ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter came before me for a hearing on April 19, 1995, at 9:30 a.m. in Columbia, South
Carolina. Both parties appeared and were represented by their respective attorneys. During the
hearing several exhibits were introduced into evidence, all without objection. All parties received
proper notice of the date, time, place and nature of the hearing, and the parties agreed that the
Administrative Law Judge Division has personal jurisdiction over the parties and subject matter
jurisdiction over the issues set forth in the pleadings.
The Petitioner seeks relief from valuation assessments made by Respondents of two properties
it owns in Florence, South Carolina, which it alleges were erroneously and illegally calculated for the
tax years 1988, 1989, 1990, 1991, 1992, 1993 and 1994.
EXHIBITS
Prior to receiving testimony in the hearing, each party agreed to and submitted separate
written Stipulated Facts and Law dated April 18, 1995. In addition, at the hearing the parties
stipulated as follows:
"The real property and improvements owned by the Petitioner located at 276 South Irby
Street in Florence, South Carolina will have its appraisal, as allocated on TM Sheet No. 90-87-02-001
to an automatic teller machine (ATM), reduced by the sum of sixteen thousand five hundred dollars
($16,500.00) for all applicable years under the statute."
Proposed summaries of the correct valuation and the alleged tax overpayments for the two
properties owned by the Petitioner on South Irby Street and 1921 Second Loop Road in Florence,
South Carolina, were introduced during the hearing as Petitioner's exhibit numbers one (1) and two
(2).
TM Sheet Nos. 90-087-02-001 and 90-029-01-019 were introduced as Respondent's exhibit
numbers one (1) and two (2).
SUMMARY OF THE EVIDENCE
Mr. G.A. La Montagne, President of PVG and a qualified expert in appraisals, was called by
the Petitioner. He testified that the Florence County Tax Assessor's Office had misinterpreted the
guidelines of the Marshall & Swift Valuation Service in arriving at a proper appraisal of the two
properties with their improvements owned by petitioner. His version of the correct interpretation and
application of the Marshall & Swift Valuation Service is more completely and accurately described
in Petitioner's exhibit numbers one (1) and two (2).
The Florence County Tax Assessor, Annette J. Conner, and the Assistant Tax Assessor, A.J.
Prosser testified on behalf of the Respondent. They testified that Mr. La Montagne was in error in
his interpretation of the Marshall & Swift Valuation Service guidelines and that they had properly
utilized the guidelines in arriving at a correct and accurate appraisal for the two properties owned by
the Petitioner.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony and having judged the
credibility of the witnesses, by a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jursidiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all the
parties.
3. Petitioner owns two (2) banking locations in Florence, South Carolina located at 276
South Irby Street (TMS # 90-087-02-001) and 1921 Second Loop Road (TMS # 90-029-01-019).
4. Each bank location contains fixtures or "bank equipment" needed in its operation as
a bank.
5. The Florence County Asssessor, as a full-time assessor, has the legal responsibility to
appraise and list all real property in Florence County. Further, she has the duty, when real property
values change, to reappraise and reassess all real property.
6. Florence County uses the Marshall & Swift Valuation Service in making its property
tax appraisals and correctly applied the time and area adjustment factors to the stated valuations in
the 1981 version of Marshall & Swift.
7. The building classifications set forth in the appraisals by Florence County are correct.
8. Petitioner seeks a reduction in the valuation assessments of these two locations to
recover taxes allegedly overpaid for tax years 1988, 1989, 1990, 1991, 1992, 1993 and abatement
of 1994 taxes.
9. The parties stipulated that the real property and improvements owned by the petitioner
located at 276 South Irby Street in Florence, South Carolina will have its appraisal, as allocated on
TM Sheet No. 90-87-02-001 to an automatic teller machine (ATM), reduced by the sum of sixteen
thousand five hundred dollars ($16,500.00) for all applicable years under the statute.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1994) grants jurisdiction to the Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 12-4-30(D) (Supp. 1994) provides that an administrative law judge,
after February 1, 1995, shall hear all contested cases as defined by S.C. Code Ann. § 1-23-310
previously heard by the South Carolina Tax Commission.
3. S.C. Code Ann. § 12-37-90 (Supp. 1994) states that all counties shall have a full-time
assessor, whose responsibility is appraising and listing property. Further, when values change, the
assessor must reappraise and reassess any or all real property so to reflect its proper valuation.
4. S.C. Code Ann. § 12-43-300 (Supp. 1994) provides the procedure whereby a
taxpayer, upon receipt of a notice from the Assessor of the valuation and assessment placed on his
property, may file written notice of objection to the valuation and assessment within certain time
frames. Failure to serve the written notice of objection within the statutory time limitations is a
waiver of the owner's right to appeal. If the objection is timely filed, the owner may have a
conference with the assessor and, if still aggrieved, may appeal that decision to the Board of
Assessment Appeals. See S.C. Reg. 117-3.
5. S.C. Code Ann. §§ 12-47-410 and 12-47-420 (1976) define the procedure whereby
property taxes paid under an "erroneous, improper or illegal assessment" may be abated and ordered
refunded to the taxpayer.
6. "Assessment" means the value placed upon a particular property for purposes of
taxation. Owings Mills, Inc. v. Brady, 246 S.C. 361, 143 S.E.2d 717 (1965).
7. "Erroneous assessment" refers to an assessment that deviates from the law and is
therefore invalid and does not refer to the judgment of the assessing officer in fixing the amount of
the valuation of the property. Further, an erroneous assessment is a defect that is jurisdictional in
nature. Meredith v. Elliott, 247 S.C. 335, 147 S.E.2d 244 (1966).
8. Before a refund can be afforded under S.C. Code Ann. § 12-47-420 (1976), it must
be shown that the underlying assessment deviates from the law. Amercian Hardware Supply v.
Whitmire, 278 S.C. 607, 200 S.E.2d 289 (1983).
DISCUSSION
Petitioner seeks a determination that the alleged errors made in the assessment of the two
banks are not errors of valuation, but are interpretation errors in applying correct measurements from
the Marshall & Swift Valuation Service. Further, Petitioner argues that these interpretation errors
amount to invalid acts. S.C. Code Ann. § 12-47-410 (1976) confers jurisdiction on the
Administrative Law Judge Division, as successor to the South Carolina Tax Commission, to
adjudicate in contested cases the issue whether an assessor has deviated from applicable law in
making an appraisal or reappraisal and erroneously, improperly or illegally assessed a tax.
In this instance, the assessor utilized the correct base rate from tables in the Marshall & Swift
Valuation Service to calculate the square footage cost for Class C banks. She then increased this
multiplier by thirty percent (30%) and forty-eight percent (48%) for bank fixtures allocable to each
bank. Petitioner argues these additions to the multiplier by the assessor amount to invalid actions by
the assessor without authority or jurisdiction, rather than errors of judgement.
It is well settled law in this state that a party must exhaust their administrative remedy by
prosecuting an appeal from the assessment of their property for taxation before they can seek judicial
review. The assessor has the statutory duty to appraise and determine the appropriate assessment
for all real property in South Carolina. If an owner disagrees with the appraisal and assessment, he
may seek redress through reviews with the assessor, the board of assessment appeals, the
Administrative Law Judge Division and the circuit court. Petitioner now seeks to thwart that avenue
and proceed in this forum under separate statutory authority, arguing invalid authority in the assessor
in overvaluing the bank properties for each of the applicable years.
This Court cannot substitute its judgement for that of the assessor duly charged for the
purpose of making an appraisal and valuation of the bank properties. Generally speaking, the rules
of statutory construction apply to the interpretation of statutes relating to tax matters. Such
statements should be construed with a view to ascertain and give effect to the legislature's intent.
Adams v. Burts, 245 S.C. 339, 140 S.E.2d 586. It is clear the legislature intended the assessor fix
the valuation, not the court. As a part of that duty, the assessor must ensure the valuation fixed and
assessed is not arbitrary or unreasonable.
The argument of petitioner is misplaced and without merit. The assessor has the sole
authority to fix the property valuation, utilizing the appropriate methods. No argument was made
by Petitioner that Respondent incorrectly used the Marshall & Swift Valuation Service, only to its
application. Further, petitioner has not alleged or argued any specific statutory violation by the
assessor in determining the valuations and assessments applicable to each bank. An assessment that
results from a jurisdictional defect would, for example, be one that values property that is exempt
from taxation, property not located in the taxing district, or a house assessed as a new structure when
it is not completed. See Atty. Gen. Op. 2286. Accordingly, the taxes paid are not the result of
erroneous, improper or illegal valuations of Petitioner's banks.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, and analysis in the
Discussion, it is hereby:
ORDERED, as stipulated and agreed to by the parties, that "the real property and
improvements owned by the petitioner located at 276 South Irby Street in Florence, South Carolina
will have its appraisal as allocated on TM Sheet No. 90-87-02-001 to an automatic teller machine
(ATM) reduced by the sum of sixteen thousand five hundred dollars ($16,500.00) for all applicable
years under the statute, with refunds and or abatements made accordingly, and it is further
ORDERED that, except as ordered above, all claims and relief sought by the petitioner are
dismissed.
AND IT IS SO ORDERED.
__________________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
June 5, 1995 |
