Remington Clean Fill, L.L.C. v. Milford Exempted Village Schools Bd. of Edn.

2021 Ohio 3779, 179 N.E.3d 665

• Court: Ohio Court of Appeals
• Decided: October 25, 2021
• Docket: CA2020-12-074
• Status: Published

Opinion

[Cite as Remington Clean Fill, L.L.C. v. Milford Exempted Village Schools Bd. of Edn., 2021-Ohio-3779.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

REMINGTON CLEAN FILL LLC, : CASE NO. CA2020-12-074

Appellant, : OPINION 10/25/2021 : - vs - :

MILFORD EXEMPTED VILLAGE : SCHOOLS BOARD OF EDUCATION, et al., :

Appellees.

APPEAL FROM THE OHIO BOARD OF TAX APPEALS BTA No. 2019-1288

Aronoff, Rosen & Hunt LPA, and Edward P. Akin and Richard A. Paolo, for appellant.

David C. DiMuzio, Inc., and David C. DiMuzio and Matthew C. DiMuzio, for appellee, Milford Exempted Village Schools Board of Education.

Mark J. Tekulve, Clermont County Prosecutor, and Jason A. Fountain, Assistant Prosecuting Attorney, for appellees, Clermont County Board of Revision and Clermont County Auditor.

Dave Yost, Ohio Attorney General, for appellee, Ohio Tax Commissioner.

M. POWELL, J.

{¶ 1} Appellant, Remington Clean Fill LLC ("Remington"), appeals a decision of the Clermont_CA2020-12-074

Board of Tax Appeals ("BTA") which adopted $2,184,004 as the property value for tax year

2018 for two adjoining parcels located in Loveland, Ohio (the "Property").

I. Facts and Procedure

{¶ 2} The Clermont County Auditor valued the Property at $690,900 for tax year

2018. On April 9, 2018, the Property was transferred twice as part of a sale including real

property and personalty for a single purchase price – a type of sale commonly known as

"bulk sale." See Buckeye Terminals, L.L.C. v. Franklin Cty. Bd. of Revision, 152 Ohio St.3d

86, 2017-Ohio-7664. In the first sale, McDump, LLC ("McDump"), sold the Property to

Decker Building Group LLC ("Decker Building") for a total purchase price of $2,184,000.

The conveyance-fee statement allocated $1,684,000 of the purchase price toward real

property and $500,000 toward personalty. In the second sale, Decker Building sold the

Property to Remington for a total purchase price of $2,500,000. The conveyance-fee

statement allocated $900,000 of the purchase price toward real property and $1,600,000

toward personalty. Decker Building and Remington are both owned by Jeffrey Decker.

{¶ 3} Milford Exempted Village School District Board of Education ("school board")

subsequently filed an increase complaint with the Clermont County Board of Revision

("BOR"), challenging the auditor's valuation and requesting that the true value of the

Property be increased to $1,684,000, based upon the conveyance-fee statement of the first

sale.

{¶ 4} At the BOR hearing, the school board argued that the first sale should be

adopted as evidence of the Property's true value because the second sale was not an arm's

length transaction as Jeffrey Decker owned both Decker Building and Remington and

signed for both companies on the closing statement. Remington argued that the Property

included stockpiles of gravel and dirt, equipment, and inventory, which are personalty and

should be valued according to the conveyance-fee statement of the second sale.

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Remington presented the testimony of Jeffrey Decker ("Jeffrey") and Chase Decker

("Chase"), Jeffrey's son and co-owner of Remington (the father and son will be collectively

referred to as the Deckers).

{¶ 5} Jeffrey testified that the Property was bought specifically for its stockpiles of

dirt and gravel, equipment, and inventory. Jeffrey testified that McDump refused to allocate

more than $500,000 of the $2,184,000 purchase price to personalty, and advised it had a

second buyer on standby if Decker Building declined the terms of the transaction. Decker

Building proceeded with the first sale using McDump's allocation and, based upon legal

advice, corrected the allocation with the second sale. Jeffrey opined that McDump's

allocation was driven by "capital gains or income tax."

{¶ 6} During Jeffrey's testimony, counsel for the school board referred to the

addendum included in the closing statement for the second sale. The addendum itemizes,

quantifies, and values the personalty included in the sale as follows:

a. $50,000.00 for two 5-ton overhead cranes; b. $50,000.00 for two earthmovers; c. $50,000.00 for scrap metal; d. $10,000.00 for GMC 10-ton single axle dump truck; e. $200,000.00 for 10,000 tons of blacktop grindings valued at $20 per ton; f. $1,000,000.00 for 200,000 yards of dirt valued at $5 per yard; g. $200,000.00 for 10,000 tons of mixed gravel valued at $20 per ton; h. $25,000.00 for an industrial sandblaster; and i. $15,000.00 for an industrial arc welder.

Jeffrey could not remember who prepared the addendum, stated they worked with

attorneys, and testified, "we did a competitor analysis based on what material was selling

for in the general market."

{¶ 7} The school board's counsel inquired of Jeffrey concerning the $1,000,000

valuation for dirt. Jeffrey advised, "I've been developing for 30 years, I know what dirt

costs." Jeffrey testified that the $1,000,000 allocation toward dirt was actually a third of its

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value according to industry standards and that every listed item of personalty was in fact

undervalued. No other documentation was provided regarding the valuation of the

personalty.

{¶ 8} Chase also testified concerning the valuation of the various personalty items

enumerated in the addendum. Chase testified that he and Jeffrey had been in the business

for 15 years and 30 years, respectively, and were "experts on dirt moving equipment."

Chase stated that the amount of dirt on the Property was conservatively estimated to be

200,000 yards and that the $1,000,000 allocation toward the dirt was actually undervalued.1

Chase stated that the values listed on the addendum for the dirt ($1,000,000), the blacktop

grindings ($200,000), and the mixed gravel ($200,000) were conservative estimates of

sales prices his company received for those materials (the dirt, blacktop grindings, and

mixed gravel will be collectively referred to as the "Materials"). Chase testified that the

value for the other items listed in the addendum, to wit, the cranes, earthmovers, scrap

metal, dump truck, sandblaster, and arc welder, were determined based upon Internet

research and third parties' opinions (these other items listed in the addendum will be

collectively referred to as the "Equipment"). The third parties consulted by the Deckers

were not identified and none of them testified.

{¶ 9} Theresa Mahon, a commercial appraiser for the auditor's office, testified that

she has been engaged in commercial appraising for 30 years, with certifications in Ohio,

Kentucky, and Indiana. Mahon testified that she did not know which sale was truly an arm's

length transaction, that she did not have the expertise to say whether the personalty

allocation in the second sale was reasonable, and that the personalty allocation in the

second sale had "more support than what I see on the first sale." Mahon asserted that she

1. Referring to a photograph of the dirt stored on the Property, Chase testified that "this entire hillside, this huge bank right here is over 300,000 yards of dirt." -4- Clermont_CA2020-12-074

had reviewed the auditor's $690,900 valuation of the Property to confirm that "we have the

right acreage, * * * the right adjustments on there for the configuration and these types of

things that we value land according to." Based upon the foregoing, Mahon advocated for

the retention of the auditor's valuation.

{¶ 10} The BOR retained the auditor's $690,900 valuation, and the school board

appealed to the BTA. At the BTA, the parties waived a hearing and presented their

arguments through briefs, relying upon the BOR record. The record included the

conveyance-fee statement for each sale, closing statements for both sales, and the closing

statement addendum of the second sale. The school board argued that the first sale was

the only arm's length transaction; there was no evidence to support the first sale's $500,000

allocation toward personalty; and Remington specifically stated that the first sale's

personalty allocation did not reflect the value of the personalty. Accordingly, the school

board argued that the total purchase price of $2,184,000 of the first sale should be adopted

as the true value of the Property.

{¶ 11} The BTA issued its decision on November 30, 2020. It noted that a recent,

arm's length sale constitutes the best evidence of a property's value. It defined an arm's

length sale as one that is voluntary, i.e., without compulsion or duress, and that takes place

in an open market in which the parties to the sale act in their own self-interest. The BTA

found that the second sale between Decker Building and Remington was not an arm's

length sale because it was a transaction "from one of Mr. Decker's companies to another

solely for tax purposes." The BTA further rejected Remington's evidence of its personalty

valuation in the second sale. The BTA found that Remington "supplied no confirmable

evidence about what resources it used to value the property, e.g., internet websites," that

the third parties' opinions as to valuation was hearsay, and that Chase, the sole witness

regarding valuation, was not an appraiser.

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{¶ 12} By contrast, the BTA found that the first sale between McDump and Decker

Building was an arm's length transaction because it occurred in an open market with

multiple bidders and Decker Building was not under economic duress. Nonetheless, the

BTA found that the $500,000 allocation toward personalty was not supported because

"Remington agrees the earlier allocation was incorrect. In fact, it completed the second

transfer to 'fix' the allocation in the first transaction. Therefore, we must find the allocation

in the first transfer is unsupported, and the property must be valued according to the full

purchase price." Accordingly, the BTA valued the Property at the full purchase price of

$2,184,004, thereby allocating $0 of the purchase price to personalty.

{¶ 13} Remington now appeals, raising three assignments of error. For ease of

discussion, we will address the assignments of error out of order.

II. Proceedings before the BTA.

{¶ 14} "In an appeal from a county board of revision's valuation decision, the BTA

must determine the taxable value of the property at issue." Buckeye, 2017-Ohio-7664 at ¶

14. The fair market value of property for tax purposes is a question of fact that is primarily

within the province of the taxing authorities. Id. "The BTA has the duty, in a real-property-

valuation case, to independently weigh and evaluate all evidence properly before it in

arriving at its own decision." Sapina v. Cuyahoga Cty. Bd. of Revision, 136 Ohio St.3d 188,

2013-Ohio-3028, ¶ 25. "Any finding of fact by the BTA must be supported by the evidence."

Columbus City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision, 90 Ohio St.3d 564,

565, 2001-Ohio-16.

{¶ 15} A BTA's valuation decision will not be disturbed unless it affirmatively appears

from the record that the decision is unreasonable or unlawful. Buckeye at ¶ 14. A BTA's

determination of the credibility of witnesses and the weight to be given their testimony will

not be reversed absent an abuse of discretion. Id.; Eastbrook Farms, Inc. v. Warren Cty.

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Bd. of Revision, 12th Dist. Warren No. CA2017-12-171, 2018-Ohio-2886, ¶ 15. A BTA

finding is unreasonable and unlawful and will be reversed where the record is devoid of any

evidence from which the determination could be made. Worthington City Schools Bd. of

Edn. v. Franklin Cty. Bd. of Revision, 140 Ohio St.3d 248, 2014-Ohio-3620, ¶ 22. It follows

that Remington, as the party appealing the BTA decision, must affirmatively demonstrate

that the BTA decision is unreasonable or unlawful. Cincinnati School Dist. Bd. of Edn. v.

Hamilton Cty. Bd. of Revision, 151 Ohio St.3d 109, 2017-Ohio-7650, ¶ 8.

{¶ 16} Furthermore, proceedings before a board of revision "are not governed by the

Rules of Evidence." Dayton Supply & Tool Co. v. Montgomery Cty. Bd. of Revision, 111

Ohio St.3d 367, 2006-Ohio-5852, ¶ 24. Likewise, "the Rules of Evidence are not binding at

the BTA, * * * [but] they may be used for guidance." Columbus City Schools Bd. of

Education v. Franklin Cty. Bd. of Revision, 159 Ohio St.3d 283, 2020-Ohio-353, ¶ 19.

III. Analysis

{¶ 17} Assignment of Error No. 3:

{¶ 18} THE BTA IMPROPERLY SHIFTED THE BURDEN OF PRODUCTION TO

THE TAXPAYER, WHICH WAS NOT THE CHALLENGER TO THE AUDITOR'S OR THE

BOR'S VALUATION IN THE FIRST TWO PROCEEDINGS.

{¶ 19} In its third assignment of error, Remington argues that the BTA erred in

requiring that it carry the burden of production as to the personalty allocation it sought.

Remington asserts that the burden was on the school board, as the party that challenged

both the auditor's valuation of the Property and the BOR's decision. In support of this

argument, Remington cites the 2001 Columbus decision cited above which held, "When

cases are appealed from a board of revision to the BTA, the burden of proof is on the

appellant, whether it be a taxpayer or a board of education, to prove its right to an increase

or decrease from the value determined by the board of revision." Columbus, 90 Ohio St.3d

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at 566.

{¶ 20} However, unlike the case at bar, Columbus did not involve a bulk sale. The

Ohio Supreme Court has defined a bulk sale as follows: "Unlike a simpler transaction where

a single parcel of real property is sold individually, a bulk sale may involve the sale of all the

assets of a business, whereby a parcel of real property constitutes one of many business

assets sold at the same time for an aggregate sale price." St. Bernard Self-Storage, L.L.C.

v. Hamilton Cty. Bd. of Revision, 115 Ohio St.3d 365, 2007-Ohio-5249, ¶ 15. "Alternatively,

a bulk sale may consist of a sale of numerous real estate parcels at an aggregate price as

part of a single deal." Id.

{¶ 21} Case law shows that the supreme court treats property valuation in bulk-sale

cases differently regarding the burden of proof. In Buckeye, the court held, "A school board,

as the proponent of using a reported sale price to value real property, makes a prima facie

case when it submits basic documentation of the sale – the conveyance fee and deed. The

conveyance fee and deed create a rebuttable presumption that the sale met the

requirements that characterize true value." (citation omitted.) Buckeye, 2017-Ohio-7664

at ¶ 20. However, when the taxpayer/property owner "opposes the use of the allocated

value it reported on [the] conveyance-fee statement, it bears the burden of demonstrating

that the reported value does not properly reflect the true value of the parcel." Id. at ¶ 21.

See also Cincinnati, 2017-Ohio-7650 at ¶ 9 (it is a settled principle that an owner who favors

the use of an allocated bulk-sale price to reduce the value assigned to real property must

bear the burden of proving the propriety of the allocation). Bedford Bd. of Edn. v. Cuyahoga

Cty. Bd. of Revision, 132 Ohio St.3d 371, 2012-Ohio-2844, ¶ 21 (when a school board

advocates using the allocated sale price reported on a conveyance-fee statement, the

burden of rebuttal rests on the owner because the owner is the party most likely to possess

the information that could justify or refute the propriety of the allocation).

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{¶ 22} As the proponent of using the purchase price of the first sale to value the

Property, the school board submitted the conveyance-fee statement of the first sale at the

BOR hearing and on appeal to the BTA and therefore made a prima facie case. Buckeye

at ¶ 20. Remington opposes the use of the personalty's allocated value in the first sale on

the ground that allocation does not reflect the personalty's true value, and claims it is instead

accurately reflected on the conveyance-fee statement of the second sale. However,

because the second sale was a related-party transaction, as opposed to an arm's length

transaction, the presumption that the second sale's allocation of the purchase price reflects

the true value of the Property does not arise. See R.C. 5713.03; Hilliard City Schools Bd.

of Edn. v. Franklin Cty. Bd. of Revision, 154 Ohio St.3d 449, 2018-Ohio-2046, ¶ 12-13;

Cincinnati Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 78 Ohio St.3d 325, 328, 1997-Ohio-

212; see also Columbus, 2020-Ohio-353 at ¶ 28-29. Thus, Remington bears the burden of

proving the propriety of the allocation in the second sale. The BTA therefore did not err in

shifting the burden of production to Remington.

{¶ 23} Remington's third assignment of error is overruled.

{¶ 24} Assignment of Error No. 1:

{¶ 25} THE BTA FAILED TO CONSIDER THE OWNER'S EVIDENCE OF VALUE

OF PERSONALTY.

{¶ 26} Remington generally argues that the BTA erred in valuing the Property at

$2,184,004 – the full purchase price in the first sale.2 Specifically, in its first assignment of

error, Remington argues that the BTA erred in discounting the Deckers' testimony regarding

the allocated value of the personalty in the second sale. Remington asserts such testimony

2. As stated above, this appeal involves two adjoining parcels. McDump sold the Property to Decker Building for a full purchase price of $2,184,000. In its decision, the BTA valued one parcel at $894,910 and the other parcel at $1,289,094, thus valuing the Property at $2,184,004. There is therefore a $4 discrepancy between the first sale full purchase price and the BTA's valuation of the Property. -9- Clermont_CA2020-12-074

should have been accepted pursuant to the owner-opinion rule.

{¶ 27} As set forth in the discussion of the third assignment of error, Remington, as

the party opposing the use of the first sale's allocation of value and advocating acceptance

of the second sale's allocation, bears the burden of proving the propriety of the allocation

in the second sale. "The burden is not a heavy one; the owner must typically be able to

point to 'corroborating indicia' in the record that supports the allocation." Cincinnati, 2017-

Ohio-7650 at ¶ 10; Bedford, 2012-Ohio-2844 at ¶ 36 (all that is required is some additional

increment of corroborating evidence beyond the bare fact of allocation in the conveyance-

fee statement itself). "The burden may be satisfied if the 'best available evidence' supports

the proposed reduction from the full sale price." Cincinnati at ¶ 10. "With a bulk sale, the

best evidence of true value 'is the proper allocation of the lump-sum purchase price' to

individual parcels." Buckeye, 2017-Ohio-7664 at ¶ 18. "As opposed to a single-parcel sale,

a bulk sale raises the additional question 'whether the proffered allocation of bulk sale price

to the particular parcel of real property is proper,' which is the same as asking whether the

amount allocated reflects the true value of the parcel for tax purposes." Id.

{¶ 28} "In evaluating the sufficiency of the proof, the allocation agreed to by the

parties to the asset purchase agreement is 'relevant' in allocating for tax purposes, but it 'is

not sufficient by itself, because the motivations behind the allocation are crucial to a

determination of its propriety for tax-valuation purposes.'" Cincinnati at ¶ 10. "In other

words, the mere fact that the parties to a bulk sale of assets have agreed to allocate a

particular amount to real estate does not by itself establish the propriety of the allocation."

Id. Thus, "such an allocation is not to be taken as indicative of the value of the real property

at issue unless other indicia on the face of the contract, the circumstances attending the

allocation, or some other independent evidence establishes the propriety of the allocation."

St. Bernard, 2007-Ohio-5249 at ¶ 19.

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{¶ 29} "When the allocated amount is improper, i.e., does not accurately reflect the

true value of the property, the BTA must review and weigh all competent evidence in the

record to determine the property's true value." Buckeye, 2017-Ohio-7664 at ¶ 22. When

the propriety of the allocation has not been shown, the BTA must choose between two

alternatives: either the full purchase price constitutes the property value or the BTA

disregards the purchase price and looks at other evidence of value, such as an appraisal

of the parcel at issue. Cincinnati, 2017-Ohio-7650 at ¶ 11; Sapina, 2013-Ohio-3028 at ¶

22.

{¶ 30} At the BOR hearing, the school board argued that the Property's value should

be increased to $1,684,000, the value allocated to the real property in the first sale. By

contrast, Remington argued that McDump's $500,000 allocation to the personalty in the first

sale was incorrect (and therefore so was the real property allocation), because it was

imposed by McDump for "capital gains or income tax" purposes. Remington argued that

the personalty allocation in the second sale reflected the true value of the personalty and

presented the Deckers' testimony in support. On appeal to the BTA, based upon the

Deckers' testimony that the personalty allocation in the first sale was incorrect, the school

board argued that the full purchase price of $2,184,000 in the first sale was the Property's

true value. The BTA found that the first sale was the only arm's length transaction,

discounted the Deckers' testimony regarding the personalty allocation in the second sale,

and found no support for the $500,000 personalty allocation in the first sale given the

Deckers' testimony that the allocation was incorrect and had to be corrected in the second

{¶ 31} Remington argues that the BTA improperly discounted the Deckers' testimony

regarding the $1,600,000 personalty allocation in the second sale. Remington asserts the

Deckers were competent to testify about the value of the personalty and their testimony

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should have been accepted under the owner-opinion rule.

{¶ 32} Ordinarily, testimony as to property value is not competent and admissible

unless it is the professional opinion of an expert. See Tokles & Son, Inc. v. Midwestern

Indem. Co., 65 Ohio St.3d 621 (1992), paragraph one of the syllabus. However, under the

owner-opinion rule, the owner of either real or personal property is, by virtue of such

ownership, competent to testify about the market value of the property, even if he or she is

not qualified as an expert. Smith v. Padgett, 32 Ohio St.3d 344, 347 (1987). "Important in

the owner-opinion rule, however, is that the owner qualifies primarily as a fact witness giving

information about his or her own property; usually the owner may not testify about

comparable properties, because that testimony would be hearsay." Worthington, 2014-

Ohio-3620 at ¶ 19. Furthermore, the weight accorded to such testimony is a matter for the

BTA to determine. Valigore v. Cuyahoga Cty. Bd. of Revision, 105 Ohio St.3d 302, 2005-

Ohio-1733, ¶ 5. The BTA may accept all, part, or none of a witness's testimony. Id.

{¶ 33} The BTA rejected Chase's testimony concerning the valuation of the

personalty for two reasons. First, because it was hearsay. That is, because Chase relied

upon Internet research and the opinions of third parties. Second, because Chase was not

an appraiser and therefore not qualified to express an expert opinion of value.

{¶ 34} Contrary to the BTA's findings, Chase did not rely upon Internet research and

third-party opinions in valuing the Materials. Chase's testimony regarding the value of the

Materials was based not only upon his opinion as owner but also his extensive experience

in an industry involving the use and sale of materials such as dirt, blacktop grindings, and

gravel.3 Although Chase was not an "appraiser" he was nonetheless qualified by

3. The same may be said for Jeffrey's testimony regarding valuation of the dirt. - 12 - Clermont_CA2020-12-074

experience to express an opinion regarding the value of the Materials.4 Because Chase's

testimony concerning the value of the Materials was not hearsay and he was competent to

express an opinion of the value of the Materials as their owner and an expert, the BTA

abused its discretion by rejecting his testimony for those reasons.5

{¶ 35} On the other hand, Chase's testimony concerning the value of the Equipment

presents a different analysis. As owner of the Equipment, Chase was competent to testify

as to its valuation pursuant to the owner-opinion rule. However, the owner-opinion rule

deals solely with a property owner's competency to testify about his or her opinion of value;

the rule relates to the admissibility of the owner's testimony, not its weight. Worthington,

2014-Ohio-3620 at ¶ 19. Chase provided no testimony concerning the valuation of two of

the Equipment items, one item's valuation was based upon the cash the Deckers received

upon selling the item, and the valuation of the remaining items were based upon "collected

data and information," appraisals, comparables found on the Internet, and one individual's

quote. No documentation was provided to substantiate the items' allocated value. The

Deckers did not expressly state a personal opinion of value; their testimony was derived

from Internet research and opinions of third parties and was therefore hearsay and was

otherwise undocumented. See Worthington; Olentangy Local Schools Bd. of Edn. v.

Delaware Cty. Bd. of Revision, 152 Ohio St.3d 331, 2017-Ohio-8843. The BTA therefore

did not abuse its discretion by discounting Chase's testimony regarding valuation of the

4. As indicated above, the Rules of Evidence are not strictly applicable to proceedings before the BTA but may be consulted for guidance. Apparently the BTA did rely upon the Rules of Evidence in rejecting Chase's testimony on the ground it was hearsay and he was not an appraiser (i.e., an expert). However, Evid.R. 702 allows a person to testify as an "expert" where "[t]he witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony."

5. As discussed above, the Rules of Evidence are inapplicable to BOR proceedings. Additionally, hearings before the BOR are not conducted with the formalities attendant to court proceedings. Bearing this in mind, we believe Chase's testimony before the BOR established his competency to provide expert testimony regarding the valuation of the Materials. - 13 - Clermont_CA2020-12-074

Equipment.

{¶ 36} Remington's first assignment of error is sustained in part and overruled in part.

{¶ 37} Assignment of Error No. 2:

{¶ 38} THE BTA IGNORED THE TAXPAYER'S TESTIMONY THAT THE SELLER

CRAMMED DOWN AN ARTIFICIALLY LOW ALLOCATION OF PERSONAL PROPERTY

OUT OF TAX MOTIVATIONS.

{¶ 39} In its second assignment of error, Remington argues the BTA erred in

concluding that the first sale was the best guidepost for valuing the Property, yet

simultaneously disallowing any allocation of that purchase price toward personalty.

Remington asserts the BTA decision improperly ignores Jeffrey's testimony that McDump's

low personalty allocation was done for tax purposes.

{¶ 40} "[J]ust as the parties to a sale of real property can allocate for purposes that

genuinely relate to the true value of the properties, they can also allocate for other purposes

that may 'distort the true value of the subject property' in a given case." Bedford, 2012-

Ohio-2844 at ¶ 24. "Tax considerations * * * can affect an allocation in ways that make it

unreflective of the value of the individual properties. In an extreme case, the parties to a

sale of multiple parcels of real property might allocate for the specific purpose of reducing

real property taxes[.]" Id. at ¶ 25. The Ohio Supreme Court has recognized other tax

considerations as significant in this regard in the context of both real and personal property

taxation. Id. See Dublin Bd. of Edn. v. Franklin Cty. Bd. of Revision, 80 Ohio St.3d 450,

1997-Ohio-327 (use of allocated sale price to value property was rejected when the amount

allocated to the property had been artificially inflated for negotiation and tax-avoidance

purposes); Heimerl v. Lindley, 63 Ohio St.2d 309 (1980) (allocation of asset purchase price

was not a reasonable reflection of the true value when allocation was intended to maximize

federal income-tax advantage).

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{¶ 41} McDump's motivation to insist upon the allocation reflected in the

conveyance-fee statement for the first sale introduced a complicating factor into the sale

and the allocation of the purchase price. The Ohio Supreme Court has held that when the

propriety of an allocation has not been shown, "'complexities of the sale' may justify looking

to appraisal evidence rather than the sale price to value the property." Cincinnati, 2017-

Ohio-7650 at ¶ 11. Such evidence was present in Mahon's testimony. Considering the

obvious "complexities" of this sale, the BTA erred in failing to give any consideration to

Mahon's testimony concerning the auditor's appraisal which valued the Property at

$690,900.

{¶ 42} The BTA further ignored the testimony regarding the tax considerations

involved in the first sale allocation. In doing so, "the BTA failed to consider whether it is

sufficient to negate the validity of using the allocated sale price." Bedford, 2012-Ohio-2844

at ¶ 29.

{¶ 43} Remington's second assignment of error is sustained.

IV. Conclusion

{¶ 44} The evidence unequivocally establishes that the sale included considerable

personalty that has some, if not substantial, value. Based upon the foregoing, we find that

the BTA decision valuing the Property at the full $2,184,000 purchase price is unreasonable

and unlawful. See Sapina, 2013-Ohio-3028. We therefore vacate the BTA decision and

remand so that the BTA may consider the following: the probative value of Chase's

testimony regarding the valuation of the Materials and determine its effect on the propriety

of the allocation for purposes of valuing the Property; whether the testimony concerning the

tax considerations involved in the first sale allocation is sufficient to negate the validity of

using the allocation of the purchase price from the first sale; and Mahon's testimony

concerning the county auditor's appraisal. On remand, the BTA may decide the matter on

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the record or exercise its discretion to hear additional evidence and make such

investigations as it deems proper. R.C. 5717.01; Columbus, 90 Ohio St.3d at 567

(remanding to the BTA for an independent determination of value and noting the BTA's

authority under R.C. 5717.01); Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of

Revision, 139 Ohio St.3d 212, 2014-Ohio-1940, ¶ 31 (same).

{¶ 45} Judgment affirmed in part, reversed in part, and cause remanded.

PIPER, P.J., and BYRNE, J., concur.

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