NCR Corp. v. State Tax Commission

KENNEDY, Judge. NCR Corporation appeals from a judgment of the Circuit Court of Cole County, Missouri, affirming a decision of the State Tax Commission which assessed NCR’s leased business machines and computers in the City of St. Louis at a valuation of $572,961 for 1976. The Commission’s decision followed a hearing upon an appeal by NCR from a ruling of the City of St. Louis Board of Equalization denying relief from an assessment made by the city assessor. A valuation of $54,409 for other personal property, not under lease, is not disputed. The assessor for the City of St. Louis valued the leased equipment by use of a gross rent multiplier of 36, and the Commission used the same formula. By this method the gross monthly rental received by NCR for its leased equipment was multiplied by 36. The result was supposed to represent the value of the machines, which was then divided by 3, to reach the assessed valuation for ad valorem tax purposes, § 137.115, RSMo 1978 (Cum.Supp.1981). It is the propriety of the use of this gross rent multiplier which is the issue in this case. NCR attacked the use of the gross rent multiplier, contending it resulted in excessive assessments on its leased business machines. It presented evidence by two of its employees, Mr. Ungar and Mr. Popoff, which supported the use of a different formula for the valuation of the machines. The formula was explained by Mr. Ungar, Property Tax Administrator at NCR, formerly a supervisor of Personal Property Tax with the Ohio Department of Taxation. The formula which he believed would result in a more nearly correct value than the gross multiplier formula started with the selling price of the new machines as shown by NCR’s catalogue, less normal discounts given to customers in the amount of 7 percent; less cost of services supplied to buyers as part of the purchase price, 11 percent; and, finally, less year-by-year depreciation based upon a six-and-a-half-year life for computers and a ten-year life for non-computer equipment. The formula used by the assessor, and by the Commission, was promulgated by a directive of the Commission dated January 5, 1976, which we have copied in full in the margin.1 The authority of this directive, [46] contained in a letter from the Commission to all assessors, is challenged by NCR. It claims that the formula was arrived at without adequate hearings by the Commission and without sufficient opportunity for equipment leasing taxpayers to be heard, and that the requirements of due process were not met. The conclusion which they urge upon us is that the directive was entitled to no weight as evidence and was not substantial evidence supporting the assessment. We are unable to agree with NCR on this point and find that the proof that the formula was correctly applied (an agreed fact, given the propriety of use of the formula) constituted substantial evidence of the valuation placed upon the property by the assessor and then by the Commission. The Commission recited in its January 5, 1976 letter that: “In selecting this gross multiplier formular [sic], we are exercising our administrative discretion as provided by [47] the statutes.” In the particular decision which is under review here, the Commission found that the letter was issued “pursuant to Section 138.235, RSMo 1969)” ... “endorsing” the gross rent multiplier methodology, and also in pursuance of § 138.410. Sec. 138.235.2, RSMo 1978 (Cum.Supp.1981) provides: “The Commission shall investigate companies which have tangible personal property for lease or companies which lease tangible personal property, to cause said property to be properly taxed within this state.” Sec. 138.410.1, RSMo 1978, provides that: “The Commission shall exercise general supervision over all the assessing officers of this state ...” In City of St. Louis v. State Tax Commission, 505 S.W.2d 75, 81 (Mo.1974), a gross rent multiplier formula adopted by the State Tax Commission — in that case 40 times monthly rental divided by 3 — was held to be substantial evidence supporting the Commission’s valuation of business machines owned and leased by IBM, arrived at by applying the formula. In that case the court “presumed that the Commission performed its statutory duties and- made an appropriate investigation and based the formula upon facts obtained thereby.” Id. at 81. In this case we do not have to make such a presumption. There is in the record before us evidence of an investigation, of the collection of data, of statistical studies, and even of Commission meetings attended by various taxpayers in the equipment leasing business. The equipment lessors in those meetings commented upon the subject. We do not have a record of the meetings but we have the testimony of witnesses who were in attendance. The record does not justify appellant’s characterization of the Commission’s studies and meetings as being “sham and superficial”. Appellant claims that due process would require that they be permitted to “present testimony or offer evidence under oath” and “to cross-examine any of the persons presenting their views.” It cites for that position Justice Brandeis’s concurring opinion in St. Joseph Stockyards Company v. U. S., 298 U.S. 38, 80-82, 56 S.Ct. 720, 738-740, 80 L.Ed. 1033 (1936). We do not find the cited opinion in any way aids appellant. We are cited to no authority which holds that the Commission was required, in promulgating the directive in question, to do any more than it did here in the way of investigation and holding hearings. No judicial or quasi-judicial hearing was required to be held for the adoption of the formula, with the right to cross-examine witnesses, the right to discovery, the right to present testimony under oath, and the like. The absence of such procedure does not invalidate the formula adopted by the Commission. Appellant draws our attention to the following language in the opinion of the court in St. Louis v. State Tax Commission, supra at 81: “We do not mean to say, however, that a formula adopted by the Commission is impervious to attack. It would appear that on a hearing before the Board or Commission relevant evidence should be considered which would tend to show that the formula produced an assessment which was either more or less than true value.” This statement is quite correct. It means in our case that the formula is not conclusive and the mechanical application of the formula does not foreclose all further inquiry into the value of the property. The Commission must consider such evidence of the value of the property under consideration as may tend to show that the property’s “true value in money”, § 137.115, RSMo 1978 (Cum.Supp.1981), is less or more than that produced by the formula. The Commission did consider all the evidence before it, including that adduced by NCR advancing a different and allegedly superior formula. Notice should be taken of one other criticism by NCR of the Commission formula. It says that the Commission formula makes no allowance for depreciation. The record does not support this allegation. The Commission formula includes a seven-year de48 preeiation rate, not too far from NCR’s own rate of six and one-half years for non-computer equipment and ten years for computers. Mr. Jackson testified that the actual useful life of the equipment was, according to the studies made of equipment in use, above seven years. “Many of them were as long as 20 years”, he said. “In fact, I think the longest was 24 years or something like that”. NCR, in contending for the “new price less depreciation” formula as against the Commission’s gross rent multiplier formula, strongly emphasizes the undisputed fact that NCR is a sales-oriented company, that is, that more of its revenues are derived from the sale of business machines than from rentals. There is therefore, it argues, a method by which the value of their equipment may be ascertained, without resort to the gross rent multiplier, and which gives a more reliable indicator of value. Citing two printed publications of the International Association of Assessing Officers, it contends the “new selling price less depreciation” method is superior to the gross rent multiplier method. The cited reports do prefer the former to the latter method, yet they recognize that both are acceptable methods, along with other methods which neither party is advocating. On the other hand, the testimony of witness Lowell Jackson, a deputy assessor of St. Louis and a qualified expert in the field, gave it as his opinion that the gross rental multiplier method achieved the more accurate results. “If a piece of equipment is being used to produce income over a period of time,” Jackson testified, “in my opinion that would represent the highest and best use of that equipment; which in my opinion would represent the value.” The Commission also had before it its own studies, culminating in the January 5, 1976 directive which has already been mentioned.2 NCR argues further that the fact that it does sell much of the same type of equipment that it leases, and that there is therefore an established new price, takes this case out of the IBM (St. Louis v. State Tax Commission, supra) and Xerox (Xerox Corp. v. State Tax Commission, 529 S.W.2d 413 (Mo. banc 1975)) cases. It is assumed that the IBM and Xerox machines were not sold but were offered for lease only. In the IBM case, the question before the court was only the gross rent multiplier of 40, contended for by the taxpayer, as opposed to the gross rent multiplier of 50 which the assessor has used. In Xerox Corp. v. State Tax Commission, supra, however, as in the case before us, the taxpayer had advanced alternate valuation approaches, which it claimed were better than the gross rent multiplier. The court there, as in this case, had before it the propriety of the Commission’s decision rejecting Xerox’s alternate formulae and accepting instead the gross rent multiplier method. The court held that it was within the administrative discretion of the State Tax Commission to adopt the gross multiplier formula, and held that there was no abuse of discretion on the part of the Commission in applying the gross rent multiplier in preference to the formu-lae advanced by Xerox. We so hold in the case before us. Next, NCR attacks the use of the gross rent multiplier as creating an unconstitutional discrimination and unconstitutional sub-classification of property, in violation of Art. X, §§ 3 and 4(a) of the Missouri Constitution and of § 137.015, RSMo 1978. The complaint is based upon the fact that all of the machines are valued at “cost less depreciation” (not further developed), according to testimony of Mr. Jackson, which leased machines are valued by the gross rent multiplier method. In Metal Form Corp. v. Leachman, 599 S.W.2d 922, 927 (Mo. banc 1980) the court said: “We are persuaded and hold that classification of property for tax purposes, as that term is used in Art. X, § 4(a), means putting property of a certain nature into one class, and other property into a different class and then taxing them differ [49] ently, either by prescribing a different tax rate as to each or by assessing the classes at different percentages of value.” The use of different approaches or methods of arriving at “true value and money” does not constitute an improper discrimination or sub-classification of property. Both methods are calculated, however imperfectly, to lead to true value in money. Having arrived at that value, the same statutory ratio of one-third is applied to fix assessed valuation, and the same tax rate is applied. NCR cites us to Sioux City Bridge Co. v. Dakota County, Neb., 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923), which held under the due process and equal protection clauses of the Fourteenth Amendment that if the assessor uniformly assessed property at 55 percent of its value, and then assessed the complaining taxpayer’s property at its full value, the complaining taxpayer was entitled to relief even though the statute required full value assessment, if, the court said, the inequity was a result of the “intentional violation of the essential principle of practical uniformity”. That case does not support NCR’s position. We hold that the decision of the State Tax Commission was supported by substantial evidence and that the application of the gross rent multiplier of 36 to arrive at the value of the taxpayer’s leased business machines was within the administrative discretion of the Commission. The judgment of the trial court affirming the same is affirmed. All concur. Footnotes [1] The letter containing the directive reads as follows: January 5, 1976 Dear Assessor and Leased Equipment Representatives: [46] As a result of various meetings and studies conducted by the Missouri State Tax Commission regarding the equitable and uniform assessment of leased equipment, we have chosen a gross multiplier formulae as the method to be used in assessing leased tangible personal property for tax purposes. This decision is understandably influenced to a certain degree, by the Missouri State Supreme Court ruling in November. After hearing lengthy pro and con arguments, with reference to the gross multiplier method of assessing leased equipment, they stated: “that a gross multiplier formulae, for reasons which we have many times previously expressed, will produce a practical and sensible value of the equipment in question which satisfies us.” We therefore prescribe to you the following gross multiplier formulae: 36 times the monthly rental divided by 3, which arrives at the mandated 33'/3% of the market value of the equipment, which is the assessed value. Adequate allowances have been incorporated in this formulae for items of depreciation (return of investment), taxes, maintenance, insurance, management and return on investment. At the end of this correspondence you will find a second method of appraising leased equipment, namely the capitalization of net income before depreciation and taxes which dramatically demonstrates through comparison, the close similarity of these two methods and point out the simplicity of this gross multiplier and yet its accuracy. Leasing companies are requested to show on their returns the individual leased equipment and the monthly rental applying to each. It is further suggested that the calculation of 36 times the monthly rental, divided by 3 be shown on the return to be audited by the assessor, which will provide a double check on the calculations and reduce the margin of error which results in additional correspondence and delay. In selecting this gross multiplier formulae, we are exercising our administrative discretion as provided by the Statutes. Following you will find figures to substantiate the gross rent multiplier as prescribed by this Commission. The capitalization of net income before taxes and depreciation is a somewhat similar, widely used and accepted method of appraising either real or personal property, predicated on the income producing ability of that property. Simply stated, capitalization is the process of converting net income into present value. Saying it another way, capitalization of net income indicates the present total capital investment required to produce that same income. Following is a step by step example of the capitalization of income on a mythical leased item, which shows the close relationship of capitalizing income and/or using the gross rental multiplier we prescribed for assessing leased equipment. Monthly Rent x 12 = Gross Annual Income Expenses: Management Maintenance 25% Insurance Subtracting 25% from Gross = Net Income before taxes and depreciation Capitalization Rate: Taxes 1.9% (State average rate) Depreciation 14.28% (7 year life) Return on Inv. 9.0% Total Cap. Rate 25.18% Net — Capitalization Rate — Value Value x 3373% = Assessment Example: Rent $100 per Mo. 12 x $100 = $1200 Gross 25% of $1200 = -300 Expenses $ 900 Net Capitalization Rate — 25.18% = $3574 Which rounded = 36 times monthly rental This mailing will become a part of the record as transcribed on the 12th day of December, 1975. Respectfully yours, STATE TAX COMMISSION OF MISSOURI /s/ J. E. Riney, Chairman /s/ Don G. Williams, Member /s/ Robert F. Love, Member [2] There is in the record no evidence of a broad market in used machines of the kind we are dealing with here, as there is in used cars, for example.