No. 11-1768 - Charles R. Wright and Linda D. Wright v. Angela Banks, Jefferson County
Assessor, et al.
                                                                            FILED
                                                                     November 21, 2013
                                                                       released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK
                                                                     SUPREME COURT OF APPEALS
LOUGHRY, Justice, dissenting:                                            OF WEST VIRGINIA



              The Wrights purchased their four bedroom, two and one-half bath, 4260 square

foot home for $234,000 and quickly insured it for $332,500 on the advice of their insurance

agent who, according to Mr. Wright, “used the same software that . . . the Assessor’s Office

used to determine value. . . .” If this were not a clear indication that their purchase price did

not reflect their home’s true and actual value, then surely the Assessor’s appraisal of their

home at $372,400 for the prior tax year signaled its true and actual value. Nonetheless, the

Wrights claim that the Assessor erroneously appraised their home for Tax Year 2011 at

$355,167, arguing that “the price [they] paid . . . should have established the ‘true market

value’ of their property for the tax assessment year ending June 30, 2010.” While the

majority has not gone so far as to agree with the Wrights’ overly-simplistic proposition that

purchase price should equal appraised value, it has erroneously determined that the Assessor

did not “consider” the Wrights’ purchase price in her comparable sales analysis, erroneously

misinterpreted our law concerning which party bears the burden of proof, and erroneously

concluded that the Assessor, the Board of Equalization and Review (“the Board”), and the

circuit court committed reversible error by giving insufficient evidentiary weight to the

Wrights’ purchase price. In doing so, the majority has essentially turned a blind eye to the


                                               1

Tax Commissioner’s regulations and directives mandating the method by which real estate

is to be valued by county assessors for ad valorem tax assessments in West Virginia, and has

either ignored or misinterpreted our existing law regarding the evidentiary burden in taxpayer

challenges to those assessments. Accordingly, I respectfully dissent.



                             I. Ad Valorem Tax Assessments

              Under article ten, section one of the West Virginia Constitution, “taxation shall

be equal and uniform throughout the State, and all property, both real and personal, shall be

taxed in proportion to its value. . . . no one species of property for which a tax may be

collected shall be taxed higher than any other species of property of equal value.” Similarly,

the Legislature has expressly stated that all property should be equitably and fairly valued in

this State:

                       (a) The Legislature hereby finds and declares that all
              property in this State should be fairly and equitably valued
              where it is situated so that all citizens will be treated fairly and
              no individual species or class of property will be overvalued or
              undervalued in relation to all other similar property within each
              county and throughout the State.
              ••••
                       (c) The Legislature finds that requiring the valuation of
              property to occur in three-year cycles with an annual adjustment
              of assessments . . . [is] an integral and indispensable part of a
              systematic review of all properties in order to achieve equality
              of assessed valuation within and among the counties of this
              state. . . .
              ••••




                                               2

                          (d) The Legislature deems that the goal of this article is
                 that . . . all property shall be annually assessed at sixty percent
                 of its then current fair market value1. . . .

W.Va. Code § 11-1C-1, in part. While the Wrights have convinced the majority to be fixated

on their purchase price, the discussion below demonstrates that the valuation of real property

for ad valorem tax purposes in West Virginia involves much more than just a purchase price,

which is necessary to fulfill both the constitutional and legislative mandate for fair and

equitable valuation among all taxpayers statewide.



                 The Legislature has provided that “[i]n determining the fair market value of

the property in their jurisdictions, assessors may use as an aid to valuation any information

available on the character and values of such property, including, but not limited to, the

updated information found on any statewide electronic data processing system network[.]”2

W.Va. Code § 11-1C-7(b). In this same regard, the Legislature requires county assessors to

                 maintain current values on the real and personal property within
                 the county. In repeating three-year cycles, every parcel of real
                 property shall be visited by a member of the assessor’s staff who
                 has been trained . . . to determine if any changes have occurred
                 which would affect the valuation for the property. With this
                 information and information such as sales ratio studies provided
                 by the Tax Commissioner, the assessor shall make such
                 adjustments as are necessary to maintain accurate, current

       1
           See infra n.3.
       2
         This is a reference to the Integrated Assessment System, which is a computer
software program administered by the Tax Commissioner. This program is also referred to
in the record and briefs as “CAMA.” See infra n.7.

                                                 3

              valuations of all the real and personal property in the county and
              shall adjust the assessments accordingly.

W.Va. Code § 11-1C-9 (2013) (footnote added). As the majority correctly states,

              (a) All property . . . shall be assessed annually as of July 1 at
              sixty percent of its true and actual value,3 that is to say, at the
              price for which the property would sell if voluntarily offered for
              sale by the owner thereof, upon the terms as the property, the
              value of which is sought to be ascertained, is usually sold, and
              not the price which might be realized if the property were sold
              at a forced sale.

W.Va. Code § 11-3-1 (2013) (footnote added); see also Syl. Pt. 3, in part, Killen v. Logan

Cty. Comm’n, 170 W.Va. 602, 295 S.E.2d 689 (1982) (“Assessments of property for taxation

purposes are based on the property’s ‘true and actual’ value, W.Va. Code § 11-3-1 (1977)

(Repl. Vol. 2008), which has been defined as ‘its market value.’”), overruled on other

grounds by In re: Tax Assessment of Foster Foundation’s Woodlands Retirement

Community, 223 W.Va. 14, 672 S.E.2d 150 (2008). In addition to West Virginia Code § 11­

3-1 above, the majority cites West Virginia Code of State Rules §110-1F-2.24, which defines

“true and actual value,” in pertinent part, as “the price at or for which a particular parcel or

species of property would sell if it were sold to a willing buyer by a willing seller in an arms

length transaction without either the buyer or the seller being under any compulsion to buy

or sell[.]” However, what the majority fails to acknowledge is that this regulatory definition



       3
        “‘True and actual value’ means fair market value–what property would sell for if sold
on the open market.” Kline v. McCloud, 174 W.Va. 369, 372, 326 S.E.2d 715, 718 (1985)
(internal citations omitted).

                                               4

also contains the proviso that “primary consideration shall be given to the trends of price

paid for like or similar property in the area or locality wherein such property is

situate[d][.]”4 [Emphasis added.]. As more fully discussed below, the Assessor in the case

sub judice clearly and properly adhered to this requirement.



              In furtherance of the constitutional and legislative mandate that all property be

equitably and fairly valued, the Legislature has given the Tax Commissioner the authority

to “[d]etermine the methods of valuation for both real and personal property. . . .” W.Va.

Code § 11-1C-5(a)(2) (2013). In turn, the Legislature has expressly directed that all county

assessors must “appraise all real and personal property in their jurisdiction at fair market

value . . . utiliz[ing] the procedures and methodologies established by the Property Valuation

Training and Procedures Commission5 and the valuation system established by the Tax

       4
        “‘The function of a proviso in a statute is to modify, restrain, or conditionally qualify
the preceding subject to which it refers.’ Syl. pt. 2, State v. Ellsworth J.R., 175 W.Va. 64, 331
S.E.2d 503 (1985).” Syl. Pt. 1, State ex rel. Browne v. Hechler, 197 W.Va. 612, 476 S.E.2d
559 (1996).
       5
        Through West Virginia Code § 11-1C-3, the Legislature created a Property Valuation
Training and Procedures Commission (hereinafter “the Procedures Commission”) whose
membership includes the Tax Commissioner or his designee. The Procedures Commission
has the power, inter alia, to

              [e]stablish uniform, statewide procedures and methodologies for
              the mapping, visitation, identification and collection of
              information on the different species of property, which
              procedures and methodologies shall include reasonable
              requirements for visitation of property, including a requirement
                                                                                  (continued...)

                                               5

Commissioner.” W.Va. Code § 11-1C-7(a) (2013). Accordingly, rather than focusing on a

purchase price as the majority has done, it is imperative to consider the Tax Commissioner’s

methodology by which county assessors are to value real property in determining whether

the Assessor erred in her valuation of the Wrights’ home.



                            II. Tax Commissioner’s Methodology

                 As directed by the Legislature, the Tax Commissioner has set forth the method

by which county assessors are to appraise real property statewide in his Administrative

Notice 2010-16 (Jan. 29, 2010) (“Administrative Notice”),6 which was admitted into

evidence in this matter before the Board. This Administrative Notice clearly demonstrates

that a property’s value is more than just its purchase price. The Administrative Notice




       5
           (...continued)
                  that a good faith effort be made to contact any owner of
                  owner-occupied residential property: Provided, That the
                  commission is not authorized to establish the methods to value
                  real and personal property, but shall have the authority to
                  approve such methods.

W.Va. Code § 11-1C-4 (a)(2) (2013). In turn, the Tax Commissioner is directed to provide
periodic training sessions concerning the basic criteria set by the Procedures Commission “of
a continuing education nature for all assessors and appropriate staff members” at least once
each year. W.Va. Code § 11-1C-6(a) (2013).
       6
        The State Tax Department’s website reveals that this same Administrative Notice is
issued annually.

                                                6

describes the Integrated Assessment System (hereinafter “IAS”),7 which is the software

program that is accessed statewide through computers in each county assessor’s office.8 As

the Administrative Notice explains,

              [t]his software provides for the entry of data by the local
              Assessor concerning “comparable sales”of land in particular
              “neighborhoods” in the county and then prices the value of this
              land on a “price per front foot or square foot” or by acreage.

The Administrative Notice directs county assessors to identify valid arm’s length sales, which

are then used to generate a price per square foot in the tax neighborhood9 that is “applied to


       7
         The authority for the implementation of the IAS is found in West Virginia Code § 11­
1A-21(a) (2013), which provides, in pertinent part, that the “Tax Commissioner shall devise
and cause to be established a statewide electronic data processing system network, to
facilitate administration of the ad valorem property tax on real and personal property, through
the timely sharing of property tax information among county assessors and the Tax
Commissioner.” The IAS is the software referred to in the record and the appellate briefs as
“CAMA.” See 189 C.S.R. § 3-18.8 (“The CAMA system for West Virginia is called the
Integrated Assessment System (IAS).”); see also Mountain America, LLC v. Huffman, 224
W.Va. 669, 675, 687 S.E.2d 768, 774 (2009) (“[The Assessor] then entered the neighborhood
information into the real estate mass appraisal software (CAMA) . . . . Once all of the
information was entered into the CAMA software, the residual property value for the
neighborhood was calculated[.]”). The CAMA software contains a replacement cost feature
for structures that allows the county assessor to enter data concerning the details of the
improvements to the land and then prices the improvements utilizing construction cost data
particularized for each county based on current construction costs.
       8
         While the Wrights argue that the Assessor erred by utilizing the CAMA software in
valuing their home, the use of the CAMA software is mandated by statute. W.Va. Code § 11­
1A-21(b). Further, the Tax Commissioner’s Administrative Notice sets forth the data that
the Assessor is to enter into the CAMA program, which then prices the improvements
utilizing construction cost data particularized for that area of the State.
       9
        See Mountain America, LLC v. Huffman, 224 W.Va. 669, 675 n.3, 687 S.E.2d 768,
774 n.3 (2009) (“Pursuant to State Tax Department Administrative Notice 2006–16 (Jan. 31,
                                                                           (continued...)

                                              7

each lot or parcel in the neighborhood . . . to arrive at an appraised value for the land . . . .

[which] will reflect market value for the subject land.” The Administrative Notice also

directs the assessor to identify those sales where the consideration paid for a property may

have been influenced by factors, such as foreclosure, so that they may be excluded from the

calculations.10



              The Administrative Notice also addresses improvements situated on real estate

and expressly states that the “[f]ield data collection is the key to ‘pricing’ an improvement[,]”

and that such data is to be recorded for each property, including its dimension, the type and

style of the structure, the total number of rooms, bedrooms, family rooms, plumbing, finished

basement living area, heating, attic, physical condition, cost and design factor, and its “CDU”

(condition, desirability and utility factor).11 The Administrative Notice also describes the


       9
       (...continued)
2006), a ‘neighborhood’ is defined as a ‘geographical area exhibiting a high degree of
homogeneity in residential amenities, land use, economic and social trends, and housing
characteristics.’”).
       10
         Although the Wrights argue that it is unfair for the Assessor to unilaterally determine
which sales are to be excluded for purposes of calculating the average sales price of homes
during the look-back period, the Administrative Notice discussed herein expressly directs the
Assessor to do so.
       11
         The Procedures Commission’s regulations, in particular Title 189, Series 2 of the
West Virginia Code of State Regulations, address the statewide procedures for visiting
property and collecting data. Regulation § 189-2-4 sets forth recommended residential data
collection procedures so as to “achieve maximum production in the data collection of
residential properties . . . [,]” and Regulation § 189-2-5 contains a data collector’s checklist
                                                                                  (continued...)

                                               8

manner in which this data is to be entered into the IAS, which then generates the depreciated

replacement cost value, or market value, of the improvements. The Administrative Notice

concludes by stating that

                 [t]he appraised values for improved real property thus
                 determined are compared to the arms-length selling prices of
                 properties that have recently sold to develop an appraisal/sales
                 ratio for each neighborhood.12 Results from the appraisal/sales
                 ratio are analyzed and neighborhood-pricing factors adjusted to
                 bring the ratio in each neighborhood to within 10% plus or
                 minus of average selling price.

[Footnoted added.].



                                 III. The Assessor’s Valuation

                 With the Tax Commissioner’s mandated methodology in mind, let us consider

the Assessor’s evidence in the record before us to determine whether she followed this

methodology in valuing the Wrights’ home.13 June Bowers, the Assessor’s senior tax


       11
        (...continued)
and describes the manner in which a data collector is to investigate and record information
concerning the property.
       12
            See supra n.9.
       13
            West Virginia Code § 11-1-6 (2013) provides, in pertinent part, as follows:

                 The Tax Commissioner shall also, by letter or printed circular,
                 give such instructions to the assessors respecting their duties as
                 may seem to him judicious; and if any assessor fail to obey such
                 instructions, so far as they are not contrary to law, he shall
                 forfeit not less than one hundred dollars nor more than five
                                                                                      (continued...)

                                                 9

appraiser with more than twenty-five years of experience, testified before the Board

concerning the appraisal of the Wrights’ home. Ms. Bowers explained that the Assessor

considered ten home sales in the Wrights’ tax neighborhood during the look-back period.14

Three of those sales, which were foreclosures and, therefore, not arm’s length transactions,

were excluded from the Assessor’s comparable sales calculations per the directive in the

Administrative Notice. Regarding the seven sales in the Wrights’ tax neighborhood during

the look-back period, which were included in the Assessor’s calculations, Ms. Bowers

explained that those sales were all “pricing” around the same value with a low of $210,000

for a home containing 2,650 square feet to a high of $350,000 for a home containing 4,296

square feet. This larger home approximates the size of the Wrights’ home and was built the

same year.



                 Ms. Bowers further explained to the Board that the Wrights’ purchase price

approximated the pricing in three foreclosure-related sales during the look-back period.

Notwithstanding the majority’s contrary finding, the Assessor obviously considered the

Wrights’ purchase price—otherwise, she would not have been able to determine that it

approximated the foreclosure pricing and, therefore, was not indicative of the property’s true


       13
            (...continued)
                  hundred dollars, and, upon being convicted, shall be removed
                  from office.
       14
            For the 2011 tax year, the look-back period is July 1, 2009, to June 30, 2010.

                                                10

and actual value. In fact, as the Assessor explains, had she based her valuation solely on the

Wrights’ sales price, it would have resulted in an undervaluation in comparison with other

properties that sold in their tax neighborhood during the look-back period,15 which is another

clear indication that their purchase price was considered by the Assessor. Moreover,

according to Ms. Bowers’s testimony, if the Wrights’ purchase price had been used in

valuing the tax neighborhood, the sales ratio would have been beyond the requisite plus or

minus ten percent set by the Tax Commissioner because homes similar to the Wrights’ home

sold for $350,000 during the look-back period.16 Ms. Bowers emphasized that

                 [w]e (the Assessor’s Office) cannot chase sales. We measure
                 and list the homes based on their age, their quality construction
                 material, the amenities, the size, and then we have to make
                 overall adjustments to try to bring these properties between 90
                 and 110 percent of the sales. Mr. Wright . . . was one of the
                 model homes. And I personally have not been in Mr. Wright’s
                 home. I offered to come out and actually review it, but in my
                 experience every model home that I’ve been in does have the
                 higher quality amenities in it. It’s got the extras and the bells
                 and whistles that other places wouldn’t.17 We do have a house


       15
         The Assessor explains that had she used only the purchase price to establish value,
the average price per square foot for the Wrights’ home would be $50.64, whereas the 2,650
square foot home that sold for $210,000 would have an average price per square foot of
$79.24. Such a result would clearly defeat the constitutional and legislative mandate of equal
and fair taxation amongst all property owners. It further serves to demonstrate why county
assessors must follow the Tax Commissioner’s methodology and why the purchase price
may, but not always, reflect a property’s true and actual value.
       16
        This is a reference to the home containing 4,296 square feet located in the Wrights’
subdivision.
       17
            Unlike the majority, I place little, if any, significance on the fact that Ms. Bowers
                                                                                     (continued...)

                                                 11

              . . . that sold for 350[,000] which is not a model and so forth but
              as far as size and so forth[,] it’s similar to Mr. Wright’s. So we
              feel that our appraisal is correct using the sales that we’ve
              utilized.18

Ms. Bowers further explained that

              [i]f we would have adjusted overall these values down to match
              Mr. Wright’s sale, every one of these houses, these open market
              sales, would have been below 90%. So we would have been
              below market. One sale cannot drive market within a
              subdivision.

(Emphasis added.).19



              As the majority points out, our prior law provides that the purchase price of

property “‘may be a very important element of proof where there has been an open

transaction between competent parties dealing at arm’s length . . . .’” Mountain America,



       17
          (...continued)
did not go into the Wrights’ home, whether because they refused her entrance or otherwise.
I suspect that more often than not, property owners decline such offers made by an assessor’s
office. Moreover, Mr. Wright never disputed the fact that his home is a model home or that
it has the “extras and the bells and whistles that other places wouldn’t.”
       18
       Ms. Bowers explained during her testimony that most of the sales she used were
homes built in either 2009 or 2010.
       19
         A disparity among taxpayers would be created if only the purchase price were used
to determine appraised values. As the Assessor explains, the 2,610 square foot home that sold
for $210,000 would yield an average of $79.24 per square foot and the 4,296 square foot
home that sold for $350,000 would yield an average of $81.47 per square foot. However, the
Wrights’ 4,260 square foot home purchased for $234,000 yields an average of only $54.92
per square foot, which demonstrates why the purchase price may be used as evidence, but is
not conclusive as to value. See Mountain American, infra.

                                              12

LLC v. Huffman, 224 W.Va. 669, 687, 687 S.E.2d 768, 786 (2009) (quoting Kline, 174

W.Va. 369, 326 S.E.2d 715 (emphasis added).20 Indeed, I believe that these prior decisions

highlight this Court’s recognition that there may be instances, such as the case sub judice,

where a purchase price in a purportedly arm’s length transaction is not reflective of the

property’s true and actual value. Accord Southern Westchester Associates v. Assessor of City

of Yonkers, 122 A.D.2d 212 (N.Y.1986) (recent arm’s length sale is best evidence of value

for tax assessment purposes if not explained away as extraordinary). In fact, “[e]ven if

       20
          Many states agree that purchase price is not conclusive for determining market
value. See Tuthill v. Arkansas Cnty. Equalization Bd., 797 S.W.2d 439, 441 (Ark.,1990)
(“the current purchase price is an important criterion of market value, but it alone does not
conclusively determine the market value . . . a real bargain hunter might purchase a piece of
property solely because he is getting it for less than market value, and one such isolated sale
does not establish market value.”); Dennis v. Cnty. of Santa Clara, 215 Cal.App.3d 1019, 263
Cal.Rptr. 887 (Cal.App. 1989) (purchase price may be significant but it is only the beginning
and not necessarily the end of the inquiry); O'Brien v. Bd. of Tax Review, 362 A.2d 914, 918
(Conn. 1975) (sale price of land shortly after assessment date was competent evidence to
show its fair market value, but was not controlling in determining such value); Walker v.
Trump, 549 So. 2d 1098 (Fla. Dist. Ct. App. 4th Dist. 1989) (purchase price one of eight
factors considered); Park Esplanade Ltd. Partnership v. Williams, 577 So.2d 1028, 1030
(La.App. 4 Cir.,1991) (“The purchase price is not the exclusive or sole basis on which to
establish a value for assessment purposes.”); Arath III, Inc. v. City of Grand Rapids, No.
233682, 2003 WL 327622 (Mich. App., Feb.11, 2003) (purchase price not presumptive true
cash value of property transferred); Schleiff v Cnty. of Freeborn, 43 N.W.2d 265 ( Minn.
1950) (evidence of recent purchase price not conclusive as to its market value but an
important element in determining such value under relevant tax valuation statutes); Bottorf
v. Clay Cnty. Bd. of Equalization, 580 N.W.2d 561 (Neb. 1998) (sale price for property sold
close to time of tax assessment is not conclusive as to value); Venture 17, LLC v. Hasbrouck
Heights, 27 N.J.Tax 108 (N.J. Tax. Ct. 2013) (sale of property not dispositive on issue of
value); Smith v. Newberry Cnty. Assessor, 567 S.E.2d 501 (S.C. 2002) (purchase price of
property not conclusive evidence of fair market value); West Creek Associates, LLC v. Cnty.
of Goochland, 665 S.E.2d 834 (Va. 2008) (sale price is accorded substantial weight but is not
conclusive evidence of fair market value); City of Harrisonburg v. Taubman, 181 S.E.2d 654
(Va.1971) (sale price was not conclusive evidence of fair market value).

                                              13

property is sold on tax day (the day on which it is appraised for tax purposes), there is no

guarantee that the sale price equals market value.”           Powell on Real Property, §

10B.06[4][c][ii] (Michael Allan Wolf, ed., Matthew Bender).



              I agree with the majority that “[t]he price paid for property in an arm’s length

transaction, while not conclusive, is relevant evidence of its true and actual value[.]”21 Syl.

Pt. 2, in part, Kline v. McCloud, 174 W.Va. 369, 326 S.E.2d 715 (1984). However, I strongly

disagree with the majority’s unsupportable conclusion that neither the Assessor, the Board,

nor the circuit court “considered” or gave evidentiary value to the Wrights’ purchase price.

As discussed above, the record discredits such a conclusion and, in fact, demonstrates that

the Assessor, the Board, and the circuit court each considered the Wrights’ purchase price

in their respective analyses.



                                   IV. Burden of Proof

              In addition to the majority’s erroneous conclusion regarding the consideration

and evidentiary value given to the Wrights’ purchase price, the majority also focuses on



       21
         I observe that Rule 401 of the West Virginia Rules of Evidence defines relevant
evidence as “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” [Emphasis added.]. Here, the Wrights’ purchase price simply
made it less probable that said price was reflective of their home’s true and actual value,
particularly where the Assessor determined that their purchase price was in line with the
foreclosure sales in their tax neighborhood during the look-back period.

                                              14

evidence which they say the Assessor should have presented before the Board. In doing so,

the majority completely and utterly disregards the fact that the burden of proof was on the

Wrights–not the Assessor–to show that the assessment of their property was erroneous.

               “‘As a general rule, there is a presumption that valuations for
               taxation purposes fixed by an assessor are correct. . . .The
               burden is on the taxpayer challenging the assessments to
               demonstrate by clear and convincing evidence that the tax
               assessment is erroneous.’ Syllabus point 2, in part, Western
               Pocahontas Properties Ltd. v. County Commission of Wetzel
               County, 189 W.Va. 322, 431 S.E.2d 661 (1993).” Syllabus
               Point 8, Bayer MaterialScience, LLC v. State Tax
               Commissioner, 223 W.Va. 38, 672 S.E.2d 174 (2008).

Mountain America, 224 W.Va. at 771, 687 S.E.2d at 772, syl. pt. 9 (emphasis added). As this

Court has emphasized, “[c]lear . . . and convincing proof . . . is the highest possible standard

of civil proof defined as ‘that measure or degree of proof which will produce in the mind of

the trier of facts a firm belief or conviction as to the allegations sought to be established.’”

Webb v. WV Bd. of Medicine, 212 W.Va. 149, 156, 569 S.E.2d 225, 232 (2002) (internal

citations omitted).22 We have previously addressed taxpayers’ complaints concerning this



       22
          See also Maxwell v. Carl Bierbaum, Inc., 893 S.W.2d 346, 348 (Ark. 1995) (“Clear
and convincing evidence has been defined as proof so clear, direct, weighty, and convincing
as to enable the fact finder to come to a clear conviction, without hesitation, of the matter
asserted (internal citation omitted); it is that degree of proof that will produce in the trier of
fact a firm conviction as to the allegation sought to be established.”); Slomowitz v. Walker,
429 So.2d 797, 800 (Fla.Ct.App.1983) (“[C]lear and convincing evidence requires that the
evidence must be found to be credible; the facts to which the witnesses testify must be
distinctly remembered; the testimony must be precise and explicit and the witnesses must be
lacking in confusion as to the facts in issue. The evidence must be of such weight that it
produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to
the truth of the allegations sought to be established.”).

                                               15

heavy evidentiary burden and, in doing so, have reaffirmed that the taxpayer at all times bears

the burden of proof in seeking relief from an allegedly erroneous tax assessment.



              In In re Tax Assessment of Foster Foundation’s Woodlands Retirement, 223

W.Va. 14, 672 S.E.2d 150 (2008), the taxpayer challenged the clear and convincing

evidentiary burden, as well as its corresponding burden of persuasion insofar as it

complained that “neither the Assessor nor the [County] Commission was required to present

evidence of a specific type to prove the correctness of their assessments.” Id. at 29, 672

S.E.2d at 165. As we explained,

              Requiring the party bringing a claim for relief to bear the burden
              of persuasion . . . is consistent with our jurisprudence. “It is a
              well-established rule of law that in civil actions the party
              seeking relief must prove his right thereto[.]” Boury v. Hamm,
              156 W.Va. 44, 52, 190 S.E.2d 13, 18 (1972). Therefore,

                     when a plaintiff comes into court in a civil action
                     he must, to justify a verdict in his favor, establish
                     his case. . . . The burden of proof, meaning the
                     duty to establish the truth of the claim . . . , rests
                     upon him from the beginning, and does not shift,
                     as does the duty of presenting all the evidence
                     bearing on the issue as the case progresses.

              Burk v. Huntington Dev. & Gas Co., 133 W.Va. 817, 830, 58
              S.E.2d 574, 581 (1950), modified on other grounds, Foster v.
              City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997). Moreover,

                     [a]s a general matter, the burden of proof consists
                     of two components: burden of production and
                     burden of persuasion. The burden of persuasion
                     requires the party upon whom it is placed, to

                                              16

                     convince the trier of fact . . . on a given issue.
                     When a party has the burden of persuasion on an
                     issue, that burden does not shift. . . .

              Mayhew v. Mayhew, 205 W.Va. 490, 497 n.15, 519 S.E.2d 188,
              195 n.15 (1999) (citations omitted). . . .

                      Thus, as the party seeking relief from the allegedly
              erroneous tax assessment . . . bears the burden of proving its
              entitlement to relief. See Boury, 156 W.Va. at 52, 190 S.E.2d at
              18. To sustain this burden, the Foundation must present clear
              and convincing evidence. The burden of persuasion rests with
              the Foundation to prove that its tax assessment was erroneous;
              it does not lie with the Assessor or the Commission nor does it
              shift thereto.

Foster Foundation, 223 W.Va. at 29, 672 S.E.2d at 165 (emphasis added). Thus, while the

majority seems to imply that the burden of proof shifted to the Assessor once the Wrights

presented their purchase price to the Board, the majority is flat out wrong. Id.



                                V. The Wrights’ Evidence

              Because the evidentiary burden was on the Wrights at all times, instead of

focusing upon what evidence the Assessor did not present, as the majority has done, let us

examine, instead, the Wrights’ evidence to see why, as I believe, they failed to meet their

heavy evidentiary burden.



              The Wrights offered two pieces of evidence before the Board: (1) a spreadsheet

they prepared averaging the prices of ten sales in their subdivision during the look-back



                                             17

period and (2) a copy of the real estate appraisal prepared in conjunction with the purchase

of their home. As the circuit court correctly pointed out in its order upholding the Assessor’s

valuation, the spreadsheet “sheds no real light on the issue[]” because it does not

“differentiate as to which properties were sold as a result of foreclosures or what the square

footage[s] of the homes were sufficient to determine a different value,” nor did it reflect the

size, age, or condition of the homes. As Ms. Bowers explained to the Board,

              This is a reappraisal to equalize property values based on the
              value of each individual property, considering the size of the lot,
              the size of the square footage of the home, the amenities in the
              home. If you took an average, I mean actually it would make
              my job a lot easier if I could just take an average price and then
              punch in those numbers. But we have to physically measure and
              list each one of these houses. We use these sales as guidelines
              to make overall adjustments in the [tax] neighborhood based on
              the individual home because of the differences in the individual
              homes. So there’s no way that we could just take an average.
              ••••
              I worked with the State Tax Department and I’ve never been
              told to do an average. Like I say we can’t actually set individual
              values. We have to measure and list the house according to the
              amenities of the house and make overall adjustments to that
              neighborhood based on those sales.



              The only other evidence offered by the Wrights was the residential appraisal

of their home prepared at the behest of their mortgage lender. As the circuit court aptly

observed, the Wrights’ appraiser had to go outside the Wrights’ tax neighborhood in order

to find similar sale prices for comparably sized homes, while simultaneously ignoring the

similarly sized home in the Wrights’ subdivision that sold for $350,000. Because the

                                              18

Wrights did not offer the testimony of their appraiser, the Board did not have the opportunity

to question the appraiser and seek an explanation in this regard, thus leaving the Board with

a “hearsay document,” as the circuit court observed. See Killen, 170 W.Va. at 604, 295

S.E.2d at 691, syl. pt. 8, in part (“An objection to any assessment may be sustained only upon

the presentation of competent evidence, such as that equivalent to testimony of qualified

appraisers, that the property has been . . . wrongly assessed.”) (emphasis added). Consistent

with the pertinent statutes, regulations, and Administrative Notice discussed herein, the

circuit court deftly explained that

              [u]nlike appraisals based upon “comparable sales” done in a real
              estate context where only . . . properties of similar style and size
              are considered . . . for tax purposes all arms length sales are
              considered and converted into an average square-foot value for
              residential space. Such a computation allows an averaging of
              values of new homes and older homes, of one bedroom homes
              with five bedroom homes, well maintained homes and homes in
              disrepair, all based on their square-foot value.                The
              determinations made regarding grade, age, condition, etc., of a
              particular property in question are then used to bring the
              appraisal of that property within 10% more or less of the range
              of the determined average residential square foot value.

Had the Wrights’ appraiser used comparable sales of similarly sized homes in the Wrights’

tax neighborhood during the look-back period, I believe that such an appraisal would have

had significant evidentiary value. However, their appraiser did not do so.



              Lastly and contrary to the majority’s reasoning, it was the Wrights who bore

the burden of presenting evidence to the Board explaining their “good deal.” Perhaps they

                                              19

could have obtained an affidavit from their sellers explaining why the sale of their home to

the Wrights was a valid arm’s length transaction even though the purchase price was so

clearly below market value. Or, perhaps the Wrights could have offered the testimony of a

real estate appraiser to explain why their purchase price was indicative of their home’s true

and actual value when other sales in the tax neighborhood during the look-back period

demonstrated to the contrary. The Wrights did none of these things.



              As this Court has previously held, “[o]nce an assessor has made an assessment,

the valuation placed upon the property by the assessor is accorded great deference and is

presumed to be correct.” Foster Foundation, 223 W.Va at 33, 672 S.E.2d at 170 (emphasis

added). Indeed, “[a]n assessment made by a board of review and equalization and approved

by the circuit court will not be reversed when supported by substantial evidence unless

plainly wrong.” Syl. Pt. 3, Western Pocahontas Properties Ltd. v. Cnty. Comm’n of Wetzel

Cnty., 189 W.Va. 322, 431 S.E.2d 661 (1993) (internal quotations and citations omitted).

Here, the circuit court correctly concluded that

              [b]ecause the [Wrights] did not offer . . . the clear and
              convincing evidence it would be their burden to provide, the
              Court must assume23 that this appraised value is in line with the
              State Tax Department mandated range of plus or minus 10% of
              [the] current tax year’s average, arm’s length, fair market sales



       23
         See Foster Foundation, 223 W.Va. 14, 33, 672 S.E.2d 150, 170 (“the valuation
placed upon the property by the assessor is accorded great deference and is presumed to be
correct.” (Emphasis added.)).

                                             20

              for the tax neighborhood when construed through the lens of
              valuation based upon the square foot.



                                       VI. Conclusion

              It is abundantly clear from the record that the Wrights have simply failed to

sustain their heavy burden of proof in this matter. Based on the evidence in the record and

in contemplation of the Tax Commissioner’s mandated methodology for valuing residential

real property for ad valorem tax purposes in this State, I am compelled to conclude, under

the facts and circumstances of this case, that the circuit court did not abuse its discretion24

in affirming the Board’s decision to uphold the Assessor’s valuation of the Wrights’ home,

which is not “plainly wrong.” Id. Moreover, nothing in this dissent should be interpreted as

discouraging taxpayers from challenging their ad valorem tax assessments. Rather, I am

compelled to dissent because I believe the majority has misinterpreted the evidence, has

disregarded the Tax Commissioner’s directives concerning the methodology for appraising

real property for tax assessment purposes, and has wrongfully shifted the burden of proof to




       24
        “This Court reviews the circuit court’s final order and ultimate disposition under an
abuse of discretion standard.” Syl. Pt. 1, in part, Foster Foundation, 223 W.Va. 14, 672
S.E.2d 150.

                                              21

the Assessor. Therefore, I respectfully dissent from the majority’s decision in this case.25




       25
        The majority indicates that “[o]n remand, the parties may introduce all relevant
evidence regarding the true and actual value of the property.” It appears that the circuit court
will need to be guided in this regard by West Virginia Code § 11-3-25(c) (2013), which
allows for the taking of additional evidence before the Board in certain limited
circumstances, which may or may not be present in the case at bar.

                                              22
