BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF )

MICHAEL J. & LEEANN R. RYAN FROM )

A DECISION OF THE JOHNSON COUNTY ) Docket No. 2009-24

BOARD OF EQUALIZATION - 2008 )

PROPERTY VALUATION )

DECISION AND ORDER

STATEMENT OF THE CASE

Michael J. and LeeAnn Ryan (Taxpayers) appealed the 2008 valuation of their property by the Johnson County Assessor (Assessor) to the Johnson County Board of Equalization (County Board). The County Board conducted a hearing on November 7, 2008, at which Michael J. Ryan, Mary Klaahson, Deputy County Assessor, and Dorothy Elsom, Johnson County Assessor, testified and presented exhibits. [County Board Record; Hearing Recording]. The County Board entered its Decision on December 16, 2008, affirming the Assessor’s 2008 fair market value for Taxpayers’ property. [County Board Record, Vol. I, pp. 20-24]. The decision was mailed to Taxpayers on December 17, 2008. [County Board Record, Vol. I, p. 19]. Taxpayers appealed the County Board decision to the State Board of Equalization (State Board).

The State Board is required to “hear appeals from county boards of equalization.” Wyo. Stat. Ann. § 39-11-102.1(c). Taxpayers’ Notice of Appeal was filed with the State Board effective January 16, 2009. Taxpayers’ appeal was filed timely. Rules, Wyoming State Board of Equalization, Chapter 3 § 2(a).

Taxpayers and Assessor filed briefs as allowed by a March 11, 2009, State Board Briefing Order. Taxpayers requested oral argument in their Opening Brief. The State Board, comprised of Chairman Thomas D. Roberts, Vice Chairman Steven D. Olmstead and State Board Member Deborah J. Smith, heard argument on July 7, 2009. Michael J. Ryan appeared pro se on behalf of the Taxpayers. Christopher M. Wages, Johnson County Attorney, and Barry V. Crago, Johnson County Civil Deputy Attorney, appeared on behalf of the Assessor. Mr. Ryan and Mr. Crago presented oral arguments.

ISSUES

Taxpayers assert the County Board erred in affirming the Assessor’s valuation in light of the evidence presented at the County Board hearing, including a two year old appraisal, other sales information, the sale of Taxpayers’ property in 2008, and general real estate market conditions. [Taxpayers’ Opening Brief, pp. 1-2].

The Assessor states four issues: Was the County Board decision arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law? Was the County Board decision in excess of statutory jurisdiction, authority or limitation or lacking statutory right? Did the County Board fail to observe procedure required by law? Was the County Board’s decision supported by substantial evidence? [ Johnson County Assessor’s Response Brief, p. iv].

We affirm the decision of the County Board.

STANDARD OF REVIEW

When the State Board hears appeals from a county board of equalization, it acts as an intermediate level of appellate review. Laramie County Board of Equalization v. Wyoming State Board of Equalization, 915 P.2d 1184, 1188 (Wyo. 1996); Union Pacific Railroad Company v. Wyoming State Board of Equalization, 802 P.2d 856, 859 (Wyo. 1990). In its appellate capacity, the State Board treats the County Board as the finder of fact. Id.

The State Board’s rules governing appeals of County Board decisions are patterned on the judicial review provision of the Wyoming Administrative Procedure Act. Wyo. Stat. Ann. § 16-3-114(c).

When [a person] challenges a [county board]’s findings of fact and both parties submitted evidence at the contested case hearing, we examine the entire record to determine if the [county board]’s findings are supported by substantial evidence. Colorado Interstate Gas Co. v. Wyoming Department of Revenue, 2001 WY 34, ¶ 8, 20 P.3d 528, 530 (Wyo.2001); RT Commc’ns, Inc. v. State Bd. of Equalization, 11 P.3d 915, 920 (Wyo.2000). If the [county board]’s findings of fact are supported by substantial evidence, we will not substitute our judgment for that of the [county board] and will uphold the factual findings on appeal. “Substantial evidence is more than a scintilla of evidence; it is evidence that a reasonable mind might accept in support of the conclusions of the agency.” Id.

Chevron U.S.A., Inc. v. Department of Revenue, 2007 WY 79, ¶ 9, 158 P.3d 131, 134 (Wyo. 2007).

Under this standard, county board findings of ultimate fact are reviewed de novo.

“When an agency’s determinations contain elements of law and fact, we do not treat them with the deference we reserve for findings of basic fact. When reviewing an ‘ultimate fact,’ we separate the factual and legal aspects of the finding to determine whether the correct rule of law has been properly applied to the facts. We do not defer to the agency’s ultimate factual finding if there is an error in either stating or applying the law.” Basin Elec. Power Co-op., Inc. v. Dep’t of Revenue, State of Wyo., 970 P.2d 841, 850-51 (Wyo. 1998)(citations omitted).

Britt v. Fremont County Assessor, 2006 WY 10, ¶ 17, 126 P.3d 117, 123 (Wyo. 2006).

The State Board’s review is limited to a determination of whether the County Board action was:

(a) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(b) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(d) Unsupported by substantial evidence.

Rules, Wyoming State Board of Equalization, Chapter 3 § 9.

FACTS PRESENTED TO THE COUNTY BOARD

1. Taxpayers owned residential property at 510 Hamilton Street, Buffalo, Johnson County, Wyoming, as of the assessment date, January 1, 2008. [County Board Record, Vol. I, pp. 5, 7, 13; Hearing Recording]. The property consists of the east one-half of four lots, with a 1,915 square foot, single story ranch-style modular home, and a 576 square foot detached garage. [County Board Record, Vol. I, pp. 14-18; Hearing Recording].

2. The Assessor originally set the 2008 fair market value of Taxpayers’ property at approximately $353,000. [County Board Record, Hearing Recording]. After being contacted by Taxpayers, field appraisers from the Assessor’s office reviewed the property. Based upon the review, the Assessor revised the information used to value Taxpayers’ property and issued a revised assessment valuing Taxpayers’ property for tax purposes at $323,772. Taxpayers’ land was valued at $56,503. The residential improvements, including the modular home and detached garage, were valued at $267,269. [County Board Record, Vol. I, p. 5]. The revised assessment reflects it was mailed to Taxpayers on October 1, 2008. [County Board Record, Vol. I, p. 5].

3. Taxpayers filed a Statement of Protest challenging the Assessor’s fair market value of their property on October 28, 2008. [County Board Record, Vol. I, pp. 1-4, 12].

4. Taxpayers’ written protest stated:

“Market Value & Sale prices have gone down considerably over the last year. Our home was listed for a year with no offers and priced under $300,000. We sold our home on contract August 3, 2008 for [$]292,500 which is the highest sale in town based on similar homes. At this point in time it’s market value would be considerably less than what we sold it for.”

[County Board Record, Vol. I, pp.1-2; Hearing Recording].

5. Mr. Ryan testified on behalf of himself and LeeAnn R. Ryan. He is a local real estate agent, and had access to Multiple Listing Service (MLS) real estate market information. [County Board Record, Hearing Recording].

6. Mr. Ryan provided MLS information in the form of a “CMA Summary Report.” The report contained information on seven sales, the Taxpayers’ sale of their property and six other property sales. [County Board Record, Vol. I, p. 6]. He characterized the selected properties as the best comparables he could find. [County Board Record, Hearing Recording]. He did not provide any information concerning the characteristics of the six other properties or make any sales price adjustments to account for differences between Taxpayers’ property and the other six properties.

7. Taxpayers’ house was included on the list. [County Board Record, Vol. I, pp. 6-8]. It sold for more than the other six selected properties. Mr. Ryan stated the average selling price for the seven properties was $240,000, which was considerably lower than the Assessor’s valuation of Taxpayers’ property. [County Board Record, Vol. I, p. 6; Hearing Recording]. No analysis comparing property characteristics was presented by Taxpayers.

8. Mr. Ryan told the County Board that Taxpayers’ property was on the market for a year before it sold in July 2008 for $292,500. Taxpayers accepted a contract for deed from the buyers. [County Board Record, Vol. I, pp. 10-11; Hearing Recording].

9. Mr. Ryan also presented a “Year to Year Comparison Report” containing MLS sales information. [County Board Record, Vol;. I, p. 9; Hearing Recording]. The report compared sales from 2007 to sales from January through October 16, 2008. [County Board Record, Vol. I, p. 9]. Mr. Ryan represented the report established that Johnson County property values had decreased between 11% and 15%, with an average decrease of 8% from 2007 to 2008. [County Board Record, Vol. I, p. 9; Hearing Recording]. He expressed his opinion that values were going down in contrast to his assessment which continued to increase. [County Board Record, Vol. I, p. 9; Hearing Recording].

10. Mr. Ryan testified briefly concerning an appraisal of Taxpayers’ property completed two years earlier for refinancing purposes. The appraisal valued Taxpayers’ property at $312,000, which was $2,000 less than the Assessor’s 2007 fair market value of $314,000. [County Board Record, Hearing Recording]. The appraisal was not presented at the County Board hearing, nor did the appraiser testify. [County Board Record, Hearing Recording].

11. Taxpayers requested “[t]he taxes at the most should not be higher than the sale price and if a proper [and] correct market analysis was done it would be even less.” [County Board Record, Vol. I, pp.1-2; Hearing Recording].

12. Mary Klaahson, Deputy Assessor, testified on behalf of the Assessor. She stated the Assessor’s Office employs the state mandated computer assisted mass appraisal (CAMA) system to value all residential properties in Johnson County, including Taxpayers’ property. [County Board Record, Hearing Recording].

13. Ms. Klaahson testified the Assessor used prior year sales of properties within a neighborhood of properties similar to Taxpayers’ property to adjust the fair market value of all properties, including Taxpayers’ property for the current year. In selecting comparable properties within a neighborhood, the Assessor took into consideration the quality, condition, year built, and square footage of properties which sold during the prior year. [County Board Record, Hearing Recording].

14. Dorothy Elsom, the Johnson County Assessor, testified the state mandated mass appraisal system was used to value Taxpayers’ property. She testified the sales disclosure statements she reviewed did not show all sales prices were going down, contrary to the MLS information submitted by Taxpayers.

APPLICABLE LAW

15. The Wyoming Constitution, article 15, § 11(b), provides in pertinent part: “[a]ll taxable property shall be valued at its full value as defined by the legislature except agricultural and grazing lands which shall be valued according to the capability of the land to produce agricultural products under normal conditions.”

16. The Wyoming Constitution, article 15 § 11(d), requires “[a]ll taxation shall be equal and uniform within each class of property. The legislature shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal.”

17. Broken into its component parts, the constitutional standard requires: (1) a rational method; (2) equally applied to all property; and (3) essential fairness. It is the burden of one challenging an assessment to prove by a preponderance of the evidence that at least one of these elements has not been fulfilled. Basin Electric Power Coop. v. Dept. of Revenue, 970 P.2d 841, 852 (Wyo.1998).

18. The Legislature has required all property in Wyoming to be valued annually at fair market value. Wyo. Stat. Ann.§ 39-13-103(b)(ii). The statutory valuation date is January 1 of each year; all taxable property must be valued and assessed for taxation in the name of the owner of the property on that date. Wyo. Stat. Ann. § 39-13-103(b)(i).

19. Fair market value is defined as:

[T]he amount in cash, or terms reasonable equivalent to cash, a well informed buyer is justified in paying for a property and a well informed seller is justified in accepting, assuming neither party to the transaction is acting under undue compulsion, and assuming the property has been offered in the open market for a reasonable time.

Wyo. Stat. Ann. § 39-11-101(a)(vi).

20. Each county assessor annually determines the fair market value of residential real property within their county. Wyo. Stat. Ann. § 18-3-204(a)(i), (ii), (vi); Wyo. Stat. Ann. § 39-13-103(b)(i). In so doing, the assessor must “[f]aithfully and diligently follow and apply the orders, procedures and formulae of the department of revenue or orders of the state board of equalization for the appraisal and assessment of all taxable property.” Wyo. Stat. Ann. § 18-3-204(a)(ix).

21. The Department has a corresponding statutory obligation to confer with, advise and give necessary instructions and directions to the county assessors as to their duties, and to promulgate rules and regulations necessary for the enforcement of all tax measures. Wyo. Stat. Ann. § 39-11-102(c)(xvi), (xix). The Department is required to “[p]rescribe the system of establishing the fair market value of all property valued for property taxation to ensure that all property within a class is uniformly valued.” Wyo. Stat. Ann. § 39-11-102(c)(xv). In particular, the Department must “prescribe by rule and regulation the appraisal methods and systems for determining fair market value using generally accepted appraisal standards.” Wyo. Stat. Ann. § 39-13-103(b)(ii).

22. The Department has promulgated rules which establish appraisal techniques which may be used by an assessor. Rules, Wyoming Department of Revenue, Chapter 9, § 6. These techniques include the Sales Comparison Approach, the Cost Approach, and the Income or Capitalized Earnings Approach. Rules, Wyoming Department of Revenue, Chapter 9, § 6 (a.), (b.), (c.). Administrative rules have the force and effect of law. Wyo. Dep’t of Revenue v Union Pacific Railroad Co., 2003 WY 54,¶ 18, 67 P.3d 1176, 1184 (Wyo. 2003); Painter v. Abels, 998 P.2d 931, 939 (Wyo. 2000).

23. The Department also prescribes how the various valuation methods are to be evaluated and utilized by an assessor:

Section 6. Appraisal Methods.

The appraisal techniques which may be used by the County Assessor or the Ad Valorem Tax Division under written agreement with a county include the approaches described in this section. Each approach used shall be an appropriate method for the type of property being valued; that is, the property shall fit the assumptions inherent in the appraisal method in order to calculate or estimate the fair value of the property. Each approach used shall also consider the nature of the property or industry, and the regulatory and economic environment within which the property operates.

(a.) The Sales Comparison Approach. The comparable sales approach is an appropriate method of valuation when there is an adequate number of reliable arms-length sales and the properties subject to such sales are similar to the property being valued. Comparable sales shall be adjusted to reflect differences in time, location, size, physical attributes, financing terms or other differences which affect value. The use of this approach to value depends upon:

(i.) The availability of comparable sales data;

(ii.) The verification of the sales data;

(iii.) The degree of comparability or extent of adjustment necessary for time differences; and

(iv.) The absence of non-typical conditions affecting the sales price.

(b.) The Cost Approach. The cost approach is a method of estimating value by summing the land value, where applicable, with the depreciated value of improvements. The approach may also be used to establish value for personal property through the process of cost estimation. The cost approach relies on the principle of substitution in which an informed buyer will not pay more for a property than its comparable replacement. The approach requires:

(i.) Accurate, current land values in the case of real property;

(ii.) Accurate, pertinent physical data regarding the property to which cost data may be applied;

(iii.) Current cost data which considers appreciation in the case of real and personal property;

(A.) Costs may be estimated on the basis of typical reproduction or replacement costs.

(B.) Typical reproduction and replacement costs may be estimated by the quantity survey method, the unit-in-place method, the comparative unit method, or the trended original cost method.

(C.) The appraiser may use cost manuals where available or may design his own. Such manuals shall be based on actual costs and shall indicate which indirect costs are included. Such manuals shall also provide normal depreciation and age-life information.

(iv.) Depreciation in the case of real and personal property. For personal property:

(A.) The Ad Valorem Tax Division shall provide tables of depreciation factors for use by property tax appraisers. Other rates of depreciation may be developed by the appraiser.

(B.) The Ad Valorem Tax Division shall develop economic life tables based on information from such sources as, but not limited to, the Internal Revenue Service publications 534 and 946 as well as Marshall Valuation Service and recommendations from the Wyoming County Assessors Association.

(C.) Depreciation shall be applied beginning at the first assessment date after the property is acquired.

(D.) Depreciation shall continue to be applied until the residual value is reached. The residual value shall be considered to be no less than 20% for all personal property, unless the property tax appraiser has collected sufficient market information to indicate a different residual value.

* * *

(c.) The Income or Capitalized Earnings Approach. The income or capitalized earnings approach is a method of estimating the value of property by converting anticipated benefits to be derived from the ownership of the property into a value estimate as is reflected or accomplished by yield capitalization methodology. These benefits can be reflected through the net operating income or cash flow of a company. . . ..

* * *

(d.) Computer Assisted Mass Appraisal(CAMA). The following CAMA systems are the only automated systems adopted and approved to value taxable property assessed at the local level for ad valorem tax purposes: . . ..

Rules, Wyoming Department of Revenue, Chapter 9, § 6(a.)-(d.).

24. The Department’s Rules specifically provide for use of a CAMA system. Rules, Wyoming Department of Revenue, Chapter 9, § 6 (d.). CAMA “automates the comparable sales and replacement cost methods.” Britt v. Fremont County Assessor, 2006 WY 10, ¶ 39, 126 P.3d 117, 128 (Wyo. 2006).

25. The Department Rules, at Chapter 9 provide:

Section 7. Reconciliation. The appraiser shall weigh the relative significance, applicability and appropriateness of the indications of value derived from the approaches to value or methods outlined above, and will place the most weight and reliance on the value indicator which, in his professional judgment, best approximates the value of the subject property. The appraiser shall evaluate all alternative conclusions and reconcile the value indicators to arrive at a final estimate of value. For market value, the final estimate is that value which most nearly represents what the typical, informed, rational purchaser would pay for the subject property and a rational seller would accept if it were available for sale on the open market as of the date of the appraisal, given all the data utilized by appraisers in their analyses.

26. The determination of fair market value inevitably involves a degree of discretion:

Early on, Justice Blume recognized a truth inherent in the area of property valuation: “There is no such thing as absolute value. A stone cannot be other than a stone, but one man may give a different valuation to a piece of land than another.” Bunten v. Rock Springs Grazing Ass’n, 29 Wyo. 461, 475, 215 P. 244, 248 (l923). Accordingly, this court has consistently interpreted Wyo. Const. art. 15, § 11 to require “only a rational method [of appraisal], equally applied to all property which results in essential fairness.”

Basin Electric Power Coop. v. Dept. of Revenue, 970 P.2d 841, 857 (Wyo.1998) quoting Holly Sugar Corp. v. State Board of Equalization, 839 P.2d 959, 964 (Wyo.1992). The Wyoming Supreme Court has recently reiterated the “rational method” standard. Britt v. Fremont County Assessor, 2006 WY 10, ¶ 18, 126 P.3d 117, 123 (Wyo. 2006).

27. An assessor’s valuation is presumed valid, accurate, and correct. This presumption survives until overturned by credible evidence. Britt v. Fremont County Assessor, 2006 WY 10, ¶ 23, 126 P.3d 117, 125 (Wyo. 2006); Thunder Basin Coal Company v. Campbell County, Wyoming Assessor, 2006 WY 44, ¶ 13, 132 P.3d 801, 806 (Wyo. 2006); Teton Valley Ranch v. State Board of Equalization, 735 P.2d 107, 113 (Wyo. 1987). A mere difference of opinion as to value is not sufficient to overcome the presumption. J Ray McDermott & Co. v. Hudson, 370 P.2d 364, 370 (Wyo. 1962); Thunder Basin Coal Company v. Campbell County, Wyoming Assessor, 2006 WY 44, ¶¶ 13, 48, 132 P.3d 801, 806, 816 (Wyo. 2006). The presumption is especially valid where the Assessor valued the property according to the Department’s Rules and Regulations which provide for the use of the CAMA system in the assessment of real property. Rules, Wyoming Department of Revenue, Chapter 9 § 6(b.), (d.). “The burden is on the taxpayer to establish any overvaluation.” Hillard v. Big Horn Coal Co., 549 P.2d 293, 294 (Wyo. 1976).

28. The Wyoming Supreme Court has described the burden of proof for a taxpayer challenging a county assessor’s valuation:

A strong presumption favors the Assessor’s valuation. “In the absence of evidence to the contrary, we presume that the officials charged with establishing value exercised honest judgment in accordance with the applicable rules, regulations, and other directives that have passed public scrutiny, either through legislative enactment or agency rule-making, or both.” Amoco Production Co. v. Dept. of Revenue, 2004 WY 89, ¶ 7, 94 P.3d 430, 435 (Wyo. 2004). The Britts [i.e., the protesting taxpayers] had the initial burden of presenting evidence sufficient to overcome the presumption. Id., ¶ 8. If the Britts successfully overcame the presumption, then the county board was “required to equally weigh the evidence of all parties and measure it against the appropriate burden of proof.” CIG v. Wyoming Dept. of Revenue, 2001 WY 34, ¶ 10, 20 P.3d 528, 531 (Wyo. 2001). The burden of going forward would then have shifted to the Assessor to defend her valuation. Id. Above all, the Britts bore “the ultimate burden of persuasion to prove by a preponderance of the evidence that the valuation was not derived in accordance with the required constitutional and statutory requirements for valuing . . . property.” Id.

Britt, supra, 2006 WY 10, ¶ 23, 126 P.3d at 125.

29. The Wyoming Supreme Court has recognized the validity of valuations derived from the CAMA system. Gray v. Wyoming State Board of Equalization, 896 P.2d 1347 (Wyo. 1995), Britt v. Fremont County Assessor, 2006 WY 10, ¶ 17, 126 P.3d 117, 123 (Wyo. 2006). In fact, the Wyoming Supreme Court rejected the use of actual sales price for properties in favor of the value established by the CAMA system because of the equality and uniformity which result from its use. Gray, supra, at 1351.

DISCUSSION AND ANALYSIS

30. The protesting taxpayer has the initial burden of presenting sufficient evidence to overcome the presumption in favor of the assessor. If the taxpayer meets that burden, the burden of going forward shifts to the assessor to defend their valuation. The ultimate burden of proof - burden of persuasion - is, however, always borne by the protesting taxpayer. Britt, supra ¶ 28.

31. Taxpayers asserts generally the evidence presented at the County Board hearing, a two year old appraisal, a contract for the sale of the property in 2008, a list of 7 house sales, and a summation of sales for 2007 and part of 2008, was sufficient to meet the requirements set out in Britt. The contract for deed offered by Taxpayers as evidence of the value of their property is deficient. First, the contract was entered into after the valuation date. The Assessor is bound to value locally-assessed property as of January 1^st of each tax year. Supra ¶ 18. Any information related to sales occurring after that date may not be used by the Assessor. Second, the use of an actual sales price has been rejected in favor of the use of a computerized mass appraisal system to insure uniformity and equality. Supra ¶ 29.

32. The list of property sales Taxpayers provided as comparable sales suffers from at least two deficiencies. First, there is no indication of the sales date for any of the properties except Taxpayer’s sale. The relevant date for valuation and assessment of local-assessed property by a county assessor is January 1^st. Supra ¶ 18. To be relevant, any sales data must be for sales occurring prior to that date. If Taxpayers intended the comparable sales to reflect values as of January 1, 2008, such fact is not in evidence. The analysis, at best, is simply a recitation of the sales prices of other properties selected by Taxpayers which is not sufficient to overcome the presumption of validity in favor of an assessor’s value. Supra ¶¶ 27-28.

33. The second deficiency with the property list was Taxpayers’ failure to present evidence of the characteristics of the other properties. For the sales to be relevant as comparables, they must “be adjusted to reflect differences in time, location, size, physical attributes, financing terms or other differences which affect value.” Rules, Wyoming Department of Revenue, Chapter 9, § 6(a.), supra ¶ 23. Without this information, no conclusion with respect to the fair market value of Taxpayers’ property may be drawn from sales of other properties.

34. Mr. Ryan’s brief mention of a two year old fee appraisal of Taxpayers’ property was not sufficient to call into question the Assessor’s determination of value for four reasons. First, the appraisal was not included as an exhibit. Supra ¶ 10. Second, the appraisal was performed for purposes of obtaining refinancing. Supra ¶ 10. Third, the appraisal was done more than two years prior to the statutory assessment date of January 1, 2008, to which the Assessor is bound. Supra ¶¶ 10, 18. Fourth, the appraiser was not identified nor called as a witness at the hearing. Supra ¶ 10. The County Board record, thus, lacks any evidentiary input by the appraiser as to why his appraisal for refinancing purposes two years earlier should equate to a fair market value determination for tax purposes as of January 1, 2008.

35. Taxpayers also relied on a summary of sales in Johnson County in 2007 and a portion of 2008. Supra ¶ 9. This evidence does not in any manner provide insight into whether the Assessor’s valuation of Taxpayers’ property was correct. Taxpayers’ comparison of the Multiple Listing Service (MLS) sales information for all of 2007 with a portion of 2008 is not sufficient to call into question the Assessor’s valuation of Taxpayers’ property for the following reasons. First, the summary of MLS sales information includes information for sales which occurred after the statutory assessment date of January 1, 2008, which the assessor may not use. Supra ¶ 18. In addition, it attempts to compare information for all of 2007 with information for only a portion of 2008. Supra ¶ 9. Without full information for both years, no valid comparison is possible. Finally, the summary information provides no information about the properties sold or how they would compare, if at all, to Taxpayers’ property. Supra ¶¶ 9, 23.

36. Taxpayers did not present any evidence directly challenging the CAMA system or its use by the Assessor. A taxpayer can not prevail by simply having an opinion contrary to that of the Assessor and the Department Rules on how property should be valued. As we have noted, a mere difference of opinion is not sufficient to overcome the presumption in favor of the Assessor’s valuation. Supra ¶ 27.

37. The CAMA system ensures all residential real estate is valued using the same rational method. By its uniform application, the constitutional requirements of uniformity and essential fairness are met. Supra ¶ 29.

38. We conclude the testimony concerning a two year old fee appraisal completed for refinancing purposes, MLS listing information, and the sale of their property on a contract for deed after the assessment date is not sufficient to overcome the presumption in favor of the Assessor’s valuation for the reasons set forth above. Supra ¶¶ 26-29.

39. The valuation derived by the Assessor using the CAMA system and the approaches to value approved by the Department is presumed valid, accurate, and correct. Supra ¶¶ 27-29.

40. The decision of the County Board affirming the Assessor’s valuation is supported by substantial evidence. Taxpayers did not prove by a preponderance of the evidence the Assessor’s valuation was not derived in accordance with the constitutional and statutory requirements. Supra ¶¶ 27-29. We further conclude, based on our review of the County Board record, the County Board decision was neither unlawful, arbitrary, nor capricious.

Miscellaneous Issues

41. A review of the record in this case revealed two procedural matters which bear comment. First, the witnesses who testified at the hearing were not sworn. [County Board Record, Hearing Recording; State Board Record, Johnson County Clerk Letter dated October 9, 2009]. Second, Taxpayers’ exhibits were not clearly marked or identified on the record and were not formally admitted.

42. By order dated September 11, 2009, the State Board requested the Johnson County Clerk, as the clerk of the County Board, supplement the certified record with any documentation or recording indicating the witnesses were placed under oath prior to their testimony. The County Clerk responded by letter dated October 9, 2009, stating “after a thorough review of the record, it is a fact that the witnesses were not placed under oath.” [State Board Record, County Clerk Letter dated October 9, 2009].

43. The failure to swear the witnesses was not questioned at the time of the County Board hearing by neither the hearing officer, the Taxpayers, nor the Assessor’s attorney. [County Board Record, Hearing Recording].

44. The purpose of the oath and the effect of the failure to swear a witness was discussed by the Wyoming Supreme Court in the context of a criminal matter.

The value and purpose of the oath is twofold: 1) it is meant to bind the conscience of the witness; and 2) to make him amenable to prosecution if he gives perjured information. Wilcoxon v. United States, supra [231 F.2d 384 (10th Cir.1956), cert. denied 351 U.S. 943, 76 S.Ct. 834, 100 L.Ed. 1469]. It is speculative to contend that an oath serves to impress the jury with the witness’ credibility. This is particularly true in this case. In his brief, appellant says, “It slipped everyone’s mind that he (appellant) had not been sworn.” If this neglect slipped the minds of the trial court, respective attorneys, and the appellant, how can we imagine it was noted by the jury or if such omission in any way influenced the jury? Appellant has not demonstrated any prejudice.

Heier v. State, 727 P.2d 707, 709 (Wyo. 1986).

45. A number of courts have concluded the lack of an oath is waived if such failure is not raised during the testimony of the witnesses in question.

It is well settled that the swearing of a witness is waived by failure to raise the point during the witness’ testimony, thus denying the trial court an opportunity to correct what has been characterized as an “irregularity.” [footnote omitted] The rationale of this principle was declared a century and a half ago in the oft-cited case of Cady v. Norton, 14 Pick. 236, 237 (Mass.1833). The Court in that case stated two justifications for the rule: First, the defect or failure could have been corrected if a timely objection had been made; second, in the absence of a waiver rule counsel might deliberately avoid objecting to a witness being unsworn in order to have a ground of appeal.

United States v. Odom, et al, 736 F.2d 104, 114-115 (4^th Cir. 1984).

It has long been the general rule that even a failure to swear a witness may be waived. This may occur either by knowing silence and an attempt to raise objection after verdict or by the mere failure of counsel to notice the omission before completion of the trial.

United States v. Perez, 651 F.2d 268, 273 (5th Cir.1981).

See also, Wilcoxon v. United States, 231 F.2d 384, 386-87 (10th Cir.), cert. denied, 351 U.S. 943, 76 S.Ct. 834, 100 L.Ed. 1469 (1956); Beausoliel v. United States, 107 F.2d 292, 294 (D.C.Cir.1939); O’Neill v. Clark, 57 Neb. [760] 769, 78 N.W. 256, 257-58 (1899); Sewall v. Spinney Creek Oyster Co., Inc., (Me.) 421 A.2d 36, 39 (1980); Saxton v. State, 389 So.2d 541, 543 (Ala.Cr.App.1980).

46. Similarly, in an action to establish a private road, the failure to swear the appointed viewers was found insufficient to invalidate the proceedings.

The record does not clearly establish whether the viewers took an oath to “faithfully and impartially perform their duties,” as required by the statute. One of the viewers testified under oath that he had been sworn, while another could not remember being sworn. A presumption of regularity attaches to such administrative proceedings, and the failure to subscribe to an oath in the exact manner prescribed in a statute is a mere irregularity that does not invalidate the entire procedure, Miller v. Hagie, 59 Wyo. 383, 395, 140 P.2d 746, 750 (1943), as the failure to swear a witness in a judicial proceeding does not necessarily create grounds for a new trial. Heier v. State, 727 P.2d 707, 709 (Wyo.1986).

Voss v. Albany County Commissioners, 2003 WY 94 ¶ 21, 74 P.3d 714, 721 (Wyo. 2003). Notwithstanding these decisions, the value and purpose of the oath should not be discounted. All witnesses should be administered an oath or affirmation on the record prior to testifying at a County Board hearing. We find, however, any objection to the failure to swear witnesses at this hearing was waived by the parties and does not constitute grounds for a remand in this case.

47. While the State Board was able to correlate the documents discussed by Mr. Ryan during the County Board hearing with the documents in the record, the correct procedure for admission of documents was not followed. The party offering a document should have it marked as an exhibit and identify it on the record. The opposing party should then be afforded an opportunity to review the document and make any objection to its introduction prior to its use at the hearing. See Edward W. Cleary, et al., McCormick on Evidence, 122-123 (3^rd ed. 1984). While we consider the absence of any objection by the Assessor’s attorney to the documents or the testimony of Mr. Ryan’s concerning the documents a waiver of any objection, we do not condone the practice. If the testimony by Mr. Ryan had not been clear, it would have been necessary to remand the case for a new hearing with proper exhibit identification.

ORDER

IT IS THEREFORE HEREBY ORDERED the Johnson County Board of Equalization Order affirming the Assessor’s 2008 valuation of Taxpayers’ property is affirmed.

Pursuant to Wyo. Stat. Ann. §16-3-114 and Rule 12, Wyoming Rules of Appellate Procedure, any person aggrieved or adversely affected in fact by this decision may seek judicial review in the appropriate district court by filing a petition for review within 30 days of the date of this decision.

DATED this day of October, 2009.

STATE BOARD OF EQUALIZATION

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Thomas D. Roberts, Chairman

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Steven D. Olmstead, Vice-Chairman

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Deborah J. Smith, Board Member

ATTEST:

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Wendy J. Soto, Executive Secretary