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New Orleans Riverwalk Marketplace, LLC v. The Louisiana Tax Commission

Court of Appeals of Louisiana, Fourth Circuit

April 30, 2018

NEW ORLEANS RIVERWALK MARKETPLACE, LLC
v.
THE LOUISIANA TAX COMMISSION AND ERROL G. WILLIAMS, IN HIS CAPACITY AS ASSESSOR FOR THE PARISH OF ORLEANS NORMAN S. FOSTER, AS EX-OFFICIO TAX COLLECTOR FOR THE CITY OF NEW ORLEANS AND THE CITY OF NEW ORLEANS

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-02740, DIVISION "DIV. F-7" Honorable Christopher J. Bruno, Judge

          Scott J. Sonnier ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLEE

          John J. Weiler Christian N. Weiler Reese F. Williamson WEILER & REES, LLC COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dennis R. Bagneris, Pro Tempore

          DANIEL L. DYSART JUDGE

         This is an appeal by Erroll G. Williams, the Assessor for the Parish of Orleans ("Assessor") of a district court judgment reversing a ruling of the Louisiana Tax Commission ("Tax Commission") which found that plaintiff-appellee, the New Orleans Riverwalk Marketplace, LLC ("Riverwalk"), was not entitled to a refund of taxes it paid in 2012. For the reasons that follow, we reverse the district court's judgment and find that Riverwalk is not entitled to a refund of its 2012 ad valorem tax payment.

         FACTS AND PROCEDURAL HISTORY

         According to the Riverwalk's Petition for Judicial Review and Appeal of Decision of the Louisiana Tax Commission (the "Petition") filed on March 17, 2016, the City of New Orleans (the "City") issued tax bill numbered 103100121 to Riverwalk for the 2012 tax year. The bill assessed Riverwalk's property interest as follows: $2, 284, 450 for the land and $158, 670.00 for the improvements. Riverwalk paid the tax bill in January, 2012.

         According to the Petition, after the bill was paid, "Riverwalk and the Assessor determined that the land assessed in [the tax bill], and which was assessed and taxed to Riverwalk in the subject tax bill, was actually owned by the Port of New Orleans ["the Port"]."[1] Riverwalk maintained that the land was exempt from taxation under the Louisiana Constitution. The Assessor corrected the error and made appropriate adjustments for the year 2013, and for each year thereafter.

         On October 20, 2014, Riverwalk requested a refund from the Tax Commission. A hearing on Riverwalk's refund request was held by the Tax Commission on December 8, 2015. The Tax Commission issued its ruling on February 12, 2016, denying Riverwalk's "request for refund of taxes paid in error." Its ruling was based on the "evidence presented by all parties . . . and based upon the entirety of the record, " and the Tax Commission's finding that "Riverwalk accepted the valuation and withdrew [its] appeal." More particularly, the Tax Commission found as follows:

The request [by the Riverwalk for a refund of the 2012 ad valorem taxes paid to the City] was made timely; however, the request was made subsequent to the withdrawal of an appeal to the Orleans Parish Board of Review.
The Riverwalk appealed to the Board and indicated a total requested assessed value of $1, 884, 050. T.J. Schoenemann of Thomas Reuters, Inc., a Property Tax Service, represented Riverwalk at the time of the appeal. Mr. Schoenemann formed his value using the income approach, a very reliable approach to value land and improvement as a total. Riverwalk later withdrew the appeal and accepted the assessor's value of $2, 273, 080.
Mr. Schoenemann's appeal withdrawal states, "Please accept this correspondence as acceptance of the 2012 valuation or assessment number 103100121 and withdrawal of the pending protest . . . ." Emphasis is given to "acceptance of valuation", not land valuation or improvement valuation, but the acceptance of the 2012 valuation of Assessment Number 103100121.

         Riverwalk then filed the instant action in Civil District Court for the Parish of Orleans on March 17, 2016, seeking a reversal of the Tax Commission's ruling and further seeking a refund of the taxes it maintains it erroneously paid. Named as defendants in this suit are the Tax Commission; the Assessor; Norman Foster, in his capacity as the City's ex-officio tax collector; and the City.

         After briefing by the parties, a hearing was held on the Petition on May 5, 2017. The district court issued a final judgment on May 22, 2017, reversing the Tax Commission's denial of Riverwalk's request for refund, granting Riverwalk's request and ordering Mr. Foster, as the City's tax collector, to refund $369, 648.22 to Riverwalk.[2]

         A suspensive appeal was timely taken by the Assessor.

         Record on appeal

         The record before us includes the following documents (the Administrative Record) and information submitted to the Commission and filed in the record in Civil District Court (listed in date order, where the date is known):

A November 12, 2012 form 3103.A, Appeal to the Tax Commission, appealing the Board of Review on the assessment of Riverwalk's property. The form lists the Assessor's original fair market value of the improvement at $5, 121, 200 and the ...

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