[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, Slip Opinion No. 2017-
Ohio-7650.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2017-OHIO-7650
  CINCINNATI SCHOOL DISTRICT BOARD OF EDUCATION, APPELLEE; QUEEN
     CITY TERMINALS, INC., APPELLANT, v. HAMILTON COUNTY BOARD OF
                            REVISION ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of
                   Revision, Slip Opinion No. 2017-Ohio-7650.]
Taxation—Real-property valuation—Board of Tax Appeals acted reasonably and
        lawfully in not reducing sale price by amount contractually allocated to
        goodwill—Decision affirmed.
    (No. 2015-0378—Submitted May 2, 2017—Decided September 20, 2017.)
     APPEAL from the Board of Tax Appeals, Nos. 2012-1564 and 2012-1685.
                                ____________________
        Per Curiam.
        {¶ 1} Appellant, Queen City Terminals, Inc. (“Queen City”), appeals from
a decision of the Board of Tax Appeals (“BTA”) that adopted an allocated portion
of a bulk-sale price as the property value for tax year 2011 for two parcels along
                            SUPREME COURT OF OHIO




the Ohio River. On appeal, Queen City faults the BTA for not reducing the sale
price by an amount that was contractually allocated to goodwill. Because the BTA
acted reasonably and lawfully, we affirm its decision.
                         FACTUAL BACKGROUND
       {¶ 2} At issue is the 2011 value of real estate along the Ohio River, east of
downtown Cincinnati, that is suitable for loading and unloading liquid products for
river transport. The property consists of two parcels totaling about 7.811 acres,
with a few small structures, some paving, five containment tanks, and moorings in
the Ohio River. Queen City acquired the property as part of a $2.5 million bulk
sale that was consummated in late 2010 or early 2011. The parties contractually
allocated the purchase price to the real estate ($210,000); the containment tanks
($833,464), which were nontaxable personal property; a noncompete covenant
($12,500); and goodwill ($1,444,036).
       {¶ 3} Queen City reported $1,043,460 as the sale price on the conveyance-
fee statement, which is the sum of the amounts allocated to the real estate and the
tanks. For tax year 2011, which was a sexennial reappraisal year in Hamilton
County, the county auditor assigned a value of $1,043,460 to the real property.
Queen City filed a complaint seeking a value of $210,000, the amount contractually
allocated to real estate by the parties. The Cincinnati School District Board of
Education (“BOE”) filed a countercomplaint seeking retention of the auditor’s
valuation.
       {¶ 4} At the hearing before the Hamilton County Board of Revision
(“BOR”), Queen City presented documentation of the sale and the testimony of
David Porter, who was a senior property-tax representative with Kinder Morgan,
parent entity of the property owner. The BOE objected to Porter’s testimony
because of his lack of firsthand knowledge of the transaction. Additional testimony
before the BOR was provided by an appraiser in the county auditor’s real-estate
office, Doug Thoreson, whose written report supported retaining the auditor’s




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valuation but whose testimony recommended that the contractual allocation to
“goodwill” be added to the realty allocation.
       {¶ 5} The BOR retained the auditor’s valuation of $1,043,460, based on its
finding that Queen City failed to directly refute it.
       {¶ 6} Both the BOE and the property owner appealed to the BTA, with the
former arguing that the value of the property should be $1,666,536 (the $2.5 million
bulk-sale price less the $833,464 value of the holdings tanks) and the latter seeking
a reduction to $210,000 (the amount contractually allocated to the real estate). At
the BTA hearing, Queen City presented an appraisal report and testimony of
Raymond A. Jackson, a member of the Appraisal Institute, opining a real-estate
value of $430,000 based on a sales-comparison approach. Queen City argued that
the appraisal provided support for the allocation of $210,000 to the real estate or,
in the alternative, constituted direct evidence of a value of $430,000.
       {¶ 7} The BTA accepted the $2.5 million bulk-sale transaction as a recent
arm’s-length transaction and found that $833,460 should be deducted based on the
value of the tanks (which were nontaxable personal property), but it concluded that
there was no evidence to support the other allocations. BTA Nos. 2012-1564 and
2012-1685, 2015 WL 970985, *1.           It therefore valued the real estate at the
$1,666,540—the $2.5 million sale price minus the $833,460 tank value. Id. at *2.
                                     ANALYSIS
                         Deferential Standard of Review
       {¶ 8} Pursuant to R.C. 5717.04, we review a BTA decision to determine
whether it is “reasonable” and “lawful.” In tax-valuation cases, it is settled that
“ ‘[t]he fair market value of property for tax purposes is a question of fact, the
determination of which is primarily within the province of the taxing authorities,’ ”
with the result that “ ‘this court 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.’ ” Columbus City Schools




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Bd. of Edn. v. Franklin Cty. Bd. of Revision, 148 Ohio St.3d 499, 2016-Ohio-7466,
71 N.E.3d 988, ¶ 19, quoting Cardinal Fed. S. & L. Assn. v. Cuyahoga Cty. Bd. of
Revision, 44 Ohio St.3d 13, 336 N.E.2d 433 (1975), paragraph four of the syllabus.
It follows that Queen City, as appellant, must affirmatively demonstrate that the
decision below is unreasonable or unlawful.
     Queen City’s Burden Was To Show a Proper Sale-Price Allocation
       {¶ 9} In Conalco, Inc. v. Monroe Cty. Bd. of Revision, 50 Ohio St.2d 129,
363 N.E.2d 722 (1977), we confronted a company’s sale of its entire aluminum
division, which held many assets, including some real estate; the court held that
“[i]n valuing real property sold within three days of the tax lien date in an arm’s
length transaction, the best evidence of ‘true value in money’ is the proper
allocation of the lump-sum purchase price and not an appraisal ignoring the
contemporaneous sale.” Id. at paragraph two of the syllabus. Since Conalco, our
case law has settled the principle that “[a]n owner who favors the use of an allocated
bulk-sale price to reduce the value assigned to real property must bear the burden
of proving the propriety of the allocation.” RNG Properties, Ltd. v. Summit Cty.
Bd. of Revision, 140 Ohio St.3d 455, 2014-Ohio-4036, 19 N.E.3d 906, ¶ 36, citing
FirstCal Indus. 2 Acquisitions, L.L.C. v. Franklin Cty. Bd. of Revision, 125 Ohio
St.3d 485, 2010-Ohio-1921, 929 N.E.2d 426.
       {¶ 10} The burden is not a heavy one; the owner must typically be able to
point to “ ‘corroborating indicia’ ” in the record that supports the allocation.
Hilliard City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 139 Ohio St.3d
1, 2014-Ohio-853, 9 N.E.3d 920, ¶ 42, 46-47, quoting Sapina v. Cuyahoga Cty. Bd.
of Revision, 136 Ohio St.3d 188, 2013-Ohio-3028, 992 N.E.2d 1117, ¶ 18. The
burden may be satisfied if the “best available evidence” supports the proposed
reduction from the full sale price. Hilliard City Schools Bd. of Edn. v. Franklin
Cty. Bd. of Revision, 128 Ohio St.3d 565, 2011-Ohio-2258, 949 N.E.2d 1, ¶ 18, 27.
In evaluating the sufficiency of the proof, the allocation agreed to by the parties to




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                                January Term, 2017




the asset purchase agreement is “relevant” in allocating for tax purposes, but it “is
not sufficient by itself, because the motivations behind the allocation are crucial to
a determination of its propriety for tax-valuation purposes.” RNG Properties at
¶ 37. In other words, the mere fact that the parties to a bulk sale of assets have
agreed to allocate a particular amount to real estate does not by itself establish the
propriety of the allocation.
       {¶ 11} In the absence of showing a proper allocation, either the full sale
price constitutes the property value or, in a proper case, “complexities of the sale”
may justify looking to appraisal evidence rather than the sale price to value the
property. Compare St. Bernard Self-Storage, L.L.C. v. Hamilton Cty. Bd. of
Revision, 115 Ohio St.3d 365, 2007-Ohio-5249, 875 N.E.2d 85, ¶ 11, 24-26, with
Consol. Aluminum Corp. v. Monroe Cty. Bd. of Revision, 66 Ohio St.2d 410, 414,
423 N.E.2d 75 (1981).
           The BTA Reasonably Applied the Evidentiary Standard
       {¶ 12} Here, the parties agreed and the BTA found that the contractual
allocation of $833,464 to the personal property, the tanks themselves, was justified.
The parties to the bulk sale determined that amount based on the tanks’ replacement
cost less depreciation. Accord Jefferson Industries Corp. v. Madison Cty. Bd. of
Revision, 148 Ohio St.3d 181, 2016-Ohio-7089, 69 N.E.3d 701, ¶ 26, quoting
International Association of Assessing Officers, Property Assessment Valuation
131 (2d Ed.1996) (defining replacement cost as “ ‘the cost of producing a building
or improvement having the same utility, but using modern materials, design, and
workmanship’ ”). The BTA’s finding was reasonable, because the allocation to the
tanks indicated that the value came from an underlying analysis, which was
included in the material submitted by the owner to the BOR. Moreover, the BOE
agreed that the deduction for the tanks was supported by evidence. Thus, the
deduction is both facially reasonable and stipulated as being such.




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        {¶ 13} By contrast, the BTA determined that the allocation to goodwill was
not adequately supported in the record, and it therefore assigned all the remaining
bulk-sale price to the real estate. This too was eminently reasonable in spite of the
contracting parties’ contemporaneous allocation to goodwill—both because the
record does not substantiate a going-concern or goodwill-type asset as constituting
part of the sale agreement and because the modest allocation to real estate was not
independently supported.
        {¶ 14} As to the first point, the few pages of the purchase agreement that
were offered into evidence specify tangible personal property and real property as
part of the sale —but no intangible assets such as customer lists or existing contracts
are referred to in the portions of the agreement produced. If such assets were
referenced elsewhere in the agreement, Queen City had the burden to produce those
portions of the agreement. Absent corroborating evidence, there is no foundation
for the large allocation to goodwill.
        {¶ 15} As for real-estate value allocation, the underlying documentation
refers to “[f]air market value based on property tax appraisal at $35,000/acre.”
Porter testified at the BOR hearing that the contract parties “pulled this right from
Liquid Transfer Terminal’s appraisal records where the land was basically assessed
at $35,000 [per acre].” Thoreson, the appraiser from the auditor’s real-estate
department, testified that the county had never valued the property at $35,000 an
acre.
        {¶ 16} Furthermore, Thoreson gave his opinion that the moorings in place
along the riverfront on the property, which would be difficult to get approved if the
property did not come with them already installed, were realty and a major portion
of the real estate’s worth. Indeed, Thoreson opined that “this property does not
exist for its use” without the moorings, and he expressed the view that the “goodwill
is sitting in the river,” meaning that the moorings, as part of the real estate, added
value so that the proper valuation of the real estate was to add the $210,000




                                          6
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allocation to the goodwill allocation.         Thoreson derived his opinion from
knowledge that he had obtained from investigating other similar properties. The
BTA’s decision to view the goodwill as intertwined with the real estate receives
strong support from Thoreson’s opinion.
              The BTA Reasonably Rejected the Owner’s Appraisal
          {¶ 17} Addressing the owner’s appraisal, the BTA stated that it did not
constitute “sufficient evidence to support an allocation of the sale price” because
“it attempts to bypass the utility of the sale at issue by relying on the transfers of
other properties rather than the subject itself.” BTA Nos. 2012-1564 and 2012-
1685, 2015 WL 970985, at *1. The BTA’s approach is legally justified under
Conalco, 50 Ohio St.2d 129, 363 N.E.2d 722, and is confirmed by the cross-
examination of the appraiser, which raised questions about the comparability of the
properties used.
                 Queen City Fails To State a Constitutional Claim
          {¶ 18} In its third proposition of law, Queen City argues that the BTA
decision violates its rights as a property owner under the Unites States and Ohio
Constitutions. Specifically, Queen City argues that by including “goodwill” in the
value of real estate, the assessment below allegedly taxes intangible personal
property. This claim evaporates because the BTA’s findings are supported by the
record, which indicates that most of the sale price is in fact attributable to the real
estate.
                                   CONCLUSION
          {¶ 19} For the foregoing reasons, we reject the Queen City’s contentions on
appeal and affirm the decision of the BTA.
                                                                   Decision affirmed.
          O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
                                 _________________




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       David C. DiMuzio, Inc., and David C. DiMuzio, for appellee Cincinnati
School District Board of Education.
       Vorys, Sater, Seymour & Pease, L.L.P., Karen H. Bauernschmidt, and
Nicholas M.J. Ray, for appellant.
       Joseph Deters, Hamilton County Prosecuting Attorney, and Thomas J.
Sheve and Jeremiah Seebohm, Assistant Prosecuting Attorneys, for appellee
Hamilton County Auditor.
                              _________________




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