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POCONO DOWNS v. BOARD FOR ASSESSMENT AND REVISION TAXES FOR LUZERNE COUNTY (11/23/73)

decided: November 23, 1973.

POCONO DOWNS, INC., APPELLANT,
v.
BOARD FOR THE ASSESSMENT AND REVISION OF TAXES FOR LUZERNE COUNTY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County, in case of In Re: Appeal of Pocono Downs, Inc. and Shamrock Rasing Assn., Inc., from the Assessment made in the years 1968, 1969 and 1970 for the years 1969, 1970 and 1971 by the Board for the Assessment and Revision of Taxes for Luzerne County, Pennsylvania, Nos. 461, 462 and 463, January Term, 1972.

COUNSEL

Harry Hiscox, with him Rosenn, Jenkins & Greenwald, for appellant.

Allan P. Ramsey, Jr., with him Joseph A. Quinn, Jr., for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 11 Pa. Commw. Page 82]

Pocono Downs, Inc., a horse racing establishment, appealed to the Court of Common Pleas of Luzerne County from the assessment of its realty for local tax purposes for the triennium beginning with 1969. Prior to 1969, the property was assessed at $1,555,670. An increase of the assessment to $2,087,060 for the ensuing triennium occasioned the appeal. After hearing, the court below fixed the assessment at $1,838,667, being 35%*fn1 of market value found by the court to be $5,253,333.

At the trial below the taxpayer's expert real estate appraiser gave as his opinion of the market value the figure $3,600,000, which he reached by capitalizing at 15% the yearly net operating income of the horse racing establishment, which income he believed should reasonably be considered to be $538,000 per year.

[ 11 Pa. Commw. Page 83]

The Board of Assessment and Revision of Taxes relied upon the testimony of its Director, also an expert, who gave as his final opinion of fair market value the figure $5,947,162, thus supporting the new assessment. His estimate of value was reached by capitalizing net operating income, using, however, $676,358 as income and 12.9% as the rate. He added to this figure his value, based upon sales of comparable properties, of appellant's land, and deducted an amount for physical deterioration, finally arriving at $5,947,162.*fn2

The court below in fixing its value also capitalized net income, using however for net income $550,000, which it capitalized at 12%. It also added land value to reach its market value of $5,253,333. Its assessment of $1,838,667 represented a reduction in the taxpayer's assessment of more than $200,000.

Where an assessment is appealed to the common pleas court, it is the court's duty to "direct the application of the ratio . . . [generally used in the taxing district] . . . to the value of the property which is the subject matter of the appeal." Act of June 26, 1931, P.L. 1379 § 9, as amended, 72 P.S. § 5350. We have held, on the authority of our Supreme Court, that the proceedings before the court below are de novo and that it is the court's duty on the basis of competent, credible and relevant evidence to determine the market value of the property. Our review of the court's determination is therefore very limited. Thus we stated in Pittsburgh Miracle Mile Town and Country Shopping Center, Inc. Tax Appeals, 6 Pa. Commonwealth Ct. 187, 196, 294 A.2d 226, 231 (1972) "The dimensions of our review in this kind of case are small. The findings of the court of common pleas must be given great force

[ 11 Pa. Commw. Page 84]

    and may not be set aside by us unless ...


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