February 1, 2017
The Ohio Supreme Court has ordered oral argument in two cases involving the valuation of real property sold as part of a sale and leaseback transaction. The cases, Terraza 8, LLC v. Franklin County Board of Revision, 2015-2063; and Board of Education of the Columbus City Schools v. Franklin County Board of Revision, 2015-2105 (State Farm) have been fully briefed (including an amicus brief filed by the Institute for Professionals in Taxation supporting the property owner).
As discussed here, Ohio’s legislature has amended the law to reflect the changes in commercial finance involved in sale and leaseback transactions. Simply put, a sale and leaseback involves the sale of commercial real estate at a higher than market value with the seller then leasing back that property at an above market rate lease commensurate with the sale price. The excess of the sale price is used to finance the purchase of the business who originally owned the real estate.
Consider this hypothetical: ABC Restaurant Co. is being purchased by XYZ private equity firm, XYZ arranges to sell ABC’s real estate to 123 Financing company for approximately three times its actual value and use the difference to purchase all of the shares of ABC Restaurant Co. stock, XYZ (now the sole shareholder of ABC) then enters into a 20 year lease for that same real estate back with 123 for an annual rent that is 7% of the sale price (with scheduled increases over the life of the lease).
The pricing of the real estate is based on the income the restaurant operations throws off, it has no relation to the actual value of the property as real estate. At the end of the lease, 123 Financing Co. still owns the real estate and has collected roughly 150% of its purchase price in lease payments.
Under the prior law, the county auditor would automatically adopt that inflated sale price as the “true value” and the property taxes on the restaurant would triple or more.
Under the new law, the auditor should disregard the sale price and determine the “true value” of the property “as if unencumbered” that is as if it was not subject to the non-market based lease. The result should be that the properties’ values remain roughly the same as they were before the sale and leaseback transaction.
Some County Auditors and Boards of Revision, and the Ohio Board of Tax Appeals itself, have thus far been unwilling to appreciate the magnitude of the change in the law and continue to value sale and leaseback properties using the old method. The Ohio Supreme Court has an opportunity to clarify the law for Ohio’s businesses and tax officials.
Oral argument will be held in the Terraza 8 case on April 5, 2017 and in the State Farm case on May 3, 2017. Finney Law Firm will continue to provide updates on these important cases.