ORDERS:
ORDER
This matter came before
me for contested case hearing on October 20, 2005. Appearing on behalf of the
parties were G. Trenholm Walker, counsel for the Petitioner, International
Center II, LLC, and D. Mark Stokes, counsel for Respondent, the Berkeley County
Assessor.
The Petitioner,
International Center II, LLC, (sometimes referred to herein as “Owner”) seeks a
determination that it is entitled to reduction in its property tax assessment
for tax years 2002, 2003 and 2004, and a refund for a portion of the ad
valorem taxes paid for those same years
At the hearing,
Kent Johnson testified on behalf of the Owner regarding the construction and
leasing of the building on the subject property, and other related matters;
Patrick McDermott testified regarding the receipt of the tax information and
payment of the tax bills by the Owner; and Robert W. Ragin, an expert in county
appraisal and assessment practices, testified to matters related to the
assessment and taxation of the subject property.
Based on the testimony
of the witnesses, the exhibits introduced into evidence, and the applicable
law, I make the following findings of fact and conclusions of law. Any issues
raised in the proceeding but not addressed in this Final Order and Decision are
deemed to be denied. ALJD Rule 29 (C). The appearance of a conclusion of law
under the heading of Findings of Fact, or a factual determination under the
heading Conclusions of Law, shall not change its essential character nor make
any difference.
FINDINGS OF FACT
1. The
subject property is part of the development of Charleston Regional Business Center, an industrial park located on Daniel Island, South Carolina. The original
idea in developing the industrial park was to attract warehouse distribution
tenants carrying on business and trade through Charleston’s proposed new global
port facility then planned for Daniel Island. (Tr. p. 18, lines 9-18).
2. International
Center II, LLC is the owner of the subject property, identified as PID No. 267-00-00-127,
comprised of 16.58 acres located adjacent to Charleston Regional Parkway on
Daniel Island in Berkeley County. (Tr. p. 15, line 22 – p. 18, line 3)(Pet.
Exh. 1, pp..i, 2-3)
3. The
first phase of this industrial park project was the construction of a 200,000
square foot warehouse building across the street from the subject property on
land owned by International Center I, LLC. (Tr. p.18, lines 15-18) (Pet. Exh.
1, p. 3).
4. There
are multiple possible uses for a large warehouse building. (Tr. p. 20, line 10
– p. 23, line 17) The specific intended final use affects the layout and
construction of the facility. Id. For instance, completion of the
interior and exterior will vary considerably depending on whether the facility
is used for office (such as a call center), light manufacturing, or the storage
and distribution of goods. Id. As a result, there are several significant
construction components that are unknown and cannot be completed until a tenant
is secured and its use for the building identified. (Tr. P. 20, line 22-p.21,
line 3, Tr. P.22, line 4-p.23, line 17).
5. With
International Center I, LLC, a single tenant for the entire building was
located during initial construction, and all modifications necessary to meet
that tenant’s requirements and complete the facility were made during the
original construction phase. (Tr.p.19, lines 12-18).
6. As a result
of International Center I’s success in quickly securing a tenant and leasing
its building, International Center II decided to move forward with construction
of another warehouse of 250,000 square on the subject property. (Tr.p.21,
lines 14-20; p.24, lines 1-2). The Owner obtained a loan to fund the entire
construction, including amounts for completing the building for a suitable
tenant. (Tr.p.23, lines 18-20). The Owner immediately began the marketing
process of trying to secure a tenant so that the structure would be able to be
completed for its intended purpose in the initial construction phase.
(Tr.p.21, line 22-p.22, line 3). This marketing process included the
advertising of the facility on the regional multiple listing service. (Tr.p.29,
lines 5 -15) (Pet. Exh. 1, pp. 13-14).
7. After
commencement of construction of the large warehouse building on the subject
property, the decision was made and announced that Charleston’s new global port
facility would not be located on Daniel Island. (Tr.p.24, lines 10-11). As a
result, the Owner was unable to identify a tenant during the construction of
the shell of the building, and it became increasingly unlikely a single tenant
could ever be secured for the entire building; instead, the facility would
likely have to house multiple tenants. (Tr.p.24, lines 5-14).
8. After
construction of the incomplete shell of the building, the Owner succeeded in securing
a tenant for 50,000 square feet (20% of the building), and a certificate of
occupancy was issued for that portion of the building on August 9, 2002.
(Tr.p.24, line 16-p.25, line 9)(Pet. Exh. 1, p. 62). International Center II
spent approximately $300,000 in making the improvements and customizations to complete
the 50,000 square feet to accommodate this tenant and obtain the certificate of
occupancy. (Tr.p.25, lines 10-17). Prior to finishing the completion of the
upfit construction of the 50,000 square feet for this tenant, no portion of the
building had been used nor completed for its intended purpose. (Tr.p.27, lines
6-14). Upon the issuance of the certificate of occupancy on August 9, 2002, 50,000
of the 250,000 square feet of the structure was complete for its intended
purpose. (Pet. Exh. 1, p.62).
9. International
Center II ultimately located a tenant for the remaining 200,000 square feet. (Tr.
p.27, line15 – p. 29, line 23). At this point, the Owner hired an architect
to prepare code compliant drawings to complete the remaining 200,000 square
feet of the structure to suit this second tenant, and entered a contract with Chastain
Construction as the contractor to finish out the improvements. (Tr.p.33, lines
17-19, p.35, lines 3-15; Pet. Exh. 1, p.24-33). The Owner’s final cost to
complete the remaining 200,000 square feet of the structure was $538,000.
(Tr.p.35, lines 18-25; Pet. Exh. 1, pp. 24-30)
10. Prior to the
completion of the improvements by Chastain Construction, the remaining 200,000
square feet did not have electricity, plumbing, or domestic water. The loading
docks running the length of one side of the building were not finished.
(Tr.p.38, line 14-p.39, line 11; Pet Exh. 1, p.18). There was a sewer line
buried below the slab, without connection to the building. (Pet. Exh. 1,
pp.14-19). As a result of the lack of electricity, plumbing, and many other
features, this 200,000 square feet of the structure did not have minimal life
safety systems nor meet other requirements of the building code, such as
restrooms and emergency lights, necessary for its intended use, much less the
issuance of a certificate of occupancy. (Tr.p.31, line 15-p.33, line 13; Pet.
Exh. 1, pp.34-36). The pictures admitted into evidence show that the building
was an incomplete structural shell before Chastain Construction finished it
out. (Pet. Exh. 1, pp.14-18). Due to the lack of a certificate of occupancy,
this 200,000 square feet of the building could not be legally occupied or used
for any purpose. (Tr.p.40, lines 10-p. 41, line 2).
11. A certificate
of occupancy was issued for this 200,000 square feet on October 27, 2004.
(Tr.p.36, lines 14-22; Pet Exh. 1, p. 33A). At that time, this 200,000 square
feet became complete for its intended use and purpose.
12. International
Center II received and paid a property tax bill for tax year 2001 for the assessed
value of the land only. (Tr.p.52, lines 14-15; Pet. Exh. 1, p.7).
13. In early
2002, the Owner received a notice of reassessment from the Assessor indicating
an increase in the property tax assessment to include the value of the entire
building improvements. (Tr.p.52, lines 16-19, Pet. Exh. 1, p.4). The Owner
did not seek a conference with the Assessor or otherwise file an objection to
value within the time specified in the 2002 reassessment notice. The Owner
did not challenge the reassessment value at that time because the Owner
believed the overall dollar amount attributed by the County Assessor to the
building improvements was in line with the construction costs to date on the
building. (Tr.p.52, line 20-p.53, line 5).
14. Later, in the
fall of 2002, the Owner received the 2002 tax bill from the Berkeley County treasurer’s office. (Tr.p.53, lines 15-20). Upon receipt, McDermott, on
behalf or the Owner, wrote a letter to Ronnie Williams, the Assessor, stating
that he was shocked to see the bill for the fully assessed valued of the
property as of January 1, 2002, because a certificate of occupancy was not issued
until August 9, 2002. McDermott requested in his letter that the appraised
value for the 2002 tax year be reduced to 2001 level since the certificate of
occupancy for the first 50,000 square feet was not issued until well after
January 1, 2002. (Tr.p.54, line 22-p.55, line 10). (Pet. Exh 1, p.61).
15. On November
26, 2002, McDermott received a letter from the Assessor's office acknowledging
receipt of his letter and stating that issuance of a certificate of occupancy
is not the determining factor as to when a building is complete for its
intended use. (Pet. Exh.1, p.66). In this letter, the Assessor’s office also stated
that “in February of 2002 we sent out an assessment notice showing the new
appraised value. Furthermore, this property was listed for lease on April 17,
2001. Based on these factors we believe the current assessment is correct.”
(Tr.p.56, lines 9-20) (Pet. Exh 1, p.66) In reliance on this letter and a
subsequent phone conversation with the Assessor’s office, the Owner paid the
year 2002 ad valorem taxes in the amount of $107,696 on December 10,
2002. (Tr.p.57, lines 19-24;Pet. Exh,1, p.,63). The 2002 bill was calculated
on a property tax assessment for tax year 2002 which assigned a value of
$4,950,000 for real property improvements of 250,000 square feet. (Pet. Exh.
3).
16. The Owner
likewise paid ad valorem taxes of $117,201.19 for tax year 2003 and $97,672
for tax year 2004 on the same property tax assessment that included the
assessment of improvements of 250,000 square feet. (Tr.p.60, lines 14-21;Pet.
Exh. 1, p.5-6) (Pet. Exh. 3).
17. In 2004 the
Owner retained Ragin and authorized him to act on its behalf with regard to Berkeley County’s county-wide reassessment for 2004. (Tr.p.58, lines 21-24; Pet. Exh.1,
p.1). After looking into the matter, Ragin informed McDermott that the full
building should not have been put on the tax rolls in 2002, 2003, and 2004,
because the entire building was not complete for its intended purpose for those
tax years. (Tr.p.59, lines 1-24).
18. By
letter dated June 18, 2004, Ragin, on behalf of the Owner, protested the
Assessor’s 2004 reassessment value for the subject property. (Tr.p.60, lines
1-6) (Pet. Exh. 2). Berkeley County later
postponed its county-wide reassessment from 2004 to 2005.
19. By letter dated September 10, 2004, Ragin,
on behalf of the Owner, informed the Assessor that the Owner was continuing and
perfecting the appeal of the valuation for tax year 2004 on the grounds that only
50,000 square feet of the building were complete and fit for the purpose
intended on December 31, 2003, and the remaining 200,000 square feet of the
improvements were not subject to taxation for 2004. (Pet. Exh. 1, p. 8-9).
20. The Assessor denied the Owner’s request for
adjustment of the valuation of the subject property to delete the 200,000
square feet of improvement value for tax year 2004. On behalf of the Owner,
Ragin then appealed this decision for tax years 2002, 2003, and 2004. (Pet.
Exh. 1, p. 20).
21. On November
10, 2004, on behalf of the Owner, Ragin delivered to the Assessor a written
request seeking a refund for excess ad valorem taxes the Owner paid in
tax years 2002, 2003, and 2004, on portions of the building that were not
complete. (Tr.p.59, lines 11-13; Pet. Exh. 1, p. I, 57A). The amount of the
requested refund was calculated on a reduced property tax assessment that
subtracted the value of the incomplete portions of the building by the value
per square foot assigned by the Assessor to the building. Id.
22. Pursuant
to S.C. Code Ann. § 25-60-2550, Berkeley County issued an 80% tax bill for 2004
to the Owner who then paid it. (Tr., p. 60, line 22 - 61, line 5; p. 87 line
25 – p. 88, line 14).
23. Ragin is a
licensed South Carolina appraiser and has been extensively involved in county
real property tax matters since 1957. He served as the assessment supervisor,
deputy assessor, and county assessor of Richland County, South Carolina, during
the years 1955-1965. He also served as the Charleston County assessor from
1966 until 1985. Since his retirement in 1985, he has been a very active
appraisal consultant primarily handling ad valorem tax questions such as
this. (Tr. p. 63, line 8 – p. 65, line 4). Ragin is qualified as an expert in
county appraisal and assessment practices. The Assessor stipulated to his
expertise in this area. (Tr. p. 65, line 20 – p. 66, line 3).
24. Ragin testified
that no part of the improvements was complete and fit for the purpose intended
on December 31, 2001, that all the improvements were exempt real property on
December 31, 2001, and that the correct property tax assessment for 2002 should
have deleted the entire value of the improvements. (Tr. p. 78, line 25 – p. 92,
line 9) (Pet. Exh. 3). Based on his calculation the refund due for 2002 is
$92,723.40. (Pet. Exh. 3).
25. Ragin
testified that only 50,000 square feet of the improvements, 20% of the building,
was complete and fit for the purpose intended on December 31, 2002, that
200,000 square feet of the improvements were exempt real property on December
31, 2002, and that the correct property tax assessment for 2003 should have
deleted the value of the 200,000 square feet, or 80%, of the improvements. (Tr.
p. 78, line 25 – p. 92, line 9) (Pet. Exh. 3). Based on his calculation the
refund due for 2003 is $75,727.08. (Pet. Exh. 3)
26. Ragin
testified that only 50,000 square feet of the improvements, 20% of the building,
was complete and fit for the purpose intended on December 31, 2003, that
200,000 square feet of the improvements were exempt real property on December
31, 2003, and that the correct property tax assessment for 2004 should have
deleted the value of the 200,000 square feet, or 80%, of the improvements. (Tr.
p. 78, line 25 – p. 92, line 9) (Pet. Exh. 3). Based on his calculation the
refund due for 2004, considering the 80% tax bill, is $61.259.61. (Pet. Exh.
3).
27. The Berkeley County Assessor does not contest the numbers used by Ragin to calculate the amounts
of the refunds claimed. The per-square foot improvement value used by Ragin is
the same figure that the County used. The Assessor contends, instead, that
there should be no adjustment of the property tax assessment nor refund for tax
years 2002, 2003, and 2004, because the Owner, the Assessor argues, did not
timely object to the property tax assessment for these three years.
28. The
Owner appealed the Assessor’s refusal to adjust the property tax assessments
and grant a refund for these years to the Berkeley County Appeal Board, which
denied relief to the Owner. The Owner filed a timely appeal and request for
contested case hearing with the Administrative Law Court.
CONCLUSIONS
OF LAW
1. The South Carolina Administrative Law Court (“ALC”) has
jurisdiction over this matter pursuant to S.C. Code Ann. § 12-60-2540(A) and §
12-60-2560(C).
2. The ALC considers these taxation matters on appeal from
a county board of assessment appeals on a de novo basis. Smith v. Newberry County Assessor, 350 S.C. 572, 577, 567 S.E.2d
501, 504 (Ct. App. 2002).
3. The pertinent date to determine the value of property
for a given tax year is December 31st of the preceding year. Lindsey v.
S.C. Tax Comm'n, 302 S.C. 274, 275 n.1, 395 S.E.2d 184, 185 n.1 (1990)
(citing S.C. Code Ann. § 12-37-900 (1976)).
4. South
Carolina Code Ann. § 12-37-210 (Supp. 2001), provides,
in pertinent part, that “All real and personal property in this State…shall be
subject to taxation.”
5. South
Carolina Code Ann. § 12-37-670 (Supp. 2001), provides,
in pertinent part, that "No new structure shall be listed or assessed
until it is completed and fit for the use for which it is intended." Section
12-37-670 requires, for an improvement to real property to be assessed, it must
be fully completed for its intended purpose, not merely substantially
complete. Charleston County Board of Assessment Control. v. S.C. Tax
Comm'n, 78-CP-10-1543 (S.C. Feb. 22, 1979); see also Horry County
Assessor v. TPC of Myrtle Beach, Docket No. 00-ALJ-17-0187-CC (2000)
(Applying § 12-37-670 to require that a structure be completed and fit for the
use for which it is intended).
6. I find and conclude that none of the
warehouse building of the Owner was complete and fit for its intended use on
December 31, 2001, and it should not have been included in the property tax
assessment for tax year 2002. The inclusion of the value of the entire
building in the property tax assessment for tax year 2002 was erroneous and
improper.
7. I find and conclude that only 50,000 square feet
of the warehouse building of the Owner was complete and fit for its intended
use on December 31, 2002, and on December 31, 2003, and only that portion of
the improvements should have been included in the property tax assessment for
tax years 2003 and 2004. 200,000 square feet, or 80%, of the building was not
complete and fit for the purpose intended for those two tax years. The
inclusion of the value of the entire building in the property tax assessment
for tax year 2003 and 2004 was erroneous and improper.
8. Although the Assessor’s inclusion of
the entire value of the building in the property tax assessment for 2002, 2003,
and 2004 was improper, the pivotal question is whether the Owner’s requests for
relief are barred because, the Assessor argues, they were not made in a timely
manner.
9. South
Carolina Code Ann. § 12-60-80 provides in part, “there is no remedy other than
those provided in this chapter in any case involving the illegal or wrongful
collection of taxes or attempt to collect taxes.”
10.
South Carolina Code Ann. § § 12-60-1730, 12-60-2510, and 12-60-2520
require, when read together, that a real property taxpayer must appeal the
property tax assessment within the prescribed periods for the taxpayer to
obtain an adjustment in the property tax assessment.
11.
I find and conclude that the Owner did not object to, nor appeal, the 2002
reassessment of the subject property within sixty days, nor did the Owner
object to, or appeal, the 2003 and 2004 property tax assessments on or before
March 1, 2003, and March 1, 2004, respectively, as required by the applicable
statutes. For these reasons, I conclude that the Owner is not entitled to an
adjustment of the property tax assessment for tax years 2002, 2003, and 2004.
12. Turning
to the Owner’s request for refund, Section 12-60-2560 (A) states, in pertinent
part, “subject to the limitations in Section 12-60-1750, and within the time
limitation of Section 12-54-85(F), a property taxpayer may seek a refund of
real property taxes assessed by the county assessor and paid, other than taxes
paid on property the taxpayer claims is exempt, by filing a claim for a refund
with the county assessor who made the property tax assessment for the property
for which the tax refund is sought.”
13. Under
Section 12-54-85(F), a claim for refund must be filed within two years of the
date the tax was paid. The earliest payment for which a refund is requested in
this case (tax year 2002) was made by check dated December 10, 2002. (Pet.
Exh. 1, p. 63). This payment was fewer than two years before the request for
refund made on November 10, 2004. Therefore, neither this request, nor the
requests for refunds for the two later years, is barred by Section 12-54-85(F).
14. Section
12-60-1750 states, in pertinent part: “Notwithstanding any other provision of
law, no refund of property taxes must be given: (1) for a property tax
exemption requiring an application, unless the application was timely filed; or (2) for errors in valuation, unless the assessment was appealed in accordance
with Section 12-60-2110, 12-60-2510, or 12-60-2910, as appropriate. For
purposes of this item, the taxation of exempt property is not an error in
valuation.” (Emphasis added).
15. The
exclusion from taxation of incomplete real property improvements under § 12-37-670 does not require an application to be effective.
Therefore Section 12-60-1750 (1) does not bar the Owner’s claim for refund.
16. The question of whether refunds are
due, thus, comes down to the application of Section 12-60-1750 (2) which bars
claims for refunds arising from an error in valuation unless the valuation was
timely appealed. However, “the taxation of exempt property is
not an error in valuation.“ Having previously
determined that the Owner did not timely object to, nor appeal, the valuation
for these three tax years, the owner’s entitlement to refunds depends on
whether the incomplete improvements constituted “exempt property.”
17. The definitions of the terms set
forth in Section 12-60-30 of the Revenue Procedures Act do not define “exempt
property.”
18. In
determining whether property is exempt, South Carolina courts have typically
looked to the scope of power granted to the legislature by the Constitution. See
Chester Co. v. White Bros., 70 S.C. 433, 50 S.E. 128 (1905) (holding that
the General Assembly was authorized to exempt bonds issued by the county of
Chester from state, county and municipal taxes), Ellerbe v. David, 193
S.C. 332, 8 S.E.2d 518 (1940) (holding that the General Assembly did not have
the authority to exempt certain taxpayers in Marlboro County from the payment
of taxes for the year 1937).
19. The
supreme legislative power of the State is vested in the General Assembly. Ellerbe, supra. “The power of taxation is a legislative power, and knows no
limitations, except those imposed expressly or by plan implication in the State
or Federal Constitution.” Id. “The Constitution does not require that
all property be taxed, but it only requires that all property not exempt under
the Constitution, and not exempt by a valid act of the Legislature,
shall be taxed.” Chester Co. v. White Bros., 70 S.C. 433, 50 S.E.28
(1905) (Emphasis added).
20. Article
X, Section 3 of the South Carolina Constitution provides a list of exemptions
from ad valorem taxation. “The power to prescribe what property shall be
taxed implies the power to prescribe what property shall be exempt, and, in the
absence of a special constitutional provision to the contrary, the Legislature
may exempt such class of property from taxation in its opinion the public policy
of the State requires.” Ellerbe, supra. Article X, Section 3 also
grants the General Assembly the authority to provide for other exemptions:
“[i]n addition to the exemptions listed in this Section, the General Assembly
may provide for exemptions from the property tax, by general laws applicable
uniformly to property throughout the State and in all political subdivisions,
but only with the approval of two-thirds of the members of each House.” S.C.
Const. Art. X, Section 3.
21. The
Assessor does not dispute that S.C. Code Ann. § 12-37-670
is a valid act of the legislature. Instead the Assessor contends that because
incomplete improvements to real property are not listed under S.C. Code Ann.
12-37-220 titled “General Exemption from taxes,” they are not exempt property.
22. S.C. Code Section 12-37-220, titled
“General exemption from taxes,” contains a lengthy list of categories of real
and personal property that does not include incomplete improvements to real
property.
However, Section 12-37-220 does not state that the only exemptions from
taxation are the categories of real and personal property contained therein. See
Section 12-60-1750 (1): “ Notwithstanding any other provision of law, no refund
of property taxes must be given: (1) for a property tax exemption requiring an
application…” Thus, it may be inferred from those words that our law
recognizes another class of exemptions which require no application such as
that claimed here.
23. The protection from taxation of incomplete
improvements to real property is created under a distinct and separate statute,
Section 12-37-670. If the General Assembly had intended that only the
types of property listed in Section 12-37-220 were free from taxation, it did
not say so, and there would be no need for Section 12-37-670. To adopt
the Assessor’s argument would render Section 12-37-670 meaningless, since under
this reasoning structures not complete and fit for their intended purposes
would be taxable, as this protection from taxation is not covered in Section 12-37-220. See State v. Graves, 269 S.C. 356, 237 S.E.2d 584 (1977) (the
interpretation of a statute should not render its terms meaningless).
24. A cardinal rule of statutory
construction is that terms are to be understood in their ordinary and plain
meaning. Municipal Ass'n of South Carolina v. AT&T Communications
of S. States, Inc., 361 S.C. 576, 580, 606 S.E.2d 468, 470 (2004) (citing Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843,
846 (1992); Eagle Container Co., LLC v. County of Newberry, 622
S.E.2d 733, 738 -739 (Ct. App. 2005). Black’s
Law Dictionary (4th Ed. 1968) defines “to exempt” as “to
release, discharge, waive, relieve, from liability.” Section 12-37-670 relieves
property from assessment that is presumptively taxable under S.C. Code Section
12-37-210. Therefore, using the term “exempt” in its commonly understood
sense, the portions of the incomplete building on the subject property that
were erroneously assessed in tax years 2002, 2003, and 2004, were “exempt”
property.
25. Additionally, if property is not
valued for tax purposes, then courts addressing the issue have considered the
property as exempt. See, i.e., In re Assessment of Taxes, Oahu
College, 1903 WL 1180 (Hawaii Terr. 1903) (“if property is exempt it is not
valued . . .if it is not valued how is it possible for a taxpayer to deem
himself aggrieved by any change in the valuation thereof made by the
assessor?”).
26. The court also takes into account and
gives great weight to the opinion of Ragin, whose almost fifty years experience,
the Assessor acknowledged, made him an expert in these matters. Ragin rendered
the opinion that these incomplete portions of the building constituted exempt
property. The Assessor did not call any witnesses and presented no
testimonial evidence to the contrary.
27. For
these reasons, I conclude that pursuant to Section 12-37-670, real property structures
not complete and fit for their intended use are exempt from taxation.
28. The Court also rejects the Assessor’s argument that
allowing International Center II to collect a refund on taxes paid two years
ago will result in an “inability of the government to function if they are
going to allow somebody to come back two years, three years, five years or ten
years down the road and request a refund . . . .” The General Assembly has
already addressed this problem with reference to Section12 -54-85(F),
previously discussed, in the main refund statute, which states in pertinent
part:
Except as provided in subSection (D),
claims for credit or refund must be filed within three years from the time the
return was filed, or two years from the date the tax was paid, whichever is
later. If no return was filed, a claim for credit or refund must be filed
within two years from the date the tax was paid. A credit or refund may not be
made after the expiration of the period of limitation prescribed in this item
for the filing of a claim for credit or refund, unless the claim for credit or
refund is filed by the taxpayer or determined to be due by the department
within that period.
29. Based
on my determination that refunds are due even though timely objections were not
made as to the errors in valuation, I decline to address the issue of whether
the Assessor’s interpretation in his letter of November 26, 2002, of when real
property improvements may be assessed, prevents the Assessor from raising the
defense of timeliness on the basis of equitable estoppel. Although the general
rule is that estoppel will not lie against the government, there are exceptions
to the rule. See, e.g., Landing Dev. Corp. v. City of Myrtle Beach 285 S.C. 216, 329 S.E.2d 423 (1985).
30. Having
concluded that the refund claims are not barred, I find and conclude that
International Center II, LLC is entitled to the following refunds in the
following principal amounts for the following tax years:
Tax
year 2002 - $92,723.40
Tax year 2003 -
$75,727.08
Tax year 2004 -
$61.259.61
31. S. C. Code Section
12-54-25(C)(1) provides that “[a]ny tax refunded or credited must include
interest on the amount of the credit or refund from the date the tax was
paid….” Hence the Owner is entitled to interest on the principal amounts
stated above from the date of payment of the taxes in each year until the date
of payment. The rate of interest is set forth in S.C. Code Section 12-54-25
(D).
IT
THEREFORE ORDERED that a refund in the principal amounts set forth herein, plus
interest, shall be paid to the Owner and that all other relief requested is
denied.
AND
IT IS SO ORDERED.
____________________________________
John
D. McLeod
Administrative
Law Judge
February 2, 2006
Columbia, South Carolina
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