[Cite as Zimmer v. Stark Cty. Bd. of Revision, 2016-Ohio-7056.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 ZACHARY A. ZIMMER                                     :     JUDGES:
                                                       :
                                                       :     Hon. John W. Wise, P.J.
        Appellant/Appellee                             :     Hon. Patricia A. Delaney, J.
                                                       :     Hon. Craig R. Baldwin, J.
 -vs-                                                  :
                                                       :     Case No. 2016CA00040
                                                       :
 STARK COUNTY BOARD OF                                 :
 REVISION, ET AL.                                      :
                                                       :
                                                       :
        Appellee/Appellant                             :     OPINION


CHARACTER OF PROCEEDING:                                   Appeal from the Ohio Board of Tax
                                                           Appeals, Case No. 2015-637


JUDGMENT:                                                  AFFIRMED



DATE OF JUDGMENT ENTRY:                                    September 26, 2016


APPEARANCES:

 For Appellant/Appellee:                                     For Appellee/Appellant:

 No Brief Filed                                              JOHN D. FERRERO
                                                             STARK COUNTY PROSECUTOR
                                                             STEPHAN P. BABIK
                                                             110 Central Plaza South, Suite 510
                                                             Canton, OH 44702

                                                             MIKE DEWINE
                                                             OHIO ATTORNEY GENERAL
                                                             State Office Tower
                                                             30 East Broad St.
                                                             Columbus, OH 43215
Stark County, Case No. 2016CA00040                                                    2

Delaney, J.

       {¶1} Appellant Stark County Auditor appeals the February 3, 2016 Decision and

Order of the Ohio Board of Tax Appeals.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} On October 17, 2007, Melissa M. Stepanovich paid $117,000 to purchase

6979 Pinecrest Street NE, Canton, Ohio 44721 (“the Property”) by way of a warranty

deed. The Property went into foreclosure and on November 14, 2013, the Property sold

to Fannie Mae A/K/A Federal National Mortgage Association for $68,000.

       {¶3} In 2008, the appraised true value of the Property by the Appellant Stark

County Auditor was $109,000. The assessed total value was $38,150. From 2009 to

2011, the Stark County Auditor appraised the total value of the Property as $106,400 and

the assessed total value as $37,250. From 2012 to 2014, the Stark County Auditor

appraised the total value of the Property as $92,500 and the assessed total value as

$32,280.

       {¶4} Appellee Zachary A. Zimmer purchased the Property from Fannie Mae

A/K/A Federal National Mortgage Association on May 1, 2014. The purchase price was

$48,200.

       {¶5} On January 26, 2015, Zimmer filed a Complaint Against Valuation of Real

Property with the Stark County Auditor. In his complaint, Zimmer requested a change in

the taxable value due to the recent arms-length transaction between a willing buyer and

a willing seller. He claimed the true value of the Property was $48,200.

       {¶6} A hearing was held before the Stark County Board of Revision on May 28,

2015. No one appeared at the hearing on behalf of Zimmer. The BOR considered the
Stark County, Case No. 2016CA00040                                                      3


Staff Appraiser Report. The report stated that the Property was sold at a bank sale. Since

that time, the Property was remodeled and put back on the market with a selling price of

$110,000. The Property was pulled off the market and was currently being used as a

rental property renting at $900 per month. A sales analysis of similar homes in the

neighborhood indicated a fair market value of $103,000. The Staff Appraiser Report

recommended a new adjusted value of $94,500 for the Property based on the addition of

air conditioning and the Property was being used as a rental property for $900 per month.

       {¶7} On May 28, 2015, the Stark County BOR issued its decision to increase the

total market valuation to $94,500 and the total taxable valuation to $33,080.

       {¶8} Zimmer filed an appeal of the BOR decision to the Ohio Board of Tax

Appeals. He did not request a hearing. Zimmer stated it was his opinion the total market

value of the Property was $48,200.

       {¶9} On February 3, 2016, the BTA issued its Decision and Order. The BTA

found that Zimmer purchased the Property for $48,200. The BTA found that absent an

affirmative demonstration that such sale was not a qualifying sale for tax valuation

purposes, the record showed the transaction was recent and arm’s-length, and

constituted the best indication of the Property’s value as of the tax lien date. The BTA

reduced the true value of the Property to $48,200 and the taxable value to $16,870.

       {¶10} It is from this decision the Stark County Auditor now appeals.

                              ASSIGNMENTS OF ERROR

       {¶11} The Stark County Auditor raises three Assignments of Error:

       {¶12} “I. THE BOARD OF TAX APPEALS ERRED BY REVERSING THE

DECISION OF THE STARK COUNTY BOARD OF REVISION BY FINDING THAT
Stark County, Case No. 2016CA00040                                                      4


COMPETENT, CREDIBLE AND PROBATIVE EVIDENCE WAS SUBMITTED BY

ZACHARY A. ZIMMER BEFORE THE STARK COUNTY BOARD OF REVISION AS TO

THE TRUE MARKET VALUE OF THE SUBJECT PROPERTY.

       {¶13} “II. THE BOARD OF TAX APPEALS ERRED BY FINDING THAT

COMPETENT, CREDIBLE AND PROBATIVE EVIDENCE WAS SUBMITTED BY

ZACHARY A. ZIMMER BEFORE THE OHIO BOARD OF TAX APPEALS AS TO THE

TRUE MARKET VALUE OF THE SUBJECT PROPERTY.

       {¶14} “III. THE BOARD OF TAX APPEALS ERRED BY FINDING THAT THE

MAY, 2014 TRANSFER OF THE SUBJECT REAL PROPERTY CONSTITUTED THE

BEST EVIDENCE OF THE TRUE VALUE IN MONEY OF THE SUBJECT REAL

PROPERTY.”

                                       ANALYSIS

                            Appellate Standard of Review

       {¶15} The Stark County Auditor appeals the decision and order of the BTA

pursuant to R.C. 5717.04. The statute reads, “[t]he proceeding to obtain a reversal,

vacation, or modification of a decision of the board of tax appeals shall be by appeal to

the supreme court or the court of appeals for the county in which the property taxed is

situate or in which the taxpayer resides.” Kroger Co. v. Licking Cty. Bd. of Revision, 5th

Dist. Licking No. 15-CA-37, 2016-Ohio-286, ¶ 14.

       {¶16} The issue before this court is whether the BTA acted reasonably and

lawfully when it reduced the BOR’s valuation of the Property from $94,500 to $48,200.

The Stark County Auditor argues the uncontroverted evidence presented at the BOR

hearing demonstrated the value of the Property was $94,500. In Akron City School Dist.
Stark County, Case No. 2016CA00040                                                    5

Bd. of Edn. v. Summit Cty. Bd. of Revision, 139 Ohio St.3d 92, 93–94, 2014-Ohio-1588,

9 N.E.3d 1004, 1006, the Ohio Supreme Court recited the standard of review for an

appeal of a BTA decision:

      The true value of property is a “question of fact, the determination of which

      is primarily within the province of the taxing authorities,” and accordingly,

      we “will not disturb a decision of the Board of Tax Appeals with respect to

      such valuation unless it affirmatively appears from the record that such

      decision is unreasonable or unlawful.” Cuyahoga Cty. Bd. of Revision v.

      Fodor, 15 Ohio St.2d 52, 239 N.E.2d 25 (1968), syllabus.

Olentangy Local Schools Bd. of Edn. v. Delaware Cty. Bd. of Revision, 5th Dist. No. 14

CAH 10 0070, 2015-Ohio-2070, 34 N.E.3d 150, 154, ¶¶ 24-26.

      {¶17} The Ohio Supreme Court has also stated:

      * * * although the BTA is responsible for determining factual issues, we “

      ‘will not hesitate to reverse a BTA decision that is based on an incorrect

      legal conclusion.’ ” Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856,

      856 N.E.2d 954, ¶ 14, quoting Gahanna–Jefferson Local School Dist. Bd.

      of Edn. v. Zaino, 93 Ohio St.3d 231, 232, 754 N.E.2d 789 (2001). Pursuant

      to R.C. 5717.04, the statute that creates the remedy of appeal to this court

      from decisions of the BTA, we may either reverse a decision of the BTA or

      modify it if we find that the decision is unreasonable or unlawful.

Sapina v. Cuyahoga Cty. Bd. of Revision, 136 Ohio St.3d 188, 191–92, 2013-Ohio-3028,

992 N.E.2d 1117, 1121, ¶ 15.
Stark County, Case No. 2016CA00040                                                          6


       {¶18} Under these standards, we review the Stark County Auditor’s appeal of the

BTA decision. We consider the Stark County Auditor’s three Assignments of Error

together as they concern the same standard of review.

                                 BTA Standard of Review

       {¶19} Zimmer appealed the BOR decision to the BTA. The party challenging the

BOR's decision at the BTA has the burden of proof to establish its proposed value as the

value of the property. Kroger Co. v. Licking Cty. Bd. of Revision, 5th Dist. Licking No. 15-

CA-37, 2016-Ohio-286, ¶ 17 citing Dayton–Montgomery Columbus City School Dist. Bd.

Of Edn. v. Franklin Cty. Bd. Of Revision, 90 Ohio St.3d 564, 740 N.E.2d 276 (2001). The

BTA has “wide discretion to accept all, part, or none of the testimony of any appraiser

presented to said board * * * [a]bsent an abuse of that discretion, the BTA's determination

as to the credibility of witnesses and weight to be given their testimony will not be reversed

by this court.” Witt Co. v. Hamilton Cty. Bd. of Revision, 61 Ohio St.3d 155, 573 N.E.2d

661 (1991). If the only evidence before the BTA is the statutory transcript from the BOR,

the “BTA must make its own independent judgment based on its weighing of the evidence

contained in the transcript.” Columbus Bd. of Edn. v. Franklin Cty. Bd. of Revision, 76

Ohio St.3d 13, 1996–Ohio–432, 665 N.E.2d 1098. The evidence contained in the record

to the BTA from the BOR may be used as the sole basis for deciding the appeal. Edbow,

Inc. v. Franklin Co. Bd. of Revision, 85 Ohio St.3d 656, 1999–Ohio–331, 710 N.E.2d 1112.

       {¶20} Zimmer and the Stark County Auditor waived the hearing before the BTA.

In this case, the only evidence before the BTA was contained in the statutory transcript.
Stark County, Case No. 2016CA00040                                                       7


                               Determination of Valuation

       {¶21} The valuation of the Property was for tax year 2014. The court must apply

the substantive tax law in effect during the tax year at issue. Olentangy Local Schools Bd.

of Edn. v. Delaware Cty. Bd. of Revision, 5th Dist. No. 14 CAH 10 0070, 2015-Ohio-2070,

34 N.E.3d 150, 154, ¶ 32 citing Sapina, 136 Ohio St.3d 188, 2013-Ohio-3028, 992 N.E.2d

1117, ¶ 20. The applicable version of R.C. 5713.03, as amended by H.B. 510 and

effective March 27, 2013, states in pertinent part:

       * * * In determining the true value of any tract, lot, or parcel of real estate

       under this section, if such tract, lot, or parcel has been subject of an arm’s

       length sale between a willing seller and a willing buyer within a reasonable

       length of time, either before or after the tax lien date, the auditor may

       consider the sale price of such tract, lot, or parcel to be the true value for

       taxation purposes.

See Olentangy Local Schools Bd. of Edn. v. Delaware Cty. Bd. of Revision, 5th Dist. No.

14 CAH 10 0070, 2015-Ohio-2070, 34 N.E.3d 150, 154, ¶¶ 36-37.

       {¶22} The Ohio Supreme Court has consistently held the best evidence of true

value for real estate taxation purposes is a recent sale in an arm's-length transaction

between a willing seller and a willing buyer. Amerimar Canton Office, L.L.C. v. Stark Cty.

Bd. of Revision, 5th Dist. Stark No. 2014CA00162, 2015-Ohio-2290, ¶ 20 citing

Zazworsky v. Licking Cty. Bd. of Revision, 61 Ohio St.3d 604, 575 N.E.2d 842 (1991).

See, also, Cummins Property Servs., L.L.C. v. Franklin Cty. Bd. of Revision, 117 Ohio

St.3d 516, 2008–Ohio–1473, 885 N.E.2d 222, ¶ 13; Berea City School Dist. Bd. of Edn.

v. Cuyahoga Cty. Bd. of Revision, 106 Ohio St.3d 269, 834 N.E.2d 782, 2005–Ohio–
Stark County, Case No. 2016CA00040                                                       8

4979, ¶ 13; Hillard City School Bd. of Edn. v. Franklin Cty. Bd. of Revision, 53 Ohio St.3d

57, 558 N.E.2d 1170 (1990).

       {¶23} An arm’s-length transaction is “‘one which encompasses bidding and

negotiation on the open market between a ready, willing and able buyer, and a ready,

willing and able seller, both being mentally competent, and neither acting under duress

or coercion.’ “ Walters v. Knox Cty. Bd. of Revision, 47 Ohio St.3d 23, 25, 546 N.E.2d

932, 935, (1989). “[A]n arm's-length sale is characterized by these elements: it is

voluntary, i.e., without compulsion or duress; it generally takes place in an open market;

and the parties act in their own self-interest.” Id.

                          Evidence in the Statutory Transcript

       {¶24} In support of his argument that the Property’s valuation should be

decreased, Zimmer attached documents to his Complaint Against Valuation. Zimmer

attached a portion of the U.S. Department of Housing and Urban Development Settlement

for the May 1, 2014 purchase of the Property. The settlement statement reflected the

sales price of the Property was $48,200. The settlement statement further showed that

the seller of the Property was Fannie Mae A/K/A Federal National Mortgage Association

and the buyer of the Property was Zimmer. Zimmer also attached sales data on the

Property obtained from the Stark County Recorder’s website and a copy of the Property’s

record card from the Stark County Auditor’s website. Zimmer did not appear at the BOR

hearing.

       {¶25} The Stark County Auditor appeared at the BOR hearing and presented a

staff appraisal report, which showed the Property was appraised at $94,500. The

appraisal report reflected that the Property was being used as a rental at $900/month,
Stark County, Case No. 2016CA00040                                                      9


had been renovated, was listed for sale for $110,000, and identified comparable sales

prices in the area.

       {¶26} In making its decision as to valuation, the BOR did not consider the recent

sale of the Property. The BOR stated at the hearing that it agreed to reaffirm the Board’s

previous decision to set the value of the Property per the appraiser’s recommendation of

$94,500. (Tr. 3).

                                   The BTA Decision

       {¶27} The parties did not request a hearing before the BTA; therefore, the only

evidence before the BTA was contained in the statutory transcript. The BTA ultimately

determined the recent sale of the Property was an arm’s-length transaction and was the

best method to determine the true value of the Property. The BTA stated that absent an

affirmative demonstration that the sale was not a qualifying sale for tax valuation

purposes, the record demonstrated it was recent and arm’s-length.

       {¶28} The Stark County Auditor contends the BTA erred when it failed to consider

the evidence in the statutory record to find instead that the recent sale of the Property

was the best evidence to determine valuation. The Stark County Auditor argues that

Zimmer failed to present evidence to demonstrate the sale was a qualifying sale and by

finding in favor of Zimmer, the BTA improperly shifted the original burden of proof to the

Auditor and BOR. We disagree.

       {¶29} There is no dispute that Fannie Mae A/K/A Federal National Mortgage

Association sold the Property to Zimmer on May 1, 2014. The Ohio Supreme Court has

held that once the existence of a sale is established, “a sale price is deemed to be the

value of the property, and the only rebuttal lies in challenging whether the elements of
Stark County, Case No. 2016CA00040                                                       10


recency and arm's-length character between a willing seller and a willing buyer are

genuinely present for that particular sale.” Cummins Property Servs., LLC v. Franklin Cty.

Bd. of Revision, 117 Ohio St.3d 516, 2008-Ohio-1473, 885 N.E.2d 222, ¶13; Cincinnati

School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 78 Ohio St.3d 325, 327, 677

N.E.2d 1197 (1997). The Court restated its position in HIN, LLC v. Cuyahoga Cty. Bd. of

Revision, 138 Ohio St.3d 223, 2014-Ohio-523, 5 N.E.3d 637, ¶14, by holding, “[t]he only

way a party can show that a sale price is not representative of value is to show that the

sale was either not recent or not an arm's-length transaction.” (Emphasis sic.) The

affirmative burden, therefore, rests with the opponent of using a reported sale price to

demonstrate why it does not reflect the property's value. Cincinnati Bd. of Edn. v. Hamilton

Cty. Bd. of Revision, 78 Ohio St.3d 325, 327, 677 N.E.2d 1197 (1997).

       {¶30} The party challenging the BOR's decision at the BTA has the burden of

proof to establish its proposed value as the value of the property. Kroger Co. v. Licking

Cty. Bd. of Revision, 5th Dist. Licking No. 15-CA-37, 2016-Ohio-286, ¶ 17 citing Dayton–

Montgomery Columbus City School Dist. Bd. Of Edn. v. Franklin Cty. Bd. Of Revision, 90

Ohio St.3d 564, 740 N.E.2d 276 (2001). A sale price is presumed to establish the value

of real property. Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 78

Ohio St.3d 325, 327, 677 N.E.2d 1197 (1997). The Settlement Statement provided by

Zimmer stated the sale price of the Property was $48,200. The Stark County Auditor did

not present any evidence to the BOR or to the BTA to challenge the sale price of the

Property. The burden then shifted to the Stark County Auditor to show why the reported

sale price did not reflect the Property’s value. A review of the record shows the Stark

County Auditor did not present any evidence before the BOR or the BTA that the sale
Stark County, Case No. 2016CA00040                                                   11


was not arm’s-length, recent, and voluntary. The Stark County Auditor has characterized

the sale of the Property as a “bank sale,” but has not provided any evidence to

demonstrate why the “bank sale” was not arm’s-length, recent, and voluntary. Without

any contrary evidence to consider as to whether there was a recent sale in an arm’s-

length transaction between a willing seller and a willing buyer, the BTA’s decision to

reverse the BOR to find the sale price was the true value of the Property was reasonable

and lawful.

       {¶31} The three Assignments of Error of the Stark County Auditor are overruled.

                                    CONCLUSION

       {¶32} The judgment of the Ohio Board Tax of Appeals is affirmed.

By: Delaney, J.,

Wise, P.J. and

Baldwin, J., concur.
