ORDERS:
ORDER
I. Statement of the Case
This is a contested case matter brought by Boston Financial Management Company as the Petitioner
(hereinafter referred to as "taxpayer") against the Florence County Assessor (hereinafter referred to
as "assessor") concerning property valuations for property tax year 1994. The property owner
exhausted the prehearing remedies with the assessor and the Florence County Board of Assessment
Appeals and is now seeking a contested case hearing before the Administrative Law Judge Division
(hereinafter referred to as "ALJD"). This matter was heard on September 20, 1995.
Three issues are raised in this action. First, whether Boston Financial Management Company has
standing to challenge the assessment entered by the assessor; second, what is the fair market value
of the taxpayer's property; and third, whether the failure to timely appeal the County Board's decision
requires that this matter be dismissed for lack of jurisdiction. Based on the following, this matter is
dismissed for lack of jurisdiction and the other issues raised by the taxpayer are not reached in this
Order.
Any issues raised in the proceedings or hearing of this case but not addressed in this Order are
deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a
prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(C).
II. Issues
Does the Administrative Law Judge Division have subject matter jurisdiction in this matter?
III. Analysis
1. Positions of Parties:
The taxpayer asserts it was not aware that the appeal notice had not been mailed timely. The assessor
asserts the appeal was not filed within the ten days required by S.C. Code Regs. 117-4 (1976) and
that the lateness is fatal to the appeal regardless of the fact the taxpayer did not intend to be late.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. The property that is the subject of this dispute is a 144 unit apartment complex identified
as Tax Map No. 176-01-039 located in Florence County.
2. The only tax year in dispute in this hearing is the 1994 tax year with a valuation date of
December 31, 1993.
3. The property is built and operated as a HUD 236 housing program.
4. The assessor valued the property at $900,000 by use of an income approach.
5 The assessor's value is based upon a stream of net income of $112,156 at a capitalization
rate of 12% yielding a value of $934,633 rounded to $900,000.
6. The taxpayer asserts the property has no value since it has no market and at most is valued
at $88,965 under an income approach using an income stream of $10,231 at a capitalization
rate of 11.5%.
7. The Florence County Board of Assessment Appeals (County Board) on October 4, 1994
rendered a written decision on the value of the taxpayer's property identified as Tax Map
No. 176-01-039.
8. The County Board found the property had a value of $900,000.
9. On October 4, 1994 the County Board mailed their written decision to the taxpayer.
10. A notice of appeal, dated October 26, 1994, was filed by the taxpayer.
11. The appeal notice was received by DOR on October 31, 1994.
12. The time from the date of the order until the date of the mailing of the appeal was 22 days.
13. The time from the date of the order until the date of the receipt of the appeal by DOR was
27 days.
14. The filing of the appeal notice was not within ten days of the County Board's decision.
3. Discussion
The issue of jurisdiction is determined by examining three factors. The first is whether the current
matter is controlled by the Revenue Procedures Act (Act), 1995 S.C. Act No. 60, or statutes and
regulations previously operative but subsequently displaced by the Act. The second, after
determining whether the Act or S.C. Code Regs. 117-4 (1976) controls, is determining the time
period required for challenging the action of the County Board. Finally, a determination of the effect
of not adhering to a time requirement is needed.
The Act became effective on August 1, 1995. Thus, before the Act can apply in the instant case a
retroactive application is required. While statutes, such as the Act, that are procedural and remedial
are generally applied retroactively, such acts cannot be applied retroactively when doing so will
validate proceedings which are invalid under prior law. 82 C.J.S. Statutes §422 (1953). The appeal
here was filed well beyond ten days in that the Board's decision was both issued and mailed on
October 4, 1994, with the appeal by the taxpayer not made until October 26, 1994. If the ten day
time limit of Regs. 117-4 is a jurisdictional element, a retroactive application of the Act would have
the effect of reviving a matter which was defective under the prior law. An ALJ has no authority to
revive a defective appeal. The authority of reviewing officers is strictly confined to the limits set by
the statutory provisions that give them their existence and any actions that exceed their jurisdiction
are void. S.C. Tax Comm'n v. S.C. Tax Bd. of Review, 278 S.C. 556, 299 S.E.2d 489 (1983) at
492. Properly promulgated regulations of state agencies shall have the full force and effect of law.
S.C. Code Ann. §1-23-160 (Supp. 1994). Here, Regs. 117-4 is properly promulgated, and requires
that an appeal from the finding of the County Board must be made within ten days from the date of
the Board's finding. In the instant case, the Board's decision was both issued and mailed on October
4, 1994. However, the appeal by Boston Financial Group was filed on October 26, 1994 with the
appeal letter received by DOR on October 31, 1994. Thus the time is 22 days from the date of the
order until the date of the mailing of the appeal and 27 days to the date of receipt by DOR.
Accordingly, under Regs. 117-4 the appeal is not timely.
Since the ten day limit of Regs. 117-4 applies, the issue becomes deciding whether failure to meet that
requirement is a jurisdictional element. In general, time limits for appeals are considered jurisdictional
limitations by our courts. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnett v. S. C.
Highway Dep't, 252 S.C. 568, 167 S.E.2d 571 (1969); S.C. State Highway Dep't v. Spann, 239
S.C. 437, 123 S.E.2d 648 (1962). Accordingly, I conclude the ten day requirement of Regs. 117-4
is a jurisdictional element denying me authority to hear this matter.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:
1. For matters such as the instant matter which are not governed by the Revenue Procedures
Act, a challenge to a valuation appeal from the finding of the County Board must be made
within ten days from the date of the Board's finding. S.C. Code Regs. 117-4 (1976).
2. The ten day requirement of S.C. Code Regs. 117-4 (1976) is a jurisdictional element. See
Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnett v. S. C. Highway Dep't,
252 S.C. 568, 167 S.E.2d 571 (1969); and S.C. State Highway Dep't v. Spann, 239 S.C.
437, 123 S.E.2d 648 (1962).
3. While the Act is procedural and remedial and while such statutes are generally applied
retroactively, the Act cannot be applied retroactively in the instant case since to do so will
validate proceedings that were invalid under prior law. 82 C.J.S. Statutes §422 (1953).
4. An ALJ has no authority to revive a defective appeal since the authority of reviewing officers
is strictly confined to the limits set by the statutory provisions that give them their existence
and any actions that exceed their jurisdiction are void. S.C. Tax Comm'n v. S.C. Tax Bd.
of Review, 278 S.C. 556, 299 S.E.2d 489 (1983).
5. Properly promulgated regulations of state agencies have the full force and effect of law. S.C.
Code Ann. §1-23-160 (Supp. 1994).
6. For matters such as the instant one not governed by the Revenue Procedures Act, Regs. 117-4 limits the authority of an ALJ to hearing only those matters which are appealed from the
County Board within ten days.
7. The ALJ lacks subject matter jurisdiction to hear the instant action since the appeal was not
filed within ten days of the County Board's decision.
IV. ORDER
Based upon the foregoing Findings of Fact, Discussion, and Conclusions of Law, the following
ORDER is issued:
Due to lack of subject matter jurisdiction, the Petitioner's challenge is dismissed. The assessor's value
of $900,000 for the tax year 1994 on property identified as Tax Map No. 176-01-039 located in
Florence County remains in effect.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 22nd day of September, 1995 |
