          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                September 2016 Term
                                                                       FILED

                                                                   October 26, 2016

                                    No. 15-0934                      RORY L. PERRY II, CLERK

                                                                   SUPREME COURT OF APPEALS

                                                                       OF WEST VIRGINIA



                   UNIVERSITY PARK AT EVANSDALE, LLC,


                             Petitioner/Petitioner Below


                                         v.


                     MARK A. MUSICK, in his capacity as the

                    Monongalia County, West Virginia, Assessor,


                            Respondent/Defendant Below



                 Appeal from the Circuit Court of Monongalia County

                    The Honorable Lawrence S. Miller, Jr., Judge

                             Civil Action No. 15-CAP-8


                          REVERSED AND REMANDED



                            Submitted: October 11, 2016

                              Filed: October 26, 2016


James A. Walls, Esq.                           Phillip M. Magro, Esq.
Joseph V. Schaeffer, Esq.                      Magro & Magro
Spilman Thomas & Battle, PLLC                  Morgantown, West Virginia
Charleston, West Virginia                      Attorney for Respondent
Attorneys for Petitioner

John A. Mairs, Esq.
Jackson Kelly PLLC
Charleston, West Virginia
Attorney for Amicus Curiae West Virginia University
Board of Governors

JUSTICE WORKMAN delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1.     “Interpreting a statute or an administrative rule or regulation presents

a purely legal question subject to de novo review.” Syl. Pt. 1, Appalachian Power Co. v.

State Tax Dep’t of W. Va., 195 W.Va. 573, 466 S.E.2d 424 (1995).



              2.     “The county assessor may presume that leaseholds have no value

independent of the freehold estate and proceed to tax all real property to the freeholder at

its true and actual value; the burden of showing that a leasehold has an independent value

is upon the freehold taxpayer and the taxpayer must request in a timely manner the

separate listing of freehold and leasehold interests.” Syl. Pt. 2, Great A & P Tea Co. v.

Davis, 167 W. Va. 53, 278 S.E.2d 352 (1981).



              3.     “The assessor of a county may assess the value of a leasehold as

personal property separately in an amount such that when the value of the freehold

subject to the lease is combined with the value of the leasehold the total reflects the true

and actual value of the real property involved.” Syl. Pt. 1, Great A & P Co. v. Davis, 167

W. Va. 53, 278 S.E.2d 352 (1981).



              4.     “In the absence of any definition of the intended meaning of words

or terms used in a legislative enactment, they will, in the interpretation of the act, be

given their common, ordinary and accepted meaning in the connection in which they are

used.” Syl. Pt. 1, Miners in General Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941),

                                             i
overruled on other grounds, State ex rel. Discover Fin. Servs., Inc. v. Nibert, 231 W.Va.

227, 744 S.E.2d 625 (2013).



              5.     A taxpayer’s challenge to whether a leasehold has separate,

independent value presents an issue of valuation, not taxability, and is properly presented

to the county commission, sitting as a board of equalization and review, pursuant to West

Virginia Code § 11-3-24 (2010).




                                            ii
WORKMAN, Justice:

             This is an appeal from the circuit court’s August 26, 2015, order denying

petitioner University Park at Evansdale, LLC’s (hereinafter “UPE”) appeal from the

decision of the Monongalia County Commission, sitting as the Board of Equalization and

Review (hereinafter “BER”). UPE protested respondent Monongalia County Assessor’s

(hereinafter “respondent”) assessment of its leasehold interest in certain property to the

BER, which affirmed respondent’s assessment on the basis that UPE’s protest presented

an issue of taxability, rather than valuation, reviewable only by the State Tax

Commissioner (hereinafter “Tax Commissioner”). Upon appeal of that decision, the

circuit court agreed, finding that UPE “sought review before the wrong forum,” thereby

denying the Tax Commissioner “its statutory right and obligation to decide [the] issue

first[.]”



             Based upon our review of the briefs, legal authorities, appendix record, and

upon consideration of arguments of counsel, we find that the circuit court erred in

concluding that UPE’s protest presented an issue of taxability and therefore reverse and

remand for further proceedings pertaining to the merits of UPE’s appeal as to the

assessor’s method of and conclusions regarding the valuation of UPE’s leasehold interest.



                     I. FACTS AND PROCEDURAL HISTORY

             UPE is the lessor of certain property located on the Evansdale Campus of

West Virginia University, which property is owned by the West Virginia University

                                            1

Board of Governors (hereinafter “WVU”).          The property is commonly known as

“University Park” and contains student housing facilities and a small portion of retail

space.1    In January 2015, respondent assessed UPE’s leasehold interest in University

Park at $9,035,617 for the tax year 2015; the fee estate owned by WVU is not taxable

inasmuch as it is property belonging to the State.2 UPE challenged the assessment before

the BER, arguing that its leasehold interest was $0 because the leasehold was neither

freely assignable nor a bargain lease.



              At the BER hearing, respondent agreed that UPE’s lease did not appear to

be freely assignable because the lease reserves to WVU the right to reject any potential

lessor of the retail space. Respondent further appeared to agree that, despite his initial

belief, the property was not a “bargain lease.”3 Finally, respondent agreed that he did not

utilize the methodology promulgated by the Tax Commissioner for assessment of




       1
         WVU leased the property to UPE for the development and construction of
University Park; upon completion, UPE leased the student housing properties back to
WVU for purposes of offering it to students for housing and retained the ability to sub­
lease the retail space, which comprises only approximately 3% of the property.
       2
        See West Virginia Code § 11-3-9(a)(2) (2015) (exempting property belonging
exclusively to the State from ad valorem taxes).
       3
        Respondent was equivocal on this issue, initially stating that he believed it was a
bargain lease, but then agreeing with counsel’s leading question indicating that
respondent concluded it was not a bargain lease.


                                            2

leasehold interests. 4 Despite this testimony, the BER concluded that since UPE was

arguing that the valuation should be $0 and therefore not “taxable,” its protest presented

an issue of taxability and not valuation. Inasmuch as taxability issues must be protested

to the Tax Commissioner, the BER concluded that UPE presented its protest in the wrong

forum and that it lacked jurisdiction. The BER encouraged UPE to appeal the issue to the

circuit court, which it did.5



              The circuit court agreed that the issue presented was one of taxability,

rather than valuation. Specifically, the circuit court discussed at length this Court’s

opinion in Maplewood Community, Inc. v. Craig, 216 W. Va. 273, 607 S.E.2d 379

(2004), which remanded a challenge to a leasehold tax assessment to the circuit court and

its discussion makes reference to the “taxability” of the leasehold interest. From the use

of that terminology, the circuit court inferred that such a challenge indeed went to

“taxability” rather than “valuation.” The circuit court then expressly stated that the issue

was one of taxability because “[i]n order to be taxable, the leasehold interest must have a

value separate and apart from the freehold estate. . . . A resolution of that question


       4
       UPE contends the method used to reach the assessment in this case was the
methodology to be used for fee interests, and not leaseholds.
       5
        UPE represented to the circuit court that subsequent to its decision herein, the
BER reversed course and found an identical challenge to the similarly-situated College
Park property to be an issue of valuation and conceded jurisdiction to hear the protest.
Counsel attributed the BER’s change of heart to a “learning curve.” The circuit court
declined to consider this information inasmuch as it was not part of the record presented
to it.

                                             3

answers whether the leasehold interest is taxable.”          Therefore, the circuit court

concluded, by asserting the leasehold had no value, which therefore rendered it not

taxable, UPE was advancing a taxability challenge which the BER had no jurisdiction to

decide and therefore had properly denied the protest. The circuit court likewise denied

the appeal on the same basis. The circuit court explicitly stated in its order that “[t]his

Court is NOT making a ruling that the property is taxable or is not taxable because the

statutory procedures, which would have required the input of the State Tax

Commissioner were not followed.” (emphasis in original).6 This appeal followed.



                             II. STANDARD OF REVIEW

              UPE sought relief from the circuit court pursuant to West Virginia Code §

11-3-25 (2014) which governs the appeal of allegedly erroneous assessments which have

first been presented to the BER or Tax Commissioner, as appropriate. See W. Va. Code

§§ 11-3-24 and -24a (2010). This Court has stated that “our review of a circuit court’s

ruling in proceedings under § 11-3-25 is de novo.” In re Tax Assessment Against Am.

Bituminous Power Partners, L.P., 208 W. Va. 250, 255, 539 S.E.2d 757, 762 (2000).

Moreover, the issue presented herein requires us to ascertain whether UPE presented a

challenge to “valuation” or “taxation,” as such terms are used in the applicable statute;

accordingly, our review is plenary. Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t


       6
         The circuit court reiterated elsewhere in its order that “[b]ecause this Court finds
that the resolution of that issue resolves the appeal, the Court does not need to consider
the [sic] whether the assessed value was erroneous.”

                                             4

of W. Va., 195 W.Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an

administrative rule or regulation presents a purely legal question subject to de novo

review.”). With this standard in mind, we turn to the parties’ arguments.



                                      III. DISCUSSION

              UPE makes three assignments of error. UPE first contends that the circuit

court erred in finding that UPE asserted a challenge to taxability, rather than valuation,

and therefore presented its protest in the wrong forum, depriving the reviewing body of

jurisdiction. UPE’s second and third assignments of error maintain that the circuit court

erred by failing to “correct and fix the erroneous assessment,” in that 1) the leasehold had

no independent value because it was neither freely assignable nor a bargain lease; and 2)

respondent admitted he did not use established procedures for valuing leaseholds.



Assessment of Leasehold Interests and Challenges to Assessments

              With respect to assessment of leaseholds in general, West Virginia Code §

11-5-4 (1972) provides:

              . . . [I]n cases of the assessment of leasehold estates a sum
              equal to the valuations placed upon such leasehold estates
              shall be deducted from the total value of the estate, to the end
              that the valuation of such leasehold estate and the remainder
              shall aggregate the true and actual value of the estate.

In that regard, this Court has held that

              [t]he county assessor may presume that leaseholds have no
              value independent of the freehold estate and proceed to tax all
              real property to the freeholder at its true and actual value; the
              burden of showing that a leasehold has an independent value
                                             5
              is upon the freehold taxpayer and the taxpayer must request in
              a timely manner the separate listing of freehold and leasehold
              interests.7

Syl. Pt. 2, Great A & P Tea Co. v. Davis, 167 W. Va. 53, 278 S.E.2d 352 (1981)

(footnote added). The Court in Great A & P explained that ordinarily the freehold should

bear the entirety of the tax assessment because “[u]nder ordinary conditions the freehold

estate will not be reduced in value by virtue of [a short-term] leasehold, nor will the

leasehold itself have any ascertainable market value.” 167 W. Va. at 56, 278 S.E.2d at

355. Therefore, “when assessors assess freeholds subject to leaseholds the property is

usually fully taxed.” Id.



              On the other hand, however, the Court in Great A & P noted that with

respect to long-term leases, “changed business conditions” and/or “persistent inflation”

may make long-term leases “marketable assets of value.” Id. Therefore, since the

freehold is encumbered by a long-term lease, its “market value is reduced in exact

proportion to the value of the leasehold and, therefore, if the real property subject to the

leasehold is to be taxed at its ‘true and actual value,’” the assessor must tax both




       7
         UPE argued below that the assessment was void ab initio because it was not
requested by the freeholder as per this syllabus point. The circuit court rejected this
contention, noting that WVU, as a public entity, is not a “taxpayer” and therefore had no
incentive to request separate taxation to the leaseholder. This issue was not assigned as
error and is therefore not before the Court. The parties made additional purportedly
dispositive arguments that the circuit court rejected, but none were appealed by either
party.

                                             6

separately. Id. Therefore, when a leasehold is determined to have separate, independent

value, this Court has held, consistent with the statute above:

                     The assessor of a county may assess the value of a
              leasehold as personal property separately in an amount such
              that when the value of the freehold subject to the lease is
              combined with the value of the leasehold the total reflects the
              true and actual value of the real property involved.

Syl. Pt. 1, Great A & P, 167 W. Va. 53, 278 S.E.2d 352. Although this Court has not

issued a syllabus point prescribing how leaseholds must be valued, we noted in

Maplewood that the Tax Commissioner had developed an eight-step process for valuing

leaseholds which requires at the outset “an initial determination . . . whether the lessee

has a marketable right to assign or transfer the lease.” 216 W. Va. at 286, 607 S.E.2d at

392.8



              With this backdrop to our analysis, the parties appear to agree that if a

challenge to an assessment presents an issue of taxability, statutory procedure requires

the aggrieved taxpayer to first make objection to the assessor and then, if not

satisfactorily resolved, demand that the issue be presented to the Tax Commissioner.

        8
        The Maplewood Court, ostensibly quoting this policy, explained further that
“‘the separate value of a leasehold, if any, is based on whether the leasehold is
economically advantageous to the lessee, that is a so-called bargain lease, and is freely
assignable so that the lessee may realize the benefit of such bargain in the market place.’”
216 W. Va. at 286, 607 S.E.2d at 392 (quoting “Valuation of Leasehold Interests,” State
Tax Commissioner’s Annual In-Service Training Seminar for Assessors, June 14,
1989.”). The circuit court maintains this language is not actually contained in the
referenced seminar materials and was “mis-cited” in the opinion. Because this issue is
not relevant to our resolution of the narrow issue presently before us, we decline to
examine it further at this juncture.

                                             7

West Virginia Code § 11-3-24a(a) provides that if a taxpayer “believes that the property

is exempt or otherwise not subject to taxation,” the taxpayer may object in writing to the

assessor, who then must either sustain or refuse the protest. Should this step fail to

resolve the dispute, “[t]he assessor may, and if the taxpayer requests, the assessor shall,

certify the question to the State Tax Commissioner[.]” W. Va. Code § 11-3-24a(b). The

Tax Commissioner must then “instruct the assessor as to how the property shall be

treated” whereupon the taxpayer, if aggrieved by the Tax Commissioner’s findings, may

appeal to circuit court. W. Va. Code § 11-3-24a(c).     Moreover, West Virginia Code §

11-3-24(c) states that “in no case shall any question of classification or taxability be

considered or reviewed by the [BER].” (emphasis added).



              If, however, an aggrieved taxpayer takes issue with the valuation of its

property, such a challenge lies exclusively with the BER. West Virginia Code § 11-3­

24(a) (2010) provides that the county commission, sitting as a board of equalization and

review, shall meet annually for the purpose of reviewing and equalizing the assessment

made by the county assessor. The BER must review the property books and

              shall correct all errors in the names of persons, in the
              description and valuation of property, and shall cause to be
              done whatever else is necessary to make the assessed
              valuations comply with the provisions of this chapter.

W. Va. Code § 11-3-24(c) (emphasis added). West Virginia Code § 11-3-24(f) states that

any person may appear before the BER to object to a “proposed increase in the valuation

of taxpayer’s property.” Neither “taxability” nor “valuation” is expressly defined as


                                            8

pertains to these statutory procedures. Our analysis is therefore guided by this well-

established precept: “In the absence of any definition of the intended meaning of words

or terms used in a legislative enactment, they will, in the interpretation of the act, be

given their common, ordinary and accepted meaning in the connection in which they are

used.” Syl. Pt. 1, Miners in General Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941),

overruled on other grounds, State ex rel. Discover Fin. Servs., Inc. v. Nibert, 231 W.Va.

227, 744 S.E.2d 625 (2013).



Taxation v. Valuation

              The circuit court agreed with the BER’s conclusion that, when a taxpayer

asserts that its leasehold interest should be valued at $0, this position makes the challenge

one of “taxation,” rather than “valuation.” As indicated above, the circuit court relied in

part on the usage of the term “taxability” in the Maplewood case, discussed more fully

infra, to reach this conclusion. The circuit court also heavily relied upon dicta from

Great A & P which states: “It would appear from the statutory scheme that a separate

leasehold is taxable if it has a separate and independent value from the freehold.” 167 W.

Va. at 55, 278 S.E.2d at 355 (emphasis added). The circuit court concluded that since

UPE challenged whether the leasehold had a value independent of the freehold, “[a]

resolution of that question answers whether the leasehold interest is taxable.” (emphasis

added).




                                             9

             Before this Court, UPE argues that “[a] claim of absence of value is as

much a challenge to valuation as is a claim of value of 1¢; contrary to the BER and

Circuit Court’s holdings, there is no tipping point at which a taxpayer’s challenge to an

assessment is converted from one of valuation to one of taxability.” UPE argues further

that this Court’s use of the term “taxability” in its opinions is a mere colloquialism or

“short-cut” to refer to the collective process of tax assessment, levy, and collection and

has no particular meaning, unless otherwise ascribed in the opinion.9 Respondent offers

nothing more than the circuit court’s analysis in support of his position.10 However, in an

unusual turn, both UPE and the circuit court posit that Maplewood supports their

competing positions and is dispositive. The circuit court found that its dicta suggested

that a challenge to the assessment of a leasehold interest goes to taxability, whereas UPE

argues the Maplewood Court tacitly approved of the procedural forum it pursued in this

case. It is therefore appropriate to examine Maplewood in greater detail.




      9
         WVU, as amicus curiae in this matter, filed a brief in support of UPE’s position,
reiterating its general argument that there is a distinction between “exemption from
taxation and valuation for taxation at zero value.” WVU represents that the lease
agreement with UPE was structured with the Maplewood leasehold valuation assessment
model—requiring a freely assignable lease and bargain lease before the leasehold is
deemed to have value—in mind. Therefore, WVU submits that undermining Maplewood
would lead to legal and regulatory instability. The Court expresses its appreciation for
the amicus curiae’s contribution to this matter.
      10
          Respondent filed a summary response which offered no original argument or
analysis; rather, aside from scant stylistic changes, it was a verbatim reiteration of the
circuit court’s order.

                                            10

                Maplewood was an appeal of two consolidated cases; the Mon Elder appeal

addressed therein being pertinent to our analysis. Mon Elder operated a non-profit senior

living community owned by the Monongalia County Building Commission; the Building

Commission leased the community back to Mon Elder to amortize the principal and

interest on tax exempt bonds which funded its construction. 216 W. Va. at 277-78, 607

S.E.2d at 383-84. The Monongalia County Assessor issued an ad valorem property tax

assessment against Mon Elder for its leasehold interest, which Mon Elder protested to

both the BER and the Tax Commissioner. Id. at 279, 607 S.E.2d at 385. Before the Tax

Commissioner, Mon Elder argued that it was entitled to a charitable exemption from

taxation. Id. The Tax Commissioner ruled that it did not have sufficient information to

determine that the property was used exclusively for charitable purposes and the BER

contemporaneously affirmed the assessments;11 both of these decisions were appealed to

the circuit court, which found that Mon Elder failed to meet its burden of proof. Id. Mon

Elder appealed to this Court arguing 1) that it qualified for a charitable exemption; and 2)

that the circuit court failed to rule on its contention that its leasehold interest had no

independent, assessable value. Id.



                As pertains to the latter issue, as indicated above, the Maplewood Court

discussed that the Tax Commissioner had developed an eight-step process for valuing

leasehold interests involving a determination of whether the lease was “freely assignable”

       11
            It is not clear on what basis the BER affirmed the assessment.


                                              11

and a “so-called bargain lease.”12 Id. at 286, 607 S.E.2d at 392. Mon Elder argued that it

put on evidence below that the lease was neither, but the circuit court failed to address the

issue. Id. The Maplewood Court stated that “[b]ecause the lower court did not address

this issue of whether the lease has separately assessable value, we have no factual

determinations upon which to base any review of this issue.” Id. at 287, 607 S.E.2d at

393. This Court then remanded to the circuit court for further proceedings to determine

whether the leasehold had separate, independent value.



                UPE maintains that Maplewood “tacitly held that challenges like [its] are to

valuation[.]” UPE argues that by remanding to the circuit court for findings regarding

whether its leasehold had separate value, the Court was implicitly finding that such was

an issue of valuation, properly brought before the BER and remanded to the circuit court

for review of the BER’s findings. UPE notes that before the BER and circuit court, it

“made the exact same argument as Mon Elder—lack of separate assessable value of its

leasehold interest[.]” However, it is obvious from our opinion in Maplewood that the

issue of whether Mon Elder had presented its protest in the proper procedural forum in

the first instance was neither raised by the parties nor addressed by this Court.



                The circuit court likewise stretches Maplewood beyond its borders. The

circuit court found that Maplewood implicitly suggested that a challenge asserting that a

leasehold interest has no independent value is one of taxation. In support, the circuit
       12
            See n.8, supra.

                                             12

court cited the section contained in Maplewood which addressed the leasehold interest,

entitled “Taxability of Mon Elder’s Leasehold Interest.” Id. at 286, 607 S.E.2d at 392

(emphasis added). The circuit court further cited the following dicta from Maplewood:

“‘According to Mon Elder, only when the record affirmatively establishes that the lease

has acquired marketable value separate from the underlying property can such a leasehold

be subject to taxation.’” Id. (emphasis in order). However, this Court has made clear

that “[o]biter dicta or strong expressions in an opinion, where such language was not

necessary to a decision of the case, will not establish a precedent.” In re Assessment of

Kanawha Valley Bank, 144 W.Va. 346, 382-83, 109 S.E.2d 649, 669 (1959). We tend to

agree with UPE’s characterization of this dicta as a broad reference to the multi-faceted

concept of taxation, generally.13 The circuit court also made much of the fact that the

Tax Commissioner was a party to the Mon Elder appeal and had been provided “with its

statutory right and obligation” to “decide [the] issue first,” unlike the case sub judice.

However, there is no indication in Maplewood that the Tax Commissioner had been

presented with the leasehold valuation question or addressed anything other than the

      13
          The circuit court further noted that the Maplewood Court did not decide whether
the leasehold had independent value, but instead remanded the case back to the circuit
court to make findings of fact and conclusions of law “regarding the taxability of the
leasehold interest.” (emphasis in order). The circuit court takes great liberty with our
language regarding remand. The Maplewood Court actually stated regarding remand:
“Accordingly, we remand this issue of whether the lease agreement between Mon Elder
and the Building Commission has value independent of the property at issue to the circuit
court for further proceedings.” Id. at 287, 607 S.E.2d at 393. We made no reference
therein to remand for further proceedings on “taxability.” On remand, the circuit court in
Maplewood determined that the Mon Elder leasehold was neither freely assignable nor a
bargain lease.


                                           13

charitable exemption issue, which is plainly an issue of taxation. We therefore conclude

that Maplewood neither addresses nor supports either party’s position on whether the

challenge herein is one of valuation or taxation and therefore lends little to our analysis.



               Therefore, upon consideration of the parties’ arguments, we find UPE’s

position compelling and conclude that a taxpayer’s challenge to whether a leasehold has

separate, independent value presents an issue of valuation, not taxability, and is properly

presented to the BER pursuant to West Virginia Code § 11-3-24. UPE does not contend

that its property is exempt from taxation, either categorically or as the result of a specific

statutory exemption; it contends that respondent erroneously assessed its value. UPE’s

objection to the assessment maintains that properly assessed, the leasehold’s value would

be $0 because it is not “marketable” as that term is described in Maplewood. West

Virginia Code § 11-3-24(c) broadly relegates to the BER the burden of correcting “errors

in . . . valuation of property[.]”14



               The circuit court’s logic, although understandable, is flawed: although it is

true that a leasehold is taxable only if it has a value independent of the freehold, it


       14
          The circuit court makes an excruciatingly fine distinction in its order that
essentially states that determining whether a leasehold has independent value is a step
that precedes determining what that value actually is. The former, according to the
circuit court, is an issue of taxation, the latter arguably valuation. While semantically,
this distinction may hold water, it artificially parses the issue too thin. The statutory
language relegates to the assessor, generally, issues of “valuation of property.” It makes
no distinction between the issues of whether property has value and what that value is, as
the circuit court did.

                                             14

necessarily follows that one must first determine whether it has value, to then ascertain

taxability. Valuation is precisely what UPE challenged before the BER. Although a $0

valuation may result in a lack of taxability, this threshold issue is distinct and squarely

within the BER’s purview. The dicta upon which the circuit court relies compels the

same conclusion: our statement in Great A & P that “[i]t would appear from the statutory

scheme that a separate leasehold is taxable if it has a separate and independent value

from the freehold” plainly contains an imbedded, threshold issue of whether a leasehold

has a “separate and independent value.” 167 W. Va. at 55, 278 S.E.2d at 355. We

therefore find that the circuit court erred in concluding that UPE improperly advanced its

protest to the leasehold tax assessment before the BER.



              Finally, although Maplewood provides no utility in resolving the issue

above, it does provide authority for the proposition that where, as here, the circuit court

makes no findings regarding whether the leasehold has independent value, this Court has

nothing to review: “Because the lower court did not address this issue of whether the

lease has separately assessable value, we have no factual determinations upon which to

base any review of this issue. Absent these necessary factual rulings, we cannot perform

any meaningful appellate review of this issue.” Maplewood, 216 W. Va. at 287, 607

S.E.2d at 393. 15 The order below makes very clear that the circuit court did not reach the




       15
         UPE insists that our opinion in Am. Bituminous Power Partners permits this
Court to correct the purportedly erroneous assessment at this juncture. However, the
(continued . . .)
                                            15

issue of whether the leasehold was erroneously valued because it found that UPE

advanced a challenge that the BER had no jurisdiction to review. Therefore, this Court

has nothing from the circuit court upon which to base a review of whether the assessment

was in fact erroneous, as asserted in UPE’s remaining assignments of error. We therefore

remand to the circuit court for findings on those issues.16



                                  IV.    CONCLUSION

              For the reasons stated herein, we therefore reverse the circuit court’s

August 26, 2015, order and remand for further proceedings consistent with this opinion.



                                                                Reversed and remanded.




opportunity to grant relief from an erroneous assessment, if any, resides first with the
circuit court pursuant to West Virginia Code § 11-3-25.
       16
         As an appeal from the BER, the circuit court’s review on appeal (and therefore
on remand) is limited to the record created before the BER and the circuit court operates
under the same standard of review as that for an administrative appeal. See W. Va. Code
§ 11-3-25(c) (“If there was an appearance by or on behalf of the taxpayer before either
board, or if actual notice, certified by the board, was given to the taxpayer, the appeal,
when allowed by the court or judge, in vacation, shall be determined by the court from
the record as so certified[.]”); Am. Bituminous Power Partners, L.P., 208 W. Va. at 255,
539 S.E.2d at 762 (“[J]udicial review of a decision of a board of equalization and review
regarding a challenged tax-assessment valuation is limited to roughly the same scope
permitted under the West Virginia Administrative Procedures Act[.]”) But see W. Va.
Code § 11-3-25(c) (outlining circumstances under which circuit court may remand to
BER for development of the record).

                                             16

