ORDERS:
ORDER DENYING MOTION TO RECONSIDER
This matter is before the Administrative Law Judge Division ("Division") pursuant to Petitioner's Motion to Reconsider filed
September 25, 2000. Petitioner requests the undersigned reconsider its Order Granting Motion to Dismiss filed September 13, 2000,
wherein the undersigned held Petitioner failed to timely appeal the decision of the Horry County Board of Assessment Appeals
("Board"). The undersigned specifically held, "To timely appeal the Board's decision, Petitioner must have filed a request for a
contested case hearing on or before June 2, 2000." The undersigned then dismissed the case because Petitioner filed its request for a
contested case hearing with the Division on July 25, 2000.
In the Motion to Reconsider, Petitioner argues that it filed the original Notice of Request for Contested Case Hearing on June 5, 2000,
by serving it on Respondent pursuant to S.C. Code Ann. § 12-60-2540 (Supp. 1999) and ALJD Rule 11. After speaking with
someone in the Clerk's Office of the Division, Petitioner served a Notice of Request for Contested Case Hearing on the Division on
July 25, 2000.
Petitioner further argues that it is appealing the decision dated May 3, 2000, but received by Petitioner on May 10, 2000. Petitioner,
therefore, asserts that it timely requested a contested case hearing within thirty days of receipt of the final decision. The statute,
however, provides the taxpayer may appeal the board's decision "within thirty days after the date of the board's written decision."
S.C. Code Ann. § 12-60-2540(A) (Supp. 1999). Petitioner argues that, to the extent that § 12-60-2540(A) is a statute of limitations,
"it cannot begin to accrue until the taxpayer receives notice of the board's decision," because it would violate the Constitution of the
United States of America and the Constitution of the State of South Carolina. See Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (1950). Petitioner's argument addresses the constitutionality of § 12-60-2540(A). The undersigned, however, cannot
rule on the constitutionality of the statute. See Great Games, Inc. v. S.C. Dep't of Revenue, 339 S.C. 79, 529 S.E.2d 6 (2000)
(Administrative Law Judges have no authority to pass upon the constitutionality of a statute or regulation). The undersigned instead
must apply the statute as written to the facts of this case. See id. Based on the statute as currently written, the request for a contested
case hearing must have been made by June 2, 2000, at the latest. Even considering the original request submitted to Respondent on
June 5, 2000, Petitioner still failed to timely appeal the board's decision.
IT IS THEREFORE ORDERED that Petitioner's Motion to Reconsider filed September 25, 2000, is denied.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
December 20, 2000
Columbia, South Carolina |
