ORDERS:
ORDER OF DISMISSAL
This county tax matter is before the Administrative Law Judge Division ("Division") pursuant to a request for
a contested case hearing filed by the Charleston County Assessor. The Assessor is appealing the decision of
the Charleston County Board of Assessment Appeals, asserting "the Board erred in granting the legal
residence classification to a party not domiciled in the State of South Carolina." In a letter dated September
3, 2001, Respondent Thomas S. Gladsky asserts the Assessor failed to timely file his request for a contested
case hearing.
According to S.C. Code Ann. § 12-60-2540(A) (2000), "[w]ithin thirty days after the date of the board's
written decision, a property taxpayer or county assessor may appeal a property tax assessment made by the
board by requesting a contested case hearing before the Administrative Law Judge Division in accordance
with the rules of the Administrative Law Judge Division." ALJD Rule 11 provides "the request for a
contested case hearing shall be filed with the clerk of the Division" in county tax matters. The request for a
contested case hearing in a county tax matter, therefore, must be filed with the clerk of the Division within
thirty days of the date of the board's written decision.
The statute sets forth a fixed period of time in which an individual can seek a contested case hearing before
the Division. "A statute of limitations has been defined as the action of the state in determining that after the
lapse of a specified time a claim shall not be enforceable in a judicial proceeding. Thus, any law which
creates a condition of the enforcement of a right to be performed within a fixed time may be defined as a
statute of limitations." 51 Am. Jur. 2d Limitation of Actions § 2 (1970). Furthermore,
There has been some difference of opinion among the authorities whether, at least in the absence of an
expression of the legislature in this particular respect, the running of a statute of limitations operates to
extinguish merely the remedy or to extinguish the substantive right as well as the remedy. The general rule in
this respect, supported by the great preponderance of the authorities on the subject, is that a statute of
limitations operates on the remedy directly only and does not extinguish the substantive right. Under this rule
the courts have regarded true statutes of limitation as doing no more than cut off resort to the courts for
enforcement of the substantive claim or right.
51 Am. Jur. 2d Limitation of Actions § 22 (1970). Section 12-60-2540(A), therefore, operates as a "statute of
limitations."
In this case, the board issued its final decision on July 25, 2001. To timely appeal the board's decision, the
Assessor must have filed a request for a contested case hearing on or before Friday, August 24, 2001. The
Notice of Appeal and Request for Contested Case Hearing and the attached Certificate of Service were signed
and dated August 27, 2001. These documents, which were sent certified mail, were received by the clerk of
the Division on August 29, 2001, after an attempt to deliver on August 28, 2001. As a result, the Assessor's
appeal to the Division was not timely. Moreover, the Division has no authority to expand the time in which
the request for a hearing must be filed. See Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985).
IT IS HEREBY ORDERED that this case is dismissed with prejudice.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
September 11, 2001
Columbia, South Carolina |
