ORDERS:
ORDER
I. Statement of the Case
Gene Hendrix and Charles Hendrix (taxpayer) brought this contested case against the Lexington
County Assessor (assessor) challenging the assessors' valuations of the taxpayer's property for
property tax years 1993, 1994 and 1995. This matter was heard on June 12, 1996.
Prior to the hearing on the merits, the assessor moved to dismiss the taxpayer's petition for lack of
subject matter jurisdiction by asserting the taxpayer failed to timely appeal the 1993, 1994, and
1995 tax years. The assessor further argued on the merits of the case that the property must be
valued at $250,000. The taxpayer countered by denying he untimely appealed. In addition, the
taxpayer asserted the assessor is bound as a matter of law to a value of $127,400 since that is the
value finally determined for the 1992 reassessment program. To vary from that value, the
taxpayer argues, imposes a prohibited spot reassessment in violation of S.C. Code Ann. §
12-43-210(B) (Supp. 1995). Finally, the taxpayer argues that if the value is not $127,000, then
actual income and expenses must be used to establish value.
While I conclude subject matter jurisdiction is present, the matter must be dismissed without
prejudice under S.C. Code Ann. § 12-60-2540 (Supp. 1995) due to the lack of a conference
before the County Board for the tax years 1993, 1994 and 1995. Accordingly, the value of the
taxpayer's property for 1993, 1994, and 1995 and the spot reassessment issues are not addressed.
II. Issues
1. Is subject matter jurisdiction lacking due to the taxpayer's alleged failure to timely appeal his
assessments for 1993, 1994, and 1995?
2. If jurisdiction is available, must the matter be dismissed without prejudice for failure to have the
County Board decide the 1993, 1994, and 1995 tax years?
III. Analysis
A. Timely Appeal
1. Positions of Parties:
The assessor argues subject matter jurisdiction is lacking since the taxpayer failed to file a timely
appeal notice to the assessor and to the ALJ for the tax years 1993, 1994, and 1995. The
taxpayer counters that his appeal was timely since the county received a written objection for
1992 which gave notice of the taxpayer's disagreement with the assessor's values for 1993, 1994,
and 1995.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. The assessor imposed for tax year 1992 the results of a completed county-wide reassessment
program.
2. During 1992, the assessor fixed a value for the taxpayer's property which showed an increase
of more than $1,000 over the previous assessment.
3. The assessor issued a notice of assessment showing a market value of $312,000 for the
taxpayer's property for the 1992 tax year.
4. The taxpayer on June 30, 1992, filed a timely written protest to the assessor's 1992 market
value.
5. The assessor lowered the appraised value to $264,800.
6. Unsatisfied with the value, the taxpayer appealed to the County Board on June 17, 1993.
7. At the County Board conference on April 25, 1995, the assessor lowered the value to
$226,000.
8. The County Board held no conferences for the taxpayer other than the conference held on
April 25, 1995.
9. On April 28, 1995, the County Board issued a written decision that agreed with the assessor's
value.
10. During the time period that the 1992 assessment was disputed, tax years 1993, 1994 and
1995 arose.
11. The County Board's decision of April 28, 1995 does not identify any tax year.
12. At the April 25, 1995 County Board conference, the appraisal date relied upon by the
assessor was the value as of December 31, 1991, which is the value date used in assessing values
for the 1992 tax year.
13. The County Board heard only the 1992 tax year.
14. The taxpayer did not attend a conference with the County Board for the 1993, 1994, and
1995 tax years.
15. The taxpayer obtained a contested case before the ALJD resulting in an order dated
November 27, 1995.
16. Only tax year 1992 was before the ALJ in the contested case which resulted in the Order
identified as Gene Hendrix and Charles Hendrix v. Leslie Smith, Lexington County Assessor,
95-ALJ-17-0352-CC, November 27, 1995.
17. The November 27, 1995 order did not address any tax year except 1992.
18. The taxpayer's written protest of June 30, 1992 disagrees with the appraisal and assessment
issued by the assessor and requests a hearing with the assessor.
19. The assessor's 1992 appraisal is the basis upon which the values for 1993, 1994, and 1995
were determined.
20. The taxpayer received "80%"tax bills for 1993, 1994 and 1995 from the County because the
County did not reasonably expect that appeals for 1993, 1994, and 1995 would be resolved by
December thirty-first of each tax year.
21. The County treated the 1992 protest letter as a continuing protest for tax years 1993, 1994,
and 1995.
22. The 1992 protest letter was a written protest for 1992 and was a continuing protest for 1993,
1994, and 1995.
23. On January 30, 1996 the taxpayer learned the assessor intended to value the property for
property tax years 1993, 1994, and 1995 at $226,000.
24. By letter dated February 13, 1996, the assessor informed the taxpayer that the County Board
on February 5, 1996 had "confirmed" the fact that the County Board's conference of April 25,
1995 and its decision of April 28, 1995 found the taxpayer's property worth $226,000 for tax
years 1992, 1993, 1994, and 1995.
25. The taxpayer received no correspondence from the County Board specifically stating the
County Board had heard tax years 1993, 1994, and 1995.
26. No agreement exists between the assessor and the taxpayer to the effect that the facts and
valuation of the 1992 tax year are representative of the facts and valuation for the tax years 1993,
1994, and 1995.
27. The County Board made no determination that the facts and valuation for 1992 were
representative of the facts and valuation for the tax years 1993, 1994, and 1995.
3. Discussion:
a. Introduction
A hearing body always has the duty to determine whether it has jurisdiction of a matter. Bridges
v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18 (1963). Here, jurisdiction is challenged by
the assessor on the ground the taxpayer did not satisfy the time-to-appeal requirements of
jurisdiction. The taxpayer, as the party seeking jurisdiction, has the burden of presenting facts
sufficient to establish jurisdiction. Yarborough and Co. v. Schoolfield Furniture Industries,
Inc. 275 S.C. 151, 268 S.E.2d 42 (1980). A failure to prove satisfaction of the time limits of
jurisdiction is fatal since an untimely appeal prohibits the hearing body from deciding the matter.
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); Stroup v. Duke Power Co., 216 S.C. 79, 56 S.E.2d 745
(1949).
Jurisdiction in a property tax matter involving several years cannot rest upon establishing
jurisdiction for a single year since each year must be treated as a separate issue. Such a result is
required by the established law in this State. First, a property tax liability arises from a specific
tax year as the result of an annual valuation as of December 31 of the year preceding the tax year
under consideration. S.C. Code Ann. Sec. 12-37-900 (1976); Atkinson Dredging Co. v.
Thomas, 266 S.C. 361, 223 S.E.2d 592 (1976); Lindsey v. S.C. Tax Comm'n, 395 S.E.2d 184,
302 S.C. 274 (1990). Thus, each year is independent from any other tax year. Second,
jurisdiction over one tax year does not confer jurisdiction over another tax year. See Kiawah
Resort Associates v. S.C. Tax Comm'n, ___ S.C. ___, 458 S.E.2d 542 (1995) (only 1989
assessment ruled upon by the Tax Commission since the 1986 assessment not presented).
Correspondingly, jurisdiction over a 1992 tax year does not supply the jurisdiction for any other
year. Rather, jurisdiction for each year must be proven.
b. Applicable Law To Decide Jurisdiction Requirements
In proving jurisdiction for each of the tax years 1993, 1994, and 1995, a fundamental issue is
deciding the criteria that must be proven. In this case, even though two of the tax years in dispute
are prior to 1995, the Revenue Procedures Act (the Act), which became effective on August 1,
1995, sets out the jurisdictional duties. A retroactive application of the Act is proper since the
Act is both procedural and remedial and there is no contrary language in the Act(1). See 84 C.J.S.
Taxation § 421 (1954) (in the absence of statutory language or an expressed intent to the
contrary, statutes that are procedural and remedial in nature apply retroactively). Thus, the time
periods for appeal under the Act must be examined.
c. Timely Appeal Requirements
Based upon the above analysis and the challenges raised by the assessor, the taxpayer here must
have timely protested the assessor's valuation (S.C. Code Ann. § 12-60-2510 and § 12-60-2520
(Supp. 1995)) and timely appealed to the ALJD. ((§ 12-60-2540 (Supp. 1995)). The assessor
argues the taxpayer failed both requirements.
1. Timely Appeal To the Assessor
Under S.C. Code Ann. § 12-60-2510 (Supp. 1995), if the assessor provides a notice of
assessment, the taxpayer must file a written objection with the assessor within 30 days of the
assessment notice. If no assessment notice is issued, the taxpayer must file a written objection to
the assessor by March 1 of the tax year in dispute. The Act is consistent with prior law on
appeals since § 12-60-2510 continued virtually unchanged the former time period and
methodology requirements for appealing an assessment. See S.C. Code Ann. § 12-43-300 (Supp.
1993, 1994 and 1995) (under the applicable law in each year of 1993, 1994 and 1995, the
taxpayer must object in writing to the assessor's valuation within 30 days of notice of valuation
and, if no notice of valuation is required, written objection to the assessment is due by March 1).
Thus, the question for determination is whether the taxpayer filed an appeal within the required
time period.
In this case, tax year 1992 was a reassessment year. During 1992, the assessor fixed a value for
the taxpayer's property which showed an increase of more than $1,000. Thus, the assessor issued,
as required, a notice of assessment showing a market value of $312,000 for the taxpayer's
property for the 1992 tax year. There is no dispute that the taxpayer on June 30, 1992, filed a
timely written protest to the assessor's 1992 market value. The assessor lowered the appraised
value to $264,800, but, unsatisfied with the new appraisal, the taxpayer appealed to the County
Board on June 17, 1993. In presenting the matter to the County Board on April 25, 1995, the
assessor lowered the value to $226,000. On April 28, 1995 the County Board agreed with the
assessor's value. Finally, the 1992 dispute continued until November 27, 1995, when an ALJ
issued an order setting the value for 1992 at $127,400.
During the time period that the 1992 assessment was under appeal, tax years 1993, 1994 and
1995 arose. The assessor argues the taxpayer failed to satisfy the jurisdictional requirement of
providing a written challenge to the 1993, 1994 and 1995 assessments. The taxpayer counters
that no written challenge was needed for each of the subsequent years since the 1992 protest was
a continuing protest for all subsequent years which relied upon the 1992 appraisal. The taxpayer
supports this argument by identifying two actions consistent with this view. First, the taxpayer's
written protest of June 30, 1992 states "I disagree with this appraisal and assessment" and then
requests a hearing with the assessor. The taxpayer's point is that the protest letter challenges all
assessments based upon the single 1992 appraisal and that 1993, 1994, and 1995 were all based
upon the original 1992 appraisal. Second, the taxpayer points out that the county sent "80%"tax
bills. An "80%" bill is used only when "... it is reasonably expected that the written protest or
appeal will not be resolved by December thirty-first of the tax year, ..." S.C. Code Ann. §
12-60-2550(A) (Supp. 1995). Thus, from the taxpayer's view, the County's actions demonstrate
the 1992 protest letter was considered a continuing written protest for 1993, 1994, and 1995.
I agree with the taxpayer. The protest letter challenges the "appraisal." While modifications were
made to the appraisal during the course of the 1992 tax dispute, the appraisal essentially remained
the same in scope and concept for each of the tax years 1993, 1994, and 1995. The taxpayer's
written response challenging the appraisal was interpreted by the County as a challenge to all tax
years that relied upon the appraisal since the County issued "80%" tax bills. The taxpayer's
challenge, considering all of the factors, is a challenge dated June 30, 1992 and is a timely written
protest to the assessor of the subsequent tax years of 1993, 1994, and 1995.
2. Timely Appeal To the ALJ
A timely appeal to the ALJD requires that the taxpayer request a contested case hearing within
thirty days of the County Board's written decision. S.C. Code Ann. § 12-60-2540 (Supp. 1995).
This provision is essentially the same as prior law except the new provision allows for a longer
appeal window. See Regs. 117.4 (Regs. 117-4 granted a party ten days in which to appeal to the
former Tax Commission). Here, the assessor argues that if the taxpayer did appeal the 1993,
1994, and 1995 assessments to the assessor, then the County Board must have also heard all of
the appeals for all tax years (1992, 1993, 1994, and 1995) on April 25, 1995. The assessor
supports this argument by pointing out the County Board held no other hearings for the taxpayer,
and thus, the decision of April 28, 1995 determined the value for each year to be $226,000. The
assessor argues the taxpayer deliberately chose to appeal only 1992 to the ALJ, and thus, failed to
timely appeal 1993, 1994, and 1995.
The taxpayer does not dispute the fact that only the 1992 tax year was appealed in the previous
matter identified as Gene Hendrix and Charles Hendrix v. Leslie Smith, Lexington County
Assessor, 95-ALJ-17-0352-CC, November 27, 1995. The taxpayer, however, asserts the County
Board did not hear the 1993, 1994, and 1995 appeals. The taxpayer supports this position by
stating the appraisal date relied upon at the April 25, 1995 County Board hearing was the value as
of December 31, 1991, i.e. a value date used for valuing the 1992 tax year. Thus, he asserts only
the 1992 tax year was heard.
Further, the taxpayer asserts that only on January 30, 1996 did he learn the assessor intended to
value the property for 1993, 1994, and 1995 at $226,000. He asserts he received no
correspondence from the County Board specifically stating it had heard 1993, 1994, and 1995.
Rather, the taxpayer asserts the County Board never notified him of a decision for 1993, 1994,
and 1995, but instead he was told of the alleged County Board decision by the assessor in a letter
dated February 13, 1996. That letter stated the following:
"Lexington County Board of Assessment Appeals heard your case on April 25, 1995. They
determined the value of $226,000 was fair and equitable and the decision was for tax years
1992, 1993, 1994, and 1995. This fact was confirmed at a members meeting on February 5,
1996"
For several reasons, I agree with the taxpayer that the County Board did not address the value of
the property for 1993, 1994, or 1995. Further, I find that even if the County Board did address
the value for 1993, 1994, and 1995, the notice to the taxpayer of that decision was so inadequate
as to violate procedural due process.
First, for the 1993, 1994 and 1995 tax years, the County Board, by an ALJ order dated March 18,
1996, was directed to present to the ALJD several documents: the County Board's written
decision, the taxpayer's protest letter, the assessor's response to the protest, all documents
received as evidence, and the amount of the property tax assessments for 1993, 1994 and 1995.
The County Board responded that "[t]he information ... submitted when the [1992] case was
heard originally is the complete record. The Board has no additional information to submit."
Such a statement does not rule out the view that the County Board addressed 1993, 1994, and
1995 but it does not convey an affirmative statement that the County Board did consider 1993,
1994, and 1995. In short, the Board's statement says that for this taxpayer all matters the Board
considered for any year have already been provided to the ALJD as a part of the 1992 hearing.
Such a statement is not a sufficient indicator that the Board provided a conference on the 1993,
1994, and 1995 tax years.
Second, a review of the prior materials submitted to the ALJD by the County Board for the 1992
ALJ hearing does not demonstrate any decision was made by the County Board for 1993, 1994,
or 1995. Rather, the assessor's presentation relates to the value of the property for 1992. The
assessor's appraisal specifically states the value is that of December 31, 1991. The material
submitted by the taxpayer also does not support a view that the County Board had the tax years
1993, 1994, or 1995 before it. At most the taxpayer's materials present only income earned
during 1993. The taxpayer makes no mention of 1994 or 1995.
Third, at the time of the County Board meeting, there was no agreement by the assessor and the
taxpayer that the 1992 tax year was representative of tax years 1993, 1994, and 1995 and that the
parties would be bound by the 1992 value for the subsequent years. Such a position would be an
anomaly given the fact that the assessor now argues 1992 is not representative of subsequent
years while the taxpayer now argues the assessor is bound by the 1992 value. Likewise, there is
no indication that the County Board determined that the value for 1992 was the same value to be
used for 1993, 1994, and 1995. If the County Board wished to make such a conclusion, its
decision of April 28, 1995 should have been sufficiently definite for the taxpayer to ascertain from
the decision the years decided. As written, the County Board's decision does not identify any tax
year.
Finally, even if the County Board decided 1993, 1994, and 1995, the notice to the taxpayer of the
County Board's decision violates procedural due process since the notice is too insufficient to
place the parties on notice of the years under review. I note the assessor states in his February 13,
1996 letter that the County Board on February 5, 1996 confirmed that the County Board
"determined the value of $226,000 was fair and equitable and the [April 28, 1995] decision was
for tax years 1992, 1993, 1994, and 1995." The April 28, 1995, decision never gave such
specifics. Further, a letter from the assessor is insufficient to convey a County Board's decision.
The decision of the County Board was not specific enough to place the parties on notice as to
what years were decided. Inadequate notice offends procedural due process. See, e.g., Greene v.
Lindsey, 456 U.S. 444 (1982) (due process demands that the form of the notice of a government
action which may potentially deprive the party of a property interest must be reasonably designed
to insure the interested party learns of the action that has been taken). Here, the taxpayer is not
reasonably told that his valuation disputes for tax years 1993, 1994 and 1995 were resolved
against him.
4. Conclusions of Law:
Based upon the foregoing Findings of Fact and Discussion, I conclude the following:
1. A hearing body always has the duty to determine whether it has jurisdiction of a matter.
Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18 (1963).
2. The party seeking jurisdiction, here the taxpayer, has the burden of presenting facts sufficient
to establish jurisdiction. Yarborough and Co. v. Schoolfield Furniture Industries, Inc. 275 S.C.
151, 268 S.E.2d 42 (1980).
3. A failure to satisfy the time limits of a jurisdictional statute is fatal to an appeal since an
untimely appeal prohibits the hearing body from deciding the matter. 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); Stroup v. Duke Power Co., 216 S.C. 79, 56 S.E.2d 745 (1949).
4. Each property tax year is independent from any other tax year since a property tax liability
arises from a specific tax year as the result of an annual valuation as of December 31 of the year
preceding the tax year under consideration. S.C. Code Ann. § 12-37-900 (1976); Atkinson
Dredging Co. v. Thomas, 266 S.C. 361, 223 S.E.2d 592 (1976); Lindsey v. S.C. Tax Comm'n,
395 S.E.2d 184, 302 S.C. 274 (1990).
5. Jurisdiction over one tax year does not confer jurisdiction over another tax year. See Kiawah
Resort Associates v. S.C. Tax Comm'n, ___ S.C. ___, 458 S.E.2d 542 (1995).
6. The Revenue Procedures Act (the Act) applies retroactively to establish the jurisdictional
duties of the taxpayer since the Act has no language to the contrary and the Act is a procedural
and remedial statute. See 84 C.J.S. Taxation § 421 (1954).
7. The Act's repeal of prior "provision[s] of Title 12 concerning tax appeals" does not destroy the
taxpayer's pending matters even where the Act lacks a savings clause since the Act is procedural
and essentially a continuance of the prior law. See 84 C.J.S. Statutes § 439 (1953).
8. If the assessor provides a notice of assessment, the taxpayer must file a written objection with
the assessor within 30 days of the assessment notice, but if no assessment notice is issued, the
taxpayer must file a written objection to the assessor by March 1 of the tax year in dispute. S.C.
Code Ann. § 12-60-2510 (Supp. 1995).
9. S.C. Code Ann. § 12-60-2510 (Supp. 1995) is consistent with the prior law on appeals since
under the prior law in each of the years 1993, 1994 and 1995, the taxpayer was required to object
in writing to the assessor's valuation within 30 days of notice of valuation and, if no notice of
valuation was required, written objection to the assessment was due by March 1. S.C. Code Ann.
§ 12-43-300 (Supp. 1993, 1994 and 1995).
10. The taxpayer timely appealed the 1993, 1994, and 1995 assessments to the assessor to satisfy
subject matter jurisdiction. S.C. Code Ann. § 12-60-2510 (Supp. 1995).
11. A timely appeal to the ALJD requires that the taxpayer request a contested case hearing
within thirty days of the County Board's written decision. S.C. Code Ann. § 12-60-2540 (Supp.
1995).
12. S.C. Code Ann. § 12-60-2540 (Supp. 1995) is consistent with prior law except that §
12-60-2540 allows for a thirty day appeal window to the ALJ while prior law allowed a ten day
appeal window to the former Tax Commission. See S.C. Code Regs. § 117.4.
13. For the 1993, 1994 and 1995 tax years, there is no failure to timely appeal the County
Board's April 28, 1995 decision to the ALJD since the County Board made no decision on the
value of the taxpayer's property for those years.
14. Inadequate notice offends procedural due process since due process demands that the form of
the notice of a government action which may potentially deprive the party of a property interest
must be reasonably designed to insure the interested party learns of the action that has been taken.
See e.g. Greene v. Lindsey, 456 U.S. 444 (1982).
15. Even if the County Board decided 1993, 1994, and 1995, the notice to the taxpayer of the
County Board's decision violates procedural due process since the notice is too insufficient to
notify the parties of the years decided.
16. The ALJD has jurisdiction in this matter.
B. Lack of County Board Decision
1. Positions of Parties:
Both the taxpayer and the assessor seek to establish a value for the property if jurisdiction is
available. The assessor seeks a value of $250,000 and the taxpayer seeks $127,400. The lack of
a County Board conference, however, requires an examination of S.C. Code Ann. § 12-60-2540
(Supp. 1995).
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. The taxpayer requested a contested case before the ALJD to challenge the 1993, 1994, and
1995 assessments.
2. The taxpayer has not attended a conference before the County Board for the tax years 1993,
1994, and 1995 since the county has not provided a conference.
3. Discussion:
Since no conference was held for 1993, 1994, and 1995, the question becomes what action is
appropriate for the ALJ to take in this instance. The traditional answer is that a failure to exhaust
administrative remedies at a lower level results in the dismissal of the pending matter at the higher
level. See Jet Park Intern. v. Thomas, 288 S.C. 408, 343 S.E.2d 33 (Ct. App. 1986) (under S.C.
Code Ann. § 12-43-300 (1976), a taxpayer failed to seek a conference with the assessor to obtain
relief from the assessor's valuation resulting in a dismissal for failure to exhaust administrative
remedies); Hyde v. S.C. Dept. of Mental Health, ___ S.C. ___, 442 S.E.2d 582 (1994)
(employee's failure to seek remedy before State Employee Grievance Committee amounted to a
failure to exhaust administrative procedures so as to preclude a suit under Whistleblower Statute
of S.C. Code Ann. § 8-27-30).
While a dismissal is the traditional answer, dismissal is normally not mandatory. Rather, the
decision to dismiss for failure to exhaust administrative remedies is a discretionary matter for the
judge. Andrews Bearing Corp. v. Brady, 261 S.C. 533, 201 S.E.2d 241 (1973). Accordingly, in
the absence of a controlling statute, the taxpayer's failure to exhaust its administrative remedies
leaves a discretionary decision for the ALJ.
In this case, however, no discretion is left to the ALJ. Rather, the result here is dictated by §
12-60-2540 (Supp. 1995). Under that section "[i]f a taxpayer requests a contested case hearing
without first exhausting his prehearing remedy because he failed to ... attend the conference with
the county board of assessment appeals, the ALJ shall dismiss the action without prejudice."
(emphasis added). "Shall" is a term imposing a mandatory duty. S.C. Dept. of Highways and
Public Transp. v. Dickinson, 288 S.C. 189, 341 S.E.2d 134 (1986).
Here, the taxpayer has requested a contested case before the ALJD. However, the taxpayer has
not attended a conference before the County Board for the tax years 1993, 1994, and 1995 since
the county has not provided the conference. The failure to attend the conference is the failure to
exhaust the taxpayer's prehearing remedy. S.C. Code Ann. § 12-60-20(16) (Supp. 1995).
Accordingly, this matter is dismissed without prejudice.
Since this matter is dismissed without prejudice, the taxpayer may proceed further only after
exhausting his remedy before the County Board. The County Board shall provide a conference
for the 1993, 1994 and 1995 tax years at a time and date mutually convenient to the parties. See
Jet Park International v. Thomas, 288 SC 408, 343 S.E.2d 33 (Ct. App. 1986) (a taxpayer was
unable to proceed to recover taxes paid until an omitted conference with the assessor was held
with the taxpayer entitled to the conference, if necessary, by seeking a writ of mandamus).
Finally, since this matter is dismissed, the issues of spot reassessment and valuation are not
addressed.
4. Conclusions of Law:
Based upon the foregoing Findings of Fact and Discussion, I conclude the following:
1. Traditionally, a failure to exhaust administrative remedies at a lower level results in the
dismissal of the pending matter at the higher level. See Jet Park Intern. v. Thomas, 288 S.C.
408, 343 S.E.2d 33 (Ct. App. 1986); Hyde v. S.C. Dept. of Mental Health, ___ S.C. ___, 442
S.E.2d 582 (1994).
2. Normally, the decision to dismiss for failure to exhaust administrative remedies is a matter for
the discretion of the judge. Andrews Bearing Corp. v. Brady, 261 S.C. 533, 201 S.E.2d 241
(1973).
3. No discretion is left to the ALJ, however, where a statute directs that "[i]f a taxpayer requests
a contested case hearing without first exhausting his prehearing remedy because he failed to ...
attend the conference with the county board of assessment appeals, the ALJ shall dismiss the
action without prejudice." (emphasis added). S.C. Code Ann. § 12-60-2540 (Supp. 1995).
4. "Shall" is a term imposing a mandatory duty. S.C. Dept. of Highways and Public Transp. v.
Dickinson, 288 S.C. 189, 341 S.E.2d 134 (1986).
5. The failure to attend the conference before the County Board is a failure to exhaust the
taxpayer's prehearing remedy. S.C. Code Ann. § 12-60-20(16) (Supp. 1995).
6. The current matter is dismissed without prejudice. S.C. Code Ann. § 12-60-2540 (Supp.
1995).
7. A taxpayer may proceed with an appeal only after exhausting his remedy before the County
Board which conference, if necessary, may be sought by seeking a writ of mandamus. See Jet
Park International v. Thomas, 288 S.C. 408, 343 S.E.2d 33 (Ct. App. 1986).
IV. ORDER
Based upon the foregoing Discussion, Findings of Fact, and Conclusions of Law, the following
ORDER is issued:
This matter is dismissed without prejudice. The taxpayer may proceed further only after
exhausting his remedy before the County Board. The County Board shall provide a conference
for the 1993, 1994 and 1995 tax years at a time and date mutually convenient to the parties.
IT IS SO ORDERED.
_____________________________
RAY N. STEVENS
Administrative Law Judge
This 27th day of August, 1996.
_________________________
Fn1. The Act's repeal of prior "provision[s] of Title 12 concerning tax appeals" does not destroy
the taxpayer's pending matters even where the Act lacks a savings clause since the Act is
procedural and essentially a continuance of the prior law. See 84 C.J.S. Statutes § 439 (1953)
(where the repealing act relates to matters of procedure and the new statute reenacts substantially
the same provisions as the former statute, the new statute's repeal of the former statutes does not
abate pending actions.) |
