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2012 Tax Report Mar

  1. 1. Tax ReportInstitute for Professionals in TaxationExcellence Through Tax EducationMarch 2012 Intermediate Real Property Tax School Tools for Success ~ April 29 - May 4, 2012 Marriott Kingsgate Conference Center, Cincinnati, Ohio Brochure Registration Form Reservation Form Property Tax Property Tax Sales and Use TaxGeorgia Rules of Evidence on Non-Profit Organizations: The N.J. Tax Court ProvidesOpinions of Market Value New Target for Assessors Guidance on ManufacturingAmerican law in general, and current Given the economic conditions of the past Exemption; Denies ProjectedGeorgia law in particular, makes it very several years, it is not surprising that state Refundclear that opinions of value are less like and local jurisdictions are seeking new opportunities to generate revenue. It is A New Jersey Tax Court holds importantscientific and technical determinations surprising, however, that non-profits and lessons. First, the court refused to projectand more like those categories of matters charitable organizations have become an overpayment, even though it wasabout which non-expert, or lay, witnesses targets for these jurisdictions. This included in the sample used to derivehave traditionally been allowed to offer article will highlight one such ongoing underpayments, a result arguably atan opinion into evidence. As long as controversy in IL while showing that other odds with the New Jersey Taxpayer Bill ofthey have had an adequate opportunity Rights. Secondly, the court stressed theto form a correct opinion and can state states are doing the same thing! taxpayer’s inconsistent federal income taxsome reasonable basis for their opinion, treatment of certain items as the basis fornon-appraiser witnesses who have been Joseph J. Calvanico, CMI, ASA denying a manufacturing exemption forallowed to testify in jury trials and give Crowe Horwath LLP capital improvements. Finally, it refusedtheir opinions of value include property Chicago, IL to allow the taxpayer to raise issues at theowners, tenants, real estate agents and Phone: 312.899.5491 trial court level that it had not raised duringbrokers, developers, contractors, and Email: the administrative protest. Prior case lawgovernment officials such as mayors. The joseph.calvanico@crowehorwath.com held that documentation not offered duringrules of evidence in non-jury proceedings the protest was barred during subsequent– such as bench trials, arbitrations, Lauren K. Barnard trial court proceedings.and executive branch administrative Crowe Horwath LLPproceedings, e.g., boards of equalization, Chicago, IL David J. Gutowski, Esq.hearing officers, etc. – are usually much Phone: 312.857.7402 Reed Smith LLPmore relaxed than in court, and so a tax Email: Philadelphia, PArepresentative would appear to be almost lauren.barnard@crowehorwath.com Phone: 215.851.8874always competent to offer fact and opinion Email: dgutowski@reedsmith.comtestimony in tax appeals. But, the weightand credibility to be given to any witness’s Kyle O. Sollie, CMI, Esq.testimony of facts and opinions of value Article begins on page 4 Reed Smith LLP– be it expert or non-expert – is greater Philadelphia, PAwhen that witness can provide: a) a better Phone: 215.851.8100explanation of his or her qualifications and Email: ksollie@reedsmith.comexperience, b) stronger reasons for giving Christine M. Hanhausen, Esq.a particular statement of fact or opinion of Reed Smith LLPvalue, and c) less appearance of bias. Philadelphia, PAJon M Ripans, Esq. Phone: 215.851.8865Certified General Real Property Email: chanhausen@reedsmith.comAppraiserGeorgia Property Tax Hearing Officer Article begins on page 14Registered Neutral, Georgia Commissionon Dispute Resolution - Arbitration andGeneral Mediation Categories In this IssueThe Ripans Law Firm, LLC and ValuationMatters, LLC Code of Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Basic State Income Tax School . . . . . . . . . . . . . 24Atlanta, GA Presidents Corner . . . . . . . . . . . . . . . . . . . . . . . . . 3 Advanced State Income Tax School . . . . . . . . . . 24Phone: 404.993.9467 Counsels Corner . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Property Tax Calendar . . . . . . . . . . . . . . . . . . . . . 25Email: ripanslaw@gmail.com CMI Candidate Connection . . . . . . . . . . . . . . . . . 22 Intermediate Real Property Tax School . . . . . . . 25 CMI Corner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Career Opportunities . . . . . . . . . . . . . . . . . . . . . . 26Article begins on page 7 Annual Conference . . . . . . . . . . . . . . . . . . . . . . . 23 Calendar of Events . . . . . . . . . . . . . . . . . . . . . . . 28
  2. 2. IPT Officers:President Credits and Incentives Income TaxLinda A. Falcone, CMIRyan, LLC Georgia’s Economic Estoppel, StatutoryFirst Vice PresidentPaul A. Wilke, CMI Development Initiatives Interpretation, and AgencyWeingarten Realty Investors (1994 to Present) DeferenceSecond Vice President This article will look at Georgia’sArlene M. Klika, CMI – Kansas Income Tax portfolio of business developmentSchneider National, Inc. incentives, enacted under the Credits Denied Business Expansion Support Act (or The article examines an unpublishedIPT Board of Governors: “BEST”) in 1994 and successively decision of the Court of Appeals ofImmediate Past President updated in 1998, 2001, and 2008- Kansas denying a business andRobert D. Butterbaugh, CMIErnst & Young LLP 2009. The article will also investigate jobs income tax credit to Ashland for the changes and updates proposed machinery and equipment used inKyle Caruthers by a new piece of legislation currently highway construction. At issue wereThe Coca-Cola Company estoppel, statutory interpretation and in the Georgia General Assembly.Gwendolyn S. Evans, CMI Due Process and Equal Protection Betty McIntoshRaytheon Company claims. The most significant part of Managing DirectorChristopher S. Hall, CMI, CMA the decision is that dealing with theFord Motor Company and question of agency deference. The Elisabeth Kulinski opinion builds on a recent line ofDonna L. Jernigan, CMI, PE authority to conclude that no judicialExxon Mobil Corporation Consulting Analyst Business Incentives Practice deference is to be given the taxKenneth R. Marsh, CMI Cushman & Wakefield agency’s interpretation of the statutesTransCanada Pipelines Limited Atlanta, GA it administers. The Kansas rule is aWilliam J. McConnell, CMI, CPA, Esq. 404.853.5362 welcome and sensible developmentGeneral Electric Company which it is hoped other state courts will embrace.Chris G. Muntifering, CMI Article begins on page 15General Mills, Inc. Cass D. Vickers, CMI, Esq. IPT Deputy Executive Director andKellianne M. Nagy, CMI, CAETime Warner Cable State Tax Counsel Phone: 404.240.2300Andrew P. Wagner, Esq., CPA Email: cvickers@ipt.org FedEx Corporate ServicesGeneral Counsel: Article begins on page 19Edward Kliewer, III, Esq.Fulbright & Jaworski L.L.P.Executive Director:Billy D. Cook The Institute expresses itsDeputy Executive Director andState Tax Counsel: sincere appreciation to Ryan,Cass D. Vickers, CMI, Esq. LLC for being the SignatureAssistant Executive Directors: Sponsor for this year’s AnnualBrenda A. Pittler Conference. Sponsorships enableCharles Lane O’Connor IPT to enhance the quality of its educational programs.This publication is designed to provide accu-rate information for IPT members and other taxprofessionals. However, the Institute is not en-gaged in rendering legal, accounting, or otherprofessional services. If legal advice or otherexpert assistance is required, the services of a CODE OF ETHICS: CANON 18competent professional should be sought. Re-print permission for articles must be granted by IT IS UNETHICAL for a member having supervisory responsibilityauthors and the Institute. Send address chang- for another tax professional to knowingly authorize, direct, permit ores and inquiries to Institute for Professionalsin Taxation, 1200 Abernathy Road, Northeast, ratify any subordinates act or omission that is declared unethical byBuilding 600 Suite L-2, Atlanta, Georgia 30328 this Code, regardless whether the subordinate is a member of IPT.Telephone (404) 240-2300. Fax (404) 240-2315. IPT March 2012 Tax Report 2
  3. 3. can be of benefit to you. President’s The Annual Conference Committee is focusing significant effort on finalizing plans for the program. It promises to be Corner an excellent agenda for all disciplines with topics highly pertinent to today’s economic situation and to practical applications. It is a program you will not want to miss. The ABA-IPT Advanced Tax Seminars will be presented the week of March 19th. The individual committees have each developed a full program of current and varied topics presented by high-caliber speakers who are experts in their field. Each one and a half-day program is certain to benefit all those who attend. The Institute offers four schools this spring.  Registration continues for Sales Tax School II (April 22-27) and the Intermediate Real Property Tax School (April 29- May 4). These schools will be offered in Cincinnati at the Marriott Kingsgate Conference Center. Registration is now openLinda A. Falcone, CMI for the Basic and Advanced Income Tax Schools (JunePresident June 2011-2012 3-8) which are being held concurrently at the Georgia Tech Hotel and Conference Center in Atlanta. I encourage you to review the course agendas and pass each of themAs the end of the first quarter of 2012 approaches, I would along to the appropriate individuals in your company.like to thank all members for your continued support of our Full program and registration information is on the IPTorganization. Membership renewals for the first quarter website.have exceeded last year’s numbers. Our local luncheons continue to be very popular.Sales Tax School I, recently held from February 27 Attendance has been good, and we are adding more–March 2, had over 235 registrants, representing a groups. National Local Luncheon Liaison Committee40% increase over last year. My sincere appreciation is Chair, Cecilia Benites, CMI, has been working hard toextended to Chair, Brenda S. Kelley, CMI, CPA, and Vice provide support and encouragement to the newly-formedChair, Kathleen L. Peavley, CMI, for another successful committees. Luncheon Meetings provide an excellentoffering. Further, on behalf of the Institute’s members, I low-cost opportunity for our new members to developwould like to thank the instructors who gave their time local contacts with their colleagues in other companies.and talent to present the course material. Without their The Institute is your association. If you have anyvoluntary participation, the Institute could not have held suggestions or comments on how we may better servethis school.  the membership, please contact me, any member of your Board of Governors, or the IPT staff.Many School I attendees joined our organization inconjunction with School registration. Membership in IPT Linda A. Falcone, CMIhas many benefits, which include the opportunity to attend Presidentthe variety of high-quality educational programs that IPThas to offer at special member rates. In addition, membersmay earn the Certified Member of the Institute (CMI)designation, one of the most respected in the industry.The IPT office is currently receiving applications forearning the CMI Designation, and it appears that therewill be a good number sitting for the examinations in June.The application deadline to be considered for the Juneexam dates is March 21st. I urge all of those who are notcertified to investigate IPT’s designations and how they IPT March 2012 Tax Report 3
  4. 4. to exemptions have led some local governments to re- examine whether not-for-profits should be exempt from property taxes. Not-for-profits must plan and execute strategies to counter this adverse trend. Attention to Counsel’s the organizational mission statement and activities, Corner supplemented by informative communication with legislators, creative proactive measures and other strategies, can maximize the organization’s chances to retain the tax-exempt status it requires to survive. Property Tax ANALYSIS Challenges to the property tax-exempt status of not- for-profits continue to increase. Not-for-profit organizations are a new target for generatingNon-Profit Organizations: The New revenue. With increasing frequency, not-for- profits andTarget for Assessors local tax assessors have squared off over issues relating to tax-exempt status. Tightening budgets at the state andJoseph J. Calvanico, CMI, ASA local levels have led officials to seek out other sources ofCrowe Horwath LLP revenue, including taxing the previously tax-exempt landChicago, IL held by not-for-profits. The Provena case is one that trulyPhone: 312.899.5491 exemplifies the trend of increasing scrutiny, while it also provides great insight into future treatment and potentialEmail: joseph.calvanico@crowehorwath.com legislative changes.Lauren K. BarnardCrowe Horwath LLP Considering taxation of the tax-exempt is a functionChicago, IL of fiscal distress in the public sector. Across thePhone: 312.857.7402 nation, fiscal crises may place the long-standing tax-Email: lauren.barnard@crowehorwath.com exempt status of not-for-profits at-risk. With rising budget deficits causing state and local governments toO n March 1, 2012 Gov. Pat Quinn of Illinois make tough decisions about laying off workers, cutting authorized the DOR to scrutinize property tax state programs and reducing the amount of funding to exemption requests from non-profit organizations. municipalities, many local governments have been forcedIllinois has been plagued by budget problems so this action to identify new sources of revenue. In this environment,is not a surprise but it may put many charity organizations not-for-profits have become the natural target to look forat a disadvantage. this new stream of revenue. Ironically, the same state and local budgetary climate that has placed their exempt status at-risk, or even revoked it, may already have takenIllinois has targeted these non-profit organizations for the its toll on the same not-for-profits’ bottom line in the formlast several years. The Provena case was emblematic of of reduced government funding for their programs andthe state’s attempt to squeeze charitable organizations, services. It is all the more imperative that not-for-profitsas follows: closely examine cases like Provena and take proactive steps to protect their exempt status.INTENT The commercialization of not-for-profits is erodingThe tax-exempt status of not-for-profits continues to the rationale for tax exemptions. Reduced governmentexperience increasing scrutiny from state and local funding, a field of not-for-profits that has more thangovernments. This article aims to re-visit the previous doubled in size from a decade ago, reduced endowmentsanalysis within Taxing Times Ahead for Not-for-profits? due to market volatility, and the increasing costs of “doingwhile drawing from examples within the recent Provena good” are all factors prompting not-for-profit organizationsCovenant Medical Center v. the [Illinois] Department to seek revenue beyond philanthropic resources. Today,of Revenue Illinois Supreme Court decision. a not-for-profit balance sheet may more closely resemble that of its for-profit cousins. This commercialization ofINSIGHT RESTATED the not-for-profit revenue stream has led many to ask if not-for-profits should continue to enjoy their tax-exemptAlthough all 50 states provide some form of property taxexemption to not-for-profit organizations, costs related (Continued on page 5) IPT March 2012 Tax Report 4
  5. 5. status. Add to this a series of scandals in the not-for-profit a not-for-profit entity under the laws of Illinois.world, and the assumption that a not-for-profit will retain 2. Their Articles of Consolidation state, “...coordi-its property tax exemption is no longer continuing to be a nate the activities of Provena Hospitals’ subsid-principle without exception. iaries or other organizations that are affiliated... as they pursue their religious, charitable, educa-Tax exemptions command attention in the Statehouse tional and scientific purposes.”and the courthouse. 3. Provena is exempt from federal income tax underThe battle over not-for-profit tax-exempt status is being §501(c)(3); and isfought in the hallways of state capitols and in courtrooms 4. Exempt from retailers’ occupation tax, service oc-of countless cities and towns across the nation. In 1996, for cupation tax, use tax, and service use tax.example, Colorado voters rejected a state constitutional 5. The organization satisfies Section 3(a) of ‘An Actamendment that would have eliminated property tax to Regulate Solicitation and Collection of Fundsexemptions for most churches, charities and various other for Charitable Purposes;’ andcultural organizations, leaving only non-profit educationalinstitutions and charitable housing groups qualifying for 6. Satisfies Section 4 of the ‘Charitable Trust Act.’tax-exempt status. Voter rejection was due in part to a 7. Provena constitutes a religious organization ex-campaign led by non-profit organizations that highlighted empt from filing annual financial reports.the range of services provided by the organizations tothe people of Colorado in their “Don’t Hurt the Helpers”campaign. The courts examined and meticulously picked apart those points as they took a detailed account of Provena’s philanthropic activities. It appears that Provena was notOn March 18, 2010 the Illinois Supreme Court affirmed prepared to deal with this level of scrutiny, as the decisionthe appellate decision to deny Provena’s property tax to deny their exemption was ultimately affirmed by theexempt status. Provena had successfully appealed to Illinois Supreme Court.the Circuit Court, however the Department of Revenuetook that decision to the Appellate Court where the CircuitCourt’s decision was reversed. However troubling the Consider proactive measures as the beginning of aIllinois Supreme Court’s ultimate decision may be for trend to retain tax-exempt status.Provena, it was not a majority decision as two of the Perhaps in response to the flurry of cases challenging theJustices noted major dissent, and two Justices did not tax-exempt status of hospitals in other states, 97 hospitalsvote. Unfortunately, the case is closed for Provena; in Washington State provided free or discounted care tohowever the case is non-binding and no stare decisis patients based on income. This coalition’s action mayexists. This leaves the door open for further argument also have been a pre-emptive effort to avoid legislationfrom not-for-profits while simultaneously prompting state mandating minimum levels of charity care; or alternatively,legislatures to apply more descriptive statutes. it may have been prompted by recognition of the need to serve the public good. Whatever the reason, this proactiveAppropriate classification of the not-for-profit is the step may be the wave of the future for hospitals and otherkey to playing offense and defense. not-for-profits in other states.Most often, exemptions are derived through one, or acombination of the following classifications: federal not- Further, the Provena case provides a wealth of insightfor-profit status, charitable, religious, scholastic and and reasoning that should pressure organizations toscientific research organizations. However, regardless evaluate how their philanthropic activity relates to theirof classification, documentation of philanthropic activity classification. Not-for-profits need to ensure that if it comesneeds to be clear, accurate and up to date. The Provena down to it, their philanthropic acts can be easily conveyedcase provides a clear cut example of why it is imperative with clearly documented records. In the case of propertyfor a not-for-profit organization to make this a priority. tax, an organization bears the burden of proving that the facilities are necessary to philanthropic acts, as well as prove that they were reasonably utilized for philanthropicThe following points illustrate the magnitude of the acts. The law is vague, which leaves much exposure tounexpected risk of exemption loss that many organizations interpretation risk for both sides of the bench. Diligenceare potentially exposed to, as it would appear that Provena and proof are key, and should be integral priorities for not-had a winning case for maintaining their property tax for-profits that aim to maintain or gain exemptions.exemption: 1. Provena is a consolidation of four Catholic relat- ed healthcare organizations and is organized as (Continued on page 6) IPT March 2012 Tax Report 5
  6. 6. An organization’s mission statement is critical to Freeman noted within the Provena case conveyed hisvalidating eligibility for tax exemption. Those who concern regarding the questionability of whether therework for and with not-for-profit organizations know that was ample proof illustrating that Provena failed to meeteverything begins, and ends, with the mission statement. its burden of proving that the parcels of land were actuallyAs local tax assessors look to not-for-profits for additional and exclusively used for charitable purposes. The Justicerevenue, not-for-profit organizations are well advised further noted his disagreement with claiming that theto review their mission statement to determine if it still care received by patients was of the minimum, as noreflects their activities. To protect its tax-exempt status, comparative benchmark or threshold exists in the law. Hisa not-for-profit organization must ensure that its mission dissent provides insight which may be used by legislatorsstatement reflects a legitimate public purpose; that it is to guide potential revision of statutes.implementing its mission statement, and that all of its landis being used to fulfill its mission statement. Additionally,the mission must conform to statutory requirements. If the As mentioned before, current Illinois legislation does notnot-for-profit operates outside of its purpose, negating the set forth quantifying minimum thresholds for evaluatingexclusivity of operation, then the assessor is likely to deny philanthropic use; and no language can be interpretedthe exemption in whole or in part. to imply a threshold. By implying a threshold through a majority, binding decision and stare decisis, the Court would be acting outside of its capacity through, in essence,However, the mission statement serves as only one of amending the governing statutes.the essential pieces of the package. This is evident withinthe Provena case, as their written mission was clearlyphilanthropic. Their Articles of Incorporation state that the It is also important to consider the theoretical angle thatpurpose of the organization is to: weighs in, that by amending the statute to be more exacting, it will therein impose an artificial parameter on philanthropic activity for meriting tax exemption. Thus a paradox will be “coordinate the activities of Provena created, as the very nature of the philanthropic intent is Hospitals’ subsidiaries or other reduced from generosity and good will to business bottom organizations that are affiliated with lines within the confines of the law. If this paradox were to Provena Hospitals as they pursue be created through amendments, the government would their religious, charitable, educational, essentially be promoting commercialization of the not-for- and scientific purposes...to offer at all profits, which is what it should be combating if the aim times high quality and cost effective to tidy-up the budget. It seems as though this potential healthcare and human services to quandary has been taken into account by the courts, as the consuming public.” for example the Vermont Supreme Court commented that there is nothing in any case that requires an entity to dispense any free care in order to qualify as charitableWhile having such a clearly defined purpose and for exemption. Vermont has never defined a percentagemission, Provena was still ultimately denied a property threshold of free care to be rendered to qualify as a tax-tax exemption, which resulted from a failure to clearly exempt charity. There is a handful of other states thatdocument activity amongst other material factors. take the same view.The ratio of charitable activities to non-charitable Defining and promoting the organization’s causeactivities is important to tax assessors. can win new friends in the legislature. Not-for-profitIn some jurisdictions the tax assessor has focused on the tax exemptions may become a legislative issue in someamount of charitable activity the not-for-profit performs. states. In anticipation of legislative activity, not-for-Not-for-profits should closely track the amount of profits are wise to develop an external relations plan thatcharitable versus non-charitable activities they engage in, educates legislators and the public at-large about theand should translate activities performed for the benefit of social issue that they address and the extent to whichthe community into terms that tax assessors and courts their organizations help the community in addressing thiscan understand: dollars and cents. While many not-for- issue.profits are adept at tracking their expenses, they may notbe as good at tracking their measurable results and theirimpact on the community. Tracking is essential to best Provena was at a detriment for not being communicativepresent the charitable and community focused activities enough and for failing to effectively promote its causeof their organization to the local tax assessor. and services to the community. The Director of Revenue is noted in the case as stating that “the record does not show that [Provena] made any material effort to publicizeTo examine this point more deeply, the dissent that Justice (Continued on page 7) IPT March 2012 Tax Report 6
  7. 7. the availability of charity care to those who were mostin need of it.” The hospital had a charity care policy in Property Taxplace, but the policy (which seems to be punctuatedwith philanthropic intention) failed to make its way intoany of Provena’s advertisements for the tax year underargument. In subsequent years, Provena had altered their Georgia Rules of Evidence on Opinionsadvertisements to reflect their policy, but the subsequentactivity was not deemed relevant to the argument at of Market Valuehand. Jon M Ripans, Esq. Certified General Real Property Appraiser Georgia Property Tax Hearing OfficerPayment in lieu of tax may be the organization’s Registered Neutral, Georgia Commission on Disputesafety net. Resolution - Arbitration and General MediationWhen an individual not-for-profit is faced with losing a Categoriestax exemption it may be possible to negotiate a payment The Ripans Law Firm, LLC and Valuation Matters, LLCin lieu of tax (PILOT). A PILOT is usually preferable to Atlanta, Georgiapaying the tax. Know that local tax assessors are not Phone: 404.993.9467interested in putting not-for-profits out of business and Email: ripanslaw@gmail.comthat a compromise that recognizes your organization’svalue to the community may be available. Check the local Rstatutes for applicability. ecently, the author was asked to look into the issue of property tax representatives providing opinions of market value in property tax hearings. There areCoordinated timing of organization operations with a couple of layers to this issue. First, some jurisdictionsits assessment date is essential to eligibility for tax have tighter rules than others about who can provideexemption. opinions of value either as a witness in court or as anThe assessment date is a key issue in all appeals. Courts appraiser. Second, different jurisdictions have propertyhave acknowledged, for example, that organizations were tax appeals systems that vary widely.exempt, but not operating on the assessment date: As the author is most familiar with Georgia, it is used as an example. The information provided here may not Example (1): In Palm Beach Community Church accurately state the law in other jurisdictions. Indeed, v. Nikolits, 835 So.2d 1274 (Fla. 4th DCA 2003), it is not intended to be legal advice in any jurisdiction, the church was denied exemption because the including Georgia, but merely a discussion that illustrates land in question was not zoned for church use the relevant issues. and there were no church services or operations being performed on the land as of the date of Short Summary: In the federal system, Georgia, and the assessment. courts of most states, opinions are usually the province of experts, but opinions of market value get treated more like other perceptions about which non-expert, laypersons Example (2): In John Ivey v. Michael O’Flaherty, may testify. The focus is not so much on the status of the Director of Assessment, Jackson County, MO, witness as an expert, non-expert, or – in the notes to the Appeal No. 06-30042 (State Tax Commission Federal Rules of Evidence – a “skilled” witness, but the of Missouri, Apr. 19, 2007), the taxpayer sold type of opinion being offered into evidence and whether a property in a Contract for Deed in 2003, well the witness had an adequate opportunity to form a correct before the assessment date of January 1, 2006. opinion. The Contract for Deed, however, was a financing instrument, and the actual deed was not delivered until the contract was satisfied. Here, there was no proof of deed delivery before the assessment Introduction date, even though the terms of the contract were complete in December 2005. The primary purpose of the rules of evidence is to regulate the evidence that a jury may hear so that it is not swayed by evidence that is unreliable, irrelevant, orThe key takeaways are to look and plan for the continuance relevant but is far more inflammatory and prejudicial thanof increased activity from the assessment community in it is probative.1its scrutiny of the property tax exemption for not-for-profitentities. (Continued on page 8) IPT March 2012 Tax Report 7
  8. 8. The strictest rules of evidence apply, not surprisingly, in Sailor v. State, 265 Ga. App. 645, 648(2),jury trials. So, it is useful to look first at what the courts 595 S.E.2d 335 (2004).have had to say about opinion of value evidence in trialcourts with juries, and then move on to talking about Id. at 308 Ga. App. 887, 889, and at 709 S.E.2d. 42.bench trials, arbitrators, hearing officers, and, boards ofequalization. Again, the focus is on Georgia, by way of O.C.G.A. Section 24-2-1 provides: “Evidence must relateexample. The exact rules in other states may vary. to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter shouldOne other note: Georgia adopted a new evidence code be excluded.”last year that is mostly patterned after the Federal Rules ofEvidence (“Fed. R. Evid.” or “F.R.E.”). The new evidencecode in Georgia takes effect on January 1, 2013.2 This Step 2: Who May Testify as to What?article will touch on opinion evidence in federal courtsto provide a preview of the changes coming to Georgia In general, there are two types of witnesses, expertopinion evidence. The quick summary: not too much witnesses and fact witnesses. Fact witnesses maychange. Opinion evidence of value under the new Georgia only testify as to facts that they know from first-handevidence code will operate pretty much along the lines as observation or knowledge. Almost everything else isthe existing code and cases. hearsay or speculation (except for some things that are deemed by law to be “non-hearsay” and others that areWithout further introduction, here are the broad concepts deemed by law to fall under exceptions to hearsay).when it comes to opinion evidence of value in jury trials, Expert witnesses, on the other hand, have much broaderfollowing which is consideration of the rules applied in latitude in the testimony that they can provide, once theyless strict environments. have been tendered as experts by the party seeking to introduce their testimony and admitted by the court as an expert. Expert witnesses can state opinions, can useEvidence Jury Trials – Steps in Vetting hypotheticals, and can even use hearsay evidence toEvidence support their opinions as long as it is the type of hearsay that is ordinarily used by experts in the type of analysisGenerally speaking, the strictest rules of evidence would being provided in court.3apply in jury trials because a jury of laypersons, not trainedin the subject of the dispute or in the rules of evidence,can be tainted by bad evidence. Expert WitnessesThe single most important point to remember is that thereis a key difference between admissibility of evidence and “Experts” are a unique type of witness under the law.the weight and credibility that should be given to that There are so many different things in this world at whichevidence by the “trier of fact,” be it a jury, judge without a one could be an expert, that neither the federal rules ofjury, arbitrator, special master, or other authority. evidence, nor the current Georgia evidence code is able to give a tight definition of “expert witness.” Essentially,Step 1: Admissibility – Relevance vs. Unfair Surprise, an “expert” is simply an individual who possessesInflammatory, More Prejudicial than Probative. knowledge-beyond that of an average juror-on an issue that is relevant in a particular case.The threshold for admissibility is fairly low. In Holowiakv. the State, 308 Ga. App. 887, 709 S.E.2d 39, 11 FCDR In some fields, such as those involving science and1222 (2011), the Georgia Court of Appeals recently technology, be it physics, chemistry, engineering, biology,wrote: medicine, or another science. – an expert has to meet the demands of three important cases from the United Unless the potential for prejudice States Supreme Court (plus any additional requirements substantially outweighs probative value, imposed under the federal or state rules of evidence at Georgia law favors the admission of issue). Although, it is very rare to see a statute reference relevant evidence, no matter how slight a court case, the Georgia General Assembly codified the its probative value.” (Punctuation and following language in O.C.G.A Section 24-9-67.1: footnote omitted.) State v. Adams, 270 Ga. App. 878, 881(2), 609 S.E.2d 378 “It is the intent of the legislature that, in (2004). Evidence is relevant if it tends all civil cases, the courts of the State of to prove or to disprove a material fact Georgia not be viewed as open to expert at issue, and every act or circumstance evidence that would not be admissible which serves to explain or throw light in other states. Therefore, in interpreting upon a material issue is relevant. See (Continued on page 9) IPT March 2012 Tax Report 8
  9. 9. and applying this Code section, the courts skill, experience, training or education.’ of this state may draw from the opinions Thus within the scope of the rule are of the United States Supreme Court in not only experts in the strictest sense Daubert v. Merrell Dow Pharmaceuticals, of the word, e.g., physicians, physicists, Inc., 509 U.S. 579 (1993); General Electric and architects, but also the large group Co. v. Joiner, 522 U.S. 136 (1997); Kumho sometimes called ‘skilled’ witnesses, Tire Co. Ltd. v. Carmichael, 526 U.S. 137 such as bankers or landowners (1999); and other cases in federal courts testifying to land values.” applying the standards announced by the United States Supreme Court in these Id. at Advisory Committee Notes to 1972 Federal Rules cases.” of Evidence (emphasis added). The advisory committee notes to the 1987 amendment to the federal rules ofId. at Subsection (f). The Georgia Court of Appeals has evidence are a little more explicit:ruled that this code section permits, but does not require,Georgia courts to follow U.S. Supreme Court and other “For example, most courts have permittedcases under the federal rules of evidence. Hamilton-King the owner or officer of a business tov. HNTB Georgia, Inc., 296 Ga. App. 864, 676 S.E.2d 287 testify to the value or projected profits(2009). of the business, without the necessity of qualifying the witness as an accountant,Unlike fact witnesses, expert witnesses are permitted appraiser, or similar expert. See, e.g.,to testify based upon matters not within their personal Lightning Lube, Inc. v. Witco Corp., 4 F.3dknowledge (including that which is normally excluded as 1153 (3d Cir. 1993) (no abuse of discretionhearsay), may testify as to opinions or inferences derived in permitting the plaintiff’s owner to givefrom a set of facts, and those opinions and inferences lay opinion testimony as to damages,may even include opinions on the issue to be ultimately as it was based on his knowledge anddecided by a jury. participation in the day-to-day affairs of the business). Such opinion testimonyClearly, the strongest example of an expert when it comes is admitted not because of experience,to opinions of value is an appraiser, but American law in training or specialized knowledge withingeneral, and current Georgia law in particular, makes it the realm of an expert, but because of thevery clear that opinions of value are less like scientific particularized knowledge that the witnessand technical determinations in the disciplines mentioned has by virtue of his or her position in theabove, and more like those categories of matters about business.”which non-expert, or lay, witnesses have traditionallybeen allowed to offer an opinion into evidence, such as Id. at Advisory Committee Notes to 1987 Amendment to“the appearance of persons or things, identity, the manner the Federal Rules of Evidence.of conduct, competency of a person, degrees of light ordarkness, sound, size, weight, distance, and an endless But Georgia and Alabama are even more explicit.4 Untilnumber of items that cannot be described factually in January 1, 2013, when Georgia’s new evidence codewords apart from inferences.” Asplundh Mfg. Div. v. patterned after the federal rules of evidence takes effect,Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3d Cir. 1995). Georgia has a statute that specifically addresses the admissibility of opinions of value: Section 24-9-66 Opinions on marketOpinions of Market Value valueOpinions of market value receive a more favorable Direct testimony as to market value is inreception than most other “opinions as fact” under the nature of opinion evidence. One needthe evidentiary laws of Georgia, the Federal Rules of not be an expert or dealer in the article inEvidence, and most of the other states. The original question but may testify as to its value ifadvisory committee notes to Federal Rule of Evidence he has had an opportunity for forming a702 – Testimony by Expert Witnesses explained: correct opinion. “The rule is broadly phrased. The fields Official Code of Georgia Annotated (O.C.G.A.) Section of knowledge which may be drawn 24-9-66. So, Georgia states that opinions of value may upon are not limited merely to the be provided in court by persons who are not experts or ‘scientific’ and ‘technical’ but extend to dealers in the article in question, be it land, buildings, all ‘specialized’ knowledge. Similarly, the jewelry, cars, or specialized machinery, so long as the expert is viewed, not in a narrow sense, but as a person qualified by ‘knowledge, (Continued on page 10) IPT March 2012 Tax Report 9
  10. 10. person offering the opinion has had an opportunity to form Georgia agreed, and wrote:a correct opinion. The trial court ruled that “[the real estateIn almost all states, it appears that owners are given a agent] is not qualified as an expert in thecertain deference under the law, at least when it comes to field of real estate [277 Ga. 806] appraisalthe admissibility of their opinions of value. The reasoning and he can’t give an opinion of the value.”is that the person has more intimate knowledge of the However, a lack of expertise as anproperty than anyone else. The policy may be that it is appraiser “went merely to the weight ofnot “American” to take someone’s property in eminent his testimony and not the admissibility ofdomain or in a marital or business property settlement, his testimony.” Prestley Mill Professionalwithout at least giving that person an opportunity to state Center v. Nat. Bank of Ga., 183 Ga. App.his or her opinion of value. But, O.C.G.A. Section 24-9- 161, 164(4), 358 S.E.2d 307 (1987). “A66 does not limit itself to owners of property, and the case person need not be a licensed real estatelaw in Georgia clearly backs this up. broker, appraiser or salesman to qualify as” an expert sufficiently qualified toIn Georgia, there are reported cases in which non-expert give his opinion on the value of property.witnesses (who appear to be non-owners) were allowed Longino v. City of Atlanta, 127 Ga. App.to give opinions of value. In one case, opinion of value 299, 300, 193 S.E.2d 190 (1972). Ontestimony was allowed because of the witnesses’ general retrial, therefore, the trial court shouldknowledge of land values in the area, lengthy experience not exclude the witness’ testimony on thein the construction industry, and familiarity with the subject basis that he is not a licensed appraiser.property. See City of Dalton v. Smith, 210 Ga. App. 858,437 S.E.2d 827 (1993). Id. at 277 Ga. 801, 806, 596 S.E.2d 392.In another Georgia case, the son of the condemnee in an And, in Department of Transp. v. Turner, the Georgia Courteminent domain taking was allowed to testify as to value. of Appeals held that the mayor of a town was competentThis is important because the son was not an owner, and as a non-expert witness to give his opinion of marketthere are cases in other jurisdictions that have held that value if he furnished the fact or facts on which he basedit was wrong to allow into evidence the opinion even of a his opinion and had an opportunity for forming correctnon-owner spouse who has lived on the property. opinion. Thus the mayor, a 40-year resident who was familiar with prices of subdivision lots in city and who hadThe Georgia case is DeKalb County v. Queen, 135 knowledge of another sale of property located nearby wasGa. App. 307, 217 S.E.2d 624 (1975). In Queen, “the sufficiently informed to permit him to give his opinion ascondemnee’s son, testified that he ‘would give $50,000.00 to fair market value of property condemned for highwayfor [the property].’” The Georgia Court of Appeals held: construction. Id. at 148 Ga. App. 354 (1978). [t]his testimony was admissible as nonexpert opinion evidence as to value, provided the witness had an opportunity Step 3: Reliability - Hearsay to form a correct opinion as to value. Here the witness testified that he had It may not be a conclusive presumption, only a rebuttable been a building contractor, was familiar one, but property owners and business owners are almost with houses and the value of property, automatically presumed5 to have had an opportunity to and was particularly familiar with the form a correct opinion, even if they are under-informed house and property in question. This about market values in the area or base their opinion in testimony shows adequate opportunity part on hearsay. to form his opinion as to the value of the property and the opinion is sufficient to In Martha K. Wayt Trust v. City of Cumming, 306 Ga. App. support the verdict. His relationship to 790, 702 S.E.2d 915, 10 FCDR 3714 (2010), the Georgia the condemnee and the sufficiency of his Court of Appeals wrote: observation of the property affect only OCGA § 24-9-66 authorizes the admission the weight to be given his opinion by the of lay opinion testimony on the issue of jury. market value, if the witness has had anId. at 135 Ga. App. 307, 308, 217 S.E.2d 624, 626. opportunity for forming a correct opinion thereon. We have held that the opinion ofIn Wilson v. Wilson, 596 S.E.2d 392, 277 Ga. 801 (1904), a layperson as to value may be basedone divorcing spouse claimed that it was error for the on hearsay, and that this fact goes totrial court to exclude the opinion of a real estate agent as the weight of the opinion rather thanto the value of certain property. The Supreme Court of (Continued on page 11) IPT March 2012 Tax Report 10
  11. 11. its admissibility. A witness seeking to on some issues, such as the deference a finding of fact (as give an opinion as to value, however, opposed to ruling of law) receives on appeal. Whereas must demonstrate that the opinion is his questions of law receive de novo or independent review on or her own, and not merely a recitation appeal, without deference to the trial court’s rulings, see of the opinion of another. The question Suarez v. Halbert, 246 Ga. App. 822, 824, 543 S.E.2d 733 of whether a witness has established (2000), findings of fact made by a jury (or a judge sitting sufficient opportunity for forming a correct without a jury) are reviewed by appellate courts under a opinion on value or has stated a proper “clearly erroneous standard,” see City of McDonough v. basis for expressing that opinion is within Tusk Partners, 268 Ga. 693, 696, 492 S.E.2d 206 (1997) the trial court’s discretion. and will not be overturned by an appellate court if there is any evidence to support them, see Sam’s WholesaleId. at 306 Ga. App. 791, 702 S.E.2d 917 (citing See Perry Club v. Riley, 241 Ga. App. 693, 527 S.E.2d 293 (1999).v. Perry, 285 Ga. App. 892, 893(1), 648 S.E.2d 193 (2007)) So, just getting something admitted into evidence is a(footnotes omitted) (emphasis added). big step in defending a verdict on appeal, but, perfecting the evidence record for appeal is irrelevant in 1) GeorgiaSchoolcraft v. DeKalb County, 126 Ga. App. 101, 189 property tax appeals to Superior Court which receive deS.E.2d 915 (1972): novo treatment and 2) most Georgia property tax appeals to binding arbitration, which are not appealable (but can A non-expert witness who has had an be vacated or set aside on some limited grounds). opportunity to form a correct opinion may testify as to his opinion of the market value Regardless of whether a matter is appealable, though, a of the property. Condemnee, appearing party wants to win the first time, and not have to get a as a non-expert witness, was not allowed reversal on appeal. A discussion of weight and credibility to give his opinion of the market value of and suggestions for effective property tax/valuation the property taken. The witness testified advocacy by both attorneys and non-attorneys and he was fairly familiar with the value of effective testimony by appraisers and non-appraisers is property in the neighborhood, knew of beyond the scope of this article. Suffice it to say that: 1) rental values there, and had heard of there are a lot of points that can be made regarding weight, sales of properties in said neighborhood, credibility, and effective advocacy, and 2) it is helpful to and had talked to tree experts, all of think not in terms of who is giving the testimony, but the which would have qualified him to testify nature of the testimony and the factual and analytical as to the damages to his property and bases that are given to back it up, including the following: to diminution of value of his property witness education, experience, training; efforts made and remaining after the taking. Market value facts gathered by the witness; how the witness analyzed is exclusively a matter of opinion even those facts and reached a conclusion.7 An appraiser may though expressed as a fact. It may rest automatically qualify as an “expert” on value, but his or her wholly or in part upon hearsay, provided effectiveness as a witness does not follow automatically. the witness has had an opportunity of And, both Georgia and federal rules of evidence (upon forming a correct opinion. If it is based which many state evidence codes are now patterned), on hearsay this would go merely to allow and have allowed opinion of value testimony to be its weight and would not be a ground given by non-appraisers for many years. for valid objections. The court erred in excluding condemnee’s opinion testimony as to the value of his property and damages thereto. Evidence in Non-Jury Trials and ArbitrationId. at 918-919 (citations omitted)6 See also Excellence v. When there is no jury to taint with bad evidence, it is notMartin Bros. Investments, 309 Ga. App. 279, 710 S.E.2d reversible error for a judge to allow shoddy evidence to be169 (2011); Unified Government v. Watson, 255 Ga. App. presented. The law presumes that a judge sitting without a1, 564 S.E.2d 453 (2002). jury knows how to “sift evidence” and “separate the wheat from the chaff.” See Morris v. Morris, 282 Ga. App. 127, 637 S.E.2d 838 (2006); Greene County v. North Shore Resort At Lake Oconee, LLC, 517 S.E.2d 553 (1999);Step 4: Weight and Credibility Kopp v. First Bank of Georgia, 509 S.E.2d 384 (1998).As noted above and at the beginning of this article, there And, in arbitrations the rules of evidence are generallyis a key distinction between admissibility and weight and more relaxed, not only because the proceeding may oftencredibility. Just getting evidence admitted may be crucial be less formal than a bench trial, but also because the (Continued on page 12) IPT March 2012 Tax Report 11
  12. 12. arbitrators are usually selected because of their subject Conclusionmatter expertise and are less likely to be tainted by badevidence than even a judge: Whether the witness is an appraiser, a property owner, a neighbor, a market participant such as another buyer or [A]rbitration proceedings “need not follow seller or his broker, a developer, or a contractor, opinion all the ‘niceties’ of the federal courts; of value evidence is almost always admissible as long as [they] need provide only a fundamentally there is some factual foundation or basis for the opinion, fair hearing.” Grovner v. Georgia- and the true question becomes its weight and credibility. Pacific, 625 F.2d 1289, 1290 (5th Cir. Regardless of type of witness, it is the type of testimony Unit B 1980). “An arbitrator enjoys wide that matters most, and the more one can emulate the “best latitude in conducting an arbitration practices” of that discipline, the more likely the opinion hearing. Arbitration proceedings are not of value is to be perceived as credible and given weight. constrained by formal rules of procedure See, e.g., American College of Trial Lawyers, Standards or evidence.” Robbins v. Day, 954 F.2d and Procedures for Determining the Admissibility of Expert 679, 685 (11th Cir.1992), overruled Testimony after Daubert, 157 F.R.D. 571, 579 (1994) on other grounds, Kaplan, 514 U.S. (“[W]hether the testimony concerns economic principles, 938, 115 S.Ct. 1920, 131 L.Ed.2d 985. accounting standards, property valuation or other non- Arbitration rules, such as those of the scientific subjects, it should be evaluated by reference to AAA, are intentionally written loosely, the ‘knowledge and experience’ of that particular field.”). in order to allow arbitrators to resolve disputes without the many procedural (Endnotes) requirements of litigation. 1 The rules of evidence are also meant to prevent unfair sur- prise, overall fairness, and judicial economy, i.e., streamlining the wholeSee also Rosensweig v. Morgan Stanley Co., Inc., process. The whole process is nicely summarized in McEachern v.494 F.3d 1328 (11th Cir. 2007) (In making evidentiary McEachern, S90A0670, 260 Ga. 320, 394 S.E.2d 92 (1990):determinations, arbitrators are not required to follow allthe niceties observed by the federal courts, but they must An analysis of the question of the admissibility ofgive the parties a fundamentally fair hearing.); Marshall evidence must begin with a determination whether Co., Inc. v. Duke, 941 F. Supp. 1207 (N.D. Ga. 1995) the evidence is relevant. “Relevant evidence” means evidence having any tendency to make the(Arbitration proceedings are not constrained by formal existence of a fact that is of consequence to therules of procedural evidence.); Robbins v. Day, 954 F.2d determination of the action more probable or less679 (11th Cir. 1992) (Arbitration proceedings are not probable than it would be without the evidence.constrained by formal rules of procedure or evidence.). McCormick on Evidence (3rd ed.), 185, p. 542. See also White v. State, 257 Ga. 236 (356 SE2d 875)Marshall Co., Inc. v. Duke, 941 F. Supp. 1207 (N.D. Ga. (1987).1995) Arbitration boards have wide latitude in conductingarbitration proceedings and are not required to hear The weight of the evidence is not considered onany and all evidence tendered by the parties. But, it is the question of relevancy. The offered evidencereversible error for a judge or an arbitrator to exclude need only tend to prove or disprove the materialevidence that should have been admitted when the rights issue. The Georgia rule favors admissibility. If the relevancy of the offered evidence is in doubt,of a party are prejudiced or procedures are violated. See it should be admitted and sent to the jury underYarn, ADR Practice and Procedure in Georgia, Ga. ADR proper instructions.Prac. Proc. § 10:8 (3d ed.). Agnor’s Ga. Evid. (2nd ed.), 10-1, p. 223. ThePresumably, similar principles would apply to Boards exclusion of evidence on the ground that it isof Equalization in Georgia because they are trained by irrelevant is generally within the discretion of thethe Department of Revenue. Then again, appeals from trial court. O’Neal v. State, 254 Ga. 1 (325 SE2dBoards of Equalization in Georgia to Superior Court are 759) (1985).de novo, so, in a sense, it does not make a differencewhether a Board of Equalization refuses to hear evidence However, relevant evidence may be excluded if its probative value is outweighed by certain risks.or hears it and then ignores it. Either way, it is a de novo These counter-balancing risks include the risk thathearing in Superior Court, not a matter for reversal and it will cause unfair surprise to the other party whoremand to the Board of Equalization. has not had time to prepare, that presentation will take an undue amount of time, or that the evidence would tend to confuse or mislead the jury. Agnor, supra, 10-2, p. 225; Candler v. Byfield, 225 Ga. 63 (165 SE2d 830) (1969); Walker v. Bishop, 169 Ga. (Continued on page 13) IPT March 2012 Tax Report 12
  13. 13. App. 236 (312 SE2d 349) (1983). Commercial Exchange Bank v. Johnson, 197 Ga. App. 529, 531, 398 S.E.2d 817, 819 (1990); DeKalb County v. Queen, 135 Ga. App. 307,Id. at 260 Ga. 321, 394 S.E.2d 93. 308, 217 S.E.2d 624, 626 (1975); Department of Transp. v. Worley, 150 Ga. App. 768, 773, 258 S.E.2d 595, 600 (1979); Gibbs v. Clay, 137 Ga. 2 The verb “filed” might have made the following provision App. 381, 382, 224 S.E.2d 46, 47 (1976); Hiatt v. State, 133 Ga. App.more clear: “This Act shall become effective on January 1, 2013, and 111, 112, 210 S.E.2d 22, 23 (1974); Hirsch v. Joint City County Bd. ofshall apply to any motion made or hearing or trial commenced on or after Tax Assessors, 218 Ga. App. 881, 882, 463 S.E.2d 703, 705 (1995);such date.” See Georgia 2011 H.B. 24. Vitello v. Stott, 222 Ga. App. 134, 136, 473 S.E.2d 504, 506 (1996). 3 7 Expert witnesses are permitted broad latitude unavailable See, e.g., Advisory Committee Note to 2000 Amendment toto other witnesses in offering testimony which is calculated to affect the Federal Rule of Evidence 701 :outcome in any given case. Unlike an ordinary witness, whose testi-mony is generally limited to what that individual has perceived through The amendment does not distinguish between ex-his or her own senses, one designated as an “expert” enjoys the ability pert and lay witnesses, but rather between expertto testify based upon matters not within his or her personal knowledge and lay testimony. Certainly it is possible for theMoreover, unlike an ordinary witness, whose testimony is generally lim- same witness to provide both lay and expert tes-ited to describing the facts of which he or she has personal knowledge, timony in a single case. See, e.g., United Statesthose designated as “experts” enjoy the ability to testify as to opinions v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir.or inferences derived from a set of facts. Such opinions and inferences 1997) (law enforcement agents could testify that themay even include opinions on the issue to be ultimately decided by a defendant was acting suspiciously, without beingjury, such as whether a party’s conduct fell below the applicable “stan- qualified as experts; however, the rules on expertsdard of care” required of that party, or whether a party’s conduct was the were applicable where the agents testified on the“cause” of another party’s complained of injuries. basis of extensive experience that the defendant was using code words to refer to drug quantities and 4 See Alabama Code Section 12-21-114 - Market value testi- prices). The amendment makes clear that any partmony. “Direct testimony as to the market value is in the nature of opinion of a witness’ testimony that is based upon scientific,evidence; one need not be an expert or dealer in the article, but may technical, or other specialized knowledge within thetestify as to value if he has had an opportunity for forming a correct opin- scope of Rule 702 is governed by the standards ofion.” (Code 1907, §3960; Code 1923, §7656; Code 1940, T. 7, §367). Rule 702 and the corresponding disclosure require-Georgia and Alabama appear to be the only states with statutes contain- ments of the Civil and Criminal Rulesing such an explicit evidentiary provision regarding opinions of value,and they are very similar to each other. Then again, it may be that the Id.strong majority of other states have already adopted evidence codespatterned after the federal rules of evidence. 5 See, e.g., Lunda v. Matthews, 46 Or. App. 701 (Or. App.1980): In action by husband and wife for trespass and private nuisance,despite the wife’s admission that she was not familiar with other realestate values in area and that she had not offered property for sale,the wife was competent to testify regarding the fair market value of herproperty and diminution in value, since the evidence did not establishthat the wife had no knowledge of the value of her property. 6 Citing Code § 38-1709; State Highway Dept. v. Clark, 123Ga. App. 627(4), 181 S.E.2d [126 Ga. App. 103] 881; City of Atlantav. Layton, 123 Ga. App. 432(4), 181 S.E.2d 313; Williams v. ColonialPipeline Co., 110 Ga. App. 824, 140 S.E.2d 150; Gainesville Stone Co.v. Parker, 224 Ga. 819, 821, 165 S.E.2d 296; Schumpert v. Carter, 175Ga. 860(1), 166 S.E. 436; Central Georgia Power Co. v. Cornwell, 139Ga. 1, 76 S.E. 387; Central Railroad Banking Co. v. Skellie, 86 Ga.686, 693, 12 S.E. 1017).Further citing Code § 38-1709; Landrum v. Swann, 8 Ga. App. 209(1),68 S.E. 862; Widincamp v. McCall, 25 Ga. App. 733(1), 104 S.E. 642;Gulf Refining Co. v. Smith, 164 Ga. 811(4), 139 S.E. 716; Powers v.Powers, 213 Ga. 461(2), 99 S.E.2d 818; Central Railroad Banking Co.v. Skellie, 86 Ga. 686, 693, 12 S.E. 1017, supra; Sammons v. Webb, 86Ga. App. 382, 386(4), 71 S.E.2d 832; Purser v. McNair, 153 Ga. 405(2),112 S.E. 648.See also Apostle v. Prince, 158 Ga. App. 56, 57, 279 S.E.2d 304, 306(1981); Bryant v. General Motors Acceptance Corp., 184 Ga. App. 323,325, 361 S.E.2d 529, 530, 5 UCC Rep.Serv.2d 830, 830 (1987); Cityof Alma v. Morris, 180 Ga. App. 420, 421, 349 S.E.2d 277, 278 (1986); IPT March 2012 Tax Report 13
  14. 14. The court, however, refused to project the refund. There Sales Tax is virtually no authority or guidance in New Jersey on audit projections. The only guidance is in the Division’s Field Audit Manual, but that guidance is very limited.N.J. Tax Court Provides Guidance on Therefore, the court’s analysis on projections may beManufacturing Exemption; Denies the most significant aspect of its decision. The courtProjected Refund concluded that the Division had broad discretion to use sampling methods to calculate assessments, but denied the taxpayer the same right to project overpayments.David J. Gutowski, Esq.Reed Smith LLP This seems inconsistent with the principles in thePhiladelphia, PA Taxpayer Bill of Rights, P.L. 1992, c.175, whichPhone: 215.851.8874 guarantees “consistent treatment for assessments andEmail: dgutowski@reedsmith.com refunds.” See N.J. Division of Taxation, Publication ANJ-1 (December 2004). Therefore, despite the TaxKyle O. Sollie, CMI, Esq. Court’s decision, taxpayers should continue to pressReed Smith LLP the Division of Taxation to project overpayments in thePhiladelphia, PA same manner as underpayments.Phone: 215.851.8100Email: ksollie@reedsmith.com Guidance on manufacturing exemption. InChristine M. Hanhausen, Esq. rejecting the taxpayer’s claims, the court afforded greatReed Smith LLP weight to how the taxpayer treated the disputed itemsPhiladelphia, PAPhone: 215.851.8865 for federal and accounting purposes. The manufacturingEmail: chanhausen@reedsmith.com exemption doesn’t apply to parts with a useful life of less than one year. N.J.S.A. 54:32B-8.13. Also, in determining whether the installation of tangible propertyR ecently, in Schweitzer-Mauduit International Inc. results in a capital improvement, how the property is v. Director, Div. of Taxation, Docket No. 007376- accounted for and depreciated is relevant under the 2005 (N.J. Tax 2012), the New Jersey Tax Court regulation. N.J.A.C. 18:24-4.6. In Schweitzer-Mauduit,rejected nearly all of a taxpayer’s claims for a sales and the taxpayer’s accounting treatment was not consistentuse tax refund. The court ruled that the taxpayer was with its position for New Jersey sales tax purposes andnot entitled to the manufacturing exemption for certain the taxpayer was unable to overcome the statutoryitems used in its paper manufacturing business. The presumption of taxability. Taxpayers should be mindful,court also ruled that certain purchases did not qualify therefore, that how an item is treated for accountingas nontaxable capital improvements. For the most part, and federal tax purposes can have New Jersey salesthe taxpayer was denied relief on evidentiary grounds. tax implications.Nonetheless, the court’s decision is still significant—especially for taxpayers with pending audits—because Importance of raising issues at administrativeof its discussion about the following issues: level. The Tax Court prohibited the taxpayer from raising new issues at trial. The court noted thatNo projection of refunds. The taxpayer’s appeal there was “no evidence that any of the new claimsinvolved both an assessment appeal and a refund had been raised with [the hearing officer] during theclaim. Although the court denied substantially all of the administrative protest.” The court’s ruling is consistenttaxpayer’s requested relief, it agreed that the taxpayer with United Parcel Services General Services Co. v.had erroneously paid tax of $98.35 on certain parts Director, Div. of Taxation, 25 N.J. Tax 1 (N.J. Tax 2009).for manufacturing equipment. Since the overpayment In that case, the court held that a taxpayer couldn’t relywas included in the sample month selected by the on information at trial if it wasn’t provided during theauditor to compute the Division of Taxation’s projected audit process. This reinforces the importance of raisingassessment, the taxpayer asserted that it should be all issues and documentation before getting to court.able to similarly project its refund. The projection factor Otherwise, a taxpayer may be precluded from raisingfor the assessment was 42 months, so the projected those issues later.refund would have been worth $4,131.70. IPT March 2012 Tax Report 14
  15. 15. metro areas just above the recession-ravaged cities Credit and Incentives of Las Vegas, Detroit, Sacramento, Los Angeles, and Miami.3 State revenues fell over the last 4 years, and in response, the state budget was cut by more than $3Georgia’s Economic Development billion since 2007.4Initiatives (1994 to Present) In the summer of 2011, Georgia’s first-term GovernorBetty McIntosh Nathan Deal launched his Competitiveness Initiative toManaging Director strengthen the State’s economic development strategy toand continue to attract new jobs, encourage investment, andElisabeth Kulinski support existing companies.5 In February 2012, GovernorConsulting Analyst Deal, with the support of the Georgia Department ofBusiness Incentives Practice Economic Development, drafted a new piece of legislation to modernize and revamp the portfolio of tax credits andCushman Wakefield incentives to combat the Recession’s residual effects.Atlanta, GAPhone: 404.853.5362 This article will lay out Georgia’s existing job creationW incentive programs as enacted under the Business ith a history of strong business development Expansion Support Act (or “BEST”) in 1994 as well as the policies and low effective tax rate, Georgia successive updates in 1998, 2001, and 2008-2009. The consistently ranks high on various business article will also investigate the new piece of legislation,development surveys. Georgia recently jumped from mentioned earlier, as it relates to the existing programs.the 10th spot in 2010 to fourth on CNBC’s Top States forBusiness 2011.1 The fifth annual study pits all 50 statesagainst each other through a measure of components of Georgia Business Expansion Support Actcompetitiveness. The CNBC study found that Georgia’slow business tax burden, particularly as applied to new from 1994-2009investment, is increasingly competitive as other states have In the early 1990s, during the height of a decade of growthincreased taxes to address flailing budgets. The State’s and expansion, BMW and Mercedes both launchedrecent attraction of a large Caterpillar manufacturing intensive site selection processes to locate the homefacility, with a reported $200 million in investment and of their first manufacturing lines in the United States.1,400 jobs, is just one example of a major win over other In 1992, BMW chose South Carolina in a decision thatSoutheastern states.2 would create over 7,000 jobs, $4.9 billion of investment, and shape an international capital in humble Greenville,The State’s low corporate tax burden is definitely an South Carolina.6 In 1993, Mercedes chose a tiny town inattraction to companies with location decisions like Tuscaloosa County, Alabama and invested $233 millionCaterpillar; however, Georgia’s portfolio of tax credits and created 1,400 jobs to begin its North American M-,and incentives is also very appealing. Since engaging in GL-, and R-Class SUV production. In late 2011, Daimlereconomic development tax incentives in the early 1990s, AG announced plans to begin building C-Class Mercedesthe State has undergone several iterations of the statutes and a yet-to-be-named fifth model for the North Americanin 1998 and 2001 to modernize the statutes. The credits market at the plant, an expansion to the tune of $2.4 billionwere most recently updated in 2008 and 2009 in an effort of investment and 1,400 additional employees by 2014.to encourage quality job creation and promote the State This expansion will bring the total Mercedes employees inin the midst of the Great Recession. Tuscaloosa to 2,800.7 3 US Census Bureau, August 2011Although the State was proactive in the effort to promotejob creation through the Great Recession, the aftermaths 4 Georgia Senate Budget and Evaluation Office 2011have weighed heavily on Georgia’s economy. Throughout revenue analysis, available online at http://www.senate.ga.gov/sbeo/2011, the state’s unemployment rate has held steady at Documents/RevenueInformation/FY2011_Chart.pdfrecession peak levels, hovering around 10.3 percent. 5Atlanta’s similar unemployment rate ranks among US Georgia Competitiveness Initiative Report, available online at http://www.georgiacompetitiveness.org/uploads/GCI_Report.pdf 1 6 CNBC’s ranking of America’s Top States for Business Information retrieved from BMW Manufacturing Co., avail-2011, available online at http://www.cnbc.com/id/41665883/ able online at http://www.bmwusfactory.com/ 7 Dawn Kent. Mercedes to build fifth model at Alabama auto 2 Douglas Sams, “Caterpillar moving to ‘Orkin Tract’ meg- plant. The Birmingham News. October 20, 2011.asite” Atlanta Business Chronicle, February 27 2012. (Continued on page 16) IPT March 2012 Tax Report 15