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Government Lawyers NewsletterThe newsletter of the ISBA’s Standing Committee on Government Lawyers

December 2012, vol. 14, no. 2

The 32nd Annual National Conference of State Tax Judges

The 32th Annual National Conference of State Tax Judges took place at the Mark Hopkins Hotel in San Francisco, California on Thursday, September, 13, through Saturday, September 15, 2012.

Judge Jill Tanner of the Oregon Tax Court, the Conference chairperson, welcomed the attendees and had each of them describe where they were from, their positions, and their duties. This was followed by presentations on recent case and legislative developments, moderated by Judge Tanner, and given by Judge Ellen Hoffman and general counsel Mary Gallagher both of the New York City Tax Appeals Tribunal. Case law presentations were then given by a number of the attendees on issues relating to property tax valuation, real estate tax exemptions and state income and sales taxes and procedures.

The luncheon speaker was Professor Darien Shanske of the University of California, Hasting College of Law, who discussed theories of state and public finance, including property taxes and debt financing. He examined the fiscal situation in California.

The afternoon program began with a presentation by Justice Brian Morris of the Montana Supreme Court who gave the participants information on resolving conflicts between expert witnesses. He discussed “What elements appellate courts finds persuasive in assessing the credibility of expert witnesses.” He reviewed:

• The Influence of an appraiser’s education, experience, and affiliation with professional organizations on his credibility.

• Whether appraisal experts used by states tend to affiliate more often with different organizations than appraisal experts used by taxpayers.

• Whether the use of unit method of valuation by states necessitates special training for appraisers who work for states.

• The importance of appraiser’s demeanor on the witness stand and the impact on credibility.

• The effect of compliance, or lack of compliance, with uniform or industry standards on appraisers’ credibility.

• The thoroughness and selectivity of an appraiser in selecting comparable sales as it affects an appraiser’s credibility.

• The motivation of an appraiser: Whether states want its appraisal experts to support high valuations and taxpayers want their appraisal experts to support lower valuations.

• Whether credibility alone changes the outcome of a case on appeal.

• The importance for a trial court to provide a strong supporting analysis for its determination regarding an expert’s credibility, or lack of credibility to assist appellate courts to support an outcome.

Moderators were Judge Arnold W. Arnson, who a member of the Tax Section of the Supreme Court of Connecticut and Judge Karen Powell of the Montana State Tax Appeal Board.

The remainder of the afternoon allowed participants to engage in a guided walking tour of Nob Hill or visit local art museums.

The next day, Friday, September 14, 2012, began with a presentation by David Heinowski of Heinowski Appraisal and Consulting, LLC. He gave a review of “Highest and Best Use and obsolescence.” The program was moderated by Judge Victoria Enyart of the Michigan Tax Tribunal.

This was followed by an outstanding presentation on legal writing by Ronald Hafer of the National Judicial College. His objective were to have the participants be able to 1) use a common vocabulary of grammatical terms, 2) recognize the kinds of sentence structures they themselves tend to use, to 3) better edit their own writing by using the editing guide, 4) understand what we do when we read and 5) understand why the psychology of reading is important to writers. The moderator was Judge Martha Wentworth of the Indiana Tax Court.

The luncheon speaker was David Brunori of tax analysts who reviewed state legislative enactments and their impact on the economy.

This was followed by a timely report on “Foreclosure and Distressed Property Sales” by Thomas A. Jaconetty, Deputy Assessor of the office of the Cook County Assessor. He revisited the continuing chaotic and frenzied marketplace to update the foreclosure epidemic with an eye toward the states those essential entities in our federal system – seeking first to describe the problems that they face and then to investigate their problems solving techniques. Second what the states have done is sometimes disappointing but more often exemplary and finally, to administrative and judicial responses to this overriding question: How do we apply our commonly-accepted principles and theoretical framework to confront the ongoing formidable challenge of a depressed economy and a national real estate market still laboring under severe stress? The moderator was Chief Judge George Perez of the Minnesota Tax Court.

Professor Daphne A. Kenyon of the Lincoln Institute of Land Policy gave a report on “Rethinking Property Tax Incentives for Business: Analysis and Proposals for Reform” The moderator was Judge Tanner.

The final session of the afternoon consisted of a panel consisting of Judge Gail Menyvk of the Tax Court of New Jersey, Judge Martha Wentworth and Glenn Newman of the NewYork City Tax Commission and Tax Appeal Tribunal. They discussed how to work with pro se or self represented litigants and what works and what does not work.

A reception that evening was followed by a banquet and the presentation of awards. The presentation of the Lawrence L. Lasser Tax Judge of the Year Award was given to Judge Henry Breithaupt of the Oregon Tax Court.

The Saturday morning program, which was moderated by Glen Newman of the New York City Tax Commission and Tax Appeals Tribunal and Judge Breithaupt, was devoted to state and federal constitutional and statutory tax decisions and the implications of recent state tax decisions on state and local government. Presentations were made by Professor Richards Pomp of the University of Connecticut and Professor Kirk Stark of the University of California.

Many specialized tax tribunals have only a small number of members, and sometimes only a single judge. The National Conference of State Tax Judges provides the sole forum in which those who adjudicate state and local tax cases can confer with colleagues from other states and learn from their experiences. The Lincoln Institute was instrumental in developing the conference and has supported it since its inception.

The attendees were unanimous in their praise of the Conference and are looking forward to the 33rd Annual Conference, at Harvard University in September of 2013. ■

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