ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
The
above-captioned matter comes before this Court pursuant to S.C. Code Ann. §
12-60-2540(A) (2000) and S.C. Code Ann. § 1-23-600(B) (Supp. 2005) for a
contested case hearing. In this matter, Petitioner Summerville Lodge Limited
Partnership (Summerville Lodge) challenges the decision of Respondent
Dorchester County Assessor (Assessor) to deny its objection to the property tax
assessment of its motel property located in St. George, South Carolina, for tax
year 2005. In denying the objection, the Assessor determined that, because
Summerville Lodge did not file its notice of objection within ninety days of
the date on which notice of the proposed assessment was mailed to it, the
objection was not timely and should be denied. Summerville Lodge contends,
however, that it did not receive the mailed notice of the proposed assessment,
and thus that its written objection, which was filed within ninety days of its
first actual notice of the assessment, should be considered timely.
After
timely notice to the parties, a hearing of this matter was held on Thursday,
June 15, 2006, at the South Carolina Administrative Law Court in Columbia, South
Carolina. Based upon the evidence presented at the hearing and upon the
applicable law, I find that Summerville Lodge’s objection to its 2005 property
tax assessment was timely and that this matter should be remanded to the
Assessor for it to consider Summerville Lodge’s objection.
FINDINGS
OF FACT
Having
carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of
the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
1. Petitioner
Summerville Lodge Limited Partnership owns and manages the Comfort Inn Motel
located in Dorchester County on Highway 78 near Interstate 95 in St. George,
South Carolina. The motel property is identified as tax map number
044-00-00-020. Petitioner Summerville Lodge is affiliated with another
company, Limehouse Properties, whose owner, Harry “Buck” Limehouse, Jr., is the
general partner of Summerville Lodge. The offices for Limehouse Properties are
located at 8 Cumberland Street in Charleston, South Carolina, and both
Limehouse Properties and Summerville Lodge receive their mail, including tax
notices, at that address.
2. As
required by statute, Dorchester County underwent a county-wide property tax
reassessment in 2005. The reassessment process began in 2003 and was
implemented for tax year 2005. In implementing the reassessment, the Dorchester
County Assessor’s office contracted with a third-party company, American
Solutions for Business, to print and mail the reassessment notices to property
owners. Under the contract, the Assessor’s office transmitted the reassessment
data to the company electronically, and the company, with another company,
Laser Print Plus, printed the reassessment notices and mailed them to the
taxpayers.
3. Through
a telephone conference, the Assessor received confirmation from American
Solutions for Business that 49,000 of the 60,000 notices had been sent out on
June 10, 2005, and that the remaining notices were mailed out on subsequent
days. Other than this confirmation from American Solutions for Business that
the notices had been mailed, the Assessor has no documents or other evidence
confirming that the notices were properly delivered to property owners.
4. The
address the Assessor provided to American Solutions for Business for
Summerville for mailing the reassessment notice was Summerville Lodge’s correct
mailing address at 8 Cumberland Street in Charleston, South Carolina. This
address is the address the Assessor has on record for Summerville Lodge and is
the address to which the Assessor has sent all prior and subsequent mailings of
tax bills and notices to Summerville Lodge. While the Assessor does not have
any documentation confirming that notice of the proposed reassessment was
properly delivered to Summerville Lodge, the notice mailed to Summerville Lodge
was not returned to the Assessor as undeliverable.
5. At
the hearing, Harry “Buck” Limehouse, Jr., the owner of Limehouse Properties and
general partner of Summerville Lodge, and Helen Walker, the controller of
Limehouse Properties, testified regarding the handling of the mail at the
offices of Limehouse Properties at 8 Cumberland Street in Charleston. Ms.
Walker described the procedures by which a Limehouse Properties employee would
sort the mail received in the lobby of the building for Limehouse Properties
and the other tenants in the building. Under those procedures, the employee
would direct any incoming mail regarding Limehouse Properties’ hotel businesses,
including any tax notices and bills, to Ms. Walker, who would review the
documents and, in turn, deliver them to Mr. Limehouse. Both Ms. Walker and Mr.
Limehouse testified that, while they had properly received all prior tax
notices and bills for the St. George Comfort Inn motel at the 8 Cumberland
Street address, they did not receive
notice of the proposed 2005 tax reassessment for the property at that address
or at any other address. Rather, Ms. Walker and Mr. Limehouse testified that
they had no notice of the reassessment of the St. George property until they
received the 2005 tax bill for the motel property at the 8 Cumberland Street
address in November 2005.
6. Upon
receiving the 2005 tax bill for the motel property, Mr. Limehouse contacted the
Assessor’s office by telephone and subsequently sent a letter to the Assessor’s
office to object to the reassessed valuation of the motel property on behalf
of Summerville Lodge. While this letter was addressed to the Chairman of the
Dorchester County Board of Assessment Appeals, it was sent to the Dorchester
County Assessor’s Office, was received by the Assessor on November 30, 2005,
and was treated by the Assessor as a notice of objection to the 2005
reassessment, not an appeal to the Board of Assessment Appeals.
However, because the Assessor determined that the objection was not filed
within ninety days of the date on which notice of the reassessment had been
mailed to Summerville Lodge, the Assessor concluded that the objection was
untimely and denied the objection. Summerville Lodge appealed the Assessor’s
decision to the Board of Assessment Appeals, which, by a decision dated March
6, 2006, upheld the Assessor’s determination that Summerville Lodge’s objection
should be denied as untimely filed. Summerville Lodge timely requested a
contested case hearing before this Court to challenge the denial of its notice
of objection to its 2005 property tax assessment.
7. Based
upon the testimonial and documentary evidence presented by Summerville Lodge and
the Assessor, I find that Summerville Lodge did not have proper notice of the
proposed reassessment of its motel property for tax year 2005 until it received
its tax bill for the property in November 2005. Therefore, I further find that
its letter of protest, which was filed with the Assessor’s office well within
ninety days of its receipt of that tax bill, was timely.
CONCLUSIONS
OF LAW
Based
upon the foregoing Findings of Fact, I conclude the following as a matter of
law:
1. Pursuant
to S.C. Code Ann. § 12-60-2510(A)(1) (Supp. 2005), 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).
2. 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) (emphasis
added). And, an assessor is only required to consider a notice of objection
that is filed within this timeframe. See S.C. Code Ann. § 12-60-2520(A)
(2000).
3. 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 the
assessment. Basic principles of due process require that persons affected by a
decision of a public body be given proper and adequate notice of the decision,
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) (recognizing that the South Carolina Constitution guarantees
the right to notice and an opportunity to be heard by an administrative agency
before a final decision is rendered). Generally, this 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) (paraphrasing Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)). In the case at hand, 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). In fact,
to ensure that such service is reasonably calculated to reach the taxpayer,
that section provides a list of sources for the assessor to use in determining
the correct address for a taxpayer; these sources include “the applicable
telephone directory, the Department of Motor Vehicles’ motor vehicle
registration list, county treasurer’s records, or official notice from the
property taxpayer.” Id. Therefore, while a taxpayer’s time period for
filing an objection to a property tax assessment runs from the date the
assessment was mailed, not from the date it was received, the mailing of the
notice of assessment alone, without some indication that the taxpayer received
actual or constructive notice of the assessment, 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 him a full opportunity to be heard on the assessment. 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.”).
4. In
order 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) (noting that “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) (holding, in a property tax case, that, 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 (stating that an
addressee’s denial of receipt is generally sufficient to create a triable issue
of fact on whether correspondence was delivered to the addressee).
5. In
the instant case, while the Assessor made an initial showing that notice of
Summerville Lodge’s property tax assessment was mailed to and received by
Summerville Lodge under its normal office practices, any presumption of proper
delivery based upon those practices was rebutted by the denial of receipt of
the notice put forth by Summerville Lodge, and the preponderance of the
evidence presented at the hearing, including Summerville Lodge’s past history
of timely responding to tax notices and bills sent to its offices, indicates
that the notice of assessment was not received by Summerville Lodge. Further,
because Summerville Lodge did not receive adequate notice of the proposed assessment,
its opportunity to file an objection to the assessment did not extinguish
ninety days after the mailing of the notice on June 10, 2005. Therefore, I
find that Summerville Lodge’s notice of objection, which was filed within
thirty days of its receipt of notice of the reassessment of its motel property
by way of its November 2005 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) (holding that, while, by statute, a hotel’s time to appeal the
decision of county commissioners on its property tax assessment ran from the
date on which the commissioners mailed their decision to the hotel, the
“mailing of the notice was insufficient to start the thirty-day time period if,
as here, taxpayer denies receiving it” and therefore concluding that the
hotel’s appeal should be considered timely if it was filed within thirty days
of when it actually received notice of the commissioners’ decision).
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above,
IT
IS HEREBY ORDERED that Summerville Lodge’s November 28, 2005 notice of
objection to the 2005 reassessment of its motel property in St. George, South
Carolina, is REMANDED to the Dorchester County Assessor for it to
consider the objection on its merits as a timely filed objection to a property
tax assessment notice.
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
1205 Pendleton
Street, Suite 224
Columbia, South
Carolina 29201-3731
June 23, 2006
Columbia, South Carolina
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