U.S. Oil Co. v. City of Milwaukee
U.S. Oil Co. v. City of Milwaukee
Opinion of the Court
¶ 1. The City of Milwaukee appeals a judgment vacating its $14 million tax assessments of U.S. Oil's property for 2004 and 2005 as excessive under the Wisconsin Constitution's Uniformity Clause. The City initially assessed the property — consisting of three oil terminals at the Granville Terminal Complex — at about $6 million for each of these tax years, relying on a 2002 sale of the subject property. When U.S. Oil challenged these assessments in front of the City's Board of Review, the City reassessed the property at over $14 million for each year, this time using an "income" assessment approach instead of the "sales" approach. Even though the City possessed income information for U.S. Oil by March 2006, and even though it could have — for at least seven months thereafter — imputed that information to similarly reassess the other properties at the Granville Terminal Complex for 2004 and 2005, the City chose not to do so. For tax years 2004 and 2005, all of the other properties at the Granville Terminal Complex remained assessed according to the "sales" approach. As a result, U.S. Oil's per-barrel assessments for those years more than doubled all of the others.
I. Background.
¶ 3. This case concerns three oil terminals— North, South, and Central ("the property") — owned by U.S. Oil located at the Granville Terminal Complex on Milwaukee's northwest side. Also located at the Granville Terminal Complex are terminals owned and/or operated by Flint Hills, Mobil/Citgo, Marathon Oil, and BP Amoco. The City initially assessed the property on January 1, 2004, and January 1, 2005, at just over $6
¶ 4. Compared with assessments of other companies' terminals at the Granville Terminal Complex, the initial U.S. Oil assessments were unremarkable. Indeed, for tax years 2004 and 2005, the City assessed all of the properties at the Granville Terminal Complex between $8.00 and $11.10 per barrel. The assessments of the other terminals at the Granville Terminal Complex all relied primarily on the sale of a comparable property, namely, the 2002 sale of U.S. Oil's Central terminal.
¶ 5. Despite the fact that its assessments were in the same range as .the assessments of comparable terminals, U.S. Oil, pursuant to Wis. Stat. § 70.47, filed objections with the City challenging the 2004 and 2005 assessments as excessive. After the City of Milwaukee Board of Assessors affirmed the initial assessments, U.S. Oil then appealed to the City of Milwaukee Board of Review.
¶ 6. In preparation for the Board of Review appeal, the City assessor's office asked a new assessor, Daniel Furdek, to review the initial assessments of U.S. Oil's property. Furdek consequently relied on Board of Review subpoena power to obtain detailed financial information from U.S. Oil that the City had been unable to obtain earlier when preparing the initial $6 million assessments. This information included audits, finan
¶ 7. The Board of Review conducted hearings regarding U.S. Oil's 2004 and 2005 assessments on May 17, June 6, and August 1, 2006. Only after the first hearing convened did U.S. Oil learn that the property had been reassessed at over $14 million for each tax year. At the June 6 hearing, counsel for U.S. Oil referenced a Uniformity Clause problem concerning the reassessments:
[U.S. OIL'S ATTORNEY]: ... An issue that will come up in this case is whether or not the assessor here is uniformly assessing these properties across the board. It is inherently unfair for the same property — a tank, a terminal — to be assessed in one method — under one method for one taxpayer and under a different method for a different taxpayer, even though they may be located all in the same vicinity.
Due to the fact that U.S. Oil did not learn of the City's reassessments until after the hearings convened, U.S. Oil was not in a position to mount a uniformity challenge.
¶ 8. Meanwhile, during the course of U.S. Oil's appeal to the Board of Review, BP Amoco, who also
¶ 9. As with BP Amoco, the City could have also imputed the income information from the U.S. Oil reassessments to reassess all of the other properties at the Granville Terminal Complex for 2004 and 2005; it did not do so. The City had the new information by March 2006, and could have reassessed any of the properties at the Granville Terminal Complex until the end of October 2006, for tax year 2004 and until the end of January 2007, for tax year 2005.
¶ 10. U.S. Oil consequently filed an action with regard to its 2004-2005 assessments in the trial court pursuant to Wis. Stat. § 74.37(3)(d). While its initial complaint did not reference the Uniformity Clause, U.S. Oil later amended its complaint to include such a claim. Following a court trial, the trial court issued a written decision containing numerous findings of fact and conclusions of law. Based on that decision, the trial court: (1) denied the City's motion to dismiss U.S. Oil's Uniformity Clause claim; (2) vacated the reassessments as excessive under the Uniformity Clause; (3) reinstated the initial, $6 million tax assessments; and (4) ordered the City to refund U.S. Oil the excessive taxes it paid for 2004 and 2005. The City now appeals.
II. Analysis.
Standard of Review
¶ 11. On appeal of an action challenging property tax assessments, we defer to the trial court's findings of fact. Allright, 317 Wis. 2d 228, ¶ 13. We will not overturn the trial court's findings unless they are "clearly erroneous," that is, unless they are against the great
¶ 12. The application of the law to the facts, however, presents a question of law that we review independently. Allright, 317 Wis. 2d 228, ¶ 13. Failure to make an assessment on the statutory basis is likewise an error of law, and we review de novo "[w]hether the [c]ity followed the statute in making its assessment." Adams Outdoor Adver., Ltd. v. City of Madison, 2006 WI 104, ¶ 26, 294 Wis. 2d 441, 717 N.W.2d 803. We also independently review the trial court's conclusion that the City violated the Uniformity Clause, that is, article VIII, section 1 of the Wisconsin Constitution. See Duesterbeck v. Town of Koshkonong, 2000 WI App 6, ¶ 10, 232 Wis. 2d 16, 605 N.W.2d 904 (case involving uniformity claim presented questions of statutory and constitutional interpretation that court reviewed de novo ); see also Northwest Airlines, Inc. v. DOR, 2006 WI 88, ¶¶ 25, 62-66, 293 Wis. 2d 202, 717 N.W.2d 280
¶ 13. The City brings forth three bases for reversal. First, the City argues that the trial court erred in denying its motion to dismiss because U.S. Oil failed to exhaust its administrative remedies. Second, the City argues that the trial court erred in finding that U.S. Oil overcame the statutory presumption of correctness with regard to its $14 million reassessments. Third, the City argues that its $14 million reassessments did not violate the Uniformity Clause. The City also takes issue with the trial court's decision to reinstate the initial $6 million assessments. We address each in turn.
A. U.S. Oil properly exhausted its administrative remedies with the Board of Review.
¶ 14. The City argues that the trial court erred in denying its motion to dismiss U.S. Oil's Uniformity Clause claim. According to the City, because U.S. Oil did not adequately raise the uniformity issue before the Board of Review, it should have been prohibited from raising it at trial.
¶ 15. Pursuant to statute, once the Board of Review renders its decision regarding a property tax
¶ 16. Had U.S. Oil pursued certiorari review, the trial court's review would have been limited to the review of the record made before the Board of Review. See id., 245 Wis. 2d 86, ¶ 20. The trial court would not have been able to conduct its own factual inquiry or admit any new evidence. Id. On certiorari review, the trial court would have only been able to consider: "(1) whether the board acted within its jurisdiction; (2) whether the board acted according to law; (3) whether the board's action was arbitrary, oppressive or unreasonable, representing its will rather than its judgment; and (4) whether the evidence was such that the board might reasonably make the order or determination in question." Id.; Waste Mgmt. of Wisconsin, Inc. v. Kenosha Cnty. Bd. of Review, 184 Wis. 2d 541, 554, 516 N.W.2d 695 (1994).
To begin with. .. certiorari review is limited to a review of the record. In comparison, during a court action, if the action proceeds to trial, the court may-make its determination without regard to any determination made at any earlier proceeding. Instead, new evidence may be introduced, and the court may examine this evidence in making its determination. In addition, unlike certiorari review, during a court trial, the court may make its determination without giving deference to any determination made at a previous proceeding. The court must only give presumptive weight to the assessor's assessment. Wis. Stat. § 70.49(2). Finally, unlike a certiorari review, in a trial, the court, upon making its determination, is not required to remand to the board for an assessment. It may make its determination based on the evidence. The court is only limited in the respect that, if a reassessment is necessary, the court must continue the action and order the reassessment before rendering its judgment. Wis. Stat. § 74.39(1). However, even if a reassessment is necessary, the court may still proceed to judgment if it is in the best interests of all parties to the action. § 74.39(3).
The legislative history of Wis. Stat. § 74.37 also supports the conclusion that the legislature intended an action for excessive assessment to provide a significantly different option for property owners than mere certiorari review in challenging their assessments.
¶ 18. Contrary to what the City argues, neither Wis. Stat. § 70.47(7) nor Hermann stand for the proposition that U.S. Oil may not raise any issue with the trial court that was not fully argued before the Board of Review. Rather, Hermann simply explains that under § 70.47(7), any property owner wishing to challenge a property tax assessment — whether via (1) certiorari review, (2) written complaint to the department of revenue, or (3) a claim filed pursuant to Wis. Stat. § 74.37 —must first file an objection before the Board of Review. See Hermann, 215 Wis. 2d at 379-82. In Hermann, the plaintiffs went directly to the trial court with their uniformity challenge, entirely skipping the Board of Review procedure required by § 70.47. Id. In contrast, U.S. Oil did follow the statutory procedure. Indeed, in the instant case the trial court specifically found that U.S. Oil complied with the statutory scheme for initiating its action under § 74.37(3)(d); the City never challenged this finding. Thus, the trial court correctly denied the City's motion to dismiss.
¶ 19. Moreover, the trial court did not err when it allowed U.S. Oil to amend its complaint to add a Uniformity Clause challenge — a constitutional claim— because the City was on notice of the issue well before the claim was filed. See Wis. Stat. § 802.09(1) (Although a party's absolute right to amend the complaint expires six months after filing, leave to amend "shall be freely given at any stage of the action when justice so re
B. U.S. Oil overcame the statutory presumption of correctness pertaining to the 2004r-2005 assessments.
¶ 20. The City also argues that the trial court erred when it found that U.S. Oil overcame the presumption of correctness prescribed by Wxs. Stat. § 70.49(2). Section 70.49(2) provides:
The value of all real and personal property entered into the assessment roll to which such affidavit is attached by the assessor shall, in all actions and proceedings involving such values, be presumptive evidence that all such properties have been justly and equitably assessed in proper relationship to each other.
¶ 21. In reassessing U.S. Oil's property, the City utilized a different methodology (an "income" approach instead of a "sales" approach) to produce a result that
C. The City's reassessments of the property violated the Uniformity Clause of the Wisconsin Constitution.
¶ 22. Having concluded that U.S. Oil's uniformity claim should not have been dismissed on procedural grounds, we now turn to the City's substantive basis for appeal. The City argues that the trial court erred in finding that the reassessments of U.S. Oil's property violated the Uniformity Clause of the Wisconsin Constitution.
¶ 23. Article VIII, section 1 of the Wisconsin Constitution
¶ 24. Wisconsin Stat. § 70.32(1) seeks to ensure a uniform method of taxation by requiring assessors to assess real estate at its fair market value using the " 'best information'" that the assessor can practicably obtain. State ex rel. Levine v. Board of Rev. of the Village of Fox Point, 191 Wis. 2d 363, 372, 528 N.W.2d 424 (1995) (citation omitted). The "best information" of fair market value is a recent sale of the property at issue. Id. at 373 (citation and internal quotation marks omitted); see also Allright, 317 Wis. 2d 228, ¶¶ 20-22; Adams, 294 Wis. 2d 441, ¶¶ 34-35 (explaining differences between "Tier 1," "Tier 2," and "Tier 3" assessment methodologies). This is the information the assessor must use if it is available. Levine, 191 Wis. 2d at 373. If there has been no such recent sale, then the assessor must use recent sales of reasonably comparable property. Id.; Allright, 317 Wis. 2d 228, ¶¶ 20-22; Adams, 294 Wis. 2d 441, ¶¶ 34-35. In the absence of recent sale information, the assessor may consider all the factors
¶ 25. Even if an assessor utilizes the correct methodology in assessing a particular property, a municipality can still violate the Uniformity Clause if the resulting assessment is not uniform with other property assessments in the district. See, e.g., Levine, 191 Wis. 2d at 377; Noah's Ark Family Park v. Board Of Rev. of the Town of Lake Delton, 210 Wis. 2d 301, 319-21, 565 N.W.2d 230 (Ct. App. 1997) (Noah's Ark I), aff'd, 216 Wis. 2d 387, 573 N.W.2d 852 (1998) (Noah's Ark II). For example, a property owner may establish a uniformity violation by demonstrating that "other comparable properties" in the district " 'were assessed significantly below fair market value, thus amounting to a discriminatory assessment of their property.' "Allright, 317 Wis. 2d 228, ¶ 52 (citation omitted). This was the case in Levine. In Levine, the assessor valued the petitioners' properties — "newer" houses in Fox Point — at fair market value, but decided to assess several "older" houses significantly below fair market value. Id., 191 Wis. 2d at 367-68. One property sold for $626,000, while its assessed value was $488,000; another sold for $615,000, while its assessed value was $533,400; yet another sold for $383,000, while its assessed value was $290,000; and another sold for $480,000, while its assessed value was $412,000. Id. at 368 n.2. The assessor under-assessed the older houses despite recent sale information because in his opinion the purchasers of the older houses overpaid. Id. at 368, 376. The supreme court found that by undervaluing the older houses, the village violated uniformity with respect to the petitioners' houses, even though the petitioners' houses were accurately valued. Id. at 377.
¶ 27. With these principles in mind, we now turn to the $14 million reassessments of U.S. Oil's property. There is no dispute that Furdek used the income method to reassess the property. In preparation for the Board of Review hearing, Furdek reviewed U.S. Oil's initial $6 million assessments for 2004 and 2005, relying on Board of Review subpoena power to obtain detailed financial information from U.S. Oil, such as audits, financial statements, balance sheets, operating statements, auditor's opinions, gross income, and lease information. Furdek then prepared a report in which he
¶ 28. Moreover, we are not persuaded by the City's contention that it had a "plan" to reassess all of the properties at the Granville Terminal Complex ac
In this case, however, the Board was not taking steps in a piecemeal approach toward attaining uniformity in assessments over time. Rather, [U.S. Oil] presented evidence that the assessor used an arbitrary methodology for assessing its property. Singling out one commercial property for special treatment in this case. . . cannot withstand a uniformity challenge.
See id., 216 Wis. 2d at 394.
¶ 29. As a final matter, the City contends that the trial court's remedy — reinstatement of the initial $6 million assessments — was inappropriate. We disagree. Courts have the ability to fashion remedies where a municipality has violated the Uniformity Clause even when they may not be able to satisfy both the constitutional mandate of uniformity and the statutory requirement that real property be assessed at full value. See, e.g., Noah's Ark I, 210 Wis. 2d at 322. In Levine, the court ordered a remand for reassessment of the newer properties in a manner that harmonized with the under-assessed older properties. Id., 191 Wis. 2d at 378. In this case, the trial court did not err in imposing a
By the Court. — Judgment affirmed.
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
Assessments of oil terminals often are expressed by reference to assessment per barrel, arrived at by dividing the total assessment by a terminal's total capacity. The initial assessments of U.S. Oil's property represented a per barrel assessment of approximately $8.99 per barrel.
The City acknowledged at oral argument that it could have reassessed any of the properties at the Granville Terminal Complex by imputing the income information gleaned from U.S. Oil. See also Wis. Stat. § 70.47(10), which provides, in pertinent part, that if a board of review has reason to believe, upon examination of pertinent information, that other property, the assessment of which is not complained of, is assessed above or
The trial court specifically found — and no party disputes —that all of the terminals located at the Granville Terminal Complex are physically adjacent to one another, that they share the same physical characteristics and features, that they all serve the same function and are used in the same fashion, that they are all serviced from the same pipeline, and that they are all being used at "their highest and best use" as oil terminals. In other words, the trial court found — and no party disputes — that all of the properties at the Granville Terminal Complex "are comparable to one another."
Wisconsin Constitution Article VIII, section 1 provides in part: "The rule of taxation shall be uniform." Our interpretation of the rule of uniformity is longstanding and consistent:
*425 Its mandate ... is very brief, but long enough ... to embrace within it clearly and concisely the doctrine ... of equality. 'The rule of taxation shall be uniform,' that is to say, the course or mode of proceeding... shall be uniform; it shall in all cases be alike. The act of laying a tax on property consists of several distinct steps, such as the assessment or fixing of its value, the establishing of the rate, etc.; and in order to have the rule or course of proceeding uniform, each step taken must be uniform.
See State ex rel. Levine v. Board of Rev. of the Village of Fox Point, 191 Wis. 2d 363, 371-72 n.6, 528 N.W.2d 424 (1995) (citation omitted; omissions in Levine).
See supra note 3.
Reference
- Full Case Name
- U.S. Oil Co., Inc., Plaintiff-Respondent, State of Wisconsin, Involuntary-Plaintiff v. City of Milwaukee
- Cited By
- 17 cases
- Status
- Published