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describing "entrepreneurial profit" as the "reasonable profit that a typical developer would seek for the risks and efforts required by a developmental project"
Summary of this case from In re Bannerman Holdings, LLCOpinion
04 Civ. 612 (HB)
April 22, 2004
OPINION ORDER
Debtor-appellant, Loews Cineplex Entertainment Corp. ("Loews"), appeals from the September 29, 2003 decision of the Hon. Allan L. Gropper of the United States Bankruptcy Court for the Southern District of New York ("Bankruptcy Court"), which assessed the value of a property leased by the debtor — appellants and the corresponding tax obligation for tax years 1999 and 2000. For the reasons set forth below, the Bankruptcy Court decision is affirmed.
I BACKGROUND
This case involves the appeal of the real property tax assessment for the tax years 1999 and 2000 of a property located at 1021 Route 22 East, Borough of Mountainside, Union County, New Jersey ("the subject property"), which is leased by Loews. The subject property is an irregular 10.173 acre parcel that is improved with a 54,675 square foot ten auditoria multiplex movie theater with seating capacity of 3,023 that was constructed in 1996. Under the terms of its lease, Loews is required to pay all real estate taxes on the subject property.
The tax assessor for the Borough of Mountainside ("the Borough"), Eldo Magnani, Jr., originally assessed the subject property at $7,155,000, which the parties stipulated resulted in fair market value of $13,044,667 for tax year 1999 and $13,691,159 for tax year 2000. The taxpayer, Loews, filed an appeal with the Union County Board of Taxation on March 31, 1999, in which it sought a decrease in the assessment and the Borough filed a cross — appeal on April 19, 1999 in which it sought an increase in the assessment. By agreement of the parties, the appeal and cross — appeal were consolidated in New Jersey State Tax Court and were scheduled for trial on April 11, 2001. Both parties retained experts, who each assessed the subject property. Loews' expert, Maurice J. Stack, II, who relied on the cost approach valuation methodology, opined that the market value for the subject property was $10,370,000 for tax year 1999 and $10,675,000 for tax year 2000. The Borough's expert, Michael R. Buchalski, who relied on the same valuation methodology, but corroborated his findings with two other valuation techniques, believed that the subject property was properly valued at $20,500,000 for both tax years.
On March 9, 2001, Loews parent corporation filed for bankruptcy under Chapter 11 of the Bankruptcy Code and the tax proceedings were stayed pursuant to 11 U.S.C. § 362. Ultimately, the parties agreed to transfer the tax dispute to the Bankruptcy Court. The Bankruptcy Court held an evidentiary hearing on April 4 and 25, 2003, in which it heard testimony from the parties9 experts and the Borough's tax assessor, and reviewed the parties' submissions and expert reports. On September 29, 2003, the Bankruptcy Court rendered a decision in which it concluded that the fair market value of the property was $20,000,000 for tax year 1999 and $20, 200,000 for tax year 2000.1 In re: Loews Cineplex Entm't Corp., Nos. 01-40346 through 01-40582 (ALG), slip op., (Bankr. S.D.N.Y. Sept. 29, 2003). Loews filed the instant appeal, challenging the Bankruptcy Court's valuation of the subject property.
The Bankruptcy Court determined the true value of the subject property as follows:
1999 Tax Year: 8,500,000 (rounded) for improvements 11,500,000 (rounded) for land value $20,000,000 TOTAL
2000 Tax Year: 8, 200,000 (rounded) for improvements 12,000,000 (rounded) for land value $20, 200,000 TOTALIn re: Loews Cineplex Entm't Corp., Nos. 01-40346 through 01-40582 (ALG), slip op. at 16, (Bankr. S.D.N.Y. Sept. 29, 2003).
II. DISCUSSION
A. Standard of Review
The Federal Rules of Bankruptcy Procedure provide that "[o]n an appeal the district court . . . may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree." F.R.Bankr.P. 8013. A bankruptcy court's conclusions of law are reviewed de novo. hire Ionosphere Clubs. Inc., 922 F.2d 984,988 (2d Cir. 1990). "Findings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses." F.R.Bankr.P. 8013. Under this "clearly erroneous" standard of review of factual findings, the bankruptcy court decision may only be reversed when the district court is "left with the definite and firm conviction that a mistake has been committed." BP Energy Co. v. Bethlehem Steel Corp., No. 02 Civ. 6419, 2002 WL 31548723, at *2 (S.D.N.Y. Nov. 15, 2002) (quotation marks and citation omitted). With this standard in mind, I turn to Loews' arguments on appeal.
B. The Bankruptcy Court Decision
Loews' arguments for reversal of the Bankruptcy Court decision can be distilled to three main points, which I address seriatim.
1. The Bankruptcy Court Properly Determined that the Original Assessment Was Not Entitled to a Presumption of Correctness
Loews asserts that the Bankruptcy Court's determination that the original assessment was not entitled to a presumption of correctness was clearly erroneous. Loews9 argument on this score is undercut by the fact that Loews itself argued, both here and in the Bankruptcy Court, that the original assessment was incorrect. Nonetheless, I consider this argument in reviewing the Bankruptcy Court's conclusions with respect to the or iginal assessment and the valuation of the subject property.
Under New Jersey law, "a municipality's original tax assessment is entitled to a presumption of validity," which can only be rebutted by cogent evidence. Pantasote Co. v. City of Passaic, 100 N.J. 408,412,413 (1985). This "so — called presumption ha[s] no artificial probative force once substantial evidence to the contrary [has been] adduced," Ford Motor Co. v. Township of Edison, 127 N.J. 290, 313 (1992) (alteration in original) (internal quotation marks omitted) (quoting Samuel Hird Sons. Inc. v. City of Garfield 87 N.J. Super. 65, 74 (App.Div. 1965)), and no such presumption attaches where the original assessment is shown to be inaccurate or unreliable, id. Here, the Bankruptcy Court determined that the original assessment could not be presumed correct because it was based on data obtained from third — party sources, which did not include actual construction costs or details from the lease for the subject property. In re: Loews Cineplex Entm't Corp., slip op. at 15. Indeed, according to Magnani's testimony before the Bankruptcy Court, his original assessment — which was conducted in 1996 when the multiplex movie theater was still under construction — was based only on estimated construction costs obtained from building permits and estimated fair market value for the land. He did not examine the lease for the subject property, obtain any actual construction costs, or adjust the assessment at any point after 1996 to calculate the subject property's value for the tax years in question. On this record, it cannot be said that the Bankruptcy Court's conclusion that such an assessment was not entitled to a presumption of correctness was clearly erroneous. To the contrary, it appears that the original assessment was indeed unreliable, thus extinguishing any presumption of correctness. Pantasote. 100 N.J. at 417 (holding that the original assessment is not presumed to be correct when it "has been overcome by cogent evidence, or there are sufficient collateral grounds, such as an assessment totally unrelated to true value . . . ").
Loews further argues that in rejecting the original assessment, the Bankruptcy Court did not make specific findings as to its unreliability. There is, however, no such requirement under New Jersey law. Instead, case law merely provides that the reviewing court must independently establish value when it concludes that the original assessment is unreliable. Id.("When an original assessment is unreliable, the Tax Court may not invoke its presumptive correctness and must establish value . . ."); accord Entenmann's Inc. v. Totowa Borough, 18 N.J. Tax 540, 544 (Tax Ct. 2000); Newport Center v. Jersey City, 17 NJ. Tax 405, 429 (Tax Ct. 1998). Moreover, the Bankruptcy Court did cite specific reasons for its decision, namely that the information Magnani relied upon was deficient, and thus even if Loews were correct in its statement of the law, its argument would nevertheless fail.
2. The Bankruptcy Court Property Valued the Subject Property and Made Sufficient Findings
Loews' principle argument on appeal and at oral argument is that the Bankruptcy Court did not make specific findings of fact and conclusions of law in determining the value of the subject property for tax years 1999 and 2000. I find that the Bankruptcy Court did indeed fulfill its obligations under New Jersey law and made the requisite findings and conclusions.
New Jersey law instructs that when the reviewing court rejects the original assessment, it "must then turn to a consideration of the evidence adduced on behalf of both parties and conclude the matter based on a fair preponderance of the evidence." Ford Motor Co., 127 N.J. at 312 (quoting Pennwalt Corp. v. Township of Holmdel, 4 N.J. Tax 51, 55 (Tax Ct. 1982)). The reviewing court need only make "an independent determination of true value" when it rejects the conclusions offered by the parties' experts. Id. (quoting Pennwalt Corp., 4 N J. Tax at 55). In so doing, the reviewing court may draw upon any portion of the experts9 testimony or reports that it deems credible. Union Drydock Repair v. Hoboken City, 19 N.J. Tax 207, 214 (Tax Ct. 2000);City of Newark v. 1013 Corp., 1 N.J. Tax 107, 113 (Tax Ct. 1980): see also Jablin v. Northvale Borough, 13 N.J. Tax 103, 107 (App.Div. 1991) (deciding that the court may draw upon "the evidence before it and the data at its disposal"). The reviewing court, sitting as fact — finder, can soundly determine the weight to be given to any expert testimony, Borough of Wildwood Crest v. Smith. 235 N.J. Super 404, 406 (App.Div. 1988), which it can reject in whole or part, Emmis Broad. Corp. of N.Y. v. East Rutherford Borough, 16 N.J. Tax 29, 35 (App.Div. 1996).
In its sixteen page Memorandum of Decision, the Bankruptcy Court reviewed the valuation methodology of both parties' experts and made specific conclusions as to which portions of the expert testimony and reports were credible and reliable. For example, the Bankruptcy Court decided that Loews' expert's use of a Floor Area Ratio analysis, which values only a portion of the property in question, i.e., maximum building area, reduced the reliability of his valuation of the subject property.In re: Loews Cineplex Entm't Corp., slip op. at 8. The Bankruptcy Court concluded that the comparison properties used by the Loews' expert tended to have larger building areas than required by a movie theater, which greatly increased the estimated value per square foot of the subject property and skewed the assessment by producing a significantly lower valuation. Id.
In contrast, the Bankruptcy Court found that the Borough's expert used a more reliable analysis in that he compared the total square footage, his comparables were more analogous to the subject property, his depreciation calculations were more reasonable, and he used actual cost data. Id. at 9. The Bankruptcy Court further decided that the Borough's expert properly factored a ten percent entrepreneurial profit into his valuation approach and corroborated his findings with two other valuation methodologies, which lent his valuation greater credence. Id. at 10-11, 12, 12-13. Thus, the Bankruptcy Judge — who had the benefit of observing all the witnesses during two days of testimony and had the opportunity to direct questions to the witnesses — did his job as required under New Jersey law.
The cases Loews relies upon do not compel a different result. Loews cites Rossi v. Upper Pittsgrove Township, 12 N.J. Tax 235, 240 (Tax Ct. 1992) to support its argument that the Bankruptcy Court must make "independent findings of fact and conclusions of law" when reviewing a county tax board judgment. This language, however, is excerpted from the Rossi court's discussion of whether it could consider facts that occurred after the county tax board's hearing. In rejecting the defendant's argument that such evidence was precluded, the court emphasized that under it was obligated to "consider all competent evidence" and arrive at its own determination as to the applicable facts and law. Id, In so holding, the Rossi court relied upon an earlier decision of the New Jersey Supreme Court, Pantasote Co., 100 N.J. at 417, which stands for the proposition that a tax court must independently value a property where it concludes that the original assessment is not presumptively valid. Similarly, the New Jersey Supreme Court's discussion in Ford Motor Co., 127 N.J. 290 of the Tax Court's obligation to make an independent valuation stemmed from the fact that the tax court had rejected the original assessment, but declined to determine the property's value after a sixteen day trial. On those facts, the Ford court held that the tax court should have made an assessment of value. Id. at 313.
These decisions fail to address the issue of specific findings of fact and conclusions of law as posed by Loews and cannot be read to invalidate the Bankruptcy Court's decision. Instead, they instruct the Bankruptcy Court to make an independent determination of value upon its rejection of the original assessment, which it did, relying on those portions of the experts' testimony and reports it deemed credible.
3. The Bankruptcy Court Did Not Improperly Rely Upon a Post — Assessment Event
Finally, Loews argues that the Bankruptcy Court improperly relied upon a post — assessment event in determining the value of the subject property. While Loews suggested at oral argument that this error pervaded the Bankruptcy Court's entire decision, it has cited only one specific post — assessment fact. In brief and at oral argument, Loews contended that the Bankruptcy Court violated a fundamental principle of New Jersey law when it relied upon the fact that Loews signed a lease while it was in Chapter 11. Loews argues that the Bankruptcy Court's reliance on this fact to support the addition of a ten percent entrepreneurial profit under the cost approach valuation was erroneous. Given that Loews has cited authority that instructs the reviewing court to consider all available evidence in its valuation. E.g. Rossi, 12 N.J. Tax at 240 (ruling that the tax court was obliged to consider "all competent evidence and not only that which was presented to the county board," which included evidence of activity that occurred subsequent to the county board's hearing). Nevertheless, as the Borough notes, subsequent events may be used to corroborate an independently formed conclusion. Borough of Fort Lee v. Invesco Holding Corp., 3 N.J. Tax 332, 342 (Tax Ct. 1981), aff'd in part, rev'd in part on other grounds, 6 N.J. Tax 255 (App.Div. 1983) ("While the use of subsequent events as direct evidence of value is not appropriate, a valuation predicated upon subsequent events may, in an appropriate situation, be utilized to corroborate an opinion independently arrived at and based on facts known or reasonably ascertainable as of the critical date."); see also City of Atlantic City v. Boardwalk Regency Corp., 19 N.J. Tax 164, 184 (App.Div. 2000) (holding that the use of post — assessment sales data can be permissibly used to corroborate a valuation based on pre — assessmentdata). As described by the tax court in Lamm Assoc. v. Borough of West Caldwell, 1 known or reasonably foreseeable as of the assessment date with subsequent events deemed relevant only if they are corroborative or consistent with the reasoning and approach utilized." This is precisely the method and reasoning employed by the Bankruptcy Court. The Bankruptcy Court independently decided that a ten percent entrepreneurial profit was appropriate and used the fact that Loews' assumed the lease while in bankruptcy proceedings — along with other data, such as the subject property's physical location — to corroborate that determination. There was no error.
Valuation of a property under the cost approach is a multi — step process, which requires consideration of (1) the value for the land; (2) the replacement cost of any improvements; (3) whether any adjustment should be made to account for entrepreneurial profit; and (4) any depreciation on improvements. Texas Eastern Transmission Corp. v. East Amwell Township, 13 N.J. Tax 24, 29 (Tax Ct. 1992). Entrepreneurial profit is "the reasonable profit that a typical developer would seek for the risks and efforts required by a developmental project." Watnong Assocs., Inc. v. Township of Morris, 11 N.J. Tax 108, 120 (Tax Ct. 1990).
III. CONCLUSION
For the foregoing reasons, the Bankruptcy Court's decision is affirmed. The Clerk of the Court is instructed to close this case and any pending motions and remove this case from my docket.
THIS CONSITUTES THE DECISION AND ORDER OF THE COURT .