COLORADO COURT OF APPEALS                                     2017COA134


Court of Appeals No. 16CA1723
Board of Assessment Appeals, State of Colorado Case Nos. 68337, 68338,
68339 & 68340


HDH Partnership; Lawrence Ausherman; Mark L. Ish; Herb Marchman;
Hondros Family Real Estate, LLC; and Teresa M. Mull Revocable Trust,

Petitioners-Appellants,

v.

Hinsdale County Board of Equalization,

Respondent-Appellee

and

Board of Assessment Appeals, State of Colorado,

Appellee.


                          ORDER REVERSED AND CASE
                          REMANDED WITH DIRECTIONS

                                   Division IV
                          Opinion by JUDGE GRAHAM
                          Booras and Dunn, JJ., concur

                           Announced October 19, 2017


Hoskin Farina & Kampf, P.C., Michael J. Russel, Andrew H. Teske, Karoline M.
Henning, Grand Junction, Colorado, for Petitioners-Appellants

Schumacher & O’Loughlin, LLC, Michael P. O’Loughlin, Gunnison, Colorado,
for Respondent-Appellee

Cynthia H. Coffman, Attorney General, Krista Maher, Assistant Attorney
General, Denver, Colorado, for Appellee
¶1    In this case we are tasked with determining whether owners of

 fishing and hunting memberships, HDH Partnership, Lawrence

 Ausherman, Mark L. Ish, Herb Marchman, Hondros Family Real

 Estate, LLC, and Teresa M. Mull Revocable Trust, may be taxed for

 the parcels of real estate allocated to them in their membership

 agreements.

¶2    The parcels are part of a larger tract of land used as a hunting

 and fishing club in southwestern Colorado. Membership in the

 club is granted to those who hold a deed to one of the parcels which

 collectively comprise the club grounds. Members cannot make

 improvements on their parcels or exclude other club members.

 Instead, the club retains control over the grounds and grants all

 members equal access, regardless of the parcel to which they hold

 title. A member’s rights to access the grounds can be revoked if he

 or she owes money or violates club rules.

¶3    On these facts, we conclude that the club is the true property

 owner because it enjoys the most significant incidents of ownership

 while members effectively have a license to use club grounds,

 notwithstanding that they hold bare legal title to the parcels.


                                   1
 Therefore, the club, not the members should bear the real property

 tax burden.

                           I.    Background

            A.   The Lake Fork Hunting and Fishing Club

¶4    In 1979, the Lake Fork Hunting and Fishing Club (the Club)

 was formed. A declaration transferred 1400 acres of land to the

 Club, divided into twenty-nine parcels, known as “Ranches.”

 Except for a single “Floating Membership” that is not tied to a

 Ranch, the only way to obtain membership in the Club is to hold

 title to part of a Ranch. Membership cannot be “sold, assigned or

 transferred, voluntarily or by will or by operation of law.” Instead,

 “[w]henever a member . . . cease[s] to own the interest in the real

 property which entitles him to such membership . . . such member

 shall automatically be dropped from the membership rolls of the

 Club and the membership certificate [is transferred] to the new

 ranch owner.” In other words, club membership cannot be severed

 from the deed, but instead follows record title to a Ranch.

¶5    The Club reserves the following rights:




                                    2
   “exclusive hunting and fishing rights and privileges

    including all rights of ingress and egress upon and

    across the entire property, including all Ranches”;

   “exclusive right to construct and maintain over, across

    and upon each Ranch . . . utilities, roads, lakes, ditches,

    bridges and fences”;

   “exclusive right to pasture livestock on the entire

    property, including each individual Ranch”;

   “the right to impound, store, and divert the waters of the

    Lake Fork of the Gunnison river over, across and upon

    each Ranch”; and

   the rights to “easements and rights of way incident to

    and necessary to maintain . . . the existing skeet and trap

    field, the existing golf driving range and the existing

    airport runway.”

Members are prohibited from

   subdividing the Ranches;

   building within one hundred feet of the river;

   placing trailers or mobile homes on the Ranches; or


                            3
          conducting any mining or drilling activities.

 Initially, members were barred from building more than three

 residences on any Ranch, but, in 1999, the declaration was

 amended to prohibit the construction of any residence on a Ranch.

¶6    The Club’s bylaws limit the number of guests a member may

 bring to the Club for hunting or fishing and the number of days an

 individual guest may hunt or fish. Members must register

 themselves and their guests when using Club grounds, and their

 hunting and fishing activities are subject to detailed Club

 regulations. The Club is entitled to all revenues from fees charged

 for hunting, fishing, shooting, and other activities on the grounds.

¶7    Only “members in good standing” are permitted to access Club

 grounds, which are defined as “all property owned by Lake Fork

 Hunting and Fishing Club including all ranches by virtue of the

 ownership of which persons are entitled to membership in the Lake

 Fork Hunting and Fishing Club.” Members who have unpaid

 assessments or other outstanding fees “shall not be entitled to the

 privileges of the Club.” And the Board of Governors may “censure[],

 fine[], or have all privileges suspended . . . for violation of the

 Declaration . . . , By-Laws, Rules or Regulations . . . or for any

                                      4
 conduct which in the opinion of the Board, is improper or

 prejudicial to the welfare of or reputation of the Club.”

                        B.    Procedural History

¶8    Each of the petitioners in this case holds membership in the

 Club by virtue of a deed conferring record title to a Ranch or part of

 a Ranch. They initiated this action after they disagreed with the

 Hinsdale County Assessor’s 2015 assessment of those parcels.

 They argued that the Assessor should not have assessed property

 taxes to them individually because, although they are the record

 title holders, they do not actually enjoy traditional incidents of

 ownership, which are instead retained by the Club. The Club, they

 said, is the true property owner and therefore it should have

 received the property tax assessment. Petitioners also argued that

 the Assessor failed to account for the personal property value of the

 Ranch deeds. The value of the deeds, they claimed, was not in the

 land but in the club membership that the deed granted —

 membership which constitutes a personal property interest not

 subject to real property taxation.

¶9    The Hinsdale County Board of Equalization (BOE) agreed with

 the Assessor that petitioners were the parcel owners and affirmed

                                      5
  the Assessor’s valuation. Petitioners appealed to the Board of

  Assessment Appeals (BAA), which agreed with the BOE and

  affirmed its decision. Petitioners then filed this appeal.

¶ 10    Because we agree with petitioners that the Club is the true

  owner of the parcels, we conclude that the BAA erred as a matter of

  law in assessing real property taxes to petitioners. We also

  conclude that the BAA erred in affirming the Assessor’s valuation,

  because it was based on the personal property value of petitioners’

  licenses to use Club grounds, rather than the value of the parcels

  as real property. Accordingly, we reverse the BAA’s order and

  remand for further proceedings consistent with this opinion.

       II.   To Whom Should the Real Property Taxes be Assessed?

¶ 11    We must first answer the following question: Who is the true

  owner of the Ranches who should be assessed taxes for them? We

  agree with petitioners that bare legal title is not determinative, and,

  instead, we must look beyond the legal form to the substance of the

  parties’ respective rights. We also agree that, based on petitioners’

  and the Club’s respective rights, petitioners hold mere licenses to

  use Club grounds, while the Club retains the most significant



                                     6
  traditional incidents of ownership. Therefore, we conclude that the

  Club, as the true owner, should have been assessed the taxes.

                         A.    Standard of Review

¶ 12   We review decisions of the BAA as a mixed question of fact and

  law. See Cantina Grill, JV v. City & Cty. of Denver Bd. of

  Equalization, 2015 CO 15, ¶ 15. We defer to the BAA’s factual

  findings unless they are unsupported by competent evidence in the

  record, but we interpret the tax statutes de novo, and apply those

  interpretations to the facts to reach our own legal conclusions.

  Roaring Fork Club, LLC v. Pitkin Cty. Bd. of Equalization, 2013 COA

  167, ¶ 21; see also §§ 24-4-106(7), (11), 39-8-108(2), C.R.S. 2017;

  Cantina Grill, ¶ 15.

¶ 13   Whether something is “an interest in property that can be

  valued and is subject to property tax” is a question of law. Roaring

  Fork, ¶ 26.

¶ 14   When interpreting statutes, we give the words their ordinary

  and common meanings and interpret the provisions as a whole,

  giving effect to all parts. Bd. of Cty. Comm’rs v. Vail Assocs., Inc., 19

  P.3d 1263, 1273 (Colo. 2001).



                                     7
           B.   We Must Look Beyond Bare Legal Title to Determine
                                  Ownership

¶ 15       The BOE insists that the Assessor was obligated to assess

  taxes to the record title holders (petitioners) and that we may not

  look beyond bare legal title when determining ownership for tax

  purposes.1 Petitioners disagree, arguing that the law permits us to

  look beyond the title to the substance of the parties’ rights when

  determining ownership. We agree with petitioners. Their position

  finds support in statute and case law.

      1.    Record Title is Not Conclusive Under Colorado’s Tax Statutes

¶ 16       First, reading the tax statutes as a whole, we conclude that

  record title is not conclusive evidence of property ownership. It is

  true that assessors are directed to ascertain real property

  ownership “from the records of the county clerk and recorder.”

  § 39-5-102(1), C.R.S. 2017. But those records are merely “prima

  facie evidence of all things appearing therein.” § 39-1-115, C.R.S.

  2017. Prima facie means “[a]t first sight; on first appearance but

  subject to further evidence or information.” Black’s Law Dictionary



  1The BAA acknowledges that we may look past the form to the
  substance of the parties’ rights but contends that petitioners retain
  sufficient rights such that they are the true parcel owners.
                                       8
  1382 (10th ed. 2014). And section 39-5-122(2), C.R.S. 2017,

  provides that “[i]f any person is of the opinion that . . . property has

  been erroneously assessed to such person, he or she may appear

  before the assessor and object.” Therefore, while record title is

  evidence of property ownership, it merely creates a rebuttable

  presumption, not a conclusive determination.

¶ 17   We are also unpersuaded that section 39-5-104, C.R.S. 2017,

  required the Assessor to tax the individual deed holders. “Each

  tract or parcel of land . . . shall be separately appraised and valued,

  except when two or more adjoining tracts, parcels, or lots are owned

  by the same person, in which case the same may be appraised and

  valued either separately or collectively.” § 39-5-104. The BOE

  argues that this requirement for individual parcel valuation

  required the Assessor to assess taxes to the individual record title

  holders. While this provision requires valuation of individual

  owners’ parcels, it is silent on how ownership is determined. Thus,

  it does not affect our conclusion that the tax statutes permit us to

  look beyond bare legal title.




                                     9
  2.   Case Law Supports Looking Past Bare Legal Title to Determine
                      Ownership for Tax Purposes

¶ 18   Furthermore, case law illustrates that property ownership is

  not necessarily determined by record title. Instead, we must look

  beyond “form[s] and labels” to determine “real ownership.” Mesa

  Verde Co. v. Bd. of Cty. Comm’rs, 178 Colo. 49, 54, 495 P.2d 229,

  232 (1972); Gunnison Cty. v. Bd. of Assessment Appeals, 693 P.2d

  400, 404 (Colo. App. 1984) (“Record title alone . . . is not

  determinative.”).

             “[T]axation is not so much concerned with the
             refinements of title as it is with actual
             command over the property taxed . . . .” In a
             number of cases, the Court has refused to
             permit the transfer of formal legal title to shift
             the incidence of taxation attributable to
             ownership of property where the transferor
             continues to retain significant control over the
             property transferred. In applying this doctrine
             of substance over form, the Court has looked
             to the objective economic realities of a
             transaction rather than to the particular form
             the parties employed. The Court has never
             regarded “the simple expedient of drawing up
             papers,” as controlling for tax purposes when
             the objective economic realities are to the
             contrary. “In the field of taxation,
             administrators of the laws and the courts are
             concerned with substance and realities, and
             formal written documents are not rigidly
             binding.”


                                     10
  City of Golden v. Aramark Educ. Servs., LLC, 2013 COA 45, ¶ 31

  (alteration in original) (quoting Frank Lyon Co. v. United States, 435

  U.S. 561, 572-73 (1978)).

¶ 19   This principle has been applied to tax cases in Colorado in the

  following situations:

           evaluating disputes over whether property is taxable, see

            Cantina Grill, ¶¶ 5-73 (looking past form to determine

            that Denver International Airport concessionaires’

            possessory property interests were not tax exempt even

            though city held legal title); Mesa Verde, 178 Colo. at 53-

            57, 495 P.2d at 231-33 (looking beyond bare legal title to

            determine that concessionaire on national park property

            owned improvements thereon); Gunnison Cty., 693 P.2d

            at 404 (applying substance over form doctrine to

            determine that jail which county sold and leased back

            from a private entity was tax exempt county property);

           deciding if a contract conveyed a real property interest,

            see Vill. at Treehouse, Inc. v. Prop. Tax Adm’r, 2014 COA

            6, ¶¶ 8-30 (holding that assignment of rights to develop

            condominium units constituted taxable real property
                                    11
            rights, notwithstanding that transferor retained rights in

            the common elements); Bernhardt v. Hemphill, 878 P.2d

            107, 112-13 (Colo. App. 1994) (holding that time share

            contract did not create real property interest);

          analyzing whether a contract created tax exempt or

            taxable sales, cf. Aramark, ¶¶ 31-35 (explaining that

            substance over form doctrine supported argument that

            contract created retail sales but ultimately deciding case

            based on presumption against tax exemption) (citing

            Frank Lyon, 435 U.S. at 572-73); and

          determining whether a golf club membership, nominally

            a personal property interest, was actually taxable as real

            property, Roaring Fork, ¶¶ 31-46 (holding that

            memberships were merely licenses, not leaseholds

            taxable as real property).

¶ 20   Nothing in the law suggests that this doctrine cannot also be

  applied to the question of who is the true owner of real property and

  should therefore be assessed taxes. In fact, there is strong support

  for applying the doctrine here. See Frank Lyon, 435 U.S. at 573;

  Mesa Verde, 178 Colo. at 57, 495 P.2d at 233 (“[W]here a party has
                                   12
  the right to possession, use, enjoyment, and profits of the property,

  that party should not be permitted to use the bare legal title . . . to

  avoid his fair and just share of state taxation.”); Gunnison Cty., 693

  P.2d at 404 (“The nature of a transaction is not controlled by its

  legal characterization; rather, it is the intention of the parties which

  determines the essence of the transaction, and the facts of each

  case demonstrate the parties’ intention.”).

   C.   Applying the Substance Over Form Doctrine Reveals That the
                          Club is the True Owner

¶ 21    Having concluded that we may look past bare legal title to

  determine ownership, we must now examine the substance of

  petitioners’ and the Club’s rights to decide who is the true owner of

  the real property. Because the Club has a high degree of control

  over the grounds, and petitioners may only use the grounds equally

  with other club members and subject to the Club’s control and

  regulation, we conclude that the Club is the true owner while

  petitioners’ rights are akin to a mere license.

¶ 22    “Property rights in a physical thing have been described as the

  rights ‘to possess, use and dispose of it.’” Loretto v. Teleprompter

  Manhatten CATV Corp., 458 U.S. 419, 435 (1982) (quoting United


                                     13
  States v. Gen. Motors Corp., 323 U.S. 373, 378 (1945)). The right to

  possess property connotes the right to control it. See Cantina Grill,

  ¶ 1 n.1 (Possessory interest is defined as “[t]he present right to

  control property, including the right to exclude others”[;] “a physical

  relation to the land of a kind which gives a certain degree of

  physical control over the land, and an intent so to exercise such

  control as to exclude other members of society in general from any

  present occupation of the land.” (first quoting Black’s Law

  Dictionary 1353 (10th ed. 2014); then quoting Restatement (First) of

  Property § 7 (1936))). The power “to exclude others . . . has

  ‘traditionally been considered one of the most treasured strands in

  an owner’s bundle of property rights.’” Aspen Springs Metro. Dist. v.

  Keno, 2015 COA 97, ¶ 9 (quoting Loretto, 458 U.S. at 435). Other

  real property ownership rights include the right to develop the

  property, see Vill. at Treehouse, ¶ 22, and the right to income from

  the property, McDonald v. McDonald, 150 Colo. 492, 494, 374 P.2d

  690, 691 (1962); see also Mesa Verde, 178 Colo. at 57, 495 P.2d at

  233.

¶ 23     By contrast, “[a] license is a personal privilege to do some act

  or series of acts upon the land of another not involving possession

                                      14
  of an estate or interest therein.” Roaring Fork, ¶ 41 (quoting Welsch

  v. Smith, 113 P.3d 1284, 1289 (Colo. App. 2005)).

¶ 24   In applying these rules to the facts here, Roaring Fork is

  instructive. In that case, a division of this court concluded that a

  golf club membership was not a leasehold but a license. Id. at

  ¶¶ 36-37. The club’s members had “a personal privilege to perform

  any of a series of acts on the club’s property, including playing golf,

  fishing, dining, or working out at the fitness facility.” Id. at ¶ 41.

  But, members were not entitled to “possession of the property . . .

  [or] exclusive use or occupation of it,” could not receive rents or

  profits from the club’s property, and could not “exclude any others

  from the club’s property who would use it in the same way.” Id. at

  ¶¶ 37, 40 (citation omitted). Furthermore, “memberships can be

  revoked for . . . nonpayment of dues or violation of the club’s rules

  and regulations.” Id. at ¶ 41.

¶ 25   Although the memberships here are conveyed by deed, the

  rights they convey are strikingly similar to those in Roaring Fork.

  Members do not have possessory rights to the parcels for which

  they hold record title; they can only access them equally with other

  club members. They have no power to exclude other club members

                                     15
  from the parcels to which they hold title and are limited in the

  number of guests they may bring onto the grounds. Members

  cannot profit from mining, drilling, or pasturing livestock on their

  parcels and are not entitled to revenues collected by the Club from

  use of the property. Members also lack control over improvements

  to the property. And members’ rights to access Club grounds may

  be revoked if they do not pay their assessments and fees or if they

  violate Club rules.

¶ 26   Meanwhile, the Club enjoys most of the traditional benefits of

  real property ownership, including the rights to exclude

  nonmembers or members not in good standing, to erect or remove

  improvements, to control the river and its waters, and to profit from

  the land by pasturing livestock, conducting mining or drilling

  activities, and charging fees to members. Given the extent of the

  Club’s control over the property, we conclude that, while the

  members hold bare legal title to the parcels, the Club is the true

  owner. See Frank Lyon, 435 U.S. at 573; Mesa Verde, 178 Colo. at

  57, 495 P.2d at 233 (“[W]here all the evidence indicate[d] that the

  most significant incidents of ownership [were] possessed by [a

  private party], it would be an especially unjust result to allow [that

                                    16
  party] to escape state taxation.”); Gunnison Cty., 693 P.2d at 404

  (The county “retained sufficient control of the property to render it

  tax exempt” where it “occupie[d] and control[led] the property,

  control[led] construction and improvements of the property, [and]

  maintain[ed] and insure[d] the property.”).

¶ 27   Accordingly, we agree with petitioners that the BAA erred as a

  matter of law in holding that petitioners were the real property

  owners.

       D.    Appellees’ Other Arguments Regarding Ownership Are
                                  Unavailing

¶ 28   We find the BOE’s and BAA’s remaining arguments on this

  issue unpersuasive for the following reasons.

        1.    Petitioners Benefit From Holding Restrictive Deeds

¶ 29   The BOE argues that the substance over form doctrine is

  inapplicable here because “[petitioners’] statements throughout

  their Opening Brief make it sound like the Club’s owners have no

  rights or privileges by having an ownership interest in a [Ranch] . . .

  [but] the owners enjoy many outdoor recreational benefits by

  owning a parcel.” Relatedly, the BOE and BAA argue that the

  limitations on petitioners’ property rights are merely restrictive


                                    17
  covenants from which they benefit through the preservation of the

  Club as an undeveloped hunting and fishing area for use by all

  members.

¶ 30   We are unpersuaded by these contentions because they

  conflate any benefit with benefits incident to ownership. See Radke

  v. Union Pac. Ry. Co., 138 Colo. 189, 198-99, 334 P.2d 1077, 1082

  (1959) (explaining the difference between language granting title to

  mineral reserves and language granting mere license to remove

  minerals from land). While it is undoubtedly true that petitioners

  benefit from holding deeds to Club Ranches, and that they even

  benefit from the deed restrictions, which protect their ability to

  access the whole undeveloped grounds for hunting and fishing,

  those rights nevertheless amount to mere license to use Club

  property, not fee ownership.

       2.    Petitioners Control Their Properties Through the Club

¶ 31   The BOE and BAA also argue that petitioners retain sufficient

  control to remain fee owners through the Board of Governors (the

  Board). We find no legal support for this contention.

¶ 32   An association that represents a group of individuals is not

  equivalent to each individual exercising control over his or her

                                    18
  property. See Clubhouse at Fairway Pines, L.L.C. v. Fairway Pines

  Estates Owners Ass’n, 214 P.3d 451, 456-57 (Colo. App. 2008)

  (holding that common interest community association did not

  adequately represent the interests of individual owners, who may

  hold differing opinions from one another and from the association

  itself); Dunne v. Shenandoah Homeowners Ass’n, Inc., 12 P.3d 340,

  344-45 (Colo. App. 2000) (same). While petitioners have some

  ability to participate in management of the land by exercising their

  voting rights or running for a seat on the Board, this is hardly the

  same as exercising exclusive control over one’s own property.

¶ 33   This argument would also require us to disregard the Club’s

  corporate form. Governance through a separate corporate entity is

  not merely a legal nicety; it is substantively different than individual

  control over property or even collective governance under a different

  ownership structure. For example, in Reishus v. Bullmasters, LLC,

  2016 COA 82, a division of this court considered a claim related to

  a piece of land similarly designated for hunting purposes. See id. at

  ¶ 12. But in that case, the structure of the ownership was a

  tenancy in common, and the individual owners governed by a

  simple majority vote. Id. at ¶¶ 3-12. The practical effect was that

                                    19
  those owners had a greater degree of control over the collective use

  of the property than these club members, who only vote for

  representatives to govern the property on behalf of the Club.2

¶ 34   Ultimately, the influence petitioners have over Club

  governance of the land is simply not sufficient control to say that

  they retain any significant incidents of fee ownership.

          3.   Possibility of Future Changes to the Declaration

¶ 35   Next, to the extent the BOE and BAA suggest that the Club

  could change the declaration, bylaws, and other regulations that

  deprive petitioners of significant incidents of ownership, we decide

  assessment controversies based on current realities, not future

  possibilities. See Padre Resort, Inc. v. Jefferson Cty. Bd. of

  Equalization, 30 P.3d 813, 815-16 (Colo. App. 2001) (holding that

  assessor was correct to disregard hotel rooms under construction

  when valuing property because “economic conditions existing

  outside the base period may not be considered in arriving at the

  taxable value of property”); see also Vail Assocs., 19 P.3d at 1280

  (holding that ski resort held taxable possessory property interest,


  2 The members can engage in direct governance only by amending
  the Club declaration by a vote of 75% of members.
                                     20
  notwithstanding that its interest only extended to the year 2031);

  Mesa Verde, 178 Colo. at 57, 495 P.2d at 233 (“It would be a very

  harsh doctrine that would deny the right of the states to tax lands

  because of a mere possibility that they might lapse to the United

  States (for failure to fulfill certain contractual obligations).” (quoting

  Balt. Shipbuilding & Dry Dock Co. v. City of Baltimore, 195 U.S. 375,

  382 (1904))). Thus, whether petitioners might be accorded more

  control of the parcels in the future does not change our present

  analysis.

         4.    Petitioners Retain the Right to Sell Their Interests

¶ 36   The BOE and BAA also assert that petitioners are the real

  property owners because they retain the right to sell their parcels.

  We disagree. The right to sell is not dispositive. See Loretto, 458

  U.S. at 436 (“[E]ven though the owner may retain the bare legal

  right to dispose of the occupied space by transfer or sale, the

  permanent occupation of that space by a stranger will ordinarily

  empty the right of any value, since the purchaser will also be

  unable to make any use of the property.”). And while petitioners

  retain the right to sell the deeds to their parcels, the substance of



                                      21
  the rights bought and sold is merely license to use the Club

  grounds, not interest in the land.

¶ 37   To be sure, the alienability of these deeds is unusual.

  Licenses are typically revocable, unassignable personal privileges

  that terminate upon transfer of the land. See Radke, 138 Colo. at

  207-08, 334 P.2d at 1086-87; Vill. at Treehouse, ¶ 19; Lehman v.

  Williamson, 35 Colo. App. 372, 375, 533 P.2d 63, 65 (1975). But

  those characteristics are not necessary for a license. See Radke,

  138 Colo. at 208-09, 334 P.2d at 1087; Roaring Fork, ¶ 11. So,

  while the use of a deed to convey these licenses is unusual, it does

  not change the substance of the rights bought and sold. See Dep’t

  of Commerce v. Carriage House Assocs., 585 P.2d 1337, 1339 (Nev.

  1978) (observing that “vacation licenses,” which gave holders the

  right to occupy resort units for a short time, were “an anomaly [that

  do not] fit neatly into any nice legal terminology,” but concluding

  that they were more akin to contract rights than real property

  interests).

¶ 38   Accordingly, we reject the contention that the ability to sell a

  Ranch deed means that the deed conveys a real property interest in

  the parcel.

                                    22
                               5.   CCIOA

¶ 39   The BOE also argues that the Colorado Common Interest

  Ownership Act (CCIOA) required the Assessor to assess the parcels

  individually. We need not address this contention because the

  provision on which the BOE relies does not apply to the Club.

  Section 38-33.3-105(2), C.R.S. 2017, applies only to common

  interest communities created after June 30, 1992, unless they have

  elected CCIOA treatment. §§ 38-33.3-115, -117, -118, C.R.S. 2017.

  The Club was created in 1979 and has not elected CCIOA

  treatment.

                       6.   Unit Assessment Rule

¶ 40   The BOE and BAA next contend that the unit assessment rule

  requires taxes to be assessed to the individual members. We do not

  perceive the unit assessment rule as applicable here.

¶ 41   “The unit assessment rule requires that all estates in a unit of

  real property be assessed together, and that the real estate as an

  entirety be assessed to the owner of the fee free of the ownerships of

  lesser estates such as leasehold interests.” Vill. at Treehouse, ¶ 32

  (citing City & Cty. of Denver v. Bd. of Assessment Appeals, 848 P.2d

  355, 358 (Colo. 1993)).

                                    23
¶ 42   The unit assessment rule is not implicated in this case

  because petitioners are not asking for the taxes to be split between

  them and the Club. See City & Cty. of Denver, 848 P.2d at 359 (The

  unit assessment rule “prohibits multiple assessments on multiple

  taxpayers holding disparate interests in a single piece of property.”).

  Instead, they ask us to recognize the Club as the true property

  owner, despite the legal form. Looking beyond the form to the

  substance of the parties’ rights does not require us to divide the tax

  allocation.

                          7.   Absent Members

¶ 43   The BOE and BAA further contend that petitioners’ arguments

  were properly rejected because all club members were not joined in

  the action. We disagree.

¶ 44   First, we are not convinced that the members’ owners were

  necessary or indispensable parties under C.R.C.P. 19. A party is

  indispensable if the absent “person’s interest in the subject matter

  of the litigation [is] such that no decree can be entered in the case

  which will do justice between the parties actually before the court

  without injuriously affecting the right of such person[.]” Woodco v.

  Lindahl, 152 Colo. 49, 54-55, 380 P.2d 234, 238 (1963). Here,

                                    24
  petitioners challenge the tax assessments on four parcels of land to

  which they hold bare legal title. Other club members’ assessments

  are not at issue. Hence, we fail to see how a decision will

  injuriously affect the absent members.

¶ 45   But, even if the absent club members were indispensable

  parties, affirming the order would not be the appropriate remedy.

  The BOE and BAA did not move to join the absent owners or to

  dismiss the action for failure to join indispensable parties. Instead,

  they argue that relief should be denied to petitioners on the merits

  because the other members were not party to the suit. This is not

  how C.R.C.P. 19 works. See Fairway Pines, 214 P.3d at 454 (The

  indispensable party rule “does not mean that ‘a party with the

  necessary information to make a motion for joinder of an

  indispensable party at his disposal can sit back and raise it at any

  time in the proceedings, when the only effect . . . would be to

  protect himself.’”) (alteration in original) (citation omitted); see also

  Durango & Silverton Narrow Gauge R.R. Co. v. Wolf, 2013 COA 118,

  ¶ 26 (The trial court did not err in issuing summary judgment for

  plaintiff “where [the defendant] did not move for joinder [of parties

  he argued were indispensable], but simply raised the issue in his

                                      25
  summary judgment motion.”). If the absent club members were

  indispensable, their absence would require a remand for joinder or

  dismissal, not affirmation of the order on the merits. See Fairway

  Pines, 214 P.3d at 457 (explaining that proper remedy for failure to

  join an indispensable party is to join the absent party); Frazier v.

  Carter, 166 P.3d 193, 196 (Colo. App. 2007) (holding that

  indispensable party’s absence “prevent[ed] final resolution of the

  issues raised” on appeal, and remedy was remand to trial court

  where the plaintiff would have opportunity to join the absent party).

          III.    How Should the Property Value Be Calculated?

¶ 46   Finally, we agree with petitioners that the Assessor improperly

  valued the parcels, and that the BAA abused its discretion in

  affirming that valuation.

                 A.   Standard of Review and Applicable Law

¶ 47   “An assessor’s valuation of property for taxation is presumed

  to be correct.” Cantina Grill, ¶ 15. The taxpayer bears the burden

  of rebutting that presumption by a preponderance of the evidence.

  Roaring Fork, ¶ 20. We will set aside a decision by the BAA only if

  there is no competent evidence in the record to support the decision

  or “the decision reflects a failure to abide by the statutory scheme

                                     26
  for calculating property tax assessments.” CTS Invs., LLC v.

  Garfield Cty. Bd. of Equalization, 2013 COA 30, ¶ 59.

¶ 48   Assessors are directed to value property “by appropriate

  consideration of the cost approach, the market approach, and the

  income approach to appraisal.” Id. at ¶ 27 (quoting § 39-1-

  103(5)(a), C.R.S. 2017). “The market approach, or comparable sales

  method, involves an analysis of sales of comparable properties in

  the market.” City & Cty. of Denver, 848 P.2d at 357 n.3. “The

  assessor is required to use sales of real property only in the

  valuation process.” 3 Div. of Prop. Taxation, Dep’t of Local Affairs,

  Assessor’s Reference Library § 3, at 3.4 (rev. July 2017) (citing § 39-

  1-103, C.R.S. 2017).

                              B.    Analysis

¶ 49   Because we have concluded that the Club is the true property

  owner and individual members hold only a license to use Club

  grounds, we are compelled to conclude that the Assessor’s valuation

  violated the statutory scheme for calculating property tax

  assessments. Specifically, the Assessor improperly valued the

  parcels based on sales of personal property (the members’ licenses),

  not comparable real properties.

                                    27
¶ 50   The Assessor calculated the value of the individual Ranches by

  using sales of deeds to other Club parcels in the past few years.

  But, as we have explained, those deeds conveyed only a license to

  use the Club grounds — a personal property interest. Because the

  value of those sales reflected the value of the personal property

  conveyed rather than land, the Assessor should not have used them

  as “comparable sales” in determining the value of the parcels, and

  the BOE and BAA should not have affirmed that valuation.

                            IV.   Conclusion

¶ 51   We reverse the order of the BAA. On remand, petitioners’

  parcels3 should be reassessed as fractions of the Club grounds as a

  whole, rather than based on the personal property value of the

  members’ licenses to use the Club. The new assessments should be

  issued to the Club, not to the individual record holders.

       JUDGE BOORAS and JUDGE DUNN concur.




  3 Because the BOE and BAA raised the issue of absent Club
  members, we clarify that only petitioners’ parcels need to be
  reassessed. Resolution of petitioners’ challenges to their own 2015
  assessments does not require us to address the assessments of any
  other club ranches.
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