*1 Arcomano, general follow-up caused surgeon proximately a who for care Dr. Therefore, right Anderson: leg. treated Mr. loss of his trial correctly judge eliminated the issue And Q: [by attorney]: Mr. Anderson’s right leg from loss of Mr. Anderson’s patient] if not informed [of [a follow-up consequent- jury’s consideration. need care] up, you ly not follow would did what Accordingly, judgment reversed peripheral expect of the vascular dis- case is for a new trial on and the remanded ease? damages. [by Dr. It should A: Arcomano]: progress.
Q: progress point Would it to the right leg? lose his
he would
A: Correct.
Q: probabili- medical Within reasonable
ties, you expect would that he would lose right leg?
his al., WOLF, Sr., Appellants, B. et William A: I couldn’t answer that. Q: possibility But there is a that he v. could? COLUMBIA, Appellee. DISTRICT OF possibility A: A he could. No. 89-1091. assertion, Contrary to Mr. Anderson’s whole, a testimony, taken as is insufficient Appeals. Columbia Court to demonstrate that the District’s failure to 26, Argued June inform Mr. Anderson of need to moni- Decided Oct. right tor caused his his condition the loss of leg. Although the seemed to indi- doctor progress,
cate that the disease even should losing point leg, asked when opinion
to state an reasonable “[w]ithin probabilities,” expert
medical could not
answer, but rather indicated that there was “possibility” leg
a would be lost. proxi-
A does possibility mere not establish
mate cause. See v. B.F. Good- Baltimore Co., (D.C.1988). 545 A.2d
rich jury could
Nor is this case proximate
find cause the aid of without
expert testimony. Mr. first ex- Anderson
perienced symptoms months after several facility.
his release from correctional private physician,
He referred saw who delayed specialist.
him to a Mr. Anderson months, however, making
for two before see appointment specialist.
an Even hospital go should
when told losing leg, Mr.
immediately or risk his waited another two months. Un-
Anderson circumstances, “rely- layperson,
der these experi-
ing knowledge and on common
ence,” Shepard, 484 A.2d Meek
(D.C.1984), the District’s could find that the need inform Mr. Anderson of
failure to *2 D.C., Zimmerman, Washington,
M. Paul appellants. White, Counsel, Corp. Martin B. Asst. Reid, Sr., Corp. with whom Herbert O. filed, Counsel at the time the brief was Reischel, Counsel, Deputy Corp. Charles L. Prager, Deputy Lutz Asst. Alexander D.C., Counsel, Corp. Washington, were on brief, appellee. FERREN, TERRY, Before SCHWELB, Judges. Associate FERREN, Judge: Associate Appellant general part- Wolf and other MidCity Company ap- ners of Investment peal from a decision of the Tax Division of petition Superior denying their Court taxes partial for a refund of real Appellants own the for tax building office located at 1001 Connecticut Northwest, Avenue, corner of K (above Farragut North Metro Street station). maintain that the trial court They (1) concluding erred in independent conducted an it, when, appellants see tax proposed simply the District reiterated its assessment; (2) upholding erred comparable and income val- District’s sales methods, uation since the District’s calcula- leasing the actual tions failed to consider encumbering financing arrangements comparable properties; and this and other Avenue, see (3) initial to 1001 Connecticut approving erred the District’s similar ap- District, (1986), the “income after DCMR 307.3 1986 tax assessment i.e., using statutory guidelines trial, proach,” “abandoned” that initial *3 building was an investor would attempt prove to amount in an determine errors, income Finding willing pay no we affirm. to receive future worth more. to to expected stream I. calculating the After yield, see id. 307.5. § property, the assessors value of the total building at 1001 Connecticut office value of the build- the estimated obtained Avenue, N.W., in the and never built 1950s “building residu- using ing by the standard renovated, at the best located one of they which subtracted al” method under year city. in the In tax commercial sites value, $9,149,400, total from the the land 1985, proposed the District’s assessment figure of value, $14,620,500, arrive at a to $9,149,400 $14,620,500, was was of which $5,671,100 improvements. for $5,471,100 allo- was allocated to land and building improve- and cated to the other year Klugel also that for tax testified Upon appeal ments. to the Board give to all line assessors directed Board), (the Equalization Review and weight to the 1985 assess- considerable reduced proposed 1985 assessment was them arrived for 1985but to alter ments $13,539,022. if market data and other considerations as year parcel For tax 1986, change. explained He warranted sessed at the value as it was for same 1980s, 1985: early in the conditions economic allocated with $9,149,400 $14,620,500, inter- overbuilding high included building land and allocated rates, oversupply in an had resulted est previ and other improvements. Unlike space, making unlikely it that build- office year, proposed ous the Board affirmed the January ing increase between values would tax Appellants paid 1986 assessment. (the year date tax valuation 1. 1985) timely petition and filed a for refund (the January valuation Court, proper Superior alleging that 1986). year For the date tax assessment should be $10,356,360, reduced, Klugel the Board assessments building’s year 1984. assessed value in tax validity determine the directed assessors to trial, its an Before the District amended light avail- valuations Board’s proper say swer to that the valuation the 1985 Board valua- able data. Where property, including building and other to be appeared justified, these were tions improvements, was $17,830,000.1 assessments, figures as base used figures unjustified, were
During day trial, L. but where Board the two Robert both Department’s Tax were to use the Klugel, Property Chief of the assessors Real figures. In all Depart- originally proposed 1985 Section of the District of Columbia cases, Revenue, Troy were be modified ment of 1985 valuations Finance Davis, assessor, demonstrated line testified if available information District’s for 1986. regarding change deter- the valuation they the methods used to reason each Klugel to his assessors that mine the value of stressed total 1001 Connecticut year tax fresh.” As- off a Avenue.2 Both witnesses considered two “starts therefore, sessors, not to see them- procedures for valua- accepted of the three year tion;3 the Board’s “comparable approach,” selves bound sales i.e., comparing properties recent valuations. sales District; appellants for the its testified 1.The District based increased Davis their own witness. called by appellants made new information available with this lawsuit. This informa- in connection generally accepted approach to val- 3. The third tion was addition to the new information ue, approach," "replacement see 9 cost available to them when conduct- assessors had 307.4, asses- used because the DCMR was not ing independent for tax their inappropriate build- for older sors considered ings. Wolf, (citation firm in Appellant whose law the Review should be affirmed” omit- ted). building had received a below-market rent- rate, proper testified that the 1986 as- al appellants’ pro- The trial court also found building prop- for the sessed value posed factually valuation “flawed and le- erty’s argued tax 1984 valuation. He gally” primarily ap- because their income building in- that the value of the had not proach snapshot to value was based on “a January creased between 1983 and Janu- single year’s expenses” of a income and ary 1985 because the actual net income they and because had made no effort to building during from the had not increased longer po- take into account term income period. explained building He *4 comparable tential or sales. warp” in a of “the “time because structure, amenities, age, its its its lack of II. amenities, foremost, and first and its [be- Appellants argue the trial court addition, low market leases.” rate] concluding erred in that the District con- operating concluded that the net income genuine reappraisal prop- ducted a of their $1,136,440 from the went from because, erty year they for tax 1986 main- $1,218,512 1982 to in 1983 and back down tain, simply its the District reiterated own not, however, to in 1984. He did year despite the tax 1985 assessment earning potential,” estimate future “income assessment. Board’s reduction of that 1985 comparable nor did he use the sales method They rely on v. Columbia Bur- of of valuation. Co., lington Apartment House 375 A.2d Depart- The trial court sustained the (D.C.1977)(en banc), in which we held 1986, year ment’s assessment for tax con- equalized that “an assessment from the cluding figure repre- that the assessment Board ... becomes the basis for taxation sented “a reasonable and conservative esti- subsequent a has until reassessment been mate of value in view of other sales and according made law.” Id. at 1056. In to upon review of the indicated value obtained House, Burlington Apartment we refused capitalization approach.” income to validate an assessment that “was exact- The court Depart- was satisfied that the ly the same as that which had been set for ment had conducted a new assessment for Board,” previous year by fiscal 1986 because the had made assessor an figure because “it is clear that the [new] independent analysis that took into consid- upon was not a reassessment utiliz- based eration new information not available in information, ing updated sources of but that, prior year. The court concluded simply repetition rather was routine a applied overall “the generally assessors [previous year’s] assessment.” Id. at recognized approaches making to value in 1056 n. 8. year assessment for tax 1986. The
resulting appears justi- to necessarily be are not in Assessments Therefore, fied from the evidence. they the de- valid are the same as because Equalization previous cision of the Board of year.4 and Brisker v. District See them, may organize perform preliminary 4. Assessments be the same from one part recognize analysis any to the next in applying because we of them before process complex approximation, approaches.... process is a three [valuation] science, requiring extracting array far from an exact apply assessors to relevant data from the vast judgment helps appraiser their best to a number of inde- of available market an data single develop perception terminate factors to calculate a per- market of the market. The figure. ception applying judg- value As the American appraisal Institute of Real is essential in Appraisers throughout Estate has noted: process ment the valuation and in value, the final reconciliation of value indications. purpose When the is to estimate market ****** appraiser perceptions, researches market attitudes, opinions, particularly they step as Reconciliation is the in the valuation sales, leases, are process appraiser revealed in recent analyzes other in which an alter- types ap- of direct market transactions. An native conclusions and selects a final value praiser attempts gather among all available data estimate from two or more indications may pertinent assignment, of value.... Columbia, (D.C.1986). J., Fact, 1037, Findings of Conclusions Wagner, 510 A.2d Affirming Assessment Law Order because, they invalid the course Nor are 18, (Order). 1989) (Aug. reassessing, looked at the assessor is case, appeals See id. Tax Our review of Division In this assessment. civil cases tried same it other specifically court found as matter trial 47-3304(a) See jury. D.C.Code without a updat- relied fact that reassessment findings “The trial court’s factual ed sources of information: they court ‘unless are binding are attempted that no taxpayer to show erroneous; findings are ac- clearly if the assessment was made for court’s will disturb the ceptable, we as- for tax 1986 because same plainly wrong or with- judgment unless ” re- which had been sessment George support evidence it.’ out Equalization Board jected Colum- Washington Univ. v. District of Review, as- repeated. Although bia, (D.C.1989) (quoting 563 A.2d same, years both was the sessment Partner- Rock Ltd. Creek Plaza-Woodner Columbia, property was the evidence shows that the ship District of A.2d *5 see D.C.Code § The again year (D.C.1983)); 17-305(a) in assessed tax 1986. 859 part in fact that the new assessor relied by prior
upon developed information the testimony that Appellants argue the the validity assessor does not alter the of clearly 1986 at trial shows that the assess independent assessment. He made an merely of ment was a routine reiteration superior, analysis, with his and conferred original that as the 1985 assessment and Further, in addi- concurred the results. compelled merely to re Davis felt sessor tional information was taken into consid- by Klugel, the made peat 1985 assessment court, however, the made eration when assessment was superior.5 The trial his year tax found otherwise: for previ- part the is the of the valuation made available” and had considered Reconciliation directly Equaliza- appraiser years’ process the assessments and Board of in which most ous experience, expertise, did not draws his or her tion and Review files. The assessors professional judgment they and to resolve differ- new The assert had made a assessment. Court, among Burlington Apart- Superior applying ences the value indications derived ap- application approaches. genuine requiring reappraisals, of The from ment House rule praiser weighs significance, appli- 1056, the relative at found that the assessors’ see 375 A.2d cability, defensibility each indi- representa- value "affidavits contain no affirmative heavily most on that cation and relies the one [in new were made tions that assessments purpose appropriate fact, of the is most they year]; in make clear that the second appraisal. drawn the rec- The conclusion in contrary stated that is true. Each assessor has appropriateness, onciliation is based on change his saw reason he no accuracy, quantity the evidence assigned same value for [the that appraisal. easy entire quite year]. It have been second would Appraisers, for the new to set forth basis assessor Estate The American Institute Real 272, (8th ed. Appraisal 504-05 actually if one had been made.... of Real Estate 1983). they merely have stated that assessors [T]he by determined them carried over valuation rely opinion, Appellants Superior on a Court Redevelopment Agen- year].” Land. the first [in Agen Redevelopment Land District Columbia (emphasis Daily Wash.L.Rptr. cy, at 2264 Columbia, Daily cy Wash. v. District of therefore, court, original). concluded that 15, 1978), (D.C.Super.Ct., L.Rptr. Dec. genuine presented of material no issues the case alleged petitioners failed the District had which summary judgment. granted facts and property sum and moved for to reassess their Redevelopment trial Land claiming val court mary judgment their assessed Unlike that case, however, finding Agency, in this the court remain the same as assessed ue must stip reassessment con- factual issue of year. petitioners previous After filed tested, and credited asses- asserting as a full trial held of facts notice ulation they testimony had new repetition” considered sors’ contained "routine sessment previous expense the owners’ income year’s reassess evidence from assessment and no for tax been unavailable "utilizing updated that had sources statements had made ment been 1985, 2264, about information,” well as new information the District filed id. buildings in other office simply income streams from noted that affidavits assessors’ genuine city. concluded that The court best "reviewed the information had assessors going judgment unsupported by 5.... After over the data with the evi- Klugel, agreed Mr. with the dence. [Mr. Davis]
figure indicated the Chief of Stan- III.
dards and Review. Mr. Davis had also subject examined the income for the appellant’s challenge turn to We property years for at least two and mar- District’s valuation methods. “The as- producing ket data for other income property sessed value of for real properties city. in the Mr. Davis and Mr. purposes taxation shall be the ‘estimated Klugel equalization also reviewed market value’ January charts.... year preceding year.” 1st of the the tax Washington Columbia v. Sher- (D.C.1985) Corp., aton 499 A.2d 7_ In this case the line assessor con- (citing 47-820(a) (1981)). D.C.Code curred with conclusions reached D.C.Code defines “estimated market value” reviewing Mr. after all the avail- as: able data.... per probable centum of the most 8_ Klugel] For tax [Mr. price piece particular at which a of real expense also had the owners’ income and property, exposed open if in the sale statement for as well as the infor- market with a reasonable time for the mation about income streams for other purchaser, seller to find a ex- would be buildings city. office in the also He pected prevailing to transfer under mar- leasing subject prop- information for the parties ket conditions who have between *6 information, erty. Based knowledge prop- of the uses to which the change felt the from the Board’s results erty may put, seeking be both to maxim- prior year in justified as did Mr. gains being ize their and neither a Davis. position advantage exigen- to take of the cies of the other. say Order at 4-6. We cannot 47-802(4) testimony (1990). court’s decision to credit the In D.C.Code determin- § value,” “plainly wrong ing the assessors was or with- the “estimated market the as- support out evidence any to it.” D.C.Code sessor must “take into account factor 17-305(a). permis- might “Where there are two bearing have a on the market § evidence, sible property_” views the factfinder’s value of the real Id. 47- § 820(a). clearly regulations promulgated choice between them cannot be er- under “give roneous.” City, Anderson Bessemer the statute the Director of Finance 564, 574, 1504, 1511, choosing 470 U.S. 84 and S.Ct. Revenue discretion (1985). L.Ed.2d 518 Mr. approach Davis testified method or for an assessor to use figures estimating that he made use of some from in particu- the market value of a Stores, independently property.” Safeway 1985but that he had evaluat- lar Inc. v. Dis- Columbia, “arriving ed them with attention to at the trict 525 A.2d (D.C.1987); equalization among buildings;” (1986)(Di- best office see 9 DCMR 307.2 § independent compara- he also may apply gen- conducted an rector “one or more of the addition, analysis. ble sales In erally recognized approaches assessor to valuation flatly appellant charge any Davis denied Wolf’s set forth this section or other meth- Klugel repeat him necessary had told to od the Director deems to arrive year’s testified, values”). Klugel Appellants assessment. more- at market estimated over, argue incorrectly applied that he had evaluated new data on the District two “generally recognized” approaches income streams that had not been available “compara- to him in circum- 1985. Under these to valuation: the “income” and stances, say we cannot the trial court’s ble sales” methods. reassessment had been made. It is these factual are at issue here.
findings and conclusions of the trial court that themselves, that must consti- earnings
A.
rent
In as-
basis for valuation.
legal
tute the
valuation
approach
The “income”
to
Avenue, there-
sessing 1001 Connecticut
“bases
value on the amount
assessed
fore,
required
con-
was not
to
pay
receive
willing
be
to
investors would
earnings but could
itself
current
fine
ex
property
could be
the income
rele-
other information
take into account
yield_”
DCMR 307.5
pected to
income
estimating the future
vant
approach
That
expect
an
could
from
stream
investor
deriving a
annual net
entails
“stabilized
building.
the trial court found
And
and
by reference to
income
income”
just
had done
that:
the District
expenses
period
over
obtained
[stabilized
assessors]
[The
years. That annual net income
several
examining
in-
figure
net income]
capitalization rate —a
then divided
expense
come and
statements
representing
percentage rate
number
subject
and earlier
annually
taxpayers
recover
must
for numer-
years
the income streams
and
pay mortgage, to
a fair return
obtain
buildings
city....
in the
ous other office
taxpayers’ equity
property,
also
the income
Mr. Davis
examined
pay
taxes.
real estate
subject property
for at least two
Plaza-Woodner,
A.2d at
Rock Creek
other income
years
market data for
analysis in this
conducting
city.
Mr.
producing properties in
case,
estimat-
the assessors determined the
also
Davis
Mr.
reviewed
using a
property by
ed
value of the
market
equalization charts.
figure
applying
net income”
“stabilized
capitalization
arrive
a total
rate to
at
at 4-5.
Order
figure of
value. The stabilized net income
method,
reason,
income
under the
One
by multiplying
was obtained
potential
future income
for the focus on
footage
in the
square
of the finished area
building
income
that the actual
from
then
building by
The assessors
$11.50.
buyer
what a reasonable
may
reflect
figure
capitalized this
to arrive
income
willing to
to receive the
pay
“would
*7
$14,520,500.
of
an estimated market value
expect
property would be
income that the
Appellants argue
“in-
that the District’s
(1986). For
yield.” DCMR 307.5
ed to
9
§
flawed
approach
come”
because
instance,
building
if
is
the income from
disregarded the actual
income
assessors
into
entered
depressed
owner
because
building
expenses
in favor
arm’s
leases that were not
below-market
net
in-
creating an estimated “stabilized
transactions,
the income stream
length
rejected
argument
come.”
a similar
We
necessarily
not
building owner would
Sheraton, however,
we
Washington
where
income-earning potential a
reflect the total
held that
buyer
expect from the build
willing
could
deter-
market value
[estimated
Spokane,
County
ing. See Folsom
mined,
[appellant] suggested, by ref-
as
987,
769,
760,
P.2d
992
106 Wash.2d
prop-
erence to “income available to the
(en banc).
egregious
(1986)
In the most
by refer-
erty
of the assessment” but
manipu
cases,
and tenants could
landlords
The
earning potential.”
“income
ence to
economic varia
rent
and other
late
levels
that the market val-
fundamental notion
See, e.g.,
payments.
to minimize tax
bles
income-producing property reflects
ue of
(dis
Stores,
211-12
525 A.2d at
Safeway
of a future income
“present
worth
arrange
cussing
sale and leaseback
use of
income
is at the heart
stream”
taxes if District
ments to minimize
capitalization approach.
rent
on actual
required to base
lease
levels.)
if a
(citations omitted);
Similarly,
below-market
see 9
at 115
499 A.2d
short
expire by its terms within a
(1986).
earnings, of
Actual
would
DCMR 307.5
§
willing
ex
buyer could be
course,
so
of a build-
time
may be relevant evidence
burden
its short-term
earning
pected
ignore
ing’s
potential,”
“income
future
income-earning potential,
property’s
cur-
potential,
the future
not the
but
leases)
necessarily
such a lease should not
con- current
that influence the market
judgment
strain an assessor’s exercise of
potential
value
income stream of the
determining
Folsom,
market value. See
building.
106 Wash.2d
People ex rel. Gale v. Tax anticipated expiration of the with- leases] 225, 230, A.D.2d 233 N.Y.S.2d ignores in a period reasonable the income See also Am.Jur.2d State Therefore, potential property. for the (1974); Annotation, Local Taxation analysis rejected. should be Income or Rental Value as a Factor in Property Evaluation Order at 7. Purposes Real Taxation, 96 A.L.R.2d 678-79 of (1964). circumstances, we Under these sustain
the trial court’s view that the District’s use past We need not decide how leases un earnings and other market data to der various circumstances should be con determine potential future income was con- in determining sidered market value. We precedents sistent with our statu- and with record, however, say can on this tory requirements.6 trial court did err in refusing *8 not to deter by solely mine value reference to income B. building’s Proper applica
from the leases. An may employ assessor also the tion of the definition of “estimated market 47-802(4) comparable requires approach property value” found in sales to real con § merely sideration not of earnings approach actual valuation. This “bases assessed adjusted figure reflecting price prices but of an income value on at which rea variety (including impact of factors sonably comparable properties have re- Appellants (1) appellants’ also contend the trial court erred it found that: conclusion that $10,356,- rejecting proposed property their valuation of value of the not did increase between (the evaluation) facts, supported by tax because the and 1985 was not incorrectly appellants’ property trial court criticized fail- since real values in the area had been rate”; respective increasing significant (2) appellants ure to estimate the values land of the at "a improvements separately and and peri- because the failed to estimate over income a five od, sponte adjust appellants' relying court also failed year’s sua to instead on a look at one annu- $45,000 (Tax by 1984); (3) appellants valuation rent concession re- al income Year and firm, by adjust ceived Wolfs law approach by which would have failed to their income ne- $396,690 glecting added to the estimated market value of to account for all the below-market criticisms, however, property. Appellants’ expire, merely by forgetting leases soon to findings. adjust mischaracterize the court’s The court for the substantial rent concession to rejected appellants’ proposed valuation because the Wolf law firm. We see no error here.
13H
Street,
(em-
Street,
K
N.W.
(1986)
N.W. and 1625
307.3
cently sold.” DCMR §
of these
subject property, each
added).
Like the
Similarly, D.C.Code
47-
phasis
buildings.
older
The Con-
properties are
820(a)
take
provides that the District shall
property
Avenue
sold
necticut
“sales information on similar
into account
area;
of finished
per square foot
added);
$156.82
property.” (emphasis
types of real
property, for
Sixteenth Street
$75.45
307.1(b) (1986).
see 9 DCMR §
area;
square
finished
per
foot of
Appellants contend the trial court errone-
per square
property, for
K Street
$107.48
comparable
ously accepted
District’s
finished area.
value
foot of
gave
the District
no
sales data because
estimated
subject property was
leases,
testimony regarding
physi-
per square foot
assessor at $93.53
condition,
acquisition financing
cal
or the
represents a
figure
This
finished area.
significant
have a
bear-
terms which would
estimate
and conservative
reasonable
ing
prices
compara-
on the total sales
sales and
value in view of other
testimony, ap-
property. Without such
ble
of the indicated value obtained
review
contend, comparability
pellants
cannot be
capitalization approach.
the income
gross prices
meaning-
are
shown because
has selected
at When the District
Id.
less.
“reasonably
buildings
comparable”
that are
regulations
that define
The statute
building subject
to assessment
comparable
approach
sales
refer
location,
(based on such usual criteria as
comparisons
types”
property
of “similar
enti
configuration), the District is
age, and
“reasonably comparable” property,
prices for
that the sales
presume
tled to
properties
recognizing that different
will
buildings reasonably reflect market
compara-
rarely be identical and thus that
comparable sales
prices properly used for
perfect
ble sales data need not reflect
com-
See,
Inn v. Town
analysis.
e.g., Shawmut
case,
parability.
the court found
(Me.
Kennebunkport, 428 A.2d
compared
recent
land
assessors
(recent
1981)
public
sale of real
in which
sales
value). The District
of market
evidence
prices
properties ranged
for the
from
comparisons
not undertake laborious
need
$1,194.40 per square
foot of
$422.63
acquisition financing arrangements
[Appellants'] property
land area.
buildings
approxi
sold within
conclude
square
per
valued at
foot of land
$690
subject
mately
same time frame were
area_
assessor’s estimate
val-
similar market forces.
ue took into account differences
prov-
taxpayer
the burden of
bears
“[A]
location, size, configuration
other
il-
ing
assessment is incorrect or
that an
one
characteristics which make
Stores,
A.2d
legal_”
Safeway
more valuable than another.
211;
11(d).7 Appel-
Super.Ct.Tax R.
see
3. The
Order at
court then found
accordingly were entitled to introduce
lants
building
compared recent
sales
assessors
financing,
lease
regarding the
evidence
approach:
using
comparable
sales
terms,
characteristics of
and other
comparable
analyzed building
buildings
in the District’s
sales
used
[The assessor]
*9
Among
attempt
prove
to
analysis,8
these were
and to
west
15th Street.
sales
Avenue,
something unusual about
was
1250 Connecticut
1000 16th that
there
notes, memoranda,
statement(s)
11(d)
ing any
Super.Ct.Tax
provides:
R.
7.
indicating
upon
estate
which the real
(d)
proof
the basis
proof. The burden of
Burden of
assessed,
open
inspection
upon
petitioner, except
for
the
as other-
shall be
shall
has been
by
any
provided
respect
to
statute.
by
taxpayer_"
wise
9 DCMR 309.2
§
the
pleaded in
Furthermore,
new matter
its answer the burden
year
for more than one
leases
respondent.
proof
shall be
the
deed,”
by
“except
D.C.Code
cannot be created
recording
(1990), requiring
of such
the
45-306
§
Appellants maintain that
of the informa-
much
against subse-
them effective
leases to make
regarding
comparable
tion
buildings
the characteristics
In these
quent purchasers.
See id.
45-801.
Applicable
not available to them.
was
initial
however,
ways, appellants could have obtained
specifically provide
regulations,
that
long-term leases.
regarding
existence of
properties,
data
the
of individual
includ-
"[r]ecords
the
arrangements
these
that affected
re-
cordingly,
burden remains on the tax-
ported
prices
way
payer
contrary.
sales
in a
that caused
to establish the
them not to
prices
reflect normal sales
for
Appellants
rely
also
on District
Co
buildings comparable to the one under as-
Inc.,
Indus.,
122 U.S.App.
lumbia v. ACF
however,
Appellants,
sessment.
intro-
(1965),
argu
D.C.
F.2d 795
for the
any
challenge
duced no
evidence
kind to
explicitly
ment that once the District
dis
comparable
District’s
proper-
choice
original legal position,
claims reliance on its
therefore,
Appellants,
ties.
have
to
failed
it
proving
assumes
burden of
the cor
comparable
rebut the
analy-
District’s
sales
rectness of its entire new case. See id. at
sis.
Appellants’
15 n.
argument, however, is inconsistent with the
IV.
witness,
facts of this case. The District’s
Klugel,
that
testified
the District was “not
Finally, appellants contend the trial
backing
originally”
where we
off
failing
court erred in
to release them from
original
figure
assessment
was
proving
burden of
that the District’s
correct
based
information available
original
$14,620,500
1986 assessment of
Rather,
at the time.
the District increased
They
argue
by
incorrect.
at
its assessment
based on data submitted
tempting
prove
proper
assessment
in
appellants
support
petition
of their
$17,830,000,
for 1986 should have been
Superior
refund to the
Court.
trial
$14,620,-
District
original
“abandoned” its
specifically
court
credited
assessor’s
500 assessment and thus assumed
bur
in
testimony
findings
its
of fact: “[Mr.
proving
$17,-
den of
that the entire revised
states,
Klugel]
however, he was not ‘back
830,000 assessment was correct. Accord
ing off’ from where the
was in
assessment
ing
appellants,
if the District
in
failed
tax
1986.” Order at 9. Unlike the
burden,
carrying that
then the
entire
Industries,
situation
ACF
District
failed, leaving
place
last
original
neither “abandoned”
data
its
nor
conducted
accordance with
changed
legal theory.
its
law: the
assessment levied
11(d), then,
Super.Ct.Tax
Under
R.
Equalization
Board of
and Review
proof
only
burden of
shifted to the District
tax
Burlington Apart
1985. See
respect
with
to the
new data
introduced
House,
ment
A.2d at
to support
original
an increase
over
Appellants argue, more specifically, that
$14,620,500 assessment
for 1986—an as-
Super.Ct.Tax
11(d),
under
supra
Rule
see
already
ap-
which the
sessment
Board
required
note
to assume
proved. The burden therefore remained
proof
the burden
respect
any
“[i]n
appellants
prove
with
the incorrectness
pleaded
(empha-
new matter
in its answer”
original
1986 assessment.
See
added),
sis
case meant
Brisker,
appel-
A.2d
186
the
said:
court
disregard
Aside from DFR’s
of the ac
True value cannot be established for tax
Board,
tion
ques
there
the
remains
purposes upon an
assumption
pri-
be,
tion how it can
if DFR
the
studied
value
assessment,
from,
unappealed
is cor-
anew,
of the taxpayer’s
that the
if
rect. ... For
the earlier assessment is
1986, ostensibly
result in
on a
based
consid
erroneous, then a decision as to the later
newly-acquired
eration of
infor
extensive
year,
predicated upon
which is
that as-
mation, could
identical to the 1985 as
sessment,
only
the
would
continue
error.
sessment. “It should be obvious that ab
case,
In
present
appeal
the
in
the
which
intervening develop
sent
[attention
from the
in
1985 assessment resulted what ments],
carrying
over of assessments
reversal,
foregoing prin-
amounted to a
general
each
one
from
revaluation to
ciples apply a
proper discharge
the next
is not
fortiori.
Corp
assessor’s function.” Tri-Terminal
“It is of the essence of an assessment
405, 414,
Borough
v.
N.J.
of Edgewater, 68
it fixes value as of a certain time.
396,
(1975),
denied,
346 A.2d
401
425
cert.
proceeding
separate
Each annual
and
958,
1739,
U.S.
96
1315 disapproved He hold denee.” decided that “we should ter a assessment for one primarily existing up unchanged intact to came for the next: assessments again the extent had all that we reviewed hearing Prior to on contested pretty of this This close data....” assessment, Burlington [sic] 1973 received a carrying over to 1986 the assessment as- notification from the District of the disapproved which Board had for 1985.3 sessment for fiscal figure conveyed The ex- thus was overruling Neither Mr. Davis’ of actly the same as that had been which identity nor 1985 Board between DFR’s previous year by set for the fiscal appears and 1986 have assessments Equalization Review, Board of judge my troubled either the trial col- process being disputed then was in of leagues majority. Corporation in the Superior It is Court. clear that only page Counsel devoted one of his brief figure was not based a reas- to the issue whether DFR conducted fact updated in- utilizing sessment sources of authentic an new assessment in 1986. formation, simply rather was rou- but problems which I have are not discussed repetition challenged tine of the 1973 as- judge’s mentioned at all in the deci- trial sessment. sion, quite summarily are treated majority opinion. quite I find this all A.2d at 1056 n. 8. A three-member perplexing. minority protested that court, majority of the en banc at the [a] happen, Coincidences do but not all that of urging appellee, concludes ba- without party’s often. Where a evidence is believa- sis that because the fiscal 1974 assess- only if unlikely ble otherwise coin- an ment of appellee’s property was occurred, cidence has fact trier of equalized figure same as fiscal ought my wary it, crediting to be view subsequent no of the valuation where, here, especially intelligible as no according made to law. was explanation of the has coincidence been is, course, testimony There no provided. Klugel’s testimony Mr. such record from which a conclusion contradiction; by major characterized could be drawn. he had said lots of new information in 1986 (which purportedly J., (footnote (Kelly, dissenting) tended to show that a at 1059 Id. made), omitted). reading opinions new assessment had been sub- A but two sequently hardly together suggests claimed that there was members of anything (so identity majority, just undersigned, new like the were supposedly two sur- plausibility assessments dubious about the of odd coinci- prising). If “earthy” ready courts should to infer from the dences were practical in identity their evaluation street en- of the numbers that there had been gendarmerie genuine counters and the second between no reassessment citizenry, States, Cooper year. see v. United (D.C.1977),
A.2d
then a similar
Brisker, however,
this
In
a division of
surely
adherence to hard-nosed realism is
á
differently:
interpreted Burlington
court
propos
taxpay-
when
clash is
between
hold,
taxpayers
Burlington did not
agents.
ers and revenue
assert,
subsequent
assessments
identical to the assessment
found
Burlington,
supra, a five-member
are
court,
banc,
necessarily inval-
majority
ap-
are themselves
sitting
en
invalid
Rather,
peared
my present skepticism
Burlington
af-
when
share
id.
held that
assigned
Agency
disapproved by
In District
and that he
court]
Columbia Redev. Land
Columbia,
year,”
Wash.L.Rptr.
insuf-
Daily
value
the second
the same
15, 1978), (the
(D.C.Super.Ct.
been
to show
a new
Dec.
ficient
case),
changed
phrasing slightly
Judge
Mr.
his
DCRLA
Penn held that affidavits
made.
but,
colleagues,
Kluge]
present
my
I
very
anoth-
unlike
from the
same Mr.
and from
in the
case
difference,
subordinate, stating
real
they
in the context of the
er
had reviewed
see little
world,
Mr.
affidavits in DCRLAand
new data and that each "saw no reason
change
between the
Klugel’s testimony
his
described above.
had been
[which
*13
(D.C.1991)(citations
quotation
and internal
trial court finds an assessment inval-
valuation,
omitted).
that “valua-
id and itself sets
Both the
marks
Board
continuing
must constitute the
basis
tion
judge
trial
sustained
1986 assessment
superseding
until there is a
for taxation
proposed by DFR in
identical to that
according
valuation which has been made
court
The contention that the
should have
as well as essential services its Ill true, citizens. If it is as Mr. assert- ed, only justice taxpayer’s important It is that the correct value of the I do million, appear it to be done. more then done but that than $17.8 taxpayer in this case ought it to have been assessed in that not think fairly I he has been treated. place. If needed believes that amount the first DFR point of view. If it understand his perform proper more as- can well information dispense its sessment, function to ought for it. the court’s to have asked fairness, I personal notions of being seriously members’ Our citizens are short- But buildings being vote to reverse. changed if commercial are would States, 366 F.2d But v. United but not for its 1985 assessment. The Rabinowitz cf. banc): Cir.1966) (en (5th "The [DFR doc- was based on increase 56-57 taxpayer made available in con- have intended the uments must be held to officials] with the lawsuit. con- nection from their natural result which flowed were clear to fruits of the harvest duct. ... The $30,000 "change.” anyone to look." who cared 6. If can be described as duty, paraphrase Mr. Justice [o]ur Judge
Holmes in a conversation with Hand, justice
Learned is not to do but to
apply hope justice the law and
done. 381, 402, States, 447 U.S. United
Bifulco
2247, 2259,
(1980)
100 S.Ct.
(Burger, concurring). only With limit- justice
ed confidence that has been
achieved, judgment. I concur in the *15 AY, Appellant,
John Thomas PE STATES, Appellee.
UNITED
No. 88-678. Appeals,
District of Columbia Court Rehearing
On En Banc.
Argued En Banc Dec.
Decided Oct. D.C., Copacino, Washington,
John M. York Shailly Agnihotri, P. New with whom Clinic, was City, Georgetown Crim. Justice brief, appellant. Fisher, Atty., with R. Asst. U.S. John Atty., and Stephens, U.S. Jay whom B. Little, Hibarger and Robert C. Thomas J.