have been reduced would Company v. (1957)].” $200,000 annually. every Point In val- Syllabus contested Awning[ Haden & uation there is inherent conflict be- ex rel. v. Calco State County tween the inconsis- Carp.], 153 Commission’s Window the county tent roles as overseer hearing finances and as the for tribunal added). (Footnote however, Here, the Fos- appeals. individual tax This conflict is argue that W. Va. Foundation does not ter controversy the magnified as amount in ap- § as 11-3-24 unconstitutional Code increases. rather, only argues the plied; Foundation unconstitutional, Appellant’s pp. making Br. at this statute is 9-10. In these assertions, constitutionality. though, the questions the statute’s facial Foundation does not present any specific suggest evidence to how regard, argues In this Foundation commissioners, themselves, county di- § be 11-3-24 is unconstitutional W. Va.Code rectly benefitted from or to indi- these funds Commission, sitting as the cause direct, pecuni- cate the commissioners had a Review, not an Equalization Board fact, ary interest in such revenue. appeals taxpayers’ tribunal to hear impartial statutory applicable law establishes entity the Commission re insofar as county commissioners’ salaries are set administering fiscal affairs sponsible for commissioners, by the Legislature, not them- County and tax revenue at of Cabell § (discussing selves. See W. Va.Code 7-1-5 provides funding fiscal for such issue commissioners); county compensation of W. Const, IX, § 11 affairs. See W. Va. art. (de- (Repl.Vol.2006) Va.Code 7-7-4 (establishing duty county commissions fining compensation county amount of affairs); county’s fiscal over W. Va.Code commissioners). (same). Although the Foundation 7-1-5 assertion, specific it offer pro- makes this does not Va.Code 11-3-24 forth the W. sets Commission’s, county the Commis cedure which a sits as commission sioners’, Rather, partiality. Foundation equalization and review to finalize board generally Com county contends rendered as- “[t]he the assessments sessor, impermissible of in has an conflict discusses how those assessments are mission reviewed, serving permits aggrieved as both a maker on tax- terest decision to be appeal apply Foster of an exces relief payers Foundation’s from such assess- beneficiary previously tax of an sive assessment Insofar as we have not ments. high resulting constitutionality increased revenue from of such a determined pro process, er assessed value Woodlands” without it is instructive to look to review support viding Appellant’s jurisdictions guidance. factual therefor. decisions of other Court, Founda p. Br. at 9. Before this with cases the im questioning When faced similarly avers that tion tribunal, hearing partiality of a the United interest [t]he Commission’s generally Supreme States Court has found maximizing grant- revenue is at odds with hearing partial tribunal when there in the values of reductions pecuniary exists a direct interest the out (regardless validity real Ohio, litigation. Tumey come of claims) directly in a because would result 437, 441, U.S. S.Ct. 71 L.Ed. of the tax reduction base. (1927) (finding mayor serving judge may- example, impartial be- decision where For Foster Foundation was not maker by ap- compensation lieves its assessment was excessive or received additional from $14,859,000. proximately against the Foster he levied violators of Had fees costs convincing” gent’ essentially than “clear and standard is similar to the 'clear as "clear and rather omitted)). (citation convincing’ standard” except cogent,” where the re- context otherwise Therefore, consistency throughout to maintain quires. proof opinion, we will refer to this “direct, laws, mayor’s per prohibition citing party acting made in an enforcement sonal, pecuniary gen in capacity” party substantial interest” losing and thereafter revenue). eration of such See also Con subsequent adjudicatory proceed- entitled to Ohio, S. Inc. Pine Creek arbitrator). cerned Citizens ing before Dist., 651, 652, Conservancy U.S. 828, 829, (per 51 L.Ed.2d 116 S.Ct. While the Foundation makes curiam) (remanding case for full consider pecuniary broad assertions of a conflict of issues, including plaintiffs’ that ation of claim judice, interest the case sub the Founda provide “hearing did conservancy court proved tion has not the Cabell Com judicial impartial before ... officer” where partiality missioners’ or that their dual role conservancy judges court decided whether Equalization as members of the Board of conservancy districts should be formed compromised by alleged Review was di special judges compensation received loyalty. vided There is no indication in the conjunction performed for work with such presently facts of the case before that us courts); conservancy Berryhill, Gibson v. of the Cabell Commissioners received 564, 579, 411 U.S. 93 S.Ct. compensation additional upholding for (1973) (reiterating L.Ed.2d 488 that “[i]t is Assessor’s tax assessments or that the Coun sufficiently from clear our cases that those Commission, itself, ty benefitted from this pecuniary legal with substantial interest Thus, having revenue. reviewed the statute proceedings adjudicate should not these dis parties’ at issue herein and arguments (citation omitted)); putes” Village Ward v. regarding constitutionality, we conclude Monroeville, 80, 82, 409 U.S. 93 S.Ct. that W. Va.Code 11-3-24 is valid on its (1972) (determining 34 L.Ed.2d 267 Accordingly, face. we hold that W. Va.Code mayor, judge sitting as over traffic offenses (Repl.Vol.2008), 11-3-24 which es therefor, imposing impar fines was not procedure by county tablishes which a mayor responsible tial where also was for equalization commission sits as a board of village accounting for revenues were taxpayers’ and review and challenges decides derived, “fines, large part, from forfei assessments, to their tax facially tures, imposed by costs and him in fees his Therefore, constitutional. because the Foun court”). mayor’s presented dation has not evidence to However, pecuniary when no such interest process it was denied due when the present, Supreme the United States Court Equalization Commission sat as the Board of typically satisfy has found the tribunal to and Review to hear and appeal decide its requirements process. Dugan due assessment, property’s the Woodlands Ohio, 277 U.S. S.Ct. the Foundation has not sustained its burden (1928) (ruling mayor L.Ed. 784 serving proving that W. Va.Code 11-3-24 is judge relationship as had too remote with unconstitutional. city finances to warrant presumption of bias prohibition presid law cases over which he imposed mayor ed fines where received B. Taxpayer’s Burden of Proof salary, fixed did not receive additional com pensation argues Foster Foundation next from fines imposed judge, he solely imposed upon the burden of responsible expendi was not the tax- revenue). payer challenging Pipe ture of town’s the correctness of an Concrete & as- Cf. Prods, California, sessment, i.e., by convincing proof, Inc. v. Construction California, taxpayers process Laborers Pension Trust S. denies due because no cor- 618-20, 2277-78, responding 508 U.S. at placed upon 113 S.Ct. at burden is the Asses- (declining Although L.Ed.2d 539 assigned find denial of due sor.14 the Foundation er- process where “initial proceedings [wa]s determination ror to this issue in the before contrary, Co., 14. To the "[i]t is rule that Pocahontas Land valuations for taxation fixed pre as Further discussion as to sessing presumed sumption officer are correclf.]” of correctness accorded to assessors' part, III.C., Against In re Tax Assessments assessments is set forth in Section infra. purposes by assessing taxation an court,15 specifi- fixed the court did circuit correct.”). constitutionality presumed of officer are Ac cally upon the rule convincing proof imposed of burden County clear and cord Bankers Pocahontas Coal Co. v. allegedly errone- taxpayers appealing upon 174, County, Court McDowell 135 W.Va. of Nevertheless, the cir- ous tax assessments. (“It 179, 801, gener 62 S.E.2d is a found this burden of implicitly cuit court purposes al rule that valuations for taxation ruling by that the proof to be constitutional by assessing presumed fixed officer are by prove clear and Foundation “failed correct.”), grounds by on be overruled other the Assessor erro- convincing evidence that In re the Assessment Shares Stock neously property.” valued its Bank, 346, Valley the Kanawha W.Va. governing (1959); the law much of While 109 S.E.2d 649 In re Tax Assess statutes, appeal grounded Co., Foundation’s Against ments Pocahontas Land appeal- proof imposed upon the the burden of 61, (same). 303 S.E.2d at 699 W.Va. by not been ing taxpayer has established presumption, To overcome this we re by been defined Legislature and thus has peatedly taxpayer have held further that a However, from cases cited this Court. challenging an assessor’s tax assessment be order, final it is by circuit court equalization fore a board of and review must authority a conflict of has been apparent that present convincing clear evidence to by prior inconsistent decisions: created our demonstrate that the assessment assessor’s aggrieved taxpay- have held both that the we erroneous. This standard has been reiter by claim for relief clear er must his/her by ated numerous times this Court: “Arbi convincing evidence and that the tax- trary unjust by fixing satisfy preponderance action an assessor in payer must proof.17 by These two bur- evidence burden the value of land must be shown clear and and, vastly, differ before we dens of cogent proof complaining in order that constitutionality of the bur- can consider the taxpayer may given allegedly relief from proof imposed upon taxpayers, and den of 2, Syl. pt. excessive valuation.” Bankers Po thereto, parties’ arguments regard with County cahontas Coal Co. v. Court McDo prior reconcile our decisions to we first must County, 135 well 62 S.E.2d 801 applicable proof. define the added). (emphasis Syl. pt. part, Accord Props., Western Pocahontas Ltd. v. consistently have held that an We County, Comm’n Wetzel 189 W.Va. purposes assessor’s valuation (“As rule, general 431 S.E.2d 661 there is a See, presumed taxation is to be correct. pur presumption that valuations for taxation e.g., Syl. pt. part, Western Pocahontas poses by fixed an assessor are correct.... Props., Ltd. v. Comm’n Wetzel challenging taxpayer is on the burden County, 431 S.E.2d by the assessment to demonstrate clear and (“As rule, general presumption there is a convincing evidence that the tax assessment purposes fixed that valuations for taxation added)); (emphasis Syl. pt. is erroneous.” correct.”); part, an assessor are Against In re Tax Assessments Pocahontas Against Pocahontas In re Tax Assessments (“It Co., 172 Land Co., 303 S.E.2d 691 Land (1983) (“It general is a rule that valuations for taxation general is a rule that valuations 17. See, Syl. Logan County e.g., pt. supra Killen 15. note 12. Comm'n, ("An objection be sustained See, e.g., Syl. pt. part, Western Pocahon only presentation competent upon evi Props., Coun tas Ltd. Comm'n Wetzel dence, equivalent testimony of such as that (1993) ("As ty, W.Va. qualified appraisers, has been rule, presumption there is a that valua by the tax commissioner under- or over-valued for taxation fixed an assessor tions wrongly The ob assessed the assessor. burden is on the are correct.... The taxpayer, jecting party, the tax whether it be the challenging to demonstrate the assessment party, another third must show commissioner or by preponderance evidence that the tax assess evidence that the assess added)). added)). (emphasis (emphasis ment is incorrect.” ment is erroneous.” 26 (“In

purposes by assessing fixed an officer are 147 order for the presumed correct. The burden of courts to reverse or to interfere with the is, showing an assessment to be erroneous of taxing power, exercise of the there must be a course, taxpayer, upon proof of such showing arbitrary clear of the abuse of that added)). (emphasis fact must be clear.” See added)). power____” (emphasis Against also In re Tax Assessment Am. Nevertheless, in the case of Killen v. Lo Partners, L.P., Bituminous Power 208 W.Va. Commission, gan County 170 W.Va. 295 (“A taxpayer’s at S.E.2d at 761 (1982), S.E.2d 689 this Court determined that allegedly initial avenue for relief from an taxpayer required satisfy only was to erroneous valuation lies with the preponderance of the evidence burden of commission, county sitting as a board of proof challenge in its of the assessor’s assess equalization upon and review. The burden held, regard, ment. In Syllabus this we taxpayer demonstrate error to with re- point spect heavy to the State’s valuation is objection any [a]n to assessment be adjudicative proceedings: gener- these It ais only upon sustained presentation of al rule that valuations for taxation evidence, competent such equiva- as that by assessing fixed presumed officer are testimony qualified lent to appraisers, of showing correct. The burden of an as- that the has been under- or over- is, course, upon sessment to be erroneous of by valued the tax commissioner and taxpayer, proof fact such must be wrongly by assessed the assessor. The added) (emphasis (quotations clear.” and cita- objecting party, whether it taxpay- be the omitted)); tions In re Nat’l Bank West er, commissioner or another third Virginia 673, 687, Wheeling, 137 W.Va. party, preponderance must show (“The burden of show- evidence the assessment is incor- ing is, an assessment to be erroneous rect. course, upon taxpayer, proof of such added). (Emphasis case, added) (cita- The Killen howev- (emphasis fact must be clear.” er, omitted)), appears to be an isolated grounds tions overruled on other instance18 of employing preponderance In re the Assessment Shares the evidence Stock Bank, Valley standard in tax Kanawha assessment cases and is an (1959); Ry. & aberration in W. Co. this Court’s line of cases on this Norfolk Works, v. Board subject.19 Pub. 124 W.Va. opin- discussion in the Killen Syllabus Subsequently, point 18. points this 8 from are Kil- announced and those will be articulat- Commission, Logan County len through syllabus points required by ed our (1982), quoted per constitution.”). 3, Walker, 295 S.E.2d 689 was in a Syl. pt. state See also opinion, quoted Syllabus ("Per curiam which also opinions precedential id. curiam have val- point Against 7 of In re Tax Assessments Poca- application principles ue as an of settled of law Co., hontas Land 303 S.E.2d 691 necessarily differing to facts from those at issue Thorn, Energy Corp. See Eastern Am. signed opinions. per The value of a curiam (1993) (per 428 S.E.2d 56 cu- opinion part guidance arises from the such riam). resolving the issue as to the correct provide regard- decisions can to the lower courts sustain, taxpayer required burden of however, proper application syllabus points opinion held the to a rath- upon of law relied cases."). to reach decisions in those confusing, hybrid er almost standard of "clear preponderating” evidence: "Because the Although ap no other cases from this Court record does not show that Eastern met its bur- pear adopted preponderance to have showing by the Killen preponderating den of clear and evi- incorrect, county proof, of tire evidence dence assessment United Appeals States Court of we find affirming for the Fourth circuit court Circuit [the] was correct in required taxpayers county also has plant.” their claim assessment for the Am., preponderance Eastern for relief 189 W.Va. at S.E.2d at 60 evidence. added). Therefore, (emphasis Transp., See CSX Inc. v. Board Eastern Ameri- Pub. Works (4th opinion, precedential Virginia, can which has limited State West 95 F.3d decision, Cir.1996) weight per (citing as a curiam did footnote 27 in not defini- Killen and con that, tively Killen, adopt cluding convincing either the clear and evi- "as the court noted West preponderance Virginia apply preponderance dence or the of the evidence bur- courts of evi Doe, proof. den of taxpayers' Walker v. dence standard ... initial chal (2001) ("This lenges (emphasis Court to their tax assessments” signed opinions will points use original)). when new of law not cite assessor are correct.... The burden adopting standard does is on ion authority departure from the Court’s taxpayer challenging the assessment expressly holdings, and does not previous evi- demonstrate prior opinions. modify overrule dence the tax erroneous.” added). (Emphasis very year, this returned to The next Court proof convincing of clear and burden the Therefore, apparent survey it is from this Against case of In re Tax Assessments the prior prevailing of our decisions the Co., 53, Pocahontas Land 303 proof by taxpayer burden of borne (1983), by again adopting 691 appealing tax is assessment the clear his/her general syllabus point: in a “It is a standard convincing proof. According and burden of that valuations for taxation rule ly, rectify by to the conflict order created assessing presumed by an officer are to fixed contrary opinions, a taxpay our we hold that showing an of as be correct. The burden an tax challenging er assessor’s assessment course, is, upon to be erroneous of sessment prove by convincing must clear and evidence proof of fact must be taxpayer, the and such that such tax assessment is erroneous. To added). 7, id. Syl. (emphasis clear.” pt. Killen v. prior extent our decisions convincing proof and burden of subse clear Commission, Logan County 602, 2 Syllabus point quently was reiterated of (1982), and Eastern Ameri 295 S.E.2d 689 Properties, Ltd. Western Pocahontas v. Thorn, Energy Corp. v. 75, can County County, Commission Wetzel 189 of (1993) curiam), 322, (1993): (per are 428 S.E.2d 56 incon “As they rule, holding, expressly sistent with this are presumption is a there by purposes fixed an overruled.20 valuations for taxation taxpayers jurisdictions impose overcoming majority also had the burden of

20. A of other convincing upon proof presumption convincing by and burden of tax clear evidence.” appealing property added) (citations omitted)); payers real assessments. (emphasis As In re County Property Bd. v. Kankakee Review 47, 58, Apartments, Bauer 170 Or. of sessment Ge of 1, 762, Bd., 22, Appeal Ill.2d N.E.2d Tax 771, 131 544 962, that, (1942) (observing 131 966 P.2d 76, ("The (1989) taxpayer 136 Ill.Dec. 85 brought by proceeding taxpayer challenge to as objects basis of lack who to an assessment on the property, taxpayer sessed of "assumed the value proving uniformity of of bears burden proving by convincing burden and evi clear by disparity clear of assessment valuations and property ... dence that the assessment of its added) (citation convincing (emphasis evidence.” of its true cash value or that assess excess omitted)); Nash Finch Co. Hall Bd. of proportionate reasonably ment was not to as Equalization, Neb. 217 N.W.2d 191 properties” (empha sessed valuations similar 170, (1974) ("In appeal county 173 to the added) (citations omitted)); sis Edmondson court, equalization or to and board the district Serv., Woods, Mgmt. Inc. v. 603 S.W.2d 717 court, the from the district court to this burden (Tenn.1980) (“The proof upon is burden complaining persuasion imposed on the tax taxpayer prove that assessment is made payer by showing is not met a mere difference of prove right recovery by incorrect and to opinion and unless it is established clear con (emphasis clear add evidence." vincing placed upon evidence that valuation ed)); King County, Inc. v. 89 Wash.2d Pier property compared his when with valuations (1977) ("The taxpayer P.2d 573 5 grossly placed on other similar is exces establishing by has the clear and con burden systematic and is the result of a exercise of sive vincing evidence the valuations assess duty, plain failure of intentional will or not added) (citation illegal.” (emphasis ments are added) (ci judgment.” (emphasis mere errors of omitted)). Appeals see Assessment But Board of omitted)); quotations tation and internal State of (Colo.2005) ("[A] Sampson, P.3d Bakst, Equalization v. Nevada ex rel. State Bd. of protesting taxpayer must that the asses 122 Nev. P.3d by preponderance is sor's valuation incorrect (en banc) (“The proof taxpay burden of is on the [Board in a de novo BAA Assess evidence satisfactory er 'to show clear and any evidencethat (BAAproceeding Appeals] proceeding.” ment Nevada valuation established Tax Virginia) akin to circuit court review in West county equalized Commission or the assessor or Stores, added)); (emphasis v. Wal-Mart Mazourek county equalization or the board State Inc., (Fla.2002) ("The property 831 So.2d inequita Equalization unjust Board of " correct, appraiser's presumed added) but assessment is (emphasis (citing ble.’ Nev.Rev.Stat. presumption 361.430) (footnote taxpayer where the omitted)); is lost McNally v. Tean by preponderance the evidence demonstrates Township, N.J. A.2d eck ("The appraiser [certifying failed to report 'has consid contents of the properly' presumptively [to factors arrive are correct and the er the section 193.011 assessments] Thus, Having proof determined burden the Foundation claims that it was re- applicable appeal to the Foundation’s quired employ a certified ap- real estate assessment, we return Woodlands’ tax now praiser report and to submit his formal regarding parties’ arguments the consti contrast, testimony. By the Assessor was tutionality The Foundation thereof. con required evidence, any specific to submit tends that the of a burden licensed,22 required is not and submit- challenging in a a tax case only testimony ted during oral the Board’s process violative of unconstitutional and due Furthermore, hearing. con- Foundation because neither the Assessor nor the that, during proceed- tends the circuit court correspondingly heavy Commission have a ings, provide Commission did not regard, proof. Founda support evidence to its assessment. This tion states that the Assessor’s initial assess disparity required in the evidence of each it presumed ment was correct and that party, Foundation, asserts the it of denied required that the was to Assessor’s process. due by initial was incorrect clear and assessment standard, To meet convincing evidence. this County The replies Commission that this County the notified the Commission Founda previously placed Court has on burden required, by tion as to the evidence letter complaining taxpayers to demonstrate that 2007, 24, January dated as follows: “Please their by are incorrect assessments necessary you be advised it will be to convincing Citing evidence. In Re: Tax As evidence’, present convincing ‘Clear and Against sessment Am. Bituminous Power by apprais which definition means ‘formal Partners, L.P., 250, 208 W.Va. 539 S.E.2d expert testimony by qualified als and/or people’, explains 757. The prove that the Commission that ad assessment is in it (Emphasis fact original). taxpayers types they erroneous.”21 vised of of evidence added) just property].” (emphasis at valuation of assessment forward comes with evi ‘substantial (1997))); (citing contrary, presumption disap Fla. Stat. 194.301 Frank v. dence’ to the (Me. pears .... Skowhegan, 329 Assessors A.2d 172 substantial evidence standard is a of 1974) ("Unless requires minimal It error of law standard. less than it was for the asses ‘clear convincing proof by appraisal evidence' and employ approach less than sors to evidence, preponderance used, overwhelming 'a they of taxpayer it was the burden of the beyond evidence or a evidence by reasonable doubt' preponder the Court below to establish a fair ” added) (citations omitted)). (emphasis .... evidence, (a) ance The conclusion as to of by the value reached the assessors was so unrea light sonable in the of circumstances that the requirement appraisal expert 21. The of an and/or property substantially injus was overvalued testimony govern is not contained the statute resulted, (b) tice taxpayers' appeals property or assessment was in assessments fraudulent, (em way illegal.” Syllabus some dishonest or point but is alluded to in 8 of Killen. added)); phasis P'ship Gogarty, See W. Westwood v. Va.Code 11-3-24. 103 See also ("There Comm’n, (Mo.Ct.App.2003) Logan S.W.3d 161 Killen v. no W.Va. ("An longer objection presumption regarding any 295 S.E.2d automatic only upon presentation correctness of sustained an assessor's valuation.... The evidence, competent taxpayer equivalent appeal in a tax such as that Commission still bears testimony qualified appraisers, proof by proper prepon burden of and must show a ty by has been under- or property derance over-valued the tax the evidence that wrongly commissioner improperly assessed (emphasis or the asses classified valued.” add ed) (citations party, omitted)); Bros., objecting sor. The whether it tax be the Shoosmith Inc. v. payer, the tax Chesterfield, commissioner another third 268 Va. party, preponderance (2004) ("We must show presume (em correct, evidence that the assessment is incorrect.” county's tax assessment is and the bur added)). phasis theAt conclusion of the Board’s den is presumption on the to rebut the hearing, several Commissioners conceded that by showing by preponderance a clear the evi wording of the Commission’s letter not did dence that its is assessed at more than comply governing statutory language with the added)). (emphasis fair market value.” In re Cf. remedy and indicated an intention to Unmack, this infir Corp. Div.) (Peroxygen FMC Chems. mity. 179, 187-88, 896-97, 92 N.Y.2d 699 N.E.2d (1998) ("Our analysis N.Y.S.2d 272-73 begins recognition Employees with the that a valu of an assessor's office are not re- presumptively quired ation the tax assessor valid to be licensed or certified in order to when, However, petitioner .... challenging appraisals. supra conduct real estate note 9. issue, prevent them required to submit to that burden does shift. The bur- would be complaining production merely requires that the tax assess den of simply party from present high proof. other some evidence to rebut ments were too without evidence proffered by argument party having The Commission concludes the burden persuasion. Court The term burden stating pro- that other decisions are duction is also used to refer to party have held that the Assessor’s valuations either presenting and will some on a presumed to be correct not be over evidence matter. Citing turned absent an abuse of discretion. Mayhew Mayhew, 497 n. Props., Western Pocahontas Ltd. v. (1999) (citations 519 S.E.2d 195 n. 15 County, Comm’n Wetzel omitted). id., n. Cf. 661; In Re: Tax Assessments (“As matter, S.E.2d at 196 n. 18 Co., 172 Against Pocahontas Land permitted our cases have per 691; Logan County Killen v. suasion to shift to the defendant when the Comm’n, 602, 295 S.E.2d 689. alleges defendant an affirmative defense.” (citations omitted)). point, complains the Foundation On the clear and burden Thus, party seeking as the relief from the required sustain is unconstitutional. allegedly assessment, erroneous However, argument the Foundation’s also Foundation bears the burden of proving its challenges corresponding per burden of Boury, entitlement to relief. See complains suasion insofar as it that neither 52, 190 S.E.2d at To sustain 18. the Assessor nor the Commission was re burden, present the Foundation must clear quired specific type present to evidence of a convincing per- evidence. The burden of prove to the correctness of their assess suasion rests with the prove Foundation to Requiring party bringing ments. a claim erroneous; its tax assessment was persuasion, for relief to bear the burden not lie with does the Assessor or the Com- however, jurispru is consistent with our Therefore, mission nor does it shift thereto. dence. “It is a well-established rule of law we must determine it is whether constitution- party seeking civil actions the relief require al aggrieved taxpayer prove an right Boury must thereto[.]” his claim for relief from an erroneous tax his/her 52, Hamm, 44, 13, 156 190 W.Va. 18 convincing clear evidence. (1972). Therefore, requested When to review constitutional plaintiff when a comes into court in a civil challenges proof applicable to the burden of must, justify action he a verdict in his case, given in a Supreme United States favor, .... establish his case The burden “[ijn parlies every Court has reminded proof, meaning duty to establish the probandi party case the onus lies on the who ..., upon truth of the claim him from rests support particular wishes to his case shift, beginning, and does not as does peculiarly fact which lies more within his duty presenting all the evidence knowledge, supposed or of which he is bearing prog- on the issue as the case 626, cognizant.” Pipe, Concrete 508 U.S. at resses. (internal 113 S.Ct. at 124 L.Ed.2d 539 Co., Huntington Burk v. Dev. & 133 Gas omitted). quotations and citations Conse (1950), 581 that, quently, the Court has admonished grounds, City on other Foster v. “[ojutside area, spe the criminal law where modified (1997). Keyser, 202 S.E.2d 165 attend, cial concerns the locus of the burden Moreover, persuasion normally not an issue of

[ajs matter, the burden of federal constitutional moment.” Lavine v. Milne, proof components: consists of two burden 424 U.S. 96 S.Ct. (1976) (footnote omitted). production persuasion. and burden of 47 L.Ed.2d 249 persuasion requires said, par-

The burden of That the constitutional issue before us ty upon placed, yet whom it is to convince the have Despite is one we decided. given trier of high fact on a issue. When a reluctance of the Court to decide such matters, party persuasion has the burden of will on we nevertheless consider the (1981). Mich.App. Like as N.W.2d arguments insofar parties’ merits of Pneumatic, Wilcox, which in “controlling in the Cleveland also issue question is taxpay levied on the part, volved an assessment case.” resolution identify Cormier, personal property, did not er’s Louk v. Rather, applicable proof. in clari prior precedent burden our own Absent issue, concerning fying we will a statute the allocation of of this guide determination our cases, proof appeals in tax jurisdictions. the burden of from other look to decisions legislative that recent amend court observed Michi Only jurisdictions Illinois, three — require appealing party, be it the ments Appeals Court of the United States gan, and authority, taxing to shoulder taxpayer or the Circuit-have addressed for the Ninth proof appeal. The the burden of on court taxpayer’s constitutionality burden ultimately shifting concluded that the burden cases. Of those proof in tax assessment appealing party proof to the is constitu decisions, only an assess one involves courts’ long party who bears the tional so as the property, such as those ment of taxes on real adequate proof has notice of such burden judice. in the are at issue case sub Id., Mich.App. at responsibility. Du LaGrange State Bank No. 1713 v. at 787. N.W.2d Review, Ill.App.3d County Bd. Page N.E.2d 35 Ill.Dec. authorities, apparent From these it is taxpayer required to sat LaGrange, the infirmity requir- there no constitutional proof in isfy convincing a clear to bear the burden of challenging its real tax assessment. challenging when a tax assessment. Howev- evidentiary numerous er The court reviewed er, having gleaned guidance little to the taxpayer, including the rors raised constitutionality of the clear and admission of inadmissible lower tribunal’s proof jurisdic- burden of from these other hearsay and the consideration of ex evidence tions, analogous we must look to decisions evidence, the tax parte and concluded that and bodies of law for further counsel. Id., payer process. not been denied due had jurisprudence, In this Court’s we have re 481-82, at Ill.App.3d at 398 N.E.2d 998- 79 upheld peatedly applied and the clear and 99, Although 35 Ill.Dec. at 48-49. the court variety convincing proof burden of in a specifically find the clear and convinc did not See, 7, e.g., Syl. pt. part, contexts. in In re constitutional, proof to be burden B., 466, 222 Abbigail Faye 665 S.E.2d W.Va. by many evidentiary errors raised (2008) (requiring, hearing petition 300 at on taxpayer by therein and decided the court guardianship upon allega for infant based by arguments mirror the voiced the Foster “allegations neglect, tions of child abuse and support position Foundation in of its proven by neglect of child abuse and must be convincing proof un clear and burden of convincing (emphasis clear and evidence’’ constitutional. added)); 3, Syl. pt. part, in Schmehl v. Hel terms, general In more two other courts (“The ton, 98, 222 W.Va. placing the burden of have concluded person seeking ... burden is on the to avoid proof taxpayer violative of on the is not [personal] liability unpaid [for and unremit protections. constitutional The case of Wil taxes] ted sales to show with clear and con Revenue, v. Internal cox Commissioner of evidence, vincing giving due deference to the (9th Cir.1988), 848 F.2d 1007 involved defi impo statute’s authorization for the ciency taxpayer’s in tax. federal income liability, it sition of such that would be funda Wilcox, court, specifying without arbitrary capri mentally unfair and an proof taxpayer required burden of to impose act cious or unreasonable to such satisfy, “placing stated burden added)); liability.” (emphasis Syl. pt. proof on the does not violate due Smith, v. 639 S.E.2d Smith (citation omitted). process.” Id. (2006) (“To justify the reformation of a mistake, involving unambiguous deed for other case constitutional clear and fact, law; ity City taxpayer’s proof of a burden of mistake must be one of not of Co., mutual and common to both Troy v. Cleveland Pneumatic Tool 109 mistake must be claiming right deed; party and must be estab unambiguous deed parties to the (em by convincing proof.” intention of lished express the obvious fail to must added)); Syl. phasis pt. part, must be State v. the mutual mistake parties; and (1932) Johnson, convincing evi strong, clear and 164 S.E. 31 proved by added)); (“The question juror McConaha to or not a (emphasis as whether dence.” Rust, subjected improper has been to influence challenge party seeking verdict, to (noting affecting primarily is a fact partition agreement reached by settlement judge determined the trial from the cir allege prove clear proceeding cumstances, “must which must be clear and con accident, convincing that an evidence vincing require (emphasis to a new trial[.]” added) (emphasis added)). fraud occurred” mistake or (citation omitted)); part, Syl. pt. State proper We also have determined that Gaughan, ex rel. Suriano place proof plaintiff the burden of on the to (1996) (“Plaintiffs who are S.E.2d 548 prove entitlement to relief. Per his/her prove public figures or must public officials haps analogous taxpayer’s bur most evi,dence convincing clear judice proof in the is the den ease sub defamatory their statement defendants made by plaintiff borne in a ease false or with knowledge that it was with brought Virginia pursuant the West Medi whether it was false or disregard of reckless (hereinafter Liability Act cal Professional added)); Syl. pt. part, (emphasis not.” 55-7B-1, MPLA”), seq. “the Va.Code et W. McGraw, Disciplinary Bd. v. Lawyer MPLA, may require Under the a court (“Rule 3.7 through expert plaintiff provide evidence Lawyer Disciplinary Proce Rules of testimony support claim for of his/her Disciplinary requires the Office of dure 55-7B-7(a) (2003) relief. See W. Va.Code allegations of the for- Counsel (“The applicable (Supp.2008) standard of care lawyer clear charge misconduct] mal [of and a failure to meet the stan defendant’s convincing (emphasis add evidence.” care, issue, dard of if at shall be established ed)); v. Nation part, Shamblin liability professional in medical cases Co., 183 W.Va. wide Mut. Ins. by testimony plaintiff of one more knowl (1990) (“It will be the insurer’s S.E.2d 766 edgeable, competent expert witnesses if re prove by clear and burden to court[.]”). 5, Syl. quired by pt. the See also good in faith to attempted that it evidence part, in Fout-Iser ex rel. Fout-Iser Estate of added)); (emphasis negotiate a settlement[.]” 673, Hahn, 649 S.E.2d 246 v. 220 W.Va. Brown, 3, 174 Syl. pt. part, in Everett v. (2007) (“When particular fail a defendant’s (1984) 35, (holding that S.E.2d 685 W.Va. 321 of care is at issue in ure to meet the standard promise, brought to enforce when suit cases, sufficiency malpractice medical the to which consider “the extent court should governed by proof required and nature corroborates evi the action or forbearance 55-7B-7(a) (2003)[.]”); Virginia West Code prom the making the and terms of dence of 8, Joseph’s v. Syl. pt. part, in St. McGraw ise, making are otherwise or the and terms (1997) 114, Hosp., 488 S.E.2d 389 200 W.Va. convincing by clear and evi established (“A under trial court is vested with discretion ” 1, added)); Syl. pt. part, in (emphasis dence (1986) require to ex Va.Code 55-7B-7 W. 366, S.C., 284 Interest 168 W.Va. In the testimony professional in medical liabili pert 49-6-2(c) (“W. (1981) Va.Cod.e, S.E.2d 867 cases[.]”). ty [1980], requires Department the State upheld this rather onerous This Court has Department the of Health [now Welfare Resources], malprac plaintiffs in medical in child abuse or ne burden because Human a proving their case, existing tice cases bear the burden of prove ‘conditions at the glect to 4, See, Hundley e.g., Syl. pt. v. Mar petition by claims. filing of the clear time of the (1967) tinez, 977, added)); 158 S.E.2d 159 (emphasis 151 W.Va. convincing proof.’” (“In Hutzler, damages against physi a 1, an for Berkeley Corp. 159 action Syl. pt. Dev. v. (“The (1976) in the 844, negligence or want of skill bur cian for 229 S.E.2d 732 W.Va. disease, injury the burden treatment of an or proving upon an rests the den of easement 32 negligence showing may prove jury to or consideration but such be plaintiff the such

is on injury to of skill and that it resulted direct evi by want made circumstantial as well as 1, v. Syl. pt. dence.”). Schroeder Ad- plaintiff.”); Syl. the pt. v. Wesco Cf Leftwich kins, 149 W.Va. 141 S.E.2d Corp., 146 W.Va. (“In chiropo- damages against an action for (“Contributory negligence on part dist, negligence for want of skill plaintiff is an affirmative There is a defense. disease, the injury of an or burden treatment presumption ordinary care in favor plaintiff negligence prove to such or is on plaintiff, upon and where the defendant relies injury to of skill and that it results want contributory negligence, proof burden Gale, v. plaintiff.”); Roberts negli upon rests the defendant to show such (1964) (“It 166, 139 149 W.Va. S.E.2d gence by plaintiffs unless is disclosed malpractice rule that in medical fairly or all of evidence inferred negligence professional or want of skill cases surrounding the evidence circumstances witnesses.”); proved only by expert can be case.”), grounds by overruled on other Moore, Syl. pt. White v. Co., Appalachian v. Bradley Power (1950) (“In damages for action (1979). physician, and want against negligence proof placement This the burden of also making professional skOl in the of an Supreme with is consistent the United States examination, injury or in the of an treatment recognition every case “[i]n Court’s disease, plaintiff or burden is on the to probandi party lies on the onus who wishes skill, negligence prove such or want of result- support particular to his case fact which injury Syl. plaintiff.”); pt. to the peculiarly knowledge, lies more within his or Corbin, 53 S.E. 147 Dye supposed cognizant.” of which he is (1906) (“In damages against an action for Pipe, 508 U.S. at S.Ct. at Concrete physician, negligence and want of skill in (internal quotations 124 L.Ed.2d 539 disease, injury treatment of an omitted). and citations plaintiff negli- is on the prove burden skill, gence resulting injury or want of Here, required the Commission plaintiff.”), grounds overruled on other “ present the Foundation to and con ‘[c]lear Corp., Pleasants Alliance evidence’, vincing definition means appraisals expert testimony by ‘formal and/or Requiring plaintiffs malpractice in medical people’, qualified prove the assess proof cases bear the burden of is derived (Emphasis ment is in fact erroneous.” omit general negligence jurispru from our more ted). Although provisions Va.Code of W. placing plain dence on specify precise type 11-3-24 do not See, negligence. tiffs their claims of present evidence must to meet its Talbott, Syl. e.g., pt. Keister v. Court, burden, clear (1990) (“Damages arising 391 S.E.2d 895 Killen, suggested type the of re evidence negligence attorney the from of an are not quired presumption rebut the the to of cor presumed, plaintiff malpractice and a a in of the rectness assessor’s assessment: proving has the both action burden of his loss objection to [a]n assessment be attorney’s and its causal connection to the only upon presentation sustained the of Syl. Given, negligence.”); pt. v. Walton evidence, competent equiva- such as that (1975) (“The testimony qualified appraisers, lent to of prove on plaintiff by burden is the a to property has been under- or over- preponderance of the that evidence the de by valued the tax and commissioner negligent negli fendant was and that such wrongly by assessed the assessor. gence proximate inju was the cause Syl. Syl. part, ry”); pt. pt. Logan Killen Smith v. Edward M. Rude (em Comm’n, Carp., 322, 151 Carrier 151 W.Va. S.E.2d (“The (1966) added). plaintiff phasis burden does not is on the to Foundation prima negligence a of it did not establish facie case claim that have notice of its burden against the proof specific type defendant in order to warrant or of the evidence burden; rather, satisfy the in the valuation of required property, to this its Woodlands thus, and, argues resulting and simply that the clear assessment was erro- Foundation disposing its proof is unfair. It is neous. order Founda- convincing burden unfair, however, appeal, acknowledged tion’s court re circuit not or to unreasonable 501(c)(3) status, § the Foundation’s but did to quire claiming superior have party specifically not it in refer to its to consideration knowledge property the value of its own case, ruling or simply decision evi presenting shoulder the prove [the “the Plaintiff to Foundation] failed decision See Concrete dence to the maker. by convincing and clear evidence that 2281, 124 Pipe, 113 S.Ct. at 508 U.S. erroneously valued property.” Assessor its L.Ed.2d Neither is it denial of due impose stringent process to more standards reaching parties’ Before the merits of the in an to upon complaining taxpayer attempt arguments, it is instructive to our decision of prevent challenges. tax assessment frivolous briefly by this to issue review the manner See, pt. e.g., Syl. part, Hinchman property pur which for assessed taxation (2005) Gillette, poses. Tax of property assessments are re (upholding requirements of MPLA pre-suit quired proportionate to property’s purpose recognition statutory “pre property, person “[A]ll value: both real and making filing venting the and of frivolous al, be in proportion shall taxed value to lawsuits”). malpractice medical claims by be ascertained as directed law.” W. Va. Const, requiring we Accordingly, taxpay X, hold that § art. 1. W. Va.Code 11-3-1 property challenging er tax assessment (Repl.Vol.2008) further instructs with accordance W. Va.Code 11-3-24 property annually “[a]ll shall be assessed by (Repl.Vol.2008) at its true actual value.” have inter We as convincing preted evidence that the assessor’s respect the term “value” with to tax “ meaning money’ sessment is erroneous does violate assessments ‘worth in process protections provid piece due of a constitutional market value.” —its by Syl. part, pt. Logan County ed one of the Fourteenth Kitten v. section Amend Comm’n, by ment to United Constitution 295 S.E.2d 689. States Furthermore, we held Virginia price section Article III the West have that “[t]he ten of paid property in holding length an arm’s transac Applying Constitution. to the conclusive, tion, while not is relevant evi judice, case court err sub circuit did not its true and dence of actual value.” prove by requiring Foundation McCloud, part, Kline v. convincing clear evidence the Asses prop sor’s tax assessment of the Woodlands erroneous, erty imposition and the Once an an assessor has made as deprive did not burden sessment, placed upon valuation process. due Foundation of great assessor accorded presumed deference correct. C. Tax Assessment in Woodlands’ rule, presumption “As a there is a 501(c)(3) Light Status valuations taxation fixed correct____The Having there are determined that no con- are is on assessor burden hearing stitutional infirmities with the tribu- taxpayer challenging pursue nal in must evi his/her demonstrate clear a challenge of tax assessment or dence that the tax assessment is erroneous.” proof by with the burden of which a Syl. part, pt. Western Pocahontas relief, must claim for we now Props., his/her Ltd. Comm’n Wetzel of assignment reach the Foundation’s final of County, 189 Ac S.E.2d 661. contesting pt. error the its Syl. assessed value of cord re Tax In Assessments Co., property. Specifically, Against ar- the Foundation Pocahontas Land 501(c)(3) (“It gues corpora- § that status as a that its is rule given tion was an not sufficient consideration valuations taxation fixed 23. See note supra. burden, Foundation contends correct. stantial the presumed are be

assessing officer much less showing an assessment that the Woodlands The burden course, is, taxpayer, if this upon the than it did not have obli- appealing erroneous clear.”). Thus, argues be proof of such fact must the gation. Foundation Cf. Against In re Tax Assessments the assessments of the Woodlands the various Co., 143 Land S. have accounted property26 properly not (“In involving the a case assessment of the Woodlands in the diminished value purposes, which does property for taxation The light of such restriction. Foundation govern the violation of statute not involve that, not-for-profit additionally argues aas or a violation property, the assessment of im- entity, the Woodlands has constructed in which a provision, constitutional of a facility regard to its without provements constitutionality statute question recoup the cost to whether could thereof involved, this Court will not set aside is not however, property; ar- upon the sale its made an asses or disturb assessment Foundation, this factor was gues the court, county acting as a board of or the sor the arriving considered at Woodlands’ as- review, equalization and where assess pres- Finally, during value. the oral sessed evidence.”), supported by ment is substantial case, suggest- this entation of the Foundation by In re grounds on other overruled that, additionally ed because Woodlands the Kana Shares Stock Assessment of provide care for obligated to lifetime its Bank, Valley wha ability pay, regardless of their residents essentially hold “life estates”27 the residents Court, Foster appeal to this Foun- On in their Woodlands residences. presumption to overcome this dation seeks disputes The Commission of the assessment its correctness that the status of the Foundation’s assertions proceed- property. During the Woodlands 501(c)(3) entity as a its Woodlands below, the first valued the ings Assessor provide lifelong its obligation to care for resi- $38,137,300.00. property at The Woodlands negatively property’s mar- dents affect then that valuation and Assessor corrected Rather, suggests ketability. the Commission valuing the a new Wood- issued only in the one resident Woodlands’ $31,190,000.00. Following proceed- lands at history pay, unable to has become Board, ings the assessment was before waiting approximately there exists list $29,759,000.00. again to Neverthe- reduced living are at people who interested less, proper- the Foundation claims Woodlands. $14,900,000.00. only ty’s value is actual figure, support of this the Foster Foundation Although the Assessor’s assessment nor the

argues that neither the Board circuit presumed property is of the Woodlands’ properly court considered Woodlands’ correct, it twice been corrected has 501(c)(3) nonprofit corporation, status as a Assessor, himself, result, ease—once and, value was as a the assessed hearing that, following the Board its on explains once incorrect.24 Foundation Here, challenge. the Foun the Foundation’s provides lifetime care because Woodlands ability the assessment asks we reduce l'egardless for its residents of their dation status, 501(c)(3) but, light any potential further pay,25 purchaser Wood- prevail, provide the Foundation must obligated to in order lands would likewise be evidence that present care current such lifetime for the Woodlands’ Upon a review erroneous. potentially sub- the assessment 300 residents. Given assign- Although Foundation various commen- phrases this 26. The references the Foundation hearing tary February Board from the process, error in a denial of due ment of terms of considered Woodlands' construction regarding actually simple challenge it is replacement value fire in- and amount costs property. value of assessed arriving value for an assessed surance property. supra note 4. 25. See note 27. See infra. income, case, The any, property we conclude that if which the record actually produces produced has has not its burden and within the Foundation sustained (3) years; the next preceding three proof. and Any commonly accepted method of as- that, previously all “[i]n have counseled We certaining the market value of such cases, court, upon it is incumbent circuit property, including techniques and method upon county and the commission as it peculiar any particular species prop- assessor, value of all to set the assessed erty technique if such or method is used parcels of land at the amount established uniformly to all applied property Tax Commissioner. W. Va.Code the State species. like 5, Tug Syl. pt. Valley Recov § 18-9A-11.” Comm’n, Mingo County ery Ctr. §§ Va.C.S.R. 110-1P-2.1.1.1 —110-1P- W. (1979). turn, Improvements 2.1.1.10. to and on the land Virginia considered, Title Series IP of West also are to be W. Va.C.S.R. upon 110-1P-2.1.2,28 the State § Code State Rules confers as well additional fac choosing Tax Commissioner discretion tors. applying the method of most accurate In addition improvements, other im- prop- appraising commercial and industrial portant affecting considerations the value discretion will erties. The exercise of such land are: upon judicial be disturbed review ab- Location, showing of discretion. sent abuse Size, Against In re Tax Assessment Shape, Partners, L.P.,

Am. Bituminous Power Topography, 250, 539 S.E.2d 757 Pursuant (1991), Va.C.S.R. 110-1P-2 factors W. Accessibility, appraisal that shall be considered in the use, Present property property valorem commercial for ad use, Highest and best include: Easements, property; The location of such Zoning, characteristics; Its site Availability utility, thereof, The ease of alienation consider- imputed Income to land and title, state number of thereof, owners and the extent to which Supply partic- and demand for land of a may subject same be the of either type. ular easements; dominant or servient §§ W. Va.C.S.R. 110-1P-2.1.3 —110-1P- quantity of size of “[ejach Finally, 2.1.3.12. these factors impact may upon have its sale appraisal be in the should considered of a surrounding properties; however, Some, specific parcel. giv- purchased previous eight If within the weight more en than others.” W. Va.C.S.R. years, purchase price thereof and the § 110-1P-2.1.4. purchase; date of each such specifi do not While these criteria of, Recent sale or other transactions in- cally taxpayer’s reference a status as a

volving, comparable property; 501(c)(3) as a factor corporation to consid owner; The value of to its such appraising property, iner commercial these property; many The condition of do contain that would take lists factors provements privately drainage W. Va.C.S.R. 110-1P-2.1.2 directs include owned walks, systems, improvements driveways, types There are two etc. appraisal process; which are considered in the Improvements buildings land are on the improvements these are the land and im- They separate valued structures. are provements on the land. apart from the land. Improvements improve- to the land are land P-2.1.2, 110-1P-2.1.2.1, §§ Id. at 110-1 110-1P- ments, are the value of which included in the 2.1.2.2. examples value of land. of these im- Some land to an estimated depreciation and added unique status of the Wood- this into account applying approach, example, For the Founda- value. cost property. lands in particular manner three Commissioner will consider tion contends Tax deterioration, care as a lifetime property physical types depreciation: which it uses its facility adequately obsolescence, has not been retirement obso- and economic functional considered; according to Va.C.S.R. lescence.”). factors, too, W. Thus, were all these 110-1P-2.1.3.6, prop- though, a commercial § required criteria to be within the ambit of to consider use” is a factor erty’s “[p]resent proper- appraising commercial considered taxation. purposes for appraisal in its ty purpose for the of taxation. additionally argues that The Foundation arguments of the Having considered each that, given to the fact consideration was no Foundation, con- by the we advanced Foster resi- provides lifetime care for its it because not sustained that the Foundation has clude dents, by encumbered these property proving by clear its purchaser such that a future “life estates”29 501(c)(3) § that its status as a cor- evidence provide life- required to likewise would be adequately considered in poration was not residents. care the Woodlands’ time for property. assessing taxes on its Woodlands however, a consideration is one Again, such unique characteristics of the Each of to consider in ren- enumerated factors of the among factors was the numerous Woodlands proper- appraisal of commercial dering a tax rendering required to be considered tax thereof, ty: alienation consid- ease of “[t]he appraisal property. of commercial There- its title the number of ering [and] the state of fore, ruling up- we affirm the circuit court’s § 110-1P- owners thereof.” W. Va.C.S.R. of the holding the Board’s assessment Wood- 2.1.1.3. property amount lands Lastly, that be- the Foundation contends $29,759,000.00 year. for the 2007 may not-for-profit corporation, it cause it is a that cannot have incurred construction costs IV. recouped property if the sold because be allegedly improvements the cost of such CONCLUSION greater market value and that this than their reasons, foregoing September For the in reach- factor have been considered should 6, 2007, order of the Circuit Court of Cabell appraisal criteria its assessed value. hereby affirmed. account, however, take into value “[t]he owner,” property to its W. Va.C.S.R. Affirmed. 110-1P-2.1.1.7, particu- suggesting that a parcel property may be valued at one lar participating. Justice ALBRIGHT not be valued amount its owner while McHUGH, sitting by Senior Status Justice differently by persons other than its owner. assignment. temporary Moreover, to the extent that the value of the improvements to the Wood- Foundation’s Justice Senior Status McHUGH lands have been diminished de- disqualified. preciation, required factor also is proper- appraising commercial considered BEANE, Judge sitting by temporary (“To ty. 110-1P-2.2.1.1 W. Va.C.S.R. assignment. cost] market value under th[e determine fair BENJAMIN dissents and reserves improve- Justice approach, replacement cost of the right dissenting opinion. file a of accrued ments is reduced the amount "owner,” 2008) (defining of assess- 29. We "life here because use the word estate” person property, terminology ment of real as "the who is the Foundation in that is the used freehold, However, possessed argument whether in fee or for we before this CourL. life"). Thus, if the residents Woodlands believe because, term to be a misnomer this case actually held life estates in their Woodlands resi- typically, possession, life tenant Foundation, dences, remainderman, they, pays and not the Foster taxes due responsible paying owing property. the taxes at issue interest in the would on his/her ll-4-3(a)(l) (2007) (Repl.Vol. herein. See W. Va.Code

37 J., BENJAMIN, dissenting. present jurisprudence tofore pres our among Nevertheless, ent 9, other states. (Filed 2009) Jan. pattern emerges legislatures that state are issues, presents, among other This case likely more than preponder combs to use the proper proof what the burden of should be ancy burden. See Arizona Rev. Stat. Ann. taxpayer challenges who an assessor’s (2004); § 42-1255 Aileen H. Char Inter Life specifically, tax assessment. More we have 286, Maricopa est v. County, 208 Ariz. 93 prior of Court which are decisions this incon- 486, (2004); P.3d 491 Cal. Rev. & Tax.Code conflicting respect sistent and with to wheth- 51.5(e), 110(b), 5170; §§ Paine v. State taxpayer “preponderancy er the must meet a Equalization, 438, Board Cal.App.3d 137 burden, of the evidence” or whether the tax- of 442, 47, (1982); Cal.Rptr. 187 49 Florida payer must meet the more “clear difficult Statutes, 194.301; § Sons, Royal Smith v. & convincing” proof in burden of order to Ltd., 255, 801 So.2d 257-8 applaud my (Fla.Ct.App.2001) I prevail. colleagues for resolv- curiam); conflict, (per respectfully but Idaho Session Law dissent to 63-511 (1985); Syllabus majority (2006); opin- § Points 5 6 of the Iowa Code 429.2 Post- Cable, taxpayer ion to the extent re- Newsweek Inc. v. Board Review of of quired convincing” to meet a “clear and bur- Woodbury 810, County, 497 N.W.2d 813 proof challenging den of when (Iowa assessments. 1993); Kansas S.A.2003 Supp 79- I proper proof believe the should 2005(1); County Saline Board Commis of “preponderancy be a of evidence” as it is Jensen, 730, Kan.App.2d sioners v. 32 88 valuation-type disputes judi- other within our 242, (2004); P.3d 244-45 In re Colorado In system. cial Co., 672, terstate Gas 276 Kan. 79 P.3d 770 (2003); correctly Ky.Rev.Stat. (1996); § majority opinion,

As noted Ann. 13B.090 Virginia Legislature Dakota, the West has not Haul Real County estab- U Estate Co. v. of (Minn.Tax.Ct. proper lished what should be the of 7, burden 2008 650290 WL March proof for a involving case such as this a 2008); Southern Sugar Coop Minnesota Beet taxpayer’s challenge to a tax assessment. Renville, (Minn. v. County 737 N.W.2d 545 of requires That is unfortunate because (New 2007); Hampshire In re Walsh Board Court to do so. N.H.347, Appeals), Tax and Land 156 934 528, (2007); A2d 532 Porter v. Town majority opinion prior lists our cases Sanbornton, 150 N.H. 840 A.2d 783 which have touched on proof the burden of (2003); (2002); § Okla. Stat. tit. 68 221 appreciate issue. While I that a Es decision in Comm’n, tate v. favor of one standard or the Sieber Oklahoma Tax 41 other is needed inconsistency (Okla.Civ.App.2001); to resolve the P.3d 1041-42 issue in our decisions, prior 2005); unpersuaded by (Oregon § I am the O.R.S. 305.427 R.I. Gen. majority’s adoption (1984); rationale for its § of the Laws 8-8-28 Tex. Code Ann. [Tax] essence, convincing” (2007); “clear and standard. In §§ 41.43 and 42.43 Mills v. Board of only majority opinion rationale Burleigh County, Commissioners of appears charge (N.D. be advanced to 1981); 305 N.W.2d 833-34 Board taxpayer citizen higher with a burden Sampson, Appeals Assessment v. 105 P.3d presumption there is a that valuations of 198, (Colo.2005); 48-5-41(Ga.); OCGA pre of taxation are Ministries, Dougherty Lamad Inc. v. Op., sumed to be correct. at Assessors, Ga.App. Bd. Tax Props, 161. See Western Pocahontas (2004); S.E.2d Miss.Code 27-77- Co., County Comm’n Wetzel 189 W.Va. 7(4) (2006); Utah Ann. Code 59-1-604 (1993). why I fail to see (1992); Associates, and West Creek LLC v. presumption compels burden Goochland, 276 Va. on a which is onerous and 842-43 States which use which is much more difficult to than meet convincing” stringent a “clear and or more applies that which to the State. generally do standard seem so court reviewing jurisdictions, City other I observe decision. Pinson Utilities (Ala. Oneonta, inconsistency that the same which was here- Board 986 So.2d Heath, 2007); Beverage Co. v. Arkansas (1975); 836-37 Ark. 521 S.W.2d MATERIALSCIENCE, LLC, BAYER Services, 264 Revenue v. Comm’r Leonard USA, LP, Bayer Cropscience, (2003); 286, Leader- A.2d 1184 823 Conn. Below, Appellants, Petitioners Revenue, Treks, Ill. Dept. 385 Inc. v. 188, N.E.2d 683 Ill.Dec. 895 App.3d 324 (2008); Company, Inc. v. Tax State Gannet and the TAX COMMISSIONER STATE (Maine 2008);

Assessor, 741 Bren 959 A.2d Gatson, Phyllis Honorable Assessor Equaliza Board v. Banner ner County, and the Com- Kanawha tion, Neb. 753 N.W.2d County, Kanawha and the mission of Barta, (2008); Equalization v. SER Board of Attorney Prosecuting of Kanawha Coun- (2008); 188 P.3d 1097-98 124 Nev. Below, ty, Respondents Appellees. Woods, Mgmt. Serv. Inc. v. Edmondson (Tenn.1980); Washing S.W.2d No. 33881. Yakima, Beef, Inc. v. ton Supreme Appeals Court Wash.App. 177 P.3d Virginia. West may be observed that burdens of It general uniformity, even within states. lack Sept. Submitted 2008. Indeed, given it is not unusual for a state to 19, 2008. Decided Nov. issue, as have a lesser burden for one such Dissenting Opinion of Justice assessments, stringent and a more burden Benjamin Jan. issue, exemptions. for another such as Douglas Corp. v. Fran generally McDonnell Board, 506, Cal.Rptr.

chise Tax 69 Cal.2d (1968); 446 P.2d Lamad Minis

tries, 849; Supply Water North Alamo District, County Appraisal

Corp. Willacy (Tex.1991). Here, we

804 S.W.2d taxpayer simply challenging an as

have a governed challenge Such a

sessment.

mainly by opinions. compel expert Absent taxpayer to a

ling reason to hold the citizen State, than the I believe that

stiffer burden burden, expert proper consistent with cases,

disputes civil by “preponder her case

must his or

ancy of the evidence.” To the extent that

policy more strin considerations dictate matters,

gent in tax I believe that is burdens Legisla

a matter which should be left to the action, legislative there

ture. Absent such disparity in

should be no burdens between in matters State and its citizens

this.

Accordingly, respectfully I dissent.

Case Details

Case Name: In Re Tax Assessment of Foster Foundation's Woodlands Retirement Community

Court Name: West Virginia Supreme Court

Date Published: Jan 9, 2009

Citation: 672 S.E.2d 150

Docket Number: 33891

Court Abbreviation: W. Va.