Starting with the release of the Governor’s Budget Bill in January 2018, the 30-day amendments to that Bill on February 15, and the amendments to the Assembly Bill and Senate Bill this month, there has been much action this legislative session concerning the potential response to federal tax reform. The proposed response in the two latest bills—the Assembly Bill (AB 9509) and the Senate Bill (SB 7509)—is discussed below.
Repatriated Earnings: Both the Assembly and the Senate Bills contain the changes originally suggested in the 30-day amendments to the Governor’s Budget Bill with respect to the deemed repatriated earnings under IRC § 965. This language provides that the deemed repatriated earnings will be considered “exempt CFC income” with the result that any amount included in the federal tax base under the repatriation transition provisions will be excluded from the taxable income base, even if such amounts were received from a non-unitary subsidiary. This proposed exclusion for amounts deemed received from non-unitary subsidiaries is an expansion of New York’s usual policy, which only considered exempt CFC income to include income from unitary subsidiaries.
Both Bills also make clear that the federal deduction permitted under IRC § 965(c) (which facilitates a reduction of the effective federal tax rate on the deemed repatriated foreign earnings) would not be allowed in computing New York taxable income. We expected New York would make this proposed change because disallowing the § 965(c) deduction from New York taxable income would be consistent with excluding the deemed repatriation from taxable income.
GILTI: The Senate Bill now attempts to extend similar treatment to global intangible low-taxed income (GILTI) that may be included in a taxpayer’s income under IRC § 951A, with the result that GILTI would be “exempt CFC income” excluded from taxable income. As with the deemed repatriated earnings, this treatment would extend to GILTI attributable to non-unitary subsidiaries.
Technical adjustments may need to be made to the language in the Senate Bill to implement the treatment intended by the Senate because the current language provides for an exclusion for “income required to be included in the taxpayer’s federal gross income pursuant to subsection (A) of Section 951 of the Internal Revenue Code, without regard to the deduction under Section 250 of the Internal Revenue Code . . . ” The proper reference, however, should be to IRC § 951A, not IRC § 951(A).
In addition, as with the deduction that is intended to provide a reduced federal rate on the deemed repatriated foreign earnings, the Senate Bill also provides that the GILTI deduction would not be excluded in determining taxpayers’ income tax bases.
Interest Limitation. The Senate Bill also provides that New York State would decouple from the interest limitations under IRC § 163(j). However, it is not certain that the language used in the Senate Bill will be effective in completely decoupling from IRC § 163(j). The language provides that a taxpayer’s entire net income for New York State purposes will be computed “without the exclusion, deduction or credit of . . . the amount disallowed as a deduction pursuant to” IRC § 163(j)(1). However, IRC § 163(j)(1) does not exclude, deduct or credit the interest disallowance in computing federal taxable income; IRC 163(j)(1) includes such amount. Therefore, the statutory language should be enacted, consistent with other statutory add-back modifications in New York’s Tax Law, to provide that entire net income shall not “include” the IRC §163(j)(1) disallowance.
FDII: Under the Senate Bill, the Foreign-Derived Intangible Income (FDII) deduction allowed by IRC § 250 would be allowed in computing the income tax base of the New York corporate franchise tax.
FDIC Premiums: The Senate Bill provides that New York State would decouple from the provision disallowing the deduction of Federal Deposit Insurance Corporation (FDIC) premiums.
Surcharge: The Assembly Bill, but not the Senate Bill, also includes the imposition of a 3 percent tax surcharge on the franchise tax liability of most corporations. This is designed to tax the “windfall” that corporations have been touted to have received under the TCJA.
New York City Conformity: The Assembly Bill and the Senate Bill both extend their proposed statutory adjustments in response to the TCJA to the New York City Administrative Code, thus retaining conformity between the New York State and the New York City corporate franchise taxes.
On February 9, 2018, Idaho Governor Otter signed into law HB 355. Under this legislation, the Idaho Code adopted the deemed repatriated foreign earnings provisions in IRC § 965. Because the starting point for computing the Idaho state tax base is federal taxable income, under this Idaho legislation the foreign earnings deemed repatriated under IRC § 965 should be included in the Idaho state tax base for tax years beginning on or after January 1, 2017. However, the legislation explicitly disallows the deduction under IRC § 965(c) which is used to facilitate the reduced federal tax rate on the deemed repatriated foreign earnings. Idaho law currently has an 85 percent dividend-received deduction that applies for water’s-edge taxpayers to amounts included in income by reference to Subpart F income; this deduction should apply to the foreign earnings deemed repatriated under IRC § 965(a) of Subpart F. Accordingly, under current law only 15 percent of the foreign earnings deemed repatriated should be included in state taxable income for water’s-edge taxpayers.
On March 12, 2018, the governor signed into law HB 463. This legislation provides that for tax years beginning on or after January 1, 2018, Idaho conforms to the IRC as in effect on January 1, 2018, including the provisions of the TCJA. Thus, GILTI included in federal taxable income under IRC § 951A should be included in the Idaho state tax base beginning in 2018. As with the disallowance of the deduction for deemed repatriated foreign earnings under HB 355, HB 463 explicitly disallows the IRC § 250 deduction for 50 percent of the GILTI, which at the federal level facilitates the reduced effective tax rate on the GILTI. However, the state’s 85 percent dividend-received deduction for Subpart F income should apply to GILTI since IRC § 951A is included under Subpart F of the IRC. Accordingly, under current law only 15 percent of GILTI should be included in state taxable income for water’s-edge taxpayers. This legislation also disallows the deduction for IRC § 78 gross-up amounts related to GILTI and the federal deduction for 37.5 percent of FDII, both provided for in IRC § 250.
There is proposed legislation in Idaho that would change one of the recently enacted provisions by removing the state’s addback of deductions under IRC § 965(c) (but not IRC § 250). HB 684. This bill was heard and passed out of the House Revenue and Taxation Committee earlier this week.
Iowa SF 2383 would provide rolling conformity with the IRC beginning on January 1, 2019. The bill would also change Iowa’s net operating loss regime for tax years beginning on or after January 1, 2019, to specifically conform to the federal regime. Currently, the starting point for computing the Iowa tax base is federal taxable income before the federal net operating loss deduction and then Iowa provides a net operating loss deduction to the extent apportioned Iowa taxable income results in a net operating loss. The bill would change the starting point for determining the corporate state tax base to federal taxable income including the federal net operating loss deduction and remove the Iowa net operating loss deduction. To address carryforwards, the bill would provide that federal net operating losses carried forward from a year beginning before January 1, 2019, should be added back to the state tax base and, instead, the Iowa net operating loss deduction as computed under the current law would be permitted with respect to loss carryforwards from a year beginning before January 1, 2019.
The bill does not specifically address Iowa’s treatment of any of the TCJA provisions. Since the rolling IRC conformity would apply to tax years beginning on or after January 1, 2019, the foreign earnings deemed repatriated under IRC § 965 would not impact the computation of a taxpayer’s Iowa corporate income tax. With respect to the GILTI included in the federal tax base under IRC § 951A, that income would be included in the Iowa state tax base under the bill, along with the 50 percent deduction of such income provided in IRC § 250. Iowa does provide a deduction for “the amount of foreign dividend income, including subpart F income as defined in section 952 of the Internal Revenue Code, based upon the percentage of ownership as set forth in section 243 of the Internal Revenue Code” (Iowa Code § 422.35.21); however, that deduction would only apply to the extent that GILTI is considered a dividend because GILTI is not subpart F income as defined in section 952. While uncertain, it is unlikely that GILTI will be considered a dividend. Assuming the GILTI is not a dividend, GILTI, net of the 50 percent deduction in IRC § 250, would be included in the Iowa state tax base under the bill. The deduction for the Section 78 GILTI gross-up and the deduction related to FDII would also be allowed under the Iowa bill.
The bill would also decouple from federal expensing provisions in IRC § 168(k), as amended by the TCJA for tax years beginning on or after January 1, 2019.
Minnesota HF 3656 would provide conformity to the IRC as of December 23, 2017, but not for corporate filers (for which conformity with the IRC remains December 16, 2016). Thus, the bill would not adopt the provisions of the TCJA for corporate filers.
This bill was introduced in the House of Representatives on March 12, 2018.
Please contact us to join McDermott’s multi-state coalition, the STAR Partnership, which will address state business tax ramifications raised by federal tax reform. Further information is available here.


text:
This application is continuation of U.S. patent application Ser. No. 12/706,631, filed on Feb. 16, 2010, now U.S. Pat. No. 8,707,062, issued on Apr. 22, 2014, which is a continuation of U.S. patent application Ser. No. 11/323,254, filed on Dec. 30, 2005, now U.S. Pat. No. 7,664,970, issued on Feb. 16, 2010, all of which are hereby incorporated by reference in their entirety into this application.
This application is related to U.S. application Ser. No. 10/931,565 filed Aug. 31, 2004, now U.S. Pat. No. 7,363,523, issued on Apr. 22, 2008, by inventors Kurts et al., assigned to Intel Corporation; U.S. application Ser. No. 10/934,034 filed Sep. 3, 2004, now U.S. Pat. No. 7,451,333, issued on Nov. 11, 2008, by inventors Naveh et al. assigned to Intel Corporation; U.S. application Ser. No. 11/024,538 filed Dec. 28, 2004, now abandoned, by inventors Naveh et al. assigned to Intel Corporation; U.S. application Ser. No. 10/899,674 filed Jul. 27, 2004, now U.S. Pat. No. 7,966,511, issued on Jun. 21, 2011, by inventors Naveh et al. assigned to Intel Corporation; and to concurrently filed patent application entitled “Method and System for Optimizing Latency of Dynamic Memory Sizing” by inventor Jahagirdar, assigned to Intel Corporation Ser. No. 11/323,259.
FIGS. 2A and 2B are block diagrams of an exemplary system that may be utilized to implement the zero voltage power management state approach, according to one embodiment of the present invention.
FIGS. 2A and 2B are block diagrams of an exemplary system 200 that may implement the zero voltage power management state transition approach of one or more embodiments. It should be noted that FIG. 2 is divided into 2A and 2B. The system 200 may be a notebook or laptop computer system, or may be any different type of mobile electronic system such as a mobile device, personal digital assistant, wireless telephone/handset or may even be a non-mobile system such as a desktop or enterprise computing system. Other types of electronic systems are also within the scope of various embodiments.
Also, in one embodiment, voltage from the I/O control hub 225 (V.sub.I/O 349) may be provided to the processor 205 in order to provide sufficient power to the dedicated cache memory 340 such that it can store the critical state variables associated with the processor 205 while the rest of the processor 205 is powered down by the reduction of the operating voltage 240 down to a zero state.
For other types of architectures and/or for processors that support different power management and/or normal operational states, the power management state control logic 242 may control transitions between two or more different power management and/or normal operational states using one or more signals that may be similar to or different from the signals shown in FIG. 2B.
It should be appreciated that, in one embodiment, the processor 205 of FIG. 2A may transition between various known C-states. The normal operational state or active mode for the processor 205 is the C0 state in which the processor actively processes instructions. In the C0 state, the processor 205 is in a high-frequency mode (HFM) in which the voltage/frequency setting may be provided by the maximum voltage/frequency pair.
In the system 200 of FIGS. 2A and 2B, a transition into the C4 state or into a zero voltage sleep state may be undertaken in response to ACPI software 250 detecting that there are no pending processor interrupts, for example. ACPI software may do this by causing the ICH 225 to assert one or more power management-related signals such as the exemplary Deeper Stop (DPRSTP#) signal and the exemplary DPSLP# signal. The Deeper Stop (DPRSTP#) signal is provided directly from the chipset to the processor and causes clock/power management logic 350 on the processor to initiate a low frequency mode (LFM). For the low frequency mode, the processor may transition to the minimum or another low operating frequency, for example.
More particularly, in one embodiment, in the zero voltage processor sleep state, (which may be referred to as a C6 state in accordance with ACPI standards), the critical state of the CPU 205 is saved in dedicated sleep state SRAM cache 340, which may be powered off the I/O power supply (V.sub.I/O) 349, while the core operating voltage 240 for the CPU 205 is taken down to approximately 0 Volts. At this point, the CPU 205 is almost completely powered off and consumes very little power.
It will be appreciated that the system 200 and/or other systems of various embodiments may include other components or elements not shown in FIGS. 2A and 2B and/or not all of the elements shown in FIGS. 2A and 2B may be present in systems of all embodiments.
In one example, the size of the SRAM 340 may be 8 KB per CPU core and may be 32 bits wide and may be clocked by the clock/power management logic 350. As previously discussed, the dedicated sleep state SRAM cache 340 may be powered by I/O voltage (V.sub.I/O 349) such that its contents are retained when the operating voltage for the CPU 205 is shut off.
Looking particularly at FIG. 4, an illustration of entry into the zero voltage processor sleep state is provided. As shown in FIG. 4, each core independently performs a state save when the zero voltage processor sleep state is initiated. Particularly, looking at CPU core #0 320, the first CPU core #0 is active (circle 402) and then a command for a zero voltage sleep state is initiated (e.g. via a sleep or MWAIT instruction) (circle 404). Responsive to this, the state of CPU core 320 is saved at circle 406 to dedicated cache memory 340. This includes the dedicated state 325 and the shared state 324. CPU core 320 then goes into a first sleep state 408 (e.g. CC6) in which it waits for the other core to get into the CC6 tate as well, before the whole package can transition into the overall package sleep state (e.g. C6).
the cache memory, wherein the cache memory is to be powered when the first and second processor cores are to be powered off, and the saved state of the first processor core and the saved state of the second processor core are to be restored when the first processor core and the second processor core transition to a mode in which the first processor core and the second processor core are to be powered on, respectively.
3. The processor of claim 1, wherein the first processor core is to enter the mode in which the first processor core is to be powered off in response to execution of an instruction by the first processor core.
4. The processor of claim 3, wherein the second processor core is to enter the mode in which the second processor core is to be powered off in response to execution of an instruction by the second processor core.
7. The processor of claim 1, wherein the first processor core is to transition to the mode in which the first processor core is to be powered on in response to a signal from a power management controller.
8. The processor of claim 7, wherein the second processor core is to transition to the mode in which the second processor core is to be powered on in response to a signal from the power management controller.
11. The processor of claim 1, wherein the cache memory comprises a static random access memory.
12. The processor of claim 1, further comprising a power management unit to control transition of the first processor core between a first operating point and a second operating point.
a voltage regulator coupled to the processor to provide an operational voltage to the processor, wherein the voltage regulator is adapted to reduce the operational voltage applied to the processor to approximately zero volts during a transition to a zero voltage power management state for the processor, and the dedicated cache memory is adapted to receive first state variables associated with the first core when the first core is to enter a first sleep state and second state variables associated with the second core when the second core is to enter the first sleep state, the processor to thereafter transition into a package sleep state comprising the zero voltage power management state, wherein the dedicated cache memory is coupled to a power source of a controller coupled to the processor that remains powered while the operational voltage applied to the processor is reduced to approximately zero volts.
14. The system of claim 13, wherein the dedicated cache memory comprises a synchronous random access memory (SRAM) internal to a package of the processor.
15. The system of claim 13, wherein the controller comprises an input/output controller.
restoring the saved state of the second processor core in response to the second processor core transitioning to a mode in which the second processor core is powered on.
17. The non-transitory machine-readable medium of claim 16, wherein entering the mode in which the first processor core is powered off is in response to execution of an instruction by the first processor core, and wherein entering the mode in which the second processor core is powered off is in response to execution of an instruction by the second processor core.
18. The non-transitory machine-readable medium of claim 16, wherein restoring the saved state of the first processor core occurs when the first processor core is reset.
Chinese Patent Office, Chinese Notice of Reexamination mailed on Aug. 26, 2015 in Chinese Patent Application No. 201110274214.4.
Chinese Patent Office, Notice Of Reexamination mailed Sep. 4, 2014, in Chinese Application No. 200680050111.7.
Chinese Patent Office, Reexamination Decision mailed Feb. 3, 2015, in Chinese Patent Application No. 200680050111.7.
Compaq Computer Corp., Intel Corp., Microsoft Corp., Phoenix Technologies Ltd., Toshiba Corp. "Advanced Configuration and Power Interface Specification," Revision 2.0b, pp. i-xviii and 219-232, Oct. 11, 2002.
Computer Translation of Publication No. JP 2004-038642 A which was published Feb. 5, 2004, 18 pages.
Computer Translation of Publication No. JP 2005-01116 A which was published Jan. 13, 2005, 14 pages.
English Translation of German Patent and Trade Mark Office Decision for corresponding Patent Application No. 11 2006 003 575.4, mailed Dec. 9, 2011, 2 pages. Citations 1 and 2 refer to US 2003/0101362 A1 and U.S. Pat. No. 6,711,691 B1.
English Translation of Korean Intellectual Property Office, Notice of Final Rejection for corresponding Patent Application No. 10-2008-7015968, mailed Sep. 6, 2010, 2 pages.
English Translation of Korean Intellectual Property Office, Notice of Preliminary Rejection for corresponding Patent Application No. 10-2008-7015968, mailed Jan. 28, 2010, 4 pages.
English Translation of State Intellectual Property Office, P.R, China, Office Action and Search Report for corresponding Patent Application No. 201110274214.4, issued Jul. 15, 2013, 9 pages.
English Translation of State Intellectual Property Office, P.R. China, Decision on Rejection for corresponding Patent Application No. 200680050111.7, issued Feb. 5, 2013, 8 pages.
English Translation of State Intellectual Property Office, P.R. China, Office Action for corresponding Patent Application No. 200680050111.7, issued Sep. 18, 2009, 10 pages.
International Bureau of WIPO, International Preliminary Report on Patentability for corresponding International Application No. PCT/US2006/048296, issued Jul. 1, 2008, 7 pages.
International Searching Authority, Invitation to Pay Additional Fees and Annex (Results of Partial International Search) for PCT/US2005/028699, mailed Mar. 2, 2006, 10 pages.
Korean Intellectual Intellectual Property Office, Notice of Final Rejection for corresponding Patent Application No. 10-2008-7015968, mailed Sep. 6, 2010, 2 pages.
Korean Intellectual Property Office, Notice of Preliminary Rejection for corresponding Patent Application No. 10-2008-7015968, mailed Jan. 28, 2010, 4 pages.
Patent Abstracts of Japan, Publication No. JP 01-095355 which was published Apr. 13, 1989, 1 page.
Patent Abstracts of Japan, Publication No. JP 2004-038642 which was published Feb. 5, 2004, 1 page.
Patent Abstracts of Japan, Publication No. JP 2005-011166 which was published Jan. 13, 2005, 1 page.
State Intellectual Property Office, P.R. China, Decision on Rejection for corresponding Patent Application No. 200680050111.7, issued Feb. 5, 2013, 5 pages.
State Intellectual Property Office, P.R. China, Office Action for corresponding Patent Application No. 200680050111.7, issued Apr. 23, 2012, 5 pages.
State Intellectual Property Office, P.R. China, Office Action for corresponding Patent Application No. 200680050111.7, issued Sep. 18, 2009, 7 pages.
U.S. Appl. No. 14/254,422, filed Apr. 16, 2014, entitled "Method and Apparatus for a Zero Voltage Processor Sleep State," by Jose Allerey, et al.
U.S. Appl. No. 14/630,909, filed Feb. 25, 2015, entitled "Method and Apparatus for a Zero Voltage Processor Sleep State," by Sanjeev Jahagirdar, et al.
U.S. Patent and Trademark Office, Notice of Allowance for U.S. Appl. No. 12/706,631, Jul. 23, 2013 mail date, 9 pages.
U.S. Patent and Trademark Office, Notice of Allowance for U.S. Appl. No. 12/706,631, Nov. 4, 2013 mail date, 9 pages.
U.S. Patent and Trademark Office, Notice of Allowance mailed May 20, 2015, in U.S. Appl. No. 14/630,909. (C9).
U.S. Patent and Trademark Office, Office Action for corresponding U.S. Appl. No. 11/323,254, Feb. 3, 2009 mail date, 15 pages.
U.S. Patent and Trademark Office, Office Action for corresponding U.S. Appl. No. 11/937,139, Aug. 2010 mail date, 20 pages.
U.S. Patent and Trademark Office, Office Action for corresponding U.S. Appl. No. 11/937,139, mailed Dec. 17, 2010, 10 pages.
U.S. Patent and Trademark Office, Office Action for corresponding U.S. Appl. No. 12/706,631, Jun. 19, 2012 notification date, 21 pages.
U.S. Patent and Trademark Office, Office Action for corresponding U.S. Appl. No. 12/706,631, mailed Apr. 18, 2013, 12 pages.
U.S. Patent and Trademark Office, Office Action for corresponding U.S. Appl. No. 12/706,631, mailed Jan. 8, 2013, 5 pages.
U.S. Patent and Trademark Office, Office Action for corresponding U.S. Appl. No. 13/619,998, Dec. 13, 2012 mail date, 9 pages.
U.S. Patent and Trademark Office, Office Action for U.S. Appl. No. 10/899,674, Oct. 4, 2007 mail date, 7 pages.
U.S. Patent and Trademark Office, Office Action for U.S. Appl. No. 10/931,565, mailed Nov. 30, 2007, 7 pages.
U.S. Patent and Trademark Office, Office Action for U.S. Appl. No. 10/931,565, May 24, 2007 mail date, 23 pages.
U.S. Patent and Trademark Office, Office Action for U.S. Appl. No. 10/934,034, Dec. 28, 2006 mail date, 17 pages.
U.S. Patent and Trademark Office, Office Action for U.S. Appl. No. 10/934,034, Jul. 13, 2007 mail date, 12 pages.
U.S. Patent and Trademark Office, Office Action for U.S. Appl. No. 10/934,034, mailed Jul. 1, 2008, 5 pages.
U.S. Patent and Trademark Office, Office Action for U.S. Appl. No. 11/024,538, Apr. 17, 2008 mail date, 7 pages.
U.S. Patent and Trademark Office, Office Action for U.S. Appl. No. 11/024,538, Apr. 5, 2007 mail date, 8 pages.
U.S. Patent and Trademark Office, Office Action for U.S. Appl. No. 11/024,538, Dec. 16, 2008 mail date, 7 pages.
U.S. Patent and Trademark Office, Office Action for U.S. Appl. No. 11/323,259, Mar. 11, 2009 mail date, 23 pages.
U.S. Patent and Trademark Office, Office Action mailed May 15, 2015, and Reply filed Aug. 12, 2015, in U.S. Appl. No. 14/496,233. (C7).
U.S. Patent and Trademark Office, Office Action mailed May 15, 2015, and Reply filed Aug. 12, 2015, in U.S. Appl. No. 14/496,345. (C8).
U.S. Patent and Trademark Office, Office Action mailed Nov. 20, 2014 with Reply filed Feb. 20, 2015, in U.S. Appl. No. 14/254,422.

matches:
Application No. 201110274214
Application No. 200680050111
Application No. 200680050111
Application No. 11
Application No. 10
Application No. 10
Application No. 201110274214
Application No. 200680050111
Application No. 200680050111
Application No. 10
Application No. 10
Application No. 200680050111
Application No. 200680050111
Application No. 200680050111


APPEAL from an order of the trial court for Milwaukee County No. 2009CV009690 CHRISTOPHER R. FOLEY, Judge. Affirmed.
Before Brennan P.J., Brash and Dugan, JJ.
¶1 Marathon Petroleum Company LP and U.S. Venture, Inc. (collectively the "Oil Companies") appeal the trial court's order affirming the City of Milwaukee's 2008 through 2014 property tax assessments for their oil terminals.
¶2 On appeal, the Oil Companies argue that the trial court erred as a matter of law in affirming the City's 2008 through 2014 property tax assessments for their oil terminals because that valuation included non-assessable intangible value. However, we hold that the income-generating capability of the oil terminals "appertains to" and is "inextricably intertwined" with the land and is thus transferable to future purchasers of the land (the "inextricably intertwined test"). Therefore, this income may be included in the land's assessment because it appertains to the land.
¶3 Moreover, based on our independent review of the record, we uphold the trial court's determination that the Oil Companies failed to introduce significant contrary evidence to overcome the statutory presumption of correctness attached to the City's assessment. Specifically, the Oil Companies' expert failed to apply the inextricably intertwined test and, therefore, he did not properly apply W . S . § 70.32(1)(2009-10) and the Property Assessment Manual, as IS TAT  required by Wisconsin law. Further, we uphold the trial court's finding that the Oil Companies' expert's appraisal report and testimony was not credible.
¶4 The following background, which relies primarily on the trial court's findings of fact, provides helpful context for the issues in this case. Additional facts are included in our analysis as needed.
¶5 Granville Terminal Complex, located in the City, is the site of five oil terminals (the "Granville terminals"). The five Granville terminals are comparable properties to each other. The Oil Companies are two of the Granville terminals' owners.
¶6 The City's initial tax assessments of the Granville terminals for the years 2008 through 2014 were determined using mass appraisal techniques, as permitted under Wisconsin law. At the time of those assessments, Peter Weissenfluh was the City's chief assessor and was responsible for the assessments of the Granville terminals.
¶8 In 2009, pursuant to Wis.Stat. § 74.37(3)(d), the Oil Companies filed separate actions alleging that the assessments for their oil terminal properties for the years 2008 through 2014 were excessive pursuant to § 74.37(1) because they exceeded the properties' fair market value. The Oil Companies sought refunds of the excessive taxes paid on those properties, together with interest as provided by § 74.37(5).
¶9 Based upon the differences between the City and the Oil Companies' valuations for those eight years, Marathon sought a total tax refund of roughly $1.7 million plus statutory interest, and U.S. Venture sought a total tax refund of roughly $1.4 million plus statutory interest. In November 2015, the trial court presided over a two-week bench trial.
¶11 The trial court found that Weissenfluh and Watson's methodology and opinions are in conformity with Wisconsin law and the Wisconsin Property Assessment Manual for Wisconsin Assessors (the "Property Assessment Manual"). The trial court found that Reilly's appraisal report and testimony were not credible and therefore did not and could not constitute significant contrary evidence.
¶12 The City determined that none of the Oil Companies' Granville terminals had been recently sold. Therefore, it was not possible to do a Tier 1 Recent Sale (Tier 1) analysis to determine value. Accordingly, the City relied upon a Tier 2 Comparable Sales (Tier 2) analysis to support each year's assessment. It primarily used these three Granville terminal sales: the Exxon terminal that sold in 2007, the Flint Hills terminal that sold in 2010 and the BP terminal that sold in 2011. Further, as checks on its Tier 2 analysis of the three Granville oil terminal sales, the City did a Tier 2 analysis of the sales of thirteen additional oil terminals within the Midwest, and did a Tier 3 Income and Cost analysis.
¶13 The trial court found that the City's approach "fully support[ed]" its property assessments for each of the challenged years. Each of the sales provided Tier 2 market support for the assessments of the subject properties. The trial court found that (1) the City verified, analyzed and adjusted all of the sales in conformity with the Property Assessment Manual and Wisconsin statutes, (2) the real estate sales included all the rights, benefits and privileges appertaining to the real estate, and (3) the sales in the City's appraisal reflected the economic climate and market for oil terminals during the years at issue.
¶14 The trial court found that the City's assessments took into consideration the income-generating capability of the real estate that was inextricably intertwined with the land and transferrable to future owners and did not consider the individual contracts associated with each property or the skill or management of the individual operators. Thus, the trial court determined that the City's conclusions in the Tier 2 approach provided "a credible valuation upon which the court could rely to find that the assessments are not excessive."
¶15 The trial court also found that the Tier 3 Income and Cost approach relied upon by the City, as a check on the value conclusions reached under the Tier 2 approach, confirmed that the City's tax assessment of the Oil Companies' terminals was not excessive. Facts relevant to the City's Tier 3 Income and Cost approaches will be set forth in the body of this decision.
¶16 Moreover, the trial court found that the Oil Companies had not presented "[s]ignificant contrary evidence rebutting the presumption of fair and equitable assessment." The trial court also made the following findings regarding the Oil Companies' expert, Reilly: (1) he failed to rely upon a sales comparison analysis when there were sales of comparable properties available and, therefore, had failed to comply with Wis.Stat. § 70.32(1); (2) he failed to take into consideration all of the real estate business value that appertains to the real estate; (3) because he disavowed the Tier 2 comparable sales analysis, his opinions and testimony were not credible; and (4) his sales comparison analysis was not credible because he primarily relied on a property that was not comparable. Additionally, the trial court noted that in responding to its questions Reilly stated that, if the income-generating capability of the property was included in the value of the real estate, the value of the oil terminals would be higher than his assessed value.
¶18 We begin our discussion by setting forth the legal standards governing real property assessment and our review of the issues presented.
Real property shall be valued by the assessor in the manner specified in the Wisconsin property assessment manual provided under s. 73.03(2a) ... at the full value which could ordinarily be obtained therefor at private sale. In determining the value, the assessor shall consider recent arm's-length sales of the property to be assessed[;] ... recent arm's-length sales of reasonably comparable property; and all factors that, according to professionally acceptable appraisal practices, affect the value of the property to be assessed.
Id. This statute requires adherence to the Property Assessment Manual, absent conflicting law. See Walgreen Co. v. City of Madison, 2008 WI 80, ¶3, 311 Wis.2d 158, 752 N.W.2d 687. Thus, we analyze the applicable statutes "in conjunction with basic principles of real property assessment as described by case law, treatises, and the Property Assessment Manual." Id., ¶19.
¶20 "The Property Assessment Manual and case law set forth a three-tier assessment methodology to ascertain [a real property's] true cash value." See Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶34, 294 Wis.2d 441, 717 N.W.2d 803. "True cash value" is synonymous with "fair market value, " which is the price that the real property would sell for "upon arm[']s-length negotiation in the open market, between an owner willing but not obligated to sell, and a buyer willing but not obligated to buy." See id., ¶33 n.8 (citation and one set of quotation marks omitted).
Evidence of an arm[']s-length sale of the subject property is the best evidence of true cash value [Tier 1]. If there has been no recent sale of the subject property, an assessor must consider sales of reasonably comparable properties [Tier 2]. Only if there has been no arm[']s-length sale and there are no reasonably comparable sales may an assessor use any of the third-tier assessment methodologies [Tier 3].
Id., 294 Wis.2d 441, ¶34 (citations omitted; brackets added). See also, State ex rel. Markarian v. City of Cudahy, 45 Wis.2d 683, 686, 173 N.W.2d 627 (1970).
¶22 A party that is dissatisfied with an assessment may bring an excessive tax assessment claim under Wis.Stat. §74.37(3)(d). See Bloomer Hous. Ltd. P'ship v. City of Bloomer, 2002 WI.App. 252, ¶11, 257 Wis.2d 883, 653 N.W.2d 309. Acting pursuant to § 74.37(3)(d), the trial court makes determinations concerning excessive tax assessment claims "without giving deference to any determination made at a previous proceeding, " including any proceeding before the board of review. See Nankin v. Village of Shorewood, 2001 WI 92, ¶¶24-25, 245 Wis.2d 86, 630 N.W.2d 141.
¶23 "The court must only give presumptive weight to the assessor's assessment." Id., ¶25 (citing Wis.Stat. § 70.49(2)). However, "[t]he assessor's assessment 'is presumed correct only if the challenging party does not present significant contrary evidence.'" Allright Props., Inc. v. City of Milwaukee, 2009 WI.App. 46, ¶12, 317 Wis.2d 228, 767 N.W.2d 567');">767 N.W.2d 567 (citations and some quotation marks omitted).
¶24 "An opinion as to value which ignores the statutory factors is not 'significant contrary evidence' necessary to overcome the presumption that the assessment is valid." Great Lakes Quick Lube, LP v. City of Milwaukee, 2011 WI.App. 7, ¶18, 331 Wis.2d 137, 794 N.W.2d 510. In other words, "when the city assessor correctly applies the Property Assessment Manual and Wisconsin statutes, and there is no significant evidence to the contrary, courts will reject a party's challenge to the assessment." See Allright Props., 317 Wis.2d 228, ¶12.
¶25 On appeal, we defer to the trial court's findings of fact. See Adams Outdoor, 294 Wis.2d 441, ¶27 ("Where there is conflicting testimony the fact finder is the ultimate arbiter of credibility."). "The weight and credibility to be given to the opinions of expert witnesses is 'uniquely within the province of the [trial court].'" Id. (citation and one set of quotation marks omitted). "We will not upset [a trial] court's factual findings, including findings involving the credibility of witnesses, unless they are clearly erroneous." Bonstores Realty One, LLC v. City of Wauwatosa, 2013 WI.App. 131, ¶6, 351 Wis.2d 439, 839 N.W.2d 893. However, "[a]pplication of the law to the facts presents a question of law that we review de novo." See id.
¶26 The crux of the Oil Companies' argument is that the City's assessments of their Granville terminals improperly includes non-assessable intangible value in the form of business value found in terminalling agreements. Therefore, we first address whether the value of the income-generating capability of the oil terminals, partially represented by terminalling agreements, adheres to the real property as a right or privilege appertaining to the real estate, as argued by the City, or whether that value is a separate non-assessable intangible property, as argued by the Oil Companies. Then we address the Oil Companies' other arguments.


text:
JOHN R. DOYLE vs. CHARLES B. WESTGATE, as Trustee of Summer Street Real Estate Trust, as Trustee of Glenbrook Condominium Trust and Individually, JOHN R. KENNEY, as Trustee of Summer Street Real Estate Trust, as Trustee of Glenbrook Condominium Trust and Individually, KASTURI RANGAN, JAYANTHI RANGAN, KURT E. MUELLER, ELIZABETH J. MUELLER, ELIZABETH MURPHY, FLORENCE MURPHY, MEDFORD SAVINGS BANK, PRESIDENT AND FELLOWS OF HARVARD COLLEGE, CAPE COD FEDERAL CREDIT UNION, and FIRST ESSEX SAVINGS BANK.
On December 19, 1986, John R. Doyle ("Doyle" or "Plaintiff") commenced the above-entitled action in the Middlesex Superior Court (Superior Court Case No. 86-7860) seeking a declaration of the rights, duties and other legal relations which he and Charles B. Westgate ("Westgate") and John R. Kenney ("Kenney") [Note 1] (collectively referred to as "Defendants") possess with respect to a certain easement ("Easement" or "slope easement") over a strip of land of approximately 140 feet in length and 20 feet in width, situated adjacent to the rear lot line of his property at 483 Summer Street, Arlington, Massachusetts ("locus"), as shown on plans entitled "Plan Showing Easement to Esso Standard Oil Company in Arlington, MA." dated May 28, 1986 (Exhibit No. 8) and "Encroachment Plan of Land" dated November 17, 1986 (Exhibit No. 9). The Plaintiff further seeks an Order requiring the Defendants to remove certain encroachments from the Easement, or in the alternative, an award of damages for the diminution in the value of his property caused by said encroachments.
On January 30, 1987, the matter was transferred to this Court and entered as Miscellaneous Case No. 122323. Thereafter on August 13, 1987, the Court granted the Plaintiff's motion to join the remaining Defendants ("Rangan, et al") as necessary parties under Mass. R. Civ. P. 19.
Defendant Westgate filed a Motion for Summary Judgment which was denied on January 15, 1988. The case then proceeded to trial on August 22, 1988; a stenographer was appointed to record and transcribe the testimony. Seventeen exhibits were introduced into evidence and four witnesses testified. All exhibits are incorporated herein for the purpose of any appeal. At the close of the Plaintiff's evidence, the Defendants, Rangan, et al, moved for a directed verdict, which motion was denied.
1. Doyle acquired title to the locus and Easement on October 5, 1979 by deed from Exxon Corporation, [Note 2] recorded at Book 13189, Page 139 in the Middlesex South District Registry of Deeds [Note 3] (Exhibit No. 5). Doyle presently operates a service station on said premises, which facility, as well as the subject Easement, is shown on a plot plan dated June 19, 1956 (Exhibit No. 1).
the right to place and maintain on the strip of land . . . earth banking to support fill and structures placed or to be placed . . . on [the locus] . . . (See Exhibits No. 3 and 4).
3. On March 26, 1985, Westgate, as Trustee of the Summer Street Real Estate Trust, [Note 4] acquired title to a certain parcel of land adjacent to the rear of Doyle's property, including the fee servient to the Easement, by deed from James B. Sickles and Barbara R. Payne, recorded at Book 16071, Page 142 (Exhibit No. 7). This parcel is commonly referred to as 449 Summer Street, Arlington, Massachusetts. At the closing held in March of 1985, counsel for Westgate disclosed to him the existence of Doyle's Easement.
4. In about May of 1985, Westgate, in his capacity as Trustee, commenced construction of Glenbrook Estates, a condominium development consisting of five buildings housing twenty-one residential condominium units as shown on a plan entitled "Development Plan of Glenbrook Condominium in Arlington, MA." dated March 24, 1986 (Exhibit No. 17), which plan fails to depict the Easement. As constructed, the building containing Condominium Units 2-7, 2-8, 2-9 and 2-10 ("Condominium") encroaches upon the Easement by various amounts ranging from 0 to 3.02 feet in depth and in one instance extending onto the Easement for approximately 29 feet in length, all as shown on the aforementioned "Encroachment Plan of Land". In addition thereto, four concrete patios which extend from the building encroach upon the Easement, as do four individual heat pumps which service said Units. Further, a four (4) foot high, eight (8) inch wide and approximately eighty-five (85) foot long retaining wall, as well as a stockade fence, have also been constructed within the easement area.
5. In about March of 1986, during the construction of Westgate's condominium development, Doyle noticed that the construction activity was extending into the area behind his service station. Consequently, Doyle voiced concern to Westgate about the project, this concern being focused on the proximity of the construction to gasoline vents located on his property, rather than the slope easement. Following their conversation, Westgate informed Doyle that, due to a miscalculation, the Condominium was encroaching upon Doyle's Easement.
6. Despite Westgate's having had knowledge of Doyle's Easement since at least early 1985 when the real estate closing with respect to 448 Summer Street took place, Westgate proceeded to extend construction of his condominium development into the easement area.
7. Upon completion of the Glenbrook Estates condominium development, Units 2-7 through 2-10 were placed on the market. At present, Unit 2-7 is owned and occupied by the Defendants, Kasturi and Jayanthi Rangan, Unit 2-8 is owned and occupied by the Defendants, Kurt E. and Elizabeth J. Mueller and Unit 2-9 is owned and occupied by the Defendants, Elizabeth and Florence Murphy. The Defendant, Medford Savings Bank, is the mortgagee of the entire Glenbrook Estates condominium development, including Units 2-7, 2-8 and 2-9. The present status of Unit 2-10 is unclear from the record before the Court.
The evidence clearly establishes that the Plaintiff holds title to the dominant estate by express grant while Westgate owns the estate servient to the Easement. In determining the parameters of the parties' respective rights and duties with regard to said Easement, the Court is guided by the well-settled rule in Massachusetts that the owner of land servient to an easement is permitted to use his land for all purposes, except such as are 'inconsistent with the right granted to the dominant owner. Western Massachusetts Electric Co. v. Sambo's of Massachusetts, Inc., 8 Mass. App. Ct. 815 , 818 (1979); Butler v. Haley Greystone Corp., 352 Mass. 252 , 258 (1967); Ampagoomian v. Atamian, 323 Mass. 319 , 323 (1948); Merry v. Priest, 276 Mass. 592 , 600 (1931). In balancing the relative rights and duties of the easement holder against those of the owner of the underlying fee, the Court applies a standard of reasonableness. Brodeur v. Lamb, 22 Mass. App. Ct. 502 , 504-505 (1986); Barchenski v. Pion, 9 Mass. App. Ct. 896 , 897 (1980); Western Massachusetts Electric Co. at 825. In other words, the owner of the servient fee is free to use and improve his property so long as such activity does not materially interfere with the easement holder's use of the Easement. Western Massachusetts Electric Co. at 818; Merry at 600. More specifically, it has been stated that the owner of the servient estate may not use the property subject to the Easement in a way which would lead to a material increase in the cost or inconvenience to the easement holder's exercise of his rights. Texon, Inc. v. Holyoke Machine Company, 8 Mass. App. Ct. 363 , 366 (1979). These principles of law, however, should not be applied so as to abrogate the specific rights granted to the easement holder. Western Massachuestts Electric Co. at 822.
In the instant case, the language of Doyle's deed, and the references made therein, provide that the Easement includes the right to place and maintain thereupon earth banking to support fill and structures placed, or to be placed, on the locus (See Exhibits No. 3 and 4). Inasmuch as the extent of any easement is to be determined, at least in part, by the language of the grant, Pion v. Dwight, 11 Mass. App. Ct. 406 , 411 (1981), and as an easement stated to be for a particular purpose may only be used for that limited purpose, Makepeace Bros. Inc. v. Town of Barnstable, 292 Mass. 518 , 525 (1935), Doyle's express rights in the Easement, as noted above, may be exercised with respect to the service station presently situated on the locus or structures or f ill to be erected thereupon at a later date. In any event, however, by virtue of his holding the Easement, Doyle retains the right to use it whenever such use may become necessary, desirable or incidental to construction on, or further development of, his property.
Applying the foregoing principles to the case at bar, I find that the language of the Easement permits the Plaintiff and his successors to supply lateral support to structures and/or fill placed, or to be placed, upon the locus in the future, solely by the placement of earth banking upon the Easement. In the absence of any evidence to the contrary, I find the natural angle at which such support will be stable ("angle of repose") to be forty-five (45) degrees, thereby determining the maximum amount of banking which the Condominium may be called upon to laterally support to be approximately 3+ feet at maximum. Hence, insofar as the Condominium structure itself appears with all reasonable likelihood to offer support to such banking in a manner equivalent, or at least comparable to, that of a continuing sloped embankment, such structure need not be removed from the servient fee. The Defendants, Rangan, et al, however, must be aware that at some time in the future the Plaintiff or his successors may place fill directly against the rear walls of said Condominium in a manner consistent with and for the stated purposes of the Easement. Similarly, as the retaining wall and stockade fence which Westgate has erected approximately two feet from Doyle's rear property line, but within the Easement area, provide lateral support against any eventual collapse of the existing embankment, an eventuality against which the Defendants, Rangan, et al, may reasonably protect their property, I find that they too serve a function which is comparable to that of an earth banking and accordingly, their removal is not warranted. Again, however, this does not abrogate the right of the Plaintiff or his successors to place additional earth on said Defendants' side of the fence and wall should such action appear necessary or desirable in exercising the purposes of the Easement.
As noted above, Westgate has also constructed four concrete patios and placed four individual heat pumps within the Easement area. Inasmuch as said patios are mere concrete slabs on the ground, I find that, in the event Doyle exercises his easement rights, fill may be readily piled over these patios without materially interfering with Doyle's use of the Easement. Considering the composition and function of the electric heat pumps, however, it is clear that earth cannot be piled on or around them without interfering with, if not totally disrupting, their function. Accordingly, unless these pumps are removed from the easement area, further litigation between the parties will most likely result. As the great likelihood of such additional litigation may be characterized as a "material interference" with Doyle's rights in the Easement, I must rule that Westgate, [Note 5] or the owners of the encroaching pumps, be required to remove the pumps within ninety (90) days of the entry of a final judgment herein, or alternatively, that Westgate, or the appropriate owners of the pumps, agree to preserve Doyle's easement rights without further litigation by posting a bond or by some other means acceptable to Doyle. In addition thereto, the Defendants are hereby restrained from the installation of any permanent structure in or on the Easement, which would unreasonably interfere with the future exercise of Doyle's rights therein. I decline herein to grant the Plaintiff's request for an award of damages, as the evidence fails to support such a finding.
The Plaintiff and all of the Defendants have submitted requests for findings of fact, which I have considered. Certain of these requests have been incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings as to those facts which I deem pertinent.
[Note 1] On April 14, 1988, the parties stipulated to the dismissal of all claims asserted against the Defendant, John R. Kenney, individually, with prejudice.
[Note 2] By merger, the Exxon Corporation became the successor to the Esso Standard Oil Company.
[Note 3] All recorded documents referred to herein are at this Registry.
[Note 4] On March 26, 1985, Defendant Kenney resigned as Co-Trustee of the Summer Street Real Estate Trust.
[Note 5] The present owner(s) of the electric heat pumps is not clear from the evidence before the Court.

matches: v. v. v. v. v. v. v. v. v.


66. Ballinger, Commun. Prop. Sec.Sec. 234, 240; Brown v. Pridgen, 56 Tex. 124; Hill's Estate, 6 Wash. 285.
67. See 1 Stimson's Am. St. Law, Sec. 3403; Rev. St. Ariz. 1887, Sec. 1467; Sayles' Civ. St. Tex. art. 2165; Hill's Gen. St. Wash. Sec. 1481.
68. Ballinger, Commun. Prop. Sec.Sec. 10, 253.
69. Parsons, Partnership, Sec. 265; Mechem, Partnership, Sec. 84; Shanks v. Klein, 104 U. S. 18, 26 L. Ed. 635; Nicoll v. Ogden, 29 111. 323, 81 Am. Dec. 311; Smith v. Smith, 179 Iowa, 1365, 160 N. W. 756; Jarvis v. Brooks, 27 N. H. 37, 59 Am. Dec. 359; Fairchild v. Fair-child, 64 N. Y. 477; Page v.
Thomas, 43 Ohio St. 38, 54 Am. Rep. 788; Diggs' Adm'r v. Brown, 78 Va. 292.
70. Riddle v. Whitehill, 135 U. S. 621, 34 L. Ed. 283; Roberts v. Eldred, 73 Cal. 394, 15 Pac. 16; People v. Sholem, 244 111. 502, 91 N. E. 704; Barkley v. Tapp, 87 Ind. 25; Paige v. Paige, 71 Iowa, 318, 60 Am. Rep. 799; McKee v. Covalt, 71 Kan. 772, 81 Pac. 475; Pepper v. Thomas, 85 Ky. 539, 4 S. W. 297; Shaw's Appeal, 81 Me. 207, 16 Atl. 662; Dyer v. Clark, 5 Mete. (Mass.) 562, 39 Am. Dec. 697; Whitney v. Cotten, 53 Miss. 689; Young v. Thrasher, 115 Mo. 222, 21 S. W. 1104; Jarvis v. Brooks, 27 N. H. 37, 59 Am.
Dec. 359; Fairchild v. Fairchild, 64 N. Y. 471; Adams v. Church, 42 Ore. 270, 59 L. R. A. 782, 95 Am. St. Rep. 740, 70 Pac. 1037; Hayes v. Treat, 178 Pa. 310, 135 Atl. 987; Betts v. Lecher, 1 S. Dak. 182; Murrell v. Mandelbaum, 85 Tex. 22, 34 Am. St. Rep. 777; Dewey v. Dewey, 35 Vt. 555; Hardy v. Norfolk Mfg. Co., 80 Va. 404.
71. Wray v. Wray (1905) 2 Ch. 349; Brunson v. Morgan, 76 Ala. 593; Blanchard v. Floyd, 93 Ala. 53, 9 So. 418; Bank of Southwestern Georgia v. McGarrah, 120 Ga. 944, 48 S. E. 393; Beaman v. Whitney, 20 Me. 413; Byam v.
Bickford, 140 Mass. 31, 2 N. E. 687; The Golden Rod, 197 Fed. 837.
72. Percifull v. Platt, 36 Ark. 456; Cole v. Mettee, 65 Ark. 503, 67 Am. St. Rep. 945, 47 S. W. 407; Winter v. Stock, 29 Cal. 408, 89 Am. Dec. 57; Bernstein v. Hobel-man, 70 Md. 29, 16 Atl. 374; Gille v. Hunt, 35 Minn. 357, 29 N. W. 2; Arthur v. Weston, 22 Mo. 378; Wright v. Brooks, 47 Mont. 99, 130 Pac. 968; Holmes v. Jarrett, 7 Heisk. (Tenn.) 506.
73. Riffel v. Ozark Land & Lumber Co., 81 Mo. App. 177; Spauld-ing Mfg. Co. v. Godbold, 92 Ark. 63, 29 L. R. A. (N. S.) 282, 135 firm name.74 In all jurisdictions, presumably, such a conveyance is effective for the purpose of creating equitable rights in favor of the members of the firm and the firm creditors.
Am St. Rep. 168, 19 Ann. Cas. 947, 121 S. W. 106a.
74. Silverman v. Kristufek, 162 111. 222, 44 N. E. 430.
75. Ames v. Ames, 37 Fed. 30; Jenkins v. Jenkins, 81 Ark. 68, 98 S. W. 685; Robinson Bank v. Miller, 153 111. 244, 27 L. R. A. 449, 46 Am. St. Rep. 883, and note; Blakeslee v. Blakeslee, 265 111. 48, 106 N. E. 470; Colener v. Greig, 137 Pa. 606, 21 Am. St. Rep. 899; Ihmsen v. Huston, 247 Pa. 402, 93 Atl. 601; City of Providence v. Bullock, 14 R. I. 353; Murrell v. Mandelbaum, 85 Tex. 22, 34 Am. St. Rep. 777.


text:
Constitutional Law, Appropriation of money, Opinion of the Justices, General Court, Governor. General Court. Governor.
The legal effect of a message of the Governor wherein he undertook to approve an item in a general appropriation bill but to disapprove certain restrictions placed by the General Court upon the expenditure of the sum appropriated by the item is an important question of law upon which the opinions of the justices can be required by the House of Representatives under c. 3, art. 2, of the Constitution.
In the opinion of the justices, a message of the Governor wherein he attempted to approve a certain item in a general appropriation bill but to disapprove a restriction placed therein by the General Court upon the amounts to be expended respectively for certain purposes covered by the general title of the item, was not within the powers granted to him under § 5 of art. 63 of the Amendments to the Constitution, or of any other power granted to him by the Constitution with reference to legislation.
The General Court has power under § 3 of art. 63 of the Amendments to the Constitution to place a restriction upon how much of the total sum specified in an item included in a general appropriation bill in conformity to G.L. (Ter. Ed.) c. 6, § 8, shall be spent for certain purposes within the general title of the item.
Upon the return of a general appropriation bill to the House of Representatives with a message from the Governor which was a general approval of the bill but also was an ineffectual attempt to disapprove a restriction placed by the General Court upon the ways in which the sum specified in a certain item might be spent, a question, whether the restriction should pass notwithstanding the objection of the Governor, was not properly before the House; and the bill had become law, either because the disapproval of the restriction was a nullity and the general approval gave the bill validity, or because, the time for veto having expired, the entire bill became law for failure to veto.
WHEREAS, His Excellency the Governor, on June 2, 1936, returned said bill to the House of Representatives, in which it originated, with a message (see House, No.
(1) Is the action of His Excellency the Governor, as indicated in said message, a proper exercise of the powers granted to him under Section 5 of said Article LXIII of the Amendments to the Constitution of the Commonwealth?
(2) Is the action of His Excellency the Governor, as so indicated, a proper exercise of any power granted to him by said Constitution with reference to legislation?
(3) Has Item 101 of said House Bill No. 1740 become law under the provisions of the said Constitution?
(4) Upon the facts hereinbefore set forth, was the question appearing at the end of Calendar item No. 1325 of the said House Calendar of Wednesday, June 3, 1936, "Shall that part of the item pass, notwithstanding the objections of His Excellency the Governor?" properly before the House of Representatives, when said point of order was raised?
The Justices of the Supreme Judicial Court respectfully submit these answers to questions in an order adopted on June 4, 1936, and received on June 5, 1936, copy whereof is hereto annexed. These questions relate to the appropriate procedure concerning a message from His Excellency the Governor, wherein he undertook to approve a part and disapprove a part of one item in the general appropriation bill. The rest of that bill with this single exception has been approved.
The Honorable the House of Representatives has no occasion to ask the opinion of the Justices of the Supreme Judicial Court as to the power of the Governor except as the exercise of that power has a bearing on a matter pending before it. The House has pending before it for consideration the message from His Excellency the Governor purporting to veto a part of one item in the general appropriation bill. Consequently it is important for the House to know the legal nature and effect of that message. The questions in the order must be answered. Opinion of the Justices, 135 Mass. 594.
with it: His Excellency the Governor submitted to the General Court during the current year a budget which contained this item: "For payment of extraordinary expenses and for transfers made to cover deficiencies, with the approval of the governor and council, a sum not exceeding $100,000." Touching that item the general appropriation bill based on that budget as enacted by the General Court (as shown on the House calendar for June 3, 1936, and transmitted with the order) contained this: "101 For payment of extraordinary expenses and certain other expenditures as authorized by section eight of chapter six of the General Laws, as appearing in the Tercentenary Edition thereof, [subject, however, to the condition that not less than fifty thousand dollars of the sum appropriated by this item shall be reserved for use in carrying out the provisions of sections twenty-five to thirty-three, inclusive, of chapter thirty-three of the General Laws, as so appearing, not less than ten thousand dollars thereof shall be reserved for use for the entertainment of the President of the United States and other distinguished guests while visiting or passing through the commonwealth, and not more than five thousand dollars thereof, in the aggregate, shall be transferred to items ninety-five, ninety-seven, ninety-eight and ninety-nine,] a sum not exceeding one hundred thousand dollars (1935 appropriation, $100,000) $100,000 00." This matter came up for action in the House of Representatives in this form: "So much of this item as is enclosed in brackets has been disapproved by the Governor,  see House, No. 1872. Question: Shall that part of the item pass, notwithstanding the objections of His Excellency the Governor?" The point of order was thereupon raised that His Excellency the Governor had by his message failed to exercise in relation to the matters therein contained any power vested in him by the Constitution respecting legislation.
in part and disapprove in part. Art. 56 of the Amendments to the Constitution confers upon the Governor the right, within five days after a bill or resolve has been laid before him, to return it to the branch of the General Court in which it originated, with a recommendation that any specified amendment or amendments be made. That article, however, does not enable the Governor to approve a part of a bill or resolve and disapprove the remainder. It confers power to suggest an amendment or amendments and return the entire bill or resolve. These two provisions of the Constitution have no bearing upon the questions here to be considered.
nor to reduce that amount or any part of it apportioned to a specific purpose. He sought, rather, as shown by his message, to enlarge the appropriation made by the General Court by throwing the $100,000 into a common fund to be used for any one of several different purposes. We are of opinion that the power conferred upon him by said art. 63 does not extend to the removal of restrictions imposed upon the use of the items appropriated. It is plain that no other provision of the Constitution confers power upon the Governor to disapprove the condition attached to the item in question.
The result is that the disapproval of that condition was a nullity. That is the only disapproval expressed in the message.
expenditure of moneys appropriated by it. There are no such restrictive words in said art. 63. The arrangement of the budget as submitted under items does not prevent the General Court from lawfully accomplishing what was here done with respect to item 101.
The provisions of G.L. (Ter. Ed.) c. 6, § 8, concerning the appropriation of an amount not exceeding $100,000 each year for the purposes specified in item 101 did not bar the action taken by the General Court respecting that item in the general appropriation bill. Those provisions do not prevent the General Court from making a division of the appropriation of the $100,000 among the several purposes there mentioned. It does not make mandatory the appropriation of a single lump sum. A statute of this nature cannot tie the hands of the General Court so as to prevent it from enacting a statute dealing with the appropriation of public funds. It is of no higher authority than the appropriation bill if and when enacted into law.
The question then arises whether item 101 of the general appropriation bill has become law with the condition attached. Since the disapproval of the condition was without effect, the general approval of the act gave it validity. If, however, the approval be treated as a whole and therefore conditional and a nullity, the time for veto has expired and the entire bill takes effect because of the failure of His Excellency the Governor to return the bill with a veto. In either event item 101 has become law.
It follows that the question set forth in question (4) of the order was not properly before the Honorable the House of Representatives when the point of order was raised.
The answer is "No" to questions (1), (2) and (4), and "Yes" to question (3).

matches:
art. 2
§ 5
art. 63
§ 3
art. 63
§ 8
Art. 56
art. 63
art. 63
§ 8


text:
TITLE 18 > PART III > CHAPTER 301 > Sec. 4001.
"On the other hand since all Federal crimes are statutory [ see United States v. Hudson, 11 U.S. 32, 3 L.Ed. 259 (1812)] and all criminal prosecutions in the Federal courts are based on acts of Congress, . . ."
"Act of Congress" includes any act of Congress locally applicable to and in force in the District of Columbia, in Puerto Rico, in a territory or in an insular possession."
"In dealing with the meaning and application of an act of Congress enacted in the exercise of its plenary power under the Constitution to tax income and to grant exemptions from that tax, it is the will of Congress which controls, and the expression of its will, in the absence of language evidencing a different purpose, should be interpreted 'so as to give a uniform application to a nation-wide scheme of taxation'. Burnet v. Harmel, 287 U.S. 103, 110 , 53 S.Ct. 74, 77. Congress establishes its own criteria and the state law may control only when the federal taxing act by express language or necessary implication makes its operation dependent upon state law. Burnet v. Harmel, supra. See Burk-Waggoner Oil Association v. Hopkins, 269 U.S. 110, 111 , 114 S., 46 S.Ct. 48, 49; Weiss v. Wiener, 279 U.S. 333 , 49 S.Ct. 337; Morrissey v. Commissioner, 296 U.S. 344, 356 , 56 S.Ct. 289, 294. Compare Crooks v. Harrelson, 282 U.S. 55, 59 , 51 S.Ct. 49, 50; Poe v. Seaborn, 282 U.S. 101, 109 , 110 S., 51 S.Ct. 58; Blair v. Commissioner, 300 U.S. 5, 9 , 10 S., 57 S.Ct. 330, 331."


text:
Black v Secretary of State for Justice  EWCA Civ 125: Claim by prisoner in respect of the Government's failure to apply the statutory ban on smoking to state prisons on the grounds of Crown immunity.
Keep Wythenshawe Special Ltd v NHS Central Manchester CCG  EWHC 17 (Admin): Challenge to the reconfiguration of medical services provided at hospitals in Manchester.
R (Tracey) v Cambridge University Hospitals NHS Foundation Trust  EWHC 3860 (Admin): Claim against a Trust in respect of DNR (Do Not Resuscitate) Notices placed on deceased's notes raising issues as to the adequacy of the Trust's guidance on DNR Notices and the failure of the Secretary of State for Health to promulgate national guidance.
R (Mousa) v Secretary of State for Defence  EWHC 1412 (Admin) and  EWCA Civ 1334: Whether the Secretary of State should hold a public inquiry into allegations of abuse made by Iraqi civilians against the armed forces during the occupation of Iraq.
Legal Ombudsman v Young  EWHC 2923 (Admin): Guidance given as to procedure and general approach to be adopted by the Ombudsman and the Court in cases where a solicitor has failed to comply with a notice from the Ombudsman.
R (Crosbie) v Secretary of State for Defence  EWHC 879 (Admin): Claim by army chaplain in public law and under Article 6 of the Convention for loss of his career.
R (Semoff) v Liverpool PCT: Challenge to the decision to build a new hospital in Liverpool on the basis that because it was to be paid for under PFI it was poor value for money.
A v B (Investigatory Powers Tribunal: Jurisdiction)  EWCA Civ 24,  3All ER416, CA: Jurisdiction of Investigatory Powers Tribunal.
R (Compton) v Wiltshire PCT  EWCA Civ 749,  1WLR 1436, CA: Circumstances in which Protective Costs Orders are to be granted.
R (Lynch) v General Dental Council  1 ALL ER 1159: Admissibility of expert evidence in Judicial Review.
Sullivan v Guy's & St Thomas' NHS Foundation Trust  EWHC 602 (QB): Claim by child patient in respect of cardiac surgery in the course of which the temperature of his body was significantly cooled.
FE v St George's University Hospitals NHS Trust  EWHC 553: Claim by infant in respect of care provided around the time of his birth.
Crouch v King's Healthcare NHS Trust  1 WLR 2015, CA: Offer to settle by NHSLA, whether to be treated as if payment into court.
SXH v CPS  UKSC 30, SC: Do decisions to prosecute engage Article 8 ECHR.
AM v GMC  EWHC 2096 (Admin): Whether GMC guidance as to doctors providing assistance for the purposes of suicide was in breach of the Human Rights Act.
AM v DPP  UKSC 14, SC: Right to die - whether a gravely disabled person who is unable to commit suicide without assistance is entitled to further guidance from the DPP as to whether doctors, carers and other professionals would be likely to be prosecuted were they to assist him to do so.
Meerabux v AG of Belize  2 AC 513, PC: Judge's removal from office - whether in breach of constitutional fair trial rights.
R (Ullah) v Special Adjudicator  2 AC 323: HL-Extra Territorial Effect of the ECHR.
Grieves v UK (2004) 39 EHRR 7, ECHR: Right to fair trial.
Cooper v UK (2004) 39 EHRR 8, ECHR: Right to fair trial.
Khan v Royal Airforce Summary Appeal Court (2004) HRLR 40, DC: Conscientious objector to military service in connection with the Iraq war.
R v Spear, Hastie & Boyd  1 AC 734, HL: Right to a fair trial.
R (Pretty) v DPP  1 AC 800 HL: Right to assistance in committing suicide / right to life / right to self-determination.
Gough v Chief Constable of Derby Constabulary  QB 1213, CA: Football banning order - whether violation of human rights.
R (on the application of Heather) v Leonard Cheshire Foundation  2 All ER 936, CA: Meaning of "public authority" under Human Rights Act 1998.
Pretty v UK (2002) 35 EHRR 1, ECHR: Right to die.
Morris v UK (2002) 34 EHRR 52, ECHR: Right to a fair trial.
R v Martin  AC 917, HL: Right to a fair trial.
Wingrove v UK (1997) 24 EHRR 1, ECHR: Right to free speech/Law of blasphemy.
Findlay v UK (1997) 24 EHRR 221, ECHR: Right to fair trial / Courts-martial.
R v Preston  2 AC 130: Civil Liberties / Telephone tapping.
Bottomley v Todmorden Cricket Club  PIQR P18, CA: Liability of employer of independent contractor for injury to independent contractor's agent arising from his negligence.
Goodson v HM Coroner for Beds & Luton NHS Trust  1 WLR 432: State's obligation under Article 2 to investigate deaths in hospital.
R (Khan) v Secretary of State for Health  1WLR 971, CA: State's obligation under Article 2 ECHR to provide funding for representation of deceased's family at inquest.
R v Inner London North Coroner, ex p Touche  QB 1206, CA: Maternal death in a hospital 'unnatural' for purposes of holding an inquest.

matches: EWCA EWCA EWCA EWCA UKSC UKSC


text:
After Defendant Shawn Sibert was stopped and arrested for various traffic offenses, Savannah police officers conducted a warrantless search of the vehicle that was then parked in the middle of the street. That search revealed the pistol that has led to his federal prosecution for felon-in-possession of a firearm. Doc. 3 (Indictment). Sibert challenges the legality of that search and his later confession, which he asserts is the tainted fruit of the initial illegality.
The government argues that the warrantless intrusion was a proper “inventory search” conducted after the police elected to impound and tow a vehicle that had come into their lawful custody, an election that was made prior to, and thus not dependent upon, the discovery of the firearm under the driver's seat. Sibert counters that the purported “inventory” was a mere pretext for a suspicionless search for evidence that preceded any decision to impound the vehicle and, even if this were not the case, the inventory search was nevertheless unlawful because it was not conducted pursuant to established police policy. For reasons explained in the Court's Order of March 1, 2018 (doc. 40), the resolution of this issue required the Court to conduct two evidentiary hearings. Suppression hearing transcript (“Tr.”) vol. 1 (February 14, 2018); id. vol. 2 (March 7, 2018). After considering the testimony at those hearings, the video/audio recordings made by the body cameras worn by the arresting officers, and the police inventory policy, the Court finds no violation of Sibert's Fourth Amendment rights. His motion to suppress, therefore, must be DENIED.
The governing legal principles in this case, as clarified by the Court's March 1, 2018 Order (doc. 40), are not in dispute. The inventory search of an impounded vehicle is a well-established exception to the Fourth Amendment warrant requirement. Colorado v. Bertine, 479 U.S. 367, 371 (1987); South Dakota v. Opperman, 428 U.S. 364, 369 n.5 (1976). “[I]nventory procedures serve to protect an owner's property while it is in the custody of the police, to ensure against claims of lost, stolen, or vandalized property, and to guard the police from danger.” Bertine, 479 U.S. at 372; Opperman, 428 U.S. at 377 (the Fourth Amendment permits inventory searches of automobiles); Illinois v. LaFayette, 462 U.S. 640, 642 (1983) (inventory search of arrestee's shoulder bag serves the same governmental interests identified in Opperman). Such suspicionless searches are valid, provided they are conducted pursuant to standardized police procedures and the purported “inventory” is not “a ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990) (standardized criteria must sufficiently regulate inventory searches in order to ensure they are not turned into “‘a purposeful and general means of discovering evidence of crime'”); Bertine, 479 U.S. at 370-72 (an inventory search may not serve as “‘a subterfuge for criminal investigations.'”).
As the Court explained in its earlier Order, while the subjective motivations of the police play no role whatsoever in assessing the Fourth Amendment reasonableness of a search based on probable cause or reasonable suspicion, Whren v. United States, 517 U.S. 806, 813 (1996) (adopting a purely objective test for assessing the validity of a traffic stop), the actual motivations of the police do matter when considering the validity of inventory searches or other “administrative” searches that are allowable even in the absence of any justifiable suspicion of wrongdoing. Id.; see Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011). It is clear from the evidence - and this is not vigorously disputed by Sibert - that the police officers in this case did not act “in bad faith or for the sole purpose of investigation” when they elected to conduct an inventory search of the vehicle he was driving (but did not own). Bertine, 479 U.S. at 372. This finding is supported by the testimony of both witnesses at the evidentiary hearing, Officer Joseph Overholt and Sergeant Jeron Young, as well as the recordings made by the body cameras worn by Overholt and his ride-along trainee, Officer Jake Gilliland.
After observing Sibert weave in and out of his lane near the I-16/37th Street Connector in Savannah, Officer Overholt activated both his blue lights and his siren as a signal for the vehicle to pull over. Tr. vol. 1 at 18. The driver (Sibert) ignored this clear command and proceeded onward for some two-and-a-half blocks, making several turns onto other streets as he did so. Id. at 18-19. Sibert then stopped his vehicle “slightly canted in the middle of” 36th Street, id. at 21, which is located in an area of Savannah (Cuyler-Brownsville) known for its high rate of violent crime. Id. at 19-20. Given these circumstances, Officer Overholt ordered Sibert (at gunpoint) to exit his vehicle and get on the ground. After some hesitation, Sibert, who was the vehicle's sole occupant, complied with the officer's command. Sibert, who did not have a valid driver's license, advised Overholt that the car was owned by his girlfriend. Id. at 22. Overholt obtained her phone number and endeavored to call her, but he was unable to make contact. Id.
Officer Overholt then had a decision to make concerning the disposition of Sibert's vehicle, for Sibert was now under arrest and the vehicle's owner could not be located. While police policy clearly allowed the officer to tow and impound a vehicle upon the arrest of its driver, particularly where that vehicle was left blocking traffic, Officer Overholt initially tried to spare Sibert (and the vehicle's owner) both the trouble and expense of having a wrecker service tow and impound the vehicle. Id. at 23, 35. The bodycam videos reflect that Overholt spent considerable time speaking with a neighbor or friend of Sibert's grandmother, who appeared on the scene and volunteered to move the car out of the roadway and park it at the curb. After running this bystander's driver's license to determine that it was valid, Overholt (with Sibert's consent) furnished her with the car keys for that purpose.
Before the bystander was allowed to enter the vehicle, Overholt's supervising sergeant, Jeron Young, interjected “Y'all gonna look through it first?” Video 20, file-2 (“Overholt Bodycam”) at 16:32-33. After some further unintelligible exchange, Overholt stated, “Yeah, we'll do an inventory search.” Id. at 16:40-44. Overholt's rookie officer then entered the vehicle and promptly located a pistol under the driver's seat. Overholt then called for a tow truck to remove the vehicle from the scene.
Overholt testified that, absent his sergeant's comment, he would have allowed the bystander-neighbor to move the vehicle to the curb and that, had this occurred, he would not have searched the vehicle. Tr. vol. 1 at 30, 32, 35. Overholt clearly treated his sergeant's comment more as a directive than a suggestion, and he interpreted that directive as meaning that he should conduct an inventory search prior to towing the vehicle. Id. at 23, 31-32. Accordingly, after his sergeant made the comment, Overholt abandoned his initial plan of allowing someone to “legally park” the vehicle at the curb, id. at 23, and he instead elected the impoundment option permitted by police policy. Also, Overholt testified that in no circumstance had he ever conducted an inventory search of a vehicle without towing that vehicle. Id. at 25. Despite defense counsel's suggestion to the contrary, Overholt insisted that he was determined to tow the vehicle even if no pistol had been found under the driver's seat. Id. at 34.
Officer Overholt “assumed” that his sergeant “was referring to an inventory search and knew that a tow must be made, ” id. at 32 (emphasis added), and he further assumed that his sergeant was “looking out for my best interest by saying go through that vehicle.” Id. at 31. Overholt conceded that, in retrospect, he should not have considered allowing the bystander-neighbor to enter and park the vehicle, for the police policy states that only the vehicle owner may grant permission to the police to turn the vehicle over to a third party. Id. at 35. At the time, however, Overholt's “mind was running one hundred miles an hour, ” and he was “trying to cater to the neighborhood” and do Sibert “a favor.” Tr. vol. 1 at 35. He thought he was “doing the best thing” under the circumstances in arranging for the vehicle to be parked at the curb. Id. Sibert did not challenge any of this testimony, and the Court found it to be entirely credible.
Because the record established that it was Sergeant Young who prompted Overholt to conduct a search of the vehicle, the Court reopened the suppression hearing in order to receive evidence regarding Young's actual motivation for directing such a search. Doc. 40. At that hearing, Sergeant Young testified that he had “some concerns” about simply turning the vehicle over to a “lady from the neighborhood” without first conducting an inventory search of that vehicle. Tr. vol. 2 at 8. Young believed that the stated purposes behind the police department's inventory policy -- safeguarding the vehicle's contents and the protection of the police from later disputes or potential harm --justify an inventory search whether officers elect to tow a vehicle or have someone move it to the curb. Id. at 9-10. Despite telling Overholt that the vehicle should be searched before the neighbor was allowed access, id. at 10, 16, Sergeant Young explained that he left it up to the arresting officers whether to park the vehicle or have it impounded. Id. at 13, 18-20.
On the basis of the unrebutted testimony of the two police officers (the only two witnesses at the suppression hearing), the Court finds that neither officer “acted in bad faith or for the sole purpose of investigation, ” Bertine, 479 U.S. at 367, but instead were motivated by a desire to protect any valuable items located inside the vehicle. Obviously, the officers did not have the option of leaving the vehicle in the middle of the street, and given Sibert's arrest and the owner's absence, they either had to enter it themselves or allow someone else (be it a tow truck driver or friendly neighbor) to do so. The risk of property loss or damage, or possible harm arising from some dangerous item in the vehicle, was clearly uppermost in the mind of both officers. While Sergeant Young did suspect that there could be some type of incriminating evidence inside the vehicle, Tr. vol. 2 at 11, such back-of-the-mind suspicions do not vitiate an inventory search that is otherwise properly conducted for the proper purpose of safeguarding the owner's property and the police. United States v. Khoury, 901 F.2d 948, 959 (11th Cir. 1990); United States v. Bosby, 675 F.2d 1174, 1179 (11th Cir. 1982).
The absence of any improper purpose on the part of the officers is not the end of the inquiry, however. It is generally recognized that inventory searches are valid only if they are conducted pursuant to standardized procedures. Wells, 495 U.S. at 4-5 (lack of any police policy governing the opening of closed containers doomed the search of a suitcase found during an inventory search of a vehicle); Bertine, 479 U.S. at 372 (where the majority noted that the police “were following standardized procedures”); id. at 376 (concurring opinion by three justices, underscoring the importance of such standardized procedures); Khoury, 901 F.2d at 958; United States v. Conaway, 2016 WL 4508236, at *3 (S.D. Ga. Aug. 29, 2016). Sibert's principal argument is that the police acted in clear violation of that policy in this instance by choosing to inventory a car that they intended to park rather than impound, and he suggests that absent the discovery of the firearm they would not have had the car towed or impounded.