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2012-08-30 Special Meeting Kodiak Island Borough Assembly Special Meeting Agenda Thursday, August 30, 2012, 7 p.m. Borough Conference Room 1. ROLL CALL 2. CITIZENS COMMENTS (Limited to Three Minutes per Speaker) 3. CONSIDERATION OF MATTERS IN THE CALL FOR THE SPECIAL MEETING A. EXECUTIVE SESSION 1. Kodiak Support Services vs. Kodiak Island Borough Board of Equalization. 2. Discussion of Borough Manager Selection Process. 4. ADJOURNMENT This meeting was called by Mayor Selby. IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE KODIAK SUPPORT SERVICES, EV., ) Y Plaintiff, n i � ,� i 4" Fir v. ) n1 171) ) KODIAK ISLAND BOROUGH, ) u Brecht, Cart;dgc. BOARD OF EQUALIZATION, ) & Brooking Defendants. ) ) Case No. 3AN- lI- 08022CI DECISION ON APPEAL 1. Introduction. Kodiak Support Services, J.V. (KSS) appeals a decision of the Kodiak Island Borough Board of Equalization (BOF). The Borough Assessor determined that KSS has a taxable possessory interest in certain personal property owned by the United States Coast Guard (USCG). The Assessor placed a value on that possessory interest. KSS objected to the value, but the BOE affirmed the Assessor's determination. The Court concludes that the BOB committed two related errors that require a reversal and remand. First, the BOE allowed the Assessor to use a 3AN -I 1- 08022C1 Kodiak Support Services vs. Kodiak Island Borough Decision "fundamentally wrong principle of valuation." 1 Second, it allowed the Assessor to use a valuation that was not supported by a "reasonable basis. " 11. Statutory Framework. The Court begins by summarizing the statutory Framework of the parties' dispute. It will then describe the burden placed upon a taxpayer who objects to a taxing authority's valuation and the shifting burden on the taxing authority if the taxpayer meets her burden. Finally, it will set out the superior court's standard of review of the BOE's decision. Alaska Statute 29.45.010 authorizes a borough to levy a property tax. Certain property is exempt from taxation, including "property of a political subdivision, agency, corporation, or other entity of the United States to the extent required by federal law; except that a private leasehold, contract, or other interest in the property is taxable to the extent of that interest....n The Kodiak Island Borough (Borough) has expressly incorporated into its tax code "laws of the state of Alaska relating to the assessment and levy of taxes upon real and personal property within the boundaries of first- and second - Cool Homes v. Fairbanks North Star Borough, 860 P.2d 1248, 1 262 (Alaska 1993) (quoting Twentieth Century Investment Co. v. City of Juneau, 359 P.2d 783, 788 (Alaska 1961)). 2 North Star Alaska Housing Corp. v. Fairbanks North Star Borough Board of Equalization, 778 P.2d 1140, 1146 (Alaska 1989). 3 AS 29.45.030(a)(8). 3AN -1 I- 0802201 2 Kodiak Support Services vs. Kodiak Island Borough Decision class boroughs. " The Borough instructs its Assessor to assess taxable property each year as of the first of January. The Assessor is authorized to tax "personal property which has a tax situs within the borough. " The Borough defines "real property" to be land and structures "and also possessory rights and privileges belonging to or in any way appertaining thereto." It defines "personal property" to "include[] all other property, corporate real and incorporate real, not specifically included in `real property. "' When a taxpayer challenges a tax assessment she has the initial burden of proof. If that burden is met, then the assessor has a burden. The Alaska Supreme Court summarized the shifting burdens in Cool Homes v. Fairbanks North Star Borough: Alaska law provides that the taxpayer bears the burden of proof before a Board of Equalization. The only grounds for adjustment of the assessment are proof of unequal, excessive, improper or under valuation based on the facts that are stated in a valid, written appeal or proven at the appeal hearing. A taxpayer contesting an assessment need only prove that the valuation is improper. The taxpayer does not have to offer a KIBC 3.35.010. 5 KIBC 3.35.040. 6 KIBC 3.40.010. 7 KIBC 3.35.030. 8 Id. 9 860 P.2d 1248 (Alaska [993). 3AN- 11- 0802201 3 Kodiak Support Services vs. Kodiak Island Borough Decision the correct amount, range or method of valuation, as the Borough repeatedly insisted. The burden then shifts to the taxing authority to introduce credible evidence which substantiates its assessment. However, AS 29.45.210(b) still requires that the taxpayer prove facts at the hearing. ... It is not enough merely to argue that the valuation was inadequate or demand a justification from the taxing authority. The superior court has a limited role when reviewing the decision of a board of equalization. Again, Cool I- -Tomes summarizes the standard: The recognized standard of review of administrative decisions involving questions of law or fact requiring agency expertise is the reasonable basis test. This court has used this deferential standard before for reviews of tax assessments: Taxing authorities are to be accorded broad discretion in deciding among recognized valuation methods. If a reasonable basis for the taxing agency's method exists, the taxpayer must show fraud or the clear adoption of a fundamentally wrong principle of valuation. 111. Facts and Proceedings Below. A. Factual introduction. KSS and the USCG entered into their Base Operation Support Services (BOSS) contract. KSS is required to maintain certain equipment and facilities on and around USCG bases, primarily in Kodiak. USCG allows KSS to use the equipment that KSS cares for to perform various maintenance functions on the base. For example, KSS must maintain cranes in operating condition and may Id. at 1262 -63 (internal citations and footnote omitted). 1 Id. at 1262 (internal citations and quotations omitted). 2 Transcript (Tr.) 10. 3AN -1 1. 080220 4 Kodiak Support Services vs. Kodiak Island Borough Decision occasionally use them in the maintenance of the USCG facilities. KSS cannot use USCG equipment for other clients or projects.' KSS also uses its own equipment to taintain USGC facilities. The USCG alone determines what equipment it wants KSS to maintain. KSS decides whether to use USCG equipment or other equipment that KSS owns or rents to maintain USCG facilities. For some years the Borough has been uncertain of what personal property, titled 10 the USCG, that KSS and its predecessors have utilized and perhaps possessed as a result of the work they did for the USCG pursuant to the BOSS contract. In 2009 the Borough selected KSS for a Personal Property Audit for 2007 and 2008. It demanded that KSS provide "Detail[cdll asset listings and depreciation schedules for all operations located within the [B]orough. This list should also include a list of all assets owned by the USCG and used by Kodiak Support Services in performance of the contract. " KSS apparently informed the USCG of this request. The USCG wrote to the Borough seeking confirmation that 13 Tr. 10 and 22. 14 Tr. 12. 15 Tr. 11. 16 Tr. 10 and 12. 17 Record (R.) 64. There are multiple paginations on many of the documents in the Record on Appeal. When the Court cites to the Record, it is utilizing the pagination labeled "Appeal Case 3AN -11 -08022 CI Page 'x' of 99." 8 let. 3AN -I 1- 080220 5 Kodiak Support. Services vs. Kodiak Island Borough Decision the Borough "has no intention on taxing the value of Government Property in the possession of Kodiak Support Scrvices." The record does not reflect whether the Borough replied to the USCG. It appears that KSS provided the Borough with lists of personal property owned by the USCG that KSS was maintaining in 2009. These lists included valuations of each piece of property, apparently provided by USCG. In February 2011 the Assessor issued a notice to KSS that it had determined that KSS has taxable personal property valued at $2,015,000. In March 2011 KSS appealed the valuation to the BOF. It contended that the proper 19 R. 66. 20 The transcript of the hearing before the BOE does not always identify who is speaking. For example, this colloquy occurred: CHAIRMAN: Was the list provided from the Coast Guard or was it provided from K.SS? UNIDENTIFIED SPEAKER: Actually 1 don't recall which had [sic] entity gave it to me. Probably my office, but I honestly don't remember. UNIDENTIFIED SPEAKER: I believe the auditors got it from KSS. That was in 2009, right? UNIDENTIFIED SPEAKER: Yeah. Tr. 27 -28. 21 R.. 43. 22 R. 4 -5. 3AN -1 I- O8022C1 6 Kodiak Support Services vs, Kodiak Island Borough Decision value was $605 . It asserted several related arguments that stemmed from its basic point that the USCG owned most of the personal property on the tax list and that KSS had no possessory interest in USCG's property. KSS argued that the taxation of the property violated the Supremacy Clause of the United States Constitution and others laws. Alternatively, it argued that `the valuation of USCG owned personal property fails to adequately take into account contractual limitations on use of non -owned personal property and reversionary interests. " B. The Assessor's Report. The Assessor submitted a report to the BOE prior to the hearing. It set out the basic premise of the valuation: The 2011 assessment for Kodiak Support Services (KSS) was completed using a list of' assets submitted [sic] Kodiak Support Services of property owned and a list of Government Furnished Equipment (GFE) in the control and used [sic] by KSS to complete their contract. The list of GEE equipment was acquired in 2009 as a result of an audit conducted by Altman Rogers for the Kodiak Island Borough (K113). The GFE assets were assessed utilizing well established procedures for valuing possessory interest. Possessory interest is the private interest in public property that typically is incurred by a lease or use agreement. The premise of the valuation is that the asset, land or personal property, has a fee value. This value is split between the lessee that has temporary possession 23 R. 4. This was the value of personal property owned by K.SS. KSS contends it does not have a possessory interest in the USCG property, thus giving that non - interest a value of zero. 24 R. 5. 25 Icl. 76 R. 97 -99. 3AN -1 l- 08022CI 7 Kodiak Support Services vs. Kodak Island Rol ough Decision and use and the feu simple owner. The method of computing this value is the reversionary method. Basically this method says that the fee simple owner will have the asset returned at the end of the lease and the present value of the asset at that date is the fee owner's value. The lessee's value is the remainder less nay loss in value from restrictions. The Assessor addressed KSS's objections to valuation. Lastly, KSS claims that KII3's assessment of USCG owned property is excessive and unequal compared to other possessory interest taxpayers, mainly previous DOSS Contractors. Historically, BOSS contractors have been amiss in reporting GEE assets as part of' their personal property rendition. The Assessor has made an estimate of value based upon the best information available to him. KIBC 3.40.030 Assessment Return "In the event of any person failing, refusing, or neglecting to make or file said personal property return of property owned by him, as required herein, the assessor shall make an assessment which shall be as fair and equitable as he is able to make from the best information in his possession concerning said property." Non - compliance to (sic] the above referenced borough code, KSS, AMS and BOSS contractors previous to them resulted in an assignment of an estimate of value on Possessory Interest of GFE at $100,099. Discovery of heavy equipment was made in 2006 and included in the roll for tax year 2007. Equipment costs were 27 R. 97. 28 First, the Assessor acknowledged typographical errors in its original assessment and modified a particular valuation calculation, thus reducing the assessed value from $2,015,00 to $ 1,990,400. R. 9R -99. The Assessor also noted that KSS challenged the authority of the Assessor to tax the property, but did not address that assertion, concluding that the "Board of Equalization is authorized only to hear issues affecting valuation, not taxation as noted in KIBC 3.35.050(C)(1), and this issue will not be addressed at this hearing." R. 97. 3AN -1 1- 0802201 8 Kodiak Support Services vs. Kodiak Island Borough Decision researched and values were assigned based on the information available. An audit conducted in 2009 resulted in an actual listing of GFE used by KSS to complete their BOSS Contract and values were applied based upon the list. This list came from the original contract signed in 2006. It did not reflect assets retired or acquired after that. Depreciation was applied based on two factors, Light Duty at 10 years and Medium Duty at 16 years. 16 year depreciation is typical for contractor heavy equipment with the KM. TY2011 CG owned equipment again was not reported and again any new assets were not picked up. The values force filed from the previous year were rolled over with additional deprecation applied. It is noted KIB has not asked KSS for a copy of the current BOSS contract. KI,B has requested this information of the BOSS contractors only to be told that they did not have access to such a list. It is hard to believe a contractor would not have a list of assets that are being transferred to their care and in fact when audited in 2009, this list miraculously appeared. C. Preliminary Arguments. 1. The Supremacy Clause. Prior to the BOE hearing, KSS submitted a brief outlining its arguments. At the hearing the BOE pointed out that it had no authority to hear taxability issues and thus expressed doubt that it could address the Supremacy Clause argument that KSS had presented in its bricf. KSS orally acknowledged the B017, had no authority to hear that argument, but noted that the BOE could 29 R. 98. 30 R. 8-22. 31 Tr. 6 -8. KIBC 3.35.050.A.3 defines and limits the BOE's duties, "The hoard may determine equalizations on properties brought before the board by appellants. It shall only hear appeals for relief from an alleged error in valuation....' 3 AN- 11- 0802201 9 Kodiak support Services vs. Kodiak Island Borough Decision address the related dispute over the existence and valuation of any possessory interest KSS had in the USGC property.' The BOE now argues that KSS waived the Supremacy Clause argument. "Che Court disagrees. Whether or not the BOE has the authority to hear a Supremacy Clause argument or any other challenge to the taxability of specific property, there can be no doubt that KSS raised this issue before the BOE. The BOE's refusal to address that argument, even if a correct interpretation of its authority, can hardly he construed to be a waiver by KSS. Even if the BOE, or the superior court in an administrative appeal, could address the Supremacy Clause challenge, the Court need not do so, given its decision on non - constitutional grounds. However, it does observe that the argument seems misplaced. The Supremacy Clause protects federal entities from being taxed by states or their subdivisions. But the KIB is not attempting to tax the USCG for it federal property. The KI13 is trying to fax KSS for a possessory interest KSS has in federal property. That can he done.''' 32 Tr. 8-9. 33 Appellee's Brief at 5 -6. United States v. Nye County Nevada, 938 F.2d 1040, 1042 (9` Cir. 1991). The court summarized the characteristics of such a constitutional taxing scheme as follows: The unconstitutionality of Nye County's tax is best understood by comparing it to tax measures that have survived, and those that have perished, in the face of ad valorem challenges. The survivors have been tax measures imposed on an isolated possessory 3 AN- I I - 08022C I 10 Kodiak Support Services vs. Kodiak Island Borough Decision 2. KIB's Statutory Taxing Authority. KSS also argues that KI13 is not authorized by its own code to tax a possessory interest in personal property. It relies upon what it deems to be a contrast in the code's definitions of real and personal property. The code defines taxable real property to include "possessory rights and privileges belonging to or in any way appertaining thereto. " In contrast, the code's definition ofpersonal property does not include a reference to possessory rights. KSS argues that this difference means the KIB is only authorized to tax possessory interest in real, but not personal, property. The Court disagrees. The code's definition of personal property is extremely broad, essentially including all property that is not real property. This construction is supported by definition of the duty each person has to submit a property return to interest or on a beneficial use of United States property. The perished have been tax measures levied on the property itself. Of the survivors, United States v. County of Fresno, 429 U.S. 452, 97 S.Ct. 699, 50 L.Ed.2d 683 (1977), illustrates a possessory use tax. There, California taxed possessory interests in federally owned housing held by federal forest rangers. The Supreme Court refused to invalidate the tax, holding that, to the extent a state can isolate a private person's property interest in property owned by the United States, the state can tax the interest. Id. at 462, 97 S.Ct. at 704 -05. Id. 35 K.IBC 3.35.030. 36 Id. 3AN -1 I- 0802201 !I Kodiak Support Services vs. Kodiak Island Borough Decision the K113. "Each person with ownership in business personal property shall submit to the borough assessor a personal property return of any property owned by him or in which he has an interest and of the property held or controlled by him in a representative capacity, [annually]. " The duty to report any and all business personal property extends beyond property that one owns in fee to include property in which one only has a lesser interest. There would be no reason to require a taxpayer to report possession of a less- than -fee interest in property if the K113 did not intend that it could tax that lesser interest. D. The BOE Hearing. Some of the arguments that KSS presented to the BOP, could have been directed at tither the taxability of the personal property or the valuation of that property. This is because both the test used to determine i a taxpayer has a right of possession, and thus an interest that may be taxed, and the test used to adjust the present fair market value of an interest in property to reflect any restrictions placed by the owner on the taxpayer's possession of the property take into account the exclusivity of use of the property that the taxpayer has. The parties agreed to the following expression of the test for the existence of a taxable possessory interest of a taxpayer in personal property owned by the United States: [P]ossessory rights in federal land, and improvements made there by an individual for his or her own use and benefit, may 37 KII3C 3.40.030 (italics supplied). 3AN- II- 0802201 12 Kodiak Support Services vs. Kodiak Island Borough Decision be taxed, as may personal property belonging to the United States, which is in the possession of a private party who is using or processing such property in the course of business. To give rise to a taxable possessory interest, the right of' possession or occupancy must he more than a naked possession or use. it must carry with it, either by express agreement or tacit understanding of the parties, the degree of exclusiveness necessary to give the occupier or user something more than a right in common with others... so that realistically, the occupancy or use substantially subserves an independent, private use of the user or occupier. This test requires consideration of many of the sane facts as does the Assessor's determination the value of KSS's possessory interest in USCG property. The Assessor adjusted the present fair market value of items of property to reflect the restriction on the use of the personal property that was imposed on KSS by USCG. The Assessor adjusted the present fair market value of the personal property by 20% to reflect the BOSS contract restrictions. The Assessor explained: The Possessory interest calculation for contract restrictions based on a 20% for long term and 25% short term is unequal. The Appellant takes exception with using two different restrictions and the Assessor's office is in agreement with this and proposes to change the short term asset contract restriction to 20% to be in line with the contract restriction allowance applied to the long term assets. 8 16 EUGENE MCQUILLAN, MUNICIPAL CORPORATIONS (3d ed. Revised 2003) § 44.53, at 225 -26 (footnotes omitted) . 39 The starting point for the Assessor was a list of USCG owned property that included a valuation for each item of property. K SS did not dispute the fair market values of the property contained in the list. Tr. 22. 40 R. 98 -99. BAN-II-050220 13 Kodiak Support Services vs. Kodiak Island Borough Decision At the scant time allowed KSS at the hearing, 41 it focused on its assertion that the Assessor had overvalued the value of its possessory interest in the USCG property because the Assessor did not have adequate knowledge of the restrictions imposed by the BOSS contract on the use by KSS of USCG property. KSS argued that the restrictions were so stringent that KSS had no possessory interest and thus the value of that (non - existent) was zero. It is undisputed that KIB and the Assessor did not have a copy of the BOSS contract when the Assessor determined the impact the contract restrictions had on valuation. At the hearing the Assessor explained "The 20 per cent possessory interest lease restrictions were based on the fact we didn't have a copy of the contract. They are right; it was never provided us. " However, the Assessor acknowledged in his pre - hearing report that "KIB has not asked KSS for a copy of the current BOSS contract. " 4l At the outset of the hearing the BOE restricted KSS to a five minute presentation, subject to an extension at the conclusion of the five minutes. Tr. 9. The BOE gave KSS an extension of an unspecified duration. Tr. 13. 42 This argument that the valuation was not merely erroneous but should have been zero, played a determinative role in the BOE's decision. The BOE focused on what it believed to be a taxability challenge when it should have understood the argument to also be a valuation challenge. See Tr. 33 -36. 43 Tr. 17. ml R. 98. At the hearing the attorney for KSS was asked if KSS had "provide[di a copy of your base contract with the Coast Guard ?" She replied, "To our knowledge, they never requested it." Tr. 25. 3AN -11- 0802201 14 Kodiak Support Services vs. Kodiak Island Borough Decision In order to meet its initial burden KSS asserted that the valuation of the alleged possessory interest was excessive and improper. In support of that allegation, it presented the testimony of Mr. Nugent.' He explained what KSS did for the USCG. MR. NUGENT: Anyway, the history of the BOSS contract is we maintain and operate parts of the base. We do it with a mix of our equipment and once in a while, their equipment. They have equipment that they own that he allow contractors, not just us, other contractors to use. CHAIRMAN: When you say they — MR. NUGENT: The U.S. Coast Guard. We are allowed to use their equipment at intervals or when necessary when our equipment is too much for what we have. We maintain it. "There are three lists of equipment that we maintain for the Coast Guard. We can't use it anywhere but the base or for their purposes. For instance, we refer to when there is flooding over on Salcep (phonetic), somebody in the Borough called our guys and said "!-Iev w e need a pump. You got a pump we can use ?" We said, "Yeah, we do, but you have to go to your guys, your guys have to call the Coast Guard and the Coast Guard has to call us to bring the thing down," which we did. The government provides equipment. It's there. We maintain it to do whatever we have to do. Every year equipment shows up, literally shows up. We didn't ask for it. We don't know what they want us to use it for. We don't know why they bought it in some cases. Basically it's a matter of who controls what and how much we can use it. Some stuff that they buy, we might use at her as If KSS expressly identified Nugent's relationship with KSS at the hearing, the transcript does not contain that portion of the hearing. From his testimony one may infer that Nugent was familiar with the operations of KSS in its fulfillment of the BOSS obligations. Tr. 10 -13. 3AN- 11- 08022C1 15 Kodiak Support Services vs. Kodiak Island @orough Decision ■ request maybe four times a year, but yet it shows on the list at full value (indiscernible). There is no difference in restrictions to us whether it's a hammer the government provides or whether it's a crane or a lowboy or a truck or a lawnmower or anything else. It has to be used there for that purpose. You can't bring it in here. We couldn't bring it in this winter to help you remove the snow pile out here in the parking lot, we couldn't do it. The other question that's always asked is: Well it's leased. If you didn't have it, you would have to buy it. No, that's not the case. We would get by with what we have, or we would go down the street to Lash and rent a crane or we could come over to Bieck and rent a loader. When we're done with it, we're done with it. Since the government owns it, it sits there. Some of it might sit there a year, two years. It might never move while we're there, but yet it's on the list. So it's hard to value. With that, nobody ever asked us for a copy of the contract, which over the years as morphed from 700 pages to now about 1550, before you start adding all the add -ons like maps and lists of buildings and things like that. In response to Nugent's testimony the Assessor explained his reasoning: MR ROBERTS: Possessory interest, they have a preferential use for this equipment to fulfill a contract to snake money. The Coast Guard has to notify them two days before they can take the equipment. 1 think that's pretty liberal. The 20 percent possessory interest lease restrictions were based on the fact we didn't have a copy of the contract. They are right; it was never provided. 46 Tr. 10 -12. ar Tr. 17. 3AN- 11- 08022C1 16 Kodiak Support Services vs. Kodiak Island Borough Decision Members of the 130E had questions for the Assessor about the genesis of the adjustment in valuation for the contract restrictions. UNIDENTIFED SPEAKER: What do you feel —I have a question about, myself, as I read through this, I looked at this and I though where does the 20 percent come from. What do you think is a realistic percentage of use? I mean, is that —maybe this question should be pointed to Bill. Bill, could you explain exactly, for my benefit, what this 20 percent issue is? As I understand it, it Looks to me like you're discounting the value of this equipment 20 percent, because it has some sort of restricted use. Is that accurate? MR ROBERTS: That's true. The equipment can only be used by KSS on the base to perform their contract on the base which I would probably argue is the highest use of that equipment. I assume it's a pretty lucrative contract, but the Coast Guard can take that stuff way, can say, "We need that backhoe and we'll give you two days' notice, we're going to use it for a week." So that was the 20 percent. I don't actually know how many times the Coast Guard have done that, because it's never been discussed actually. UNIDENTIFIED SPEAKER: But that's the premise of this issue of 20 percent and 25 percent, was the idea that the 25 percent was maybe for smaller items and at first and then we change tat to 20 percent across the board? MR. ROBERTS: Yes. Originally, when we did this, we discussed it and said probably the heavy equipment is not used as much. It's probably actually the other way around, but I don't know that for a fact. UNIDNEIFED SPEAKER: Where did we come up with the 20 percent? I mean, why not 10, why not 30, why not 50? 1 mean, where did we come up with the 20? ?AN-11-11/8022C! 17 Kodiak Support Services vs. Kodiak Island Borough Decision MR ROBERTS: It's an estimate, and it's basically an educated guess based on the fact how often do I think the Coast Guard takes this equipment. Again, nobody wanted to talk to us about the possessory interest on this up front. After hearing from KSS and the Assessor, the BOE discussed the parameters of the decision before it. UNIDENTIFIED SPEAKER: You totally understand that we cannot determine whether it is or isn't taxable, strictly whether the value of the Coast Guard property is within line of what the appraiser says, correct? MS. DALRYMPLE: The facts are related, but the decision is different. If there is a possessory interest valuation based purely on control and exclusivity, 1 think that's well within this tribunal to decide. I understand that we're not deciding whether or not the actions themselves violate the supremacy clause. UNIDENTIFIED SPEAKER: That's not the way I see it. If they are trying to say it hasn't —I don't see it that way. She is saying we don't want it taxed, therefore they are disputing whether it's taxable. 1 don't think that's within our perusal. We cannot make the decision as to whether it's taxable. UNIDENTIFIED SPEAKER: They don't want to admit that they may have to pay the tax. UNIDENTIFIED SPEAKER: ']'hat's the way I see it. UNIDENTIFIED SPEAKER: That's the way I understand that, but that's not the purpose of this board. 48 Tr. 23-24. 49 Tr. 34 -35. 3AN- I 1- 080220 18 Kodiak Support Services vs. Kodiak Island Borough Decision The BOE voted three to one to deny the challenge brought by KSS and to uphold the valuation of the Assessor. IV. Discussion When reviewing taxing authority's decision regarding a tax assessment. the Court must be deferential to the agency's findings of fact and conclusions of law. It may reverse the agency only if the findings or conclusions are not supported by a reasonable basis or the taxpayer shows that the assessment is based upon a `fundamentally wrong principle ofvaluation." sl The Court must evaluate the agency's actions in light of the shifting burdens placed upon the tax payer and taxing authority when the taxpayer challenges a tax assessment. A. KSS Met Its Burden. The first question is whether KSS proved facts at the hearing so as to prove that the valuation was iinproper. A major component of the valuation calculation was the Assessor's use of the 20 percent adjustment of the current fair market value of the personal property owned by the USCG, but being maintained and possibly utilized by KSS. The A.ssessor assumed that KSS had significant use of the USCG property, but acknowledged that the BOSS contract placed some 50 Tr. 36 -37. Cool Homes, 860 P.2d at 1262. 52 Id. at 1163. 53 Id 3AN- I I- 08022C I 19 Kodiak Support Services vs. Kodiak Island Borough Decision restrictions on the use by KSS. The fewer the restrictions, the greater the value of the possessory interest that KSS had in the USCG property. The greater the restrictions; the lower the value. Both aspects of these assumptions -- first, that KSS's responsibility to USCG allowed it to use the property for its benefit, and second, that the restrictions on that use were minimal -- were flawed. The BOSS contract defined both the responsibility and the restrictions. Without knowing the terms of the BOSS contract the Assessor could not and did not know what KSS did for the USCG. The Assessor did not know what responsibility KSS had for the property or how, if at all, KSS could use the property. The simple admission that the Assessor did not have the BOSS contract, but nonetheless made critical assumptions about the contract and its terms undercuts nearly every premise and assumption of the valuation. The lack of understanding of the BOSS contract also made it impossible for the Assessor to reasonably evaluate the nature of the restrictions, in the contract, if any, on the use of the equipment by KSS. When asked how he came up with the 20 percent adjustment, rather than 10 or 50. percent, the Assessor stated it was an "estimate... an educated guess." 54 But it was not even that. It was pure speculation. Again, this admission is adequate proof that the Assessor's 54 Tr. 24. 3AN -I I- 08022C! 20 Kodiak Support Services vs. Kodiak Island Borough Decision evaluation was improper. The BOIS should have shifted the burden to the KIB to "introduce credible evidence which substantiates is assessment. " KSS provided even more evidence at the hearing. It presented uncontradicted evidence of the nature of its obligations to the USCG. KSS is obligated to maintain certain physical facilities on the bases and certain equipment designated by the USCG to the care of KSS. KSS did not use all of the USCG equipment to maintain the physical facilities. It did use some. But a good deal of the equipment was not used by KSS; instead KSS only maintained it in suitable operating condition in ease the USCG needed it. Nugent testified that some of the heavier equipment sat in place for more than year without being used by anyonc. Some equipment was used only a handful of times annually. During the period of inactivity KSS had to make sure the equipment ran. KSS met its burden of showing fact that proved the valuation was improper. The burden of proof thus shifted to the KIB to "introduce credible evidence which substantiates its assessment.i ss Cool Homes, 860 P.2d at 1263. 56 1R.. 12. 57 Tr. l l and 12. 58 Id. 3AN-1 I -08022C1 21 Kodiak Support Services vs. Kodiak Island Borough Decision 13. The KIB Did Not Meet Its Burden. All that KIB offered to substantiate its assessment were the explanations of the Assessor. Both his pre - hearing report (which the Court accepts can be used to meet the shifted burden) and his comments at the hearing reveal that the assessment was more the product of frustration with the perceived recalcitrance of KSS (and its predecessors) than it was the product of a rational, evidence based evaluation. The Court is sympathetic with the Assessor's perception that KSS was not being forthcoming about the USCG property that KSS may have used enough to form a taxable possessory interest. The Court also appreciates that KIB code permits the Assessor, when a "person has fail[ed], refuse[edj, or neglect[edl to make or file said personal property return of properly owned by him," to make an assessment using the "best information in his possession concerning said property." G0 However, frustration cannot justify the reliance on pure speculation. Nor does speculation in response to inadequate information constitute a reasonable basis for specific valuations. Once the burden was shifted 59 The Court is not finding that KSS acted improperly in not filing a return that identified the USCG property over which it had responsibility. The Court appreciates that KSS could have determined in good faith that it had no possessory interest in USCG property and thus need not identi fy that property on its return. But KSS also could have avoided much of this controversy by providing the Assessor with information about the BOSS contract and its relation with the USCG either with a return or after the notice of the assessment. G0 K113C 3.40.030. 3.AN- I 1- 08022CI 22 Kodiak Support Services vs. Kodiak Island Borough Decision to K1I3, it failed to provide credible evidence that substantiated its assessment. The BOE did not have a reasonable basis to accept the Assessor's evaluation. C. Alternate Grounds for Reversal. The BOE may have made a more fundamental error. The comments of two or more of the BOE members strongly suggest that they understood KSS to be making only a taxability argument rather than also a challenge to the valuation. It appears the BOE rejected the arguments made by KSS because it deemed them to be asking the BOE to act beyond its authority. The Court appreciates that in the current factual context the line between a taxability challenge and one that attacks the valuation (and argues it should be zero) is a fine one. Nonetheless there is a difference. The BOE may not have the authority to address taxability, but it does have the authority to address challenges to valuation. KSS made such a challenge. To the extent that the BOE did not address that challenge, it abused its discretion because it failed to exercise its discretion. V. Remedy. At oral argument the Court asked the parties what should be the remedy if the Court concluded that the BOE's decision should be reversed. The parties were not sure. The Court concludes that it should remand the case to the BOE for it to remand the case to the Assessor for a new assessment. The Court concludes that the best course of action is to permit both parties, KSS and KIB, to explore the 3AN- I 1-08022C1 23 Kodiak Support Services vs. Kodiak tsland Borough Decision complicated factual questions that this case raises. Both would benefit from a thorough exploration of the responsibilities and abilities that KSS has under the BOSS contract. It appears that KSS may well have a possessory interest in some of the USCG equipment, but likely did not have such an interest in much of the property it maintained for the USCG. Both parties have a significant financial interest in the outcome of this case for the tax year 2011 and for subsequent years. It would benefit the parties to have a more detailed and informed development of the facts of the case so that the Assessor and then the BOB (and perhaps the superior court in either or both an administrative appeal and direct challenge to taxability) may exercise their duties to both KSS and KIB. Both parties stated at oral argument (but without committing) that they would be interested in beginning the informal interaction between taxpayer and Assessor that often occurs before the notice of an assessment but which did not occur here. That is what should occur on remand. DONE this 20th clay of August 2012, at Ar cf hmi age, Alaska, William F. Morse Superior Court Judge 3AN -11- 0802201 24 Kodiak Support Services vs. Kodiak Island Borough Decision Kodiak Island Borough Assembly Special Meeting Guidelines August 30, 2012, 7 p.m., Borough Conference Room 1. ROLL CALL KIBC 2.16.070.... the Chair shall cause the record to reflect the absence of the member, the REASON for the absence, and whether the absence is excused by the Assembly. Recommended motion: Move to excuse Assembly Member Bonney who is absent due to personal leave. VOICE VOTE ON MOTION. 2. CITIZENS' COMMENTS (These are limited to three minutes per speaker.) A. Agenda Items not scheduled for public hearing and general comments. ASK SPEAKERS TO SIGN IN AND STATE THEIR NAME FOR THE RECORD. 3. CONSIDERATION OF MATTERS IN THE CALL FOR THE SPECIAL MEETING A. EXECUTIVE SESSION 1. Kodiak Support Services vs. Kodiak Island Borough Board of Equalization. Recommended motion: Move to convene into executive session to discuss Kodiak Support Services vs. Kodiak Island Borough Board of Equalization which qualifies for executive session under pending litigation and attorney - client privileged communications. ROLL CALL VOTE ON MOTION. Please invite the Borough Assembly, Borough Attorney, Administrative Official, Borough Assessor, and Clerk's Office Staff into executive session. After the vote, Mayor Selby recesses the regular meeting and convenes the executive session. Upon returning from the executive session, Mayor Selby reconvenes the regular meeting and announces no action is to be taken as a result of the executive session OR,the Assembly may make a motion if necessary. ROLL CALL VOTE ON ANY MOTION. Continued on next page... Kodiak Island Borough Assembly Guidelines August 30, 2012 Page 1 2. Discussion of the Borough Manager Selection Process. Recommended motion: Move to convene into executive session to discuss the Borough Manager selection process which qualifies for executive session as a matter which would tend to defame or prejudice the character or reputation of any person. ROLL CALL VOTE ON MOTION. Please invite the Borough Assembly, Borough Attorney, Administrative Official, and Clerk's Office Staff into executive session. After the vote, Mayor Selby recesses the regular meeting and convenes the executive session. Upon returning from the executive session, Mayor Selby reconvenes the regular meeting and announces no action is to be taken as a result of the executive session OR the Assembly may make a motion if necessary. ROLL CALL VOTE ON ANY MOTION. 15. ADJOURNMENT Recommended motion: Move to adjourn the meeting. ROLL CALL VOTE ON MOTION. Kodiak Island Borough Assembly Guidelines August 30, 2012 Page 2 SS. KODIAK ISLAND BOROUGH ASSEMBLY ROLL CALL SHEET I / 3v , , Regular Special Date:` &O I Convened: Recessed: Reconvened: Adjourned: •, I BY: BY: N BY: BY: wi BY: SECOND: SECON�ji SECOND: SECOND: SECOND: ‘ 0, 04 4 ce 0 \ ff\Cli YE NO .YES NO _ YES NO YES NO YES -NO Ms. Austerman Ms. Austerman Ms. Austerma Ms. Austerman Ms. Austerman Mr. Bonney y"Mr. Bonney _ 'r.:onney vr.:onne Mr. Friend V/ Mr. Friend Mr. Friend V Mr. Friend Mr. Friend Mr. Kaplan V Mr. Kaplan Mr. Kaplan ✓ Mr. Kaplan /1/ Mr. Kaplan Ms. Lynch Ms. Lynch Ms. Lynch V Ms. Lynch / V Ms. Lynch Mr. Stephens / Mr. Stephens Mr. Stephens Mr. Stephens Mr. Stephens Ms. Stutes Ms. Stutes Ms. Stutes ✓ Ms. Stutes t / Ms. Stutes CHANGE OF VOTE? HANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE? CHANGE OF VOTE?' HANGE OF VOTE?f . TOTAL: TOTAL: TOTAL: ( D TOTAL: TOTAL: The mayor may t vote except in the case where only six members of the assembly are present and there is a three /three tie vote of the assembly. Mayor Selby Mayor Selby Mayor Selby Mayor Selby Mayor Selby KODIAK ISLAND BOROUGH WORK SESSION /SPEC/Pt /vIr✓ 71Nq Work Session of: � (g0,070 /2 Please PRINT your name Please PRINT your, a e < C \ C c-�J v tr