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No. 18-0018 – Murray Energy Corporation and Consolidation Coal Company v. 

Dale W. Steager, State Tax Commissioner of West Virginia; The 

County Commission of Marshall County; and Christopher J. Kessler, 

Assessor of Marshall County

Jenkins, Justice, dissenting:

Pursuant to the Constitution of this State, all property is to be taxed in 

accordance with its value: “taxation shall be equal and uniform throughout the State, and 

all property, both real and personal, shall be taxed in proportion to its value to be 

ascertained as directed by law.” W. Va. Const. art. X, § 1 (emphasis added). The 

Legislature has further interpreted this command as requiring property to be assessed at its 

“true and actual value,” both with respect to real property, generally, W. Va. Code § 11-3-

1(a) (LexisNexis 2013 & Supp. 2018), and with regard to the specific type of real property 

at issue herein: natural resources. See W. Va. Code § 11-6K-1(a) (LexisNexis 2013). To 

this end, W. Va. Code § 11-6K-1(a) directs that “[a]ll industrial property and natural 

resources property shall be assessed annually as of the assessment date at sixty percent of 

its true and actual value.” (Emphasis added). Moreover, for ad valorem property tax 

purposes, this Court previously has recognized that “true and actual value” means “[t]he 

price paid for property in an arm’s length transaction[.]” Syl. pt. 2, in part, Kline v. 

McCloud, 174 W. Va. 369, 326 S.E.2d 715 (1984). Accord W. Va. Code § 11-3-1(a) 

(defining “true and actual value” as “the price for which the property would sell if 

FILED

April 29, 2019

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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voluntarily offered for sale by the owner thereof, upon the terms as the property, the value 

of which is sought to be ascertained, is usually sold, and not the price which might be 

realized if the property were sold at a forced sale”).

It is within this precise context that the challenged taxing methodology of a 

“three-year rolling average” must be considered and its accuracy in taxing the subject 

property at its “true and actual” value must be measured. While an efficient and expedient 

valuation method with statewide application is not inherently problematic, when the 

methodology selected and employed assigns valuations to property that do not reflect the 

property’s “true and actual” value, the methodology is untenably invalid and financially 

detrimental to the taxpayer whose property is valued in accordance therewith. Because the 

Tax Commissioner’s use of a “three-year rolling average” to value coal interests for ad 

valorem property tax purposes does not accurately value the subject property at its “true 

and actual” value, the majority should have invalidated the legislative rule authorizing the 

application of this methodology and required the implementation of a more accurate 

valuation method. Instead, however, the majority has condoned the adoption and use of 

this methodology, essentially ignoring the erroneous property valuations that have resulted 

from its application. Because I disagree with the majority’s resolution of this matter, I 

respectfully must dissent.

Neither the parties nor the majority dispute that the Taxpayer’s coal interests 

herein are statutorily required to be taxed at their “true and actual value” in accordance 
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with W. Va. Code § 11-6K-1(a). Though not expressly defined in the specific statute 

pertaining to the taxation of natural resources property, i.e., W. Va. Code § 11-6K-1(a), the 

corollary, general real property taxation statute, W. Va. Code § 11-3-1(a), defines “true and 

actual value” as 

the price for which the property would sell if voluntarily 

offered for sale by the owner thereof, upon the terms as the 

property, the value of which is sought to be ascertained, is 

usually sold, and not the price which might be realized if the 

property were sold at a forced sale.

Pursuant to the rules of statutory construction, because both W. Va. Code 

§ 11-6K-1(a) and W. Va. Code § 11-3-1(a) are part of the same overall taxation scheme 

adopted by the Legislature, the two statutes should be read and considered in conjunction 

with one another. See Syl. pt. 2, Tug Valley Recovery Ctr., Inc. v. Mingo Cty. Comm’n, 

164 W. Va. 94, 261 S.E.2d 165 (1979) (“When two statutes relate to the same general 

subject, and the two statutes are not in conflict, they are to be read in pari materia.”); Syl. 

pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d 

907 (1975) (“Statutes which relate to the same persons or things, or to the same class of 

persons or things, or statutes which have a common purpose will be regarded in pari 

materia to assure recognition and implementation of the legislative intent. Accordingly, a 

court should not limit its consideration to any single part, provision, section, sentence, 

phrase or word, but rather review the act or statute in its entirety to ascertain legislative 

intent properly.”). As such, it is apparent that the term “true and actual value” referenced 

in W. Va. Code § 11-6K-1(a) also refers to the price a willing buyer would pay a willing
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seller for the subject property. See W. Va. Code § 11-3-1(a). Accord Syl. pt. 2, in part, 

Kline, 174 W. Va. 369, 326 S.E.2d 715 (construing “true and actual value” to mean “[t]he 

price paid for property in an arm’s length transaction”); Syl. pt. 3, in part, Killen v. Logan 

Cty. Comm’n, 170 W. Va. 602, 295 S.E.2d 689 (1982) (interpreting “value” in tax 

assessment context as “‘worth in money’ of a piece of property–its market value”), 

overruled on other grounds by In re Tax Assessment of Foster Found.’s Woodlands Ret.

Cmty., 223 W. Va. 14, 672 S.E.2d 150 (2008).

In recognition of this correlation between a property’s sales price and its “true 

and actual value,” the Tax Commissioner has promulgated a legislative rule, which the 

Legislature has approved, by which to calculate such price. The resulting methodology, 

also known as the “three-year rolling average,” provides as follows:

“Average coal price” for purposes of the reserve coal 

valuation model, means the arithmetic mean of the sum of the 

last three calendar years of total FOB-source (point of sale, no 

transportation) values of steam coal mined in West Virginia 

and sold on the spot market as reported on FERC Form 423 to 

the United States Department of Energy (USDOE) and to the 

West Virginia Public Service Commission (WVPSC), divided 

by annual production, expressed in dollars/ton. Average coal 

price can also be expressed in dollars per million BTU and is 

determined by dividing the arithmetic mean of the sum of coal 

sales, by the sum of all steam coal BTU mined in West Virginia 

and sold on the “spot” market as reported on FERC Form 423 

to the United States Department Of Energy and to the West 

Virginia Public Service Commission for the three most recent 

calendar years preceding the July 1st assessment date, 

calculated for the entire state as well as by coal bed and by 

location.
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W. Va. C.S.R. § 110-1I-3.12 (2006) (emphasis in original). In adopting this methodology, 

the Tax Commissioner argues that application of this “three-year rolling average” more 

accurately values coal interests because it accounts for market fluctuations in the sales price 

of coal.

However, the record evidence in this case tells a different story. According 

to the evidence presented below, application of the Tax Commissioner’s “three-year rolling 

average” to determine the sales price of the subject coal interests, as required by the West 

Virginia Code of State Rules, does not accurately value the Taxpayer’s coal-based natural 

resources interests at either their “true” or their “actual” value as required by both the 

Constitution and statutory law of this State. See W. Va. Const. art. X, § 1; W. Va. Code § 

11-6K-1(a). For the 2016 tax year, i.e., 2015 assessment year, at issue in this case, the Tax 

Commissioner’s use of the “three-year rolling average” to determine a sales price for coal 

interests in this State yields a figure of $60.35 per ton. But, as noted in the majority’s 

opinion, the evidence presented by the Taxpayer calculates the average sales price for coal 

during this time period to be $41.08 per ton, based upon industry publications. Moreover, 

applying the “three-year rolling average” methodology to publicly-available data, and 

excluding the additional, confidential information that the Tax Commissioner includes 

when calculating this price, yields a coal sales price of $51.50 per ton, according to the 

Taxpayer’s expert. Finally, even the Tax Commissioner’s own expert recognized that data 

provided by the West Virginia Public Service Commission, the United States Energy 

Regulatory Commission, and other industry analysts values the sales price of coal for this 
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period “substantially lower” than that reflected by the Tax Commissioner’s adopted price 

of $60.35 per ton, which testimony also is included in the majority’s opinion. Yet, despite 

this overwhelming evidence demonstrating the inaccuracy of the “three-year rolling 

average” to value coal interests for ad valorem tax purposes, which sustains the Taxpayer’s 

burden of proof in such matters,1the majority refrains from invalidating this flawed 

methodology deferring, instead, to the Tax Commissioner’s legislatively-granted 

authorization to adopt and implement the same. The majority further compounds this error 

by adopting a new Syllabus point condoning the continuation of this factually unsupported 

practice. See Maj. op. at Syl. pt. 7 (“The methodology of calculating and use of the annual 

average Steam Coal Price Per Ton and coal seam thickness averages for ad valorem tax 

valuation purposes, as set forth in West Virginia Code of State Rules § 110-1I-1 et seq.

(2006), does not violate the requirement contained in West Virginia Code § 11-6K-1(a)

(2010) that natural resources property be assessed based upon its ‘true and actual value.’”).

 

1See Maj. op. at Syl. pt. 1 (“‘As a general rule, there is a presumption that 

valuations for taxation purposes fixed by an assessor are correct. Thus, a tax assessment 

of coal property will be presumed to be correct when the assessor, in assessing the coal 

property: (1) relies upon the legislative rules prescribing the methods by which property is 

to be assessed; and (2) uses, as a guide, information furnished by the tax department, such 

as a list of comparable sales of similar property. The burden is on the taxpayer challenging 

the assessment to demonstrate by clear and convincing evidence that the tax assessment is 

erroneous.’ Syl. Pt. 2, W. Pocahontas Properties, Ltd. v. Cty. Comm’n of Wetzel Cty., 189 

W. Va. 322, 431 S.E.2d 661 (1993).” (emphasis added)).
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I simply cannot agree to such a blatant departure from the constitutional and 

statutory commands that property be taxed at its “true and actual” value. Accordingly, I 

respectfully dissent.