Pantlind Hotel Co. v. State Tax Commission

157 N.W.2d 293, 380 Mich. 390

Opinions

Adams, J.

Several of the questions raised in Fisher-New Center Company v. State Tax Commission, 380 Mich 340, are also raised upon this appeal. In this case, however, there is no disagreement between the city of G-rand Rapids and the Michigan State tax commission. There is also no question as to the prevailing level of assessments. Taxpayer’s contentions go primarily to the competency of the evidence relied upon by the commission and the overwhelming weight of the evidence produced by the taxpayer.

I. POSTURE OP THE CASE.

Two consolidated appeals are involved: First, taxpayer’s real estate assessment for 1964 fixed by the State tax commission at $635,500, and, second, its personal property assessment for 1965 confirmed by the State tax commission in the amount of $148,-600.

The assessor for the city of Grand Rapids fixed for 1964 the assessed value of the Pantlind Hotel at $1,019,000. It was reduced by the board of review to $850,000. The taxpayer filed a complaint with the State tax commission. A hearing was held on September 28, 1964. The commission does not have an official reporter to record its hearings. The taxpayer attempted to provide a stenographer but the transcript was unsatisfactory. The taxpayer then filed an affidavit of Jason L. Honigman, dated October 14, 1964, “to record the substance of the proceedings.”

The report of the commission’s staff was not available on September 28, 1964, and was not filed with the commission until November 13, 1964. The taxpayer received a copy on November 18, 1964, and on November 19, 1964, requested a further hearing to cross-examine the person who prepared the staff report. The request was denied and on December 11, 1964; the commission proceeded to make a determination and ordered the assessment on the Pantlind Hotel reduced to $635,500, which order was issued January 15, 1965. the taxpayer’s application for leave to appeal to the Court of Appeals was granted. the Court of Appeals found no error of law in the method applied by the commission in determining the amount of the assessment but remanded the case for further bearing because of lack of administrative due process. Pantlind Hotel Company v. State Tax Commission (1966), 3 Mich App 170.

In the meantime, on April 16, 1965, taxpayer claimed an appeal to the commission from the 1965 real estate and personal property assessment. The commission denied the appeal from the real property assessment for 1965, in accordance with the provisions of CL 1948, § 211.152, as amended (Stat Ann 1960 Rev and Stat Ann 1965 Cum Supp § 7.210), but accepted the appeal of the personal property assessment.

A personal property investigation was made by commission staff members and a fieldman’s report was filed. Hearing was held on November 4, 1965, and testimony taken. The commission sustained the city’s assessment of taxpayer’s personal property at $148,600 for 1965. Taxpayer’s application for leave to appeal to the Court of Appeals was denied. Application for rehearing was also denied. Taxpayer then filed application for leave to appeal to this Court. On June 13, 1966, leave to appeal from the order of denial entered by the Court of Appeals in the personal property assessment case was granted.

An additional bearing on the 1964 real property assessment was held by the commission on May 16, 1966. On June 21, 1966, the commission affirmed the assessment for 1964 of taxpayer’s real property in tlie amount of $635,500. Taxpayer filed application for leave to appeal to the Court of Appeals, and while the application was pending, on July 28, 1966, filed an application with this Court for leave to appeal prior to decision by the Court of Appeals and to consolidate such appeal with the pending appeal in the personal property assessment case. This application was also granted.

II. The AssessmeNt of the Real Property.

The first State tax commission hearing on the real property assessment was held on September 28, 1964. It was conducted by Robert L. Purnell, the commission chairman. The city of Grand Rapids was represented by Clarence Thielman, city assessor. The taxpayer was represented by Jason L. Honigman. This is the hearing at which no formal record was made and as to which the taxpayer subsequently furnished an affidavit undertaking “to record the substance of the proceedings.”

According to the Honigman affidavit, the Pantlind Hotel is a 10-story structure in downtown Grand Rapids covering an entire city block. On May 27, 1963, the property was sold by National Building-Corporation to taxpayer, Pantlind Hotel Company, a Michigan corporation. The purchase price consisted of $50,000 paid for the owner’s equity, the building at the time being subject to a mortgage having an unpaid balance of approximately $590,000. The total purchase price of $640,000 covered land, building, furniture and equipment. The taxpayer recorded the purchase price by allocating $532,438.87 to the land and buildings, and $94,000 to personal property.

The Pantlind Hotel property had been offered over a period of time prior to its purchase, but no buyer bad appeared. Ben Silberstein was one of tbe stockholders of National Building Corporation and an owner and operator of outstanding botéis in tbis country. A $50,000 offer to sell Silberstein tbe owner’s equity was rejected.

Immediately following purchase of the Pantlind Hotel properties, the sole stockholder of taxpayer sold a 32% interest to three Roberts brothers who bad been former employees of the hotel. basis.

After acquisition of the hotel properties, taxpayer acquired property adjacent to and structurally a part of the Pantlind Hotel, owned by the Old Kent Bank, for $137,500. Taxpayer attempted to relate the price for this property to its assessed value of $341,300, claiming that it showed an overassessment at a ratio of 250% of actual market value as established by the sale price. Taxpayer claimed as to the remaining hotel property, acquired from National Building Corporation, that the overassessment by the Grand Rapids board of review was at the ratio of 160% to the actual purchase price.

Clarence Thielman, the city assessor, bad assessed taxpayer’s property on a basis of unit cost of reproduction which was comparable to that used for other buildings in the downtown area of Grand Rapids. Mr. Thielman made the statement that real property in the city of Grand Rapids was assessed at a level of one third of actual market value. The Honigman affidavit ends with taxpayer’s contention that its property should have been assessed at approximately one third of the purchase price which would give an assessed valuation of $175,000.

The commission’s staff report, dated November 13, 1964, disclosed that the land portion of the Pantlind Hotel property was. appraised at a current value of $432,000? and that the building was appraised by the use of Boeckh’s Manual

Footnotes

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* as having a current value of $1,340,000. The building appraisal was determined on the cubic foot content at a unit cost per cubic foot of $1.33. This produced the rounded-off sum of $4,972,131 and was designated on the schedule as being the base value. The reproduction cost or base value was reduced by 55% for depreciation and by 40% of that resultant amount for economic obsolescence. The appraiser’s true cash value for the property was determined to be $1,342,475. The land value appraisal of $432,000 and the building value appraisal of $1,342,475 produced $1,774,-475 which was without explanation reduced to $1,772,060.

The staff report also undertook to make an appraisal based upon income from the property, using the hotel’s operations for 1961, 1962 and 1963, years prior to purchase by the taxpayer. The calculation of true cash value by use of the capitalization of income method was $1,603,296.

A stenographic transcript was made at the supplemental hearing on May 16, 1966. Eugene Hall, a member of the commission’s staff and the field examiner who prepared the staff report, was called and cross-examined by taxpayer’s counsel. The questions asked were not for the purpose of challenging the appraisal figures per se which had appeared in the staff report. The questioning was an effort to discredit Hall and to show his incompetency as an appraiser. Hall was interrogated about the relevancy of the reproduction cost method and whether it had any bearing at all on the price people would pay for a commercial property of the type of the Pantlind Hotel. An attempt was made to demonstrate that Hall could not qualify as an expert. Next, Hall was examined as to his use of the capitalization of income method. Finally, he was asked what consideration he gave to the actual sale of the property to the taxpayer. He stated it did not have any bearing on the amount of his valuation because it was not thought to represent market value.

Harold Berry testified that he was the operating vice-president of International Hotels, Inc. He stated that he had made an examination of the Pant-lind Hotel property and of the operating records for the years 1961, 1962 and 1963. He gave his opinion that the economic value or the value people would pay for the business, including good will and personal property, was about $625,000. He attributed about 25% of the estimated value to personal property.

Jason L. Honigman testified. He gave an account of the difficulty the taxpayer had in obtaining a mortgage on the property. The Old Kent Bank refused a loan, as did the City National Bank in Detroit and a number of mortgage brokers in Detroit. Finally a loan was obtained from the Manufacturers National Bank of Detroit in the amount of $550,000 with Honigman giving a personal mortgage for anything above $375,000. Honigman further testified that the present owners acquired the 59-foot corner property owned by the Old Kent Bank. Part of the Pantlind Hotel was constructed over the top of the bank corner. The purchase price for the bank corner paid by the taxpayer was $137,500. Based upon the assessed values of the two properties and applying the price paid for the bank comer in that proportion would result in a selling price for the Pantlind Hotel of $445,000.

Honigman offered the affidavits of Allen B. Kramer, a hotel operator, and Herbert Daverman, an architect, in which they stated they had investigated purchase of the Pantlind Hotel for $800,000 and determined the property was not worth more than $600,000. This concluded the record made by the taxpayer at the second hearing.

Clarence Thielman, city assessor for the city of Grand Rapids, was called as a witness and examined by Mr. Roesch, an assistant attorney general. Thiel-man said that he would roughly estimate the value of the Pantlind Hotel at around $2,000,000, or so, in 1963. He placed an assessed value on it of $1,019,000. He arrived at the amount of his assessment largely through replacement cost less depreciation, less obsolescence. He tried to use the other recognized approaches but there was only one other sale of a hotel property in Grand Rapids and that was back about five years. It would be very difficult to use the capitalization method because there was very little income at the time from the Pantlind Hotel. This concluded the testimony on the second hearing.

III. HEARING ON THE PERSONAL Property Assessment.

After appeal to the State tax commission of taxpayer’s 1965 personal property assessment, the commission caused an investigation, including an audit and appraisal, to be made of appellant’s property. Copy was made available to appellant. There is no specific identification in this record of the investigation. A fieldman’s report with attachments appears to supply the results of the investigation and audit and contains an appraisal based upon three separate estimates. The summations are as follows:

“a. Appraisal based principally on audit of furniture and fixture account in firm’s general ledger. Total estimated value this approach — $424,980.

“b. Appraisal based principally on a study of hotel operations by a public accounting and auditing firm using book values before depreciation. Total estimated value this approach. — $497,055.

“c. Appraisal based principally _ on a study _ of hotel operations by a public accounting and auditing firm using book values after depreciation. Total estimated value this approach — $520,335.”

A hearing was held by the commission in Grand Rapids on November 4, 1965. Taxpayer made no attempt to cross-examine the member or members of the commission staff, whoever they might be, concerning the contents of the fieldman’s report or the nature and extent of the investigation and audit. The only witnesses called were two of the Roberts brothers and the city assessor.

J. W. Roberts, president and general manager of the Pantlind Hotel Company, testified as to his opinion of the true cash value of the personal property. He assigned a value as of December 31, 1964, of $160,500.

Charles Roberts, vice-president of the Pantlind Hotel Company, undertook to explain and compare the figures furnished to the commission with those supplied to the Grand Rapids board of review.

The testimony of Clarence M. Thielman, city assessor of Grand Rapids, need not be reviewed except to note that he testified he completely 'disregarded the allocation by taxpayer on its books of the sum of $94,000 to cover personal property. This was an application of wrong principles which, had it been followed by the State tax commission, would have been clearly erroneous. The taxpayer was entitled to have its contentions considered by the assessor even though he ultimately rejected them.

On December 14, 1965, the commission’s decision and order were entered, directing that the assessment in the amount of $148,500 [$148,600] be placed upon the assessment roll as the true and lawful value for taxation purposes of the taxpayer’s personal property.

IV. IN Summary.

Taxpayer contends that the evidence it produced is the only competent evidence which was before the tax commission and upon which the commission could base its decisions. Because of the informal nature of real or personal property assessment hearings, either at the local or State level, ordinarily no record is kept and rather liberal rules of evidence are followed. In this case, at the first hearing on the taxpayer’s real property assessment, no satisfactory record was made. An affidavit by Jason L. Honig-man purported to set forth the proceedings and was submitted by him to the commission with the request that it be filed as a part of the record. At the second hearing, Honigman identified and offered affidavits by two individuals which were also received. At the hearing on the personal property, the field-man’s report of the commission was made a part of the proceedings even though the fieldman himself did not testify and was not even identified. No objection has been made by any of the parties to the admissibility of this evidence.

The taxpayer contends that the evidence it produced is so overwhelming it must be accepted. Taxpayer showed (1) a sale of the real and personal property for $626,438.87, (2) a resale of a one-third interest upon the same basis as the first sale, (3) a sale of a portion of the same building at a low figure, (4) uncontradicted expert opinion testimony with regard to the true cash value, (5) the rejection of the purchase of the property at a higher price by two knowledgeable investors, and (6) a valuation of the property for mortgage purposes which tended to establish, the value contended for by the taxpayer. This was a strong case, indeed!

On the other band, the valuation by the tax commission is supported by the testimony of the Grand Bapids city assessor and the report and testimony of Eugene Hall, a member of the tax commission’s staff and the field examiner who prepared the commission’s report. There is testimony to support the findings of the commission. In the absence of fraud, errors of law or application of wrong principles, we will not reverse.

The situation with regard to the personal property assessment is again one of the taxpayer producing testimony to support its contentions. However, the taxpayer, as to the personal property, did not elect to cross-examine the person on the staff of the tax commission who prepared the fieldman’s report. That report, with its three approaches to valuation of the personal property, was before the commission. If the taxpayer wished to demonstrate errors of law or use of wrong principles by the maker of the report, it should have demanded an opportunity to cross-examine. Again, as to the personal property valuation, there was competing evidence before the commission. It was for the commission to consider the testimony and determine therefrom the proper valuation. In the absence of fraud, errors of law or application of wrong principles, we find no error.

Lastly, taxpayer argues that under the provisions of Const 1963, art 6, § 28, orders of the State tax commission may be appealed as a matter of right. This issue appears moot in view of the leave granted in the instant appeal but we deem it appropriate to observe, nonetheless, that taxpayer’s contention in this respect does not have the support of this Court. Evans v. United States Rubber Company (1967), 379 Mich 457.

Tbe decisions (1) of the Court of Appeals with regard to the personal property assessment and (2) of the State tax commission with regard to the real property assessment are affirmed. Costs to appellees.

Kelly, Black, T. M. KavaNagh, and BeeNNAN, JJ., concurred with Adams, J.

Boeckh’s Manual of Appraisals (1963, E. H. Boeckh & Associates, Inc., Washington, D. C.).