ORDERS:
ORDER OF REMAND
STATEMENT
OF THE CASE
The
above-captioned matter is before this court pursuant to S.C. Code Ann. §§
12-60-2540(A) & 1-23-600(B) (Supp. 2007). Dennis Hutto challenges the Barnwell
County Assessor’s decision to deny his objection to the property tax assessment
of his commercial property located in Barnwell, South Carolina, for tax year
2006. The Assessor determined that the objection was not timely and should be
denied because Mr. Hutto did not file his objection within ninety days of the
date on which notice of the proposed assessment was mailed. Mr. Hutto contends,
however, that he did not timely receive the mailed notice of the proposed
assessment and thus that his objection, which was filed within ninety days of his
first actual notice of the assessment, should be considered timely. Mr.
Hutto’s objection to his 2006 property tax assessment was timely and this
matter should be remanded for the Assessor to consider his objection.
FACTS
Mr.
Hutto owns commercial property located at 218 Main Street in Barnwell identified
as tax map number 072-14-15-017. Mr. Hutto receives his mail, including tax
notices, at 222 Yale Street, Barnwell, South Carolina 29812. Barnwell County
reassessed the property for the 2006 tax year and again for the 2007 tax year.
For 2005, the property had an appraised value of $23,200 and assessed taxes of
$502.92. For 2006, the property had an appraised value of $71,500 and assessed
taxes of $1,613.05. For 2007, the property had an appraised
value of $43,100. Mr. Hutto admitted that the Assessor’s Office
conscientiously worked with him to resolve this matter.
The Assessor stated that while he could not reconsider the value for 2006, he
would for 2007. He promptly toured the building and suggested a reappraised
value of $43,100. Mr. Hutto asserted this value was still too high, but
“certainly more in line” and indicated he would not challenge
that valuation. The prompt reassessment of the property from $71,500 to
$43,100 suggestindicates
that the 2006 valuation was indeed too high and based on inaccurate or
incomplete information.
All
notices and tax bills appear to be properly addressed to Mr. Hutto’s correct
address. The Assessor filed his copy of a tax notice dated
03/31/2006. By letter dated May 25, 2007, H. Mikell Anderson, the Barnwell
County Assessor, stated: “Our records indicate that a notice was sent to you
showing the new value on June 29, 2006.” The Assessor asserts that such
notices are sent by mass mailing, where appraised value has increased more than
a thousand dollars, with a carbon copy kept to show they were sent. The taxpayer
then has ninety days to dispute the reassessed value. The Assessor has no
documents or other evidence confirming that the notices were properly delivered
to property owners, but the notice mailed to Mr. Hutto was not returned to the
Assessor as undeliverable.
Upon
receiving the 2006 property tax bill on October 28, 2006, Mr. Hutto called the
Assessor’s office on October 30, 2006, met with Mr. Anderson on that same date
and was given a copy of the 03/31/06 notice, and subsequently sent a letter to object
to the reassessed property valuation. Because the Assessor determined that the
objection was not filed within ninety days of the date on which notice of
reassessment had been mailed, he concluded that the objection was untimely and
denied it. Mr. Hutto appealed to the Board of Assessment Appeals, which upheld
the Assessor’s determination that Mr. Hutto’s objection should be denied as
untimely filed and no further action should be taken on it. Mr. Hutto timely
requested a contested case hearing before this court to challenge the denial of
his objection to his 2006 property tax assessment.
On
January 23, 2008, this court held a conference call with Mr. Hutto and Mr.
Mosteller as attorney for the Assessor to discuss the issue of timeliness.
Both parties agreed the filings were sufficient to decide the issue and waived
a hearing on the Assessor’s motion to dismiss, in light of this court’s prior
decision in Summerville Lodge Ltd. P’ship v. Dorchester County Assessor,
06-ALJ-17-0146-CC, 2006 WL 2224695 (2006). Rather than holding a hearing and
taking testimony, Mr. Hutto agreed to and did submit an affidavit attesting that he never received the initial reassessment
notice, but that a copy of thethe property tax billnotice was
received on October 28, 2006. The county through its attorney stated it had no
objection to disposing of the case in this fashion. I find that Mr. Hutto
did not have proper notice of the proposed reassessment of his property for tax
year 2006 until he received his tax bill on October 28, 2006. Therefore, I
further find that his letters of protest, which were filed with the Assessor’s
office well within ninety days of receipt of that tax bill, and ongoing meetings with the Assessor’s Office to try to resolve this matter were
timely notice of his objection.
LAW/ANALYSIS
Pursuant
to S.C. Code Ann. § 12-60-2510(A)(1) (Supp. 2007), a county assessor is
required to provide taxpayers with written property tax assessment notices by
the first of October in a year in which the county is undergoing county-wide
reassessment. This notice “must be served upon the taxpayer personally or by
mailing it to the taxpayer at his last known place of residence.” S.C. Code
Ann. § 12-60-2510(A)(2) (Supp. 2007). If a taxpayer wishes to object to the reassessment
of his property taxes, “the property taxpayer, within ninety days after the
assessor mails the property tax assessment notice, must give the assessor
written notice of objection” to the proposed reassessment. S.C. Code Ann. §
12-60-2510(A)(3) (Supp. 2007). An assessor is only required to consider a
notice of objection that is filed within this timeframe. S.C. Code Ann. §
12-60-2520(A) (Supp. 2007).
While
this ninety-day period for filing an objection to a property tax assessment
runs from the date on which the assessment is mailed by the assessor, not from
the date on which it was received by the taxpayer, due process requires that
the taxpayer have some notice of the assessment, whether actual or
constructive, before he can be denied an opportunity to challenge it. Basic due
process requires that persons affected by a public body’s decision be given
proper and adequate notice so that such persons may be heard regarding the
decision before it becomes final. See S.C. Const. art. I, § 22 (“No person
shall be finally bound by a judicial or quasi-judicial decision of an
administrative agency affecting private rights except on due notice and
an opportunity to be heard . . . .”) (emphasis added); Ross v. Med. Univ. of
S.C., 328 S.C. 51, 492 S.E.2d 62 (1997) (South Carolina Constitution
guarantees right to notice and opportunity to be heard by administrative agency
before final decision is rendered). Generally, notice must be “reasonably
calculated under all circumstances to apprise interested parties of the
pendency of the action and afford them an opportunity to present their
objections.” Blanton v. Stathos, 351 S.C. 534, 542, 570 S.E.2d 565, 569
(Ct. App. 2002).
Such
notice is captured in the Revenue Procedures Act, which requires that notice of
a property tax assessment “be served upon the taxpayer personally or by mailing
it to the taxpayer at his last known place of residence.” S.C. Code Ann. §
12-60-2510(A)(2) (Supp. 2007). To ensure that notice is reasonably calculated
to reach the taxpayer, that section provides a list of sources for the assessor
to use in determining the taxpayer’s correct address. Id. While a
taxpayer’s time period for objecting to a property tax assessment runs from the
date the assessment was mailed, not from the date received, mailing of the
notice of assessment alone, without some indication that the taxpayer received
actual or constructive notice of it, is not sufficient to satisfy the constitutional
due process guarantees and statutory mandates that require an assessor to
provide legally sufficient notice of an assessment to a taxpayer to afford full
opportunity to be heard. Cf. Ward v. Douglas County Bd. of Comm’rs,
886 P.2d 310, 311 (Colo. Ct. App. 1994) (“Under applicable principles of
statutory construction, statutory notice requirements pertaining to tax
proceedings must be interpreted so as to comply with due process under the
United States and Colorado constitutions.”).
To
establish that these notice requirements have been satisfied, an assessor need
not necessarily have specific evidence, such as a certified mail return
receipt, demonstrating that the taxpayer received notice of the assessment.
Rather, an assessor may make a prima facie case that the notice was properly
delivered to the taxpayer by establishing that the notice was mailed under its
routine office practices for mailing such notices. See, e.g., 1A John
Henry Wigmore, Evidence in Trials at Common Law § 95, at 1634 (Peter
Tillers ed., 1983) (“It is well settled that routine business practice and
custom are admissible to show that a message was deposited for mailing or other
transmission by the sender, that the carrier transmitted the message, and that
the message was received.”); see also 2 Clifford S. Fishman, Jones on
Evidence § 10:2, at 207 (7th ed. 1994) (“a public agency can satisfy this
burden [of establishing that correspondence was properly sent and received],
for example, with evidence showing a regular and customary course of business
to address, stamp and mail all letters in a certain manner”).
However,
if the taxpayer unequivocally denies receiving the mailed notice, the
presumption that notice was received based upon the customs or practices of the
assessor’s office ends and the trier of fact must determine whether notice was
properly received by the taxpayer based upon the weight of the evidence. See,
e.g., Utah Motel Assocs. v. Denver County Bd. of Comm’rs, 844 P.2d
1290, 1293 (Colo. Ct. App. 1992) (in a property tax case, while “[a] letter
properly mailed is presumed received by its addressee . . . [,] when an
addressee denies receiving a letter, the binding effect of the presumption
ends, and the trier of fact is left to decide the issue based upon the weight
of the evidence”); 2 Fishman, supra, § 10:3, at 211-12 (addressee’s denial
of receipt is generally sufficient to create triable issue of fact on whether
correspondence was delivered).
Our
Supreme Court long ago addressed this exact issue:
The important
question is whether a party in such a case is absolutely bound by the mailing
of the notice to him, though he fails to receive it, and is thus shut out from
his right of appeal. The point is not free from difficulty. There is strong
reason for holding that the notice of the filing of the decree is not essential
to the exercise of the right of appeal, for both parties might without hardship
be held bound to take notice of the filing of the decree as an act taking place
in a public office. Indeed, looked at from the technical legal standpoint, we
think this the true view of the matter. Still the law contemplates that the
losing party may rely on notice of the decree from the successful party, and we
cannot think it was the intention to conclude the rights of a party by holding
him bound by a notice mailed to him, but not received, where no injury has
resulted to the other party, and the rights of third parties have not
intervened. Service by mail in the manner required by statute is good service,
and all judgments and other completed legal proceedings resting thereon will be
binding. Even in the course of the proceedings without a showing of injury to
the adverse party, the service by mail in accordance with the statute will be
regarded complete, and the party so served will not be relieved against the
very strong presumption, except on clear proof that he was taken by surprise. .
. . Nevertheless, as the plaintiff has lost no substantial right, we have
concluded, though with hesitancy, to regard the presumption of the receipt of
the notice overcome by the defendant’s sworn statement that it did not reach
him.
Martin v.
Hutto, 82 S.C. 432, 64 S.E. 421, 422 (1909). That reasoning is dispositive
here.
The
Assessor did not do anything wrong and indeed followed a generally accepted
practice of mass mailing such notices. It would not be cost effective to send
every taxpayer notice by return receipt requested. However, the failure of
notice to the taxpayer is a risk that the Assessor takes with mass mailing,
such that the ninety-day period may not begin to run where the taxpayer
affirmatively asserts that he did not receive such notice. The Assessor also
argues that because Mr. Hutto received notices for some of his other
properties, he was on constructive notice and should have inquired as to the
reassessment of this property when he did not receive it. However, by statute,
the Assessor does not have to send out notices on all properties, only those
with dramatic changes in value. So Mr. Hutto could reasonably assume, from not
receiving a notice, that the valuation of that property had not increased
significantly.
In
the instant case, while the Assessor made an initial showing that notice of Mr.
Hutto’s property tax assessment was mailed to him under its normal office
practices, the presumption of proper delivery based upon those practices was
rebutted by Mr. Hutto’s denial of receipt of the notice; his past history of
timely responding to tax notices and bills sent to him indicates that the
notice of assessment was not received. Because Mr. Hutto did not receive adequate
notice of the proposed assessment, his opportunity to object to the assessment
did not extinguish ninety days after mailing of the notice. Therefore, Mr.
Hutto’s objection, which was filed within thirty days of receipt of notice of
the reassessment of his property by way of his October 2006 tax bill, was
timely filed and should be considered by the Assessor. Cf. Utah
Motel Assocs. v. Denver County Bd. of Comm’rs, 844 P.2d 1290, 1293 (Colo.
Ct. App. 1992) (while, by statute, hotel’s time to appeal county commissioners’
decision on its property tax assessment ran from date decision was mailed, “mailing
of the notice was insufficient to start the thirty-day time period if, as here,
taxpayer denies receiving it” and therefore hotel’s appeal should be considered
timely if filed within thirty days of when it actually received notice of decision).
ORDER
IT
IS HEREBY ORDERED that the Board’s decision is REVERSED and Mr.
Hutto’s objection to the 2006 reassessment of his property at 218 Main Street
in Barnwell, South Carolina, is REMANDED to the Barnwell County Assessor
to consider his objection to his property tax assessment as timely filed.
AND
IT IS SO ORDERED.
______________________________
January 310,
2008 JOHN D. GEATHERS
Columbia, South Carolina Administrative
Law Judge
1205 Pendleton Street,
Suite 224
Columbia, South Carolina
29201-3731
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