NRG WHOLESALE GENERATION LP f/k/a GENON WHOLESALE GENERATION, LP
LORI P. KERR, IN THE OFFICIAL CAPACITIES OF TAX ASSESSOR AND COLLECTOR OF CHOCTAW COUNTY, MISSISSIPPI, AND CHOCTAW COUNTY, MISSISSIPPI
OF JUDGMENT: 03/27/2017
CHOCTAW COUNTY CIRCUIT COURT HON. GEORGE M. MITCHELL, JR.
COURT ATTORNEYS: SHELDON G. ALSTON PETER J. CROSSETT PAUL H.
STEPHENSON, III PEYTON D. PROSPERE KASEY CAROL BURNEY LOUIS
G. FULLER WILLIAM F. GOODMAN, JR. SCOTT FULLER SINGLEY
ATTORNEYS FOR APPELLANT: JOSEPH ANTHONY SCLAFANI SHELDON G.
ALSTON PETER J. CROSSETT
ATTORNEYS FOR APPELLEES: PAUL H. STEPHENSON, III PEYTON D.
PROSPERE KASEY CAROLBURNEY
WALLER, C.J., CHAMBERLIN AND ISHEE, JJ.
The main issue presented by this case is whether NRG
Wholesale Generation's proffered expert used an
acceptable method to determine the "true value" of
its power plant in computing ad valorem tax. NRG's expert
used a mixture of the sales-comparison approach, the income
approach, and the cost approach to determine the true value
of the facility. Lori P. Kerr, the tax assessor for Choctaw
County, and Choctaw County, Mississippi (collectively, the
"County"), contend that Mississippi law mandates a
trended historical costless-depreciation approach to
calculate the true value of industrial personal
property. The circuit court found in favor of the
County and excluded NRG's proffered expert testimony. NRG
claims the circuit court abused its discretion.
NRG also argues that the circuit court erred in denying its
motion to change venue. NRG asserts that, because many of the
jurors knew the county officials named as defendants
in this case, a fair trial in Choctaw County was impossible.
We hold that the Mississippi Department of Revenue (the
"DOR") regulation controlled and that NRG's
expert applied an unacceptable method to determine true
value. Therefore, the circuit court did not err in excluding
NRG's proffered expert testimony. Additionally, because
NRG was afforded a fair and impartial jury, the circuit court
did not abuse its discretion in denying the motion to change
venue. We affirm the judgment of the circuit court.
AND PROCEDURAL HISTORY
NRG owns a power plant located in Choctaw County. In
calculating the ad valorem tax, the Choctaw County Tax
Assessor determined that the true value of the facility was
$467, 213, 070. Having itself appraised the true value of the
facility at $110, 000, 000, NRG appeared before the Choctaw
County Board of Supervisors (the "Board") in
protest. Upon reconsideration, the Board discovered a
calculation error and found that the true value of the
facility was actually $559, 974, 970, or $92, 761, 900 more
than the tax assessor's initial valuation. NRG appealed.
NRG designated Mark R. Simzyk as its valuation expert and
submitted his report. In calculating the true value of the
facility, Simzyk first determined the value of the facility
under the sales-comparison approach, the income approach, and
the cost approach. He then reconciled the three results,
finding the true value of the facility to be $180, 000, 000.
After the close of discovery, the County moved to exclude
Simzyk's expert testimony. The County argued that Simzyk
utilized methods for determining the true value of industrial
personal property different from the method mandated by state
law and regulation. NRG countered that, since the circuit
court must hear NRG's tax appeal anew, Simzyk's
appraisal would assist in determining the true value of the
facility. NRG asserted that the County ignored the clear
language of Mississippi Code Section 27-35-50 (Rev. 2017),
which defines "true value" as encompassing all
approaches to value.
In its order granting the County's motion to exclude
Simzyk's expert testimony, the circuit court noted that
no DOR regulations allowed a taxpayer to use a method other
than the one prescribed by state law and regulation. Allowing
Simzyk to testify to an appraisal based on a method other
than the method prescribed by the DOR would contradict the
guidelines established for expert witnesses, such as
Daubert v. Merrell Dow Pharmacuticals, Inc., 509
U.S. 579, 582, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and
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