SC Administrative Law Court Decisions

Edward S. Bomar (taxpayer) brought this contested case against the Charleston County Assessor (assessor) challenging the assessors' valuation of the taxpayer's property for tax year 1993. The Administrative Law Judge Division (ALJD) heard this matter on May 1, 1997. After considering the law and the facts, I find I have no subject matter jurisdiction since the time for challenging the assessor's determination expired before the taxpayer gave notice of his objection.

Is subject matter jurisdiction lacking due to the taxpayer's failure to timely appeal his assessment for tax year 1993?

1. Positions of Parties:

The assessor argues subject matter jurisdiction is lacking since the taxpayer failed to protest the Notification of Classification of Appraisal and Assessment for the 1993 tax year timely. The taxpayer counters that 1) the Charleston County Board of Assessment Appeals denied his protest without considering mitigating circumstances; 2) that the Notification of Classification of Appraisal and Assessment notice sent for the 1993 tax year is invalid since it contains two defects; and 3) if § 12-43-300(A) does not require the assessor to respond to a late appeal, where a suspect appraisal is involved, an alternative source of valuation must be acceptable.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. For tax year 1993, the assessor implemented a county-wide reassessment program for the County of Charleston.

2. The assessor issued an assessment notice to the taxpayer setting a fair market value of $249,000 for the taxpayer's property identified as Tax ID No. 457-12-04-056, located at 103 King Street, Charleston, SC.

3. The assessment notice is dated June 1, 1993.

4. The assessment notice states a written objection must be filed by July 1, 1993

5. The assessment notice contains sufficient information to identify a date of mailing.

6. The assessor mailed the assessment notice on June 1, 1993 and addressed the notice to the taxpayer at his correct address.

7. While delivered timely, the taxpayer did not physically receive and read the notice of assessment until June 28, 1993, since the taxpayer was absent from his residence.

8. The taxpayer's land is approximately 3,600 square feet and represents .08 of an acre.

9. For the taxpayer's land area, the assessment notice states, "TOTAL ACRES IS .00."

10. The assessment notice expresses an acreage measurement and consequently does not fail to list acreage.

11. On July 13, 1993, the taxpayer mailed a written protest challenging the assessor's 1993 market value with that protest letter received by the assessor on July 16, 1993.

12. The taxpayer failed to timely protest the notice of assessment.

13. The assessor notified the taxpayer on September 15, 1993 that the taxpayer's protest was not timely and that the assessor would not adjust the value.

14. After an appeal to the Board of Assessment Appeals (Board), the Board likewise declined to adjust the value since the appeal to the assessor was untimely.

15. The taxpayer obtained a contested case hearing before the ALJD.

3. Discussion:

a. Introduction

A hearing body always has the duty to decide whether it has jurisdiction of a matter. Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18 (1963). Here, the assessor challenges jurisdiction on the ground the taxpayer did not satisfy the time-to-appeal requirements. The taxpayer, as the party seeking jurisdiction, has the burden of establishing jurisdiction. Yarborough and Co. v. Schoolfield Furniture Industries, Inc. 275 S.C. 151, 268 S.E.2d 42 (1980). A failure to satisfy 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).

b. Applicable Law to Decide Jurisdiction Requirements

In proving jurisdiction for the tax year 1993, a fundamental issue is determining the criteria the taxpayer must prove. Here, although the tax year in dispute is 1993, the Revenue Procedures Act (the Act), which became effective on August 1, 1995, sets out the jurisdictional requirements. A retroactive application of the Act is proper. The Act repealed the former sections addressing this dispute, the Act is both procedural and remedial, and no language appears in the Act⁽¹⁾ which prohibits a retroactive application. See 84 C.J.S. Taxation § 421 (1954) (without statutory language or an expressed intent to the contrary, statutes that are procedural and remedial in nature apply retroactively). Thus, the Act's appeal periods are controlling.

c. Timely Appeal Requirements Under the Act

Under S.C. Code Ann. § 12-60-2510 (Supp. 1996), if the assessor provides a notice of assessment, the taxpayer must file a written objection with the assessor within thirty (30) days "after the assessor mails the property tax assessment notice." The Act is consistent with prior law on appeals since § 12-60-2510 continued virtually unchanged the former time and methodology requirements for appealing an assessment. See S.C. Code Ann. § 12-43-300 (Supp. 1993) (the taxpayer must object in writing to the assessor's valuation within thirty (30) days of the mailing of the notice of valuation). Thus, the question is whether the taxpayer filed an appeal within thirty (30) days of the mailing of the assessment notice.

d. Taxpayer's Late Filing

On June 1, 1993, the assessor mailed a notice of assessment to the taxpayer showing a market value of $249,000 for the taxpayer's property for the 1993 tax year. The thirty (30) day period for the taxpayer's protest expired on July 1, 1993. The taxpayer was away from his residence and did not physically receive and read the assessment notice until June 28, 1993. The taxpayer mailed his protest to the assessor on July 13, 1997. Time limits for appeals are considered jurisdictional limitations and a failure to meet the required deadline denies jurisdiction to the hearing body. 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. Highway Dep't v. Spann, 239 S.C. 437, 123 S.E.2d 648 (1962). Accordingly, the taxpayer failed to meet the July 1, 1993 deadline and thus no subject matter jurisdiction exists to grant the taxpayer's request for a hearing on the merits.

e. Taxpayer's Arguments

The taxpayer argues his late protest is proper for three reasons: 1) the Charleston County Board of Assessment Appeals denied his protest without considering mitigating circumstances, 2) the assessor's notice for the 1993 tax year is invalid since it contains two defects, and 3) even if the assessor is not required to respond to a late protest, if the assessor's appraisal is suspect, an alternative source of valuation must be acceptable.

i. Mitigating Circumstances

The taxpayer argues that the Charleston County Board of Assessment Appeals (Board) should have considered whether mitigating circumstances existed for the late filing. I disagree.

The language of § 12-60-2510 is explicit. A taxpayer's protest must be within thirty (30) days of the mailing of the assessor's notice and no language allows discretion to the Board to consider mitigating circumstances. 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). Since no authority exists to consider mitigating circumstances, the Board properly declined to consider the matter.

ii. Defective Notice

The taxpayer argues two defects in the assessor's 1993 notice invalidate the notice: lack of proof of mailing and lack of a statement of acreage. While § 12-60-2510 sets the date of mailing as the starting point for a protest, the statute does not require the notice to show a date of mailing. In fact, the statute lists the items that must be included on the notice and fails to include the date of mailing. A well-established rule of statutory construction is that the enumeration of particular things excludes the idea of something else not mentioned. Little v. Town of Conway, 171 S.C. 27, 171 S.E. 447 (1933).

In any event, here the taxpayer had reasonable notice that the assessor mailed the assessment on June 1, 1993 and had sufficient time in which to protest. The notice explicitly states a written objection must be filed by July 1, 1993. Under the thirty (30) day rule, such notice indirectly states the date of mailing was June 1, 1993. Further, the notice is dated June 1, 1993 and is a further indication of the date of mailing. Finally, the taxpayer physically received and read the notice on June 28, 1993. With due diligence the taxpayer could have protested the assessment timely. See Lindsey v. S.C. Tax Comm'n., ___ S.C. ___, 448 S.E.2d 577 (Ct. App. 1994) (the taxpayer's date of mailing of his protest to an assessment is the date a property owner gives notice to the assessor). Accordingly, the notice is not defective on the ground that no date of mailing is listed.

A second defect alleged by the taxpayer is the failure to include the acreage of the taxpayer's property. The statute requires listing the number of acres or lots. Here, the notice states, "TOTAL ACRES IS .00." While the taxpayer may disagree with the assessor's measurement of acreage, the notice lists acreage but equates that acreage as negligible. Here, the use of ".00" is not entirely inappropriate since the property is approximately 3,600 square feet representing .08 of an acre. Accordingly, the notice does not constitute a failure to list acreage.

iii. Alternative Valuation

The taxpayer asserts that even if § 12-60-2510 does not require the assessor to respond to a late protest, an alternative source of valuation must be acceptable where the assessor's appraisal is suspect. I cannot agree with the taxpayer's analysis.

Except property required by law to be assessed by the Department of Revenue, the assessor is statutorily the sole person responsible for the valuation of real property, and the values set by the assessor are incapable of being altered except by the assessor or by an appellate body or the courts. S. C. Code Ann. § 12-37-90(h) (1996). Accordingly, the existence of an alternative source of valuation outside the assessor is not permitted.

4. Conclusions of Law:

Based upon the foregoing Findings of Fact and Discussion, I conclude the following:

1. A hearing body has the duty to decide 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 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. The Revenue Procedures Act (Act) sets out the jurisdictional requirements in this matter and sets the protest time limits for this dispute. S.C. Code Ann. § 12-60-2510 (Supp. 1996).

5. A retroactive application of the Act is proper since the Act repealed the former sections addressing this dispute, the Act is both procedural and remedial, and no contrary language appears in the Act to prohibit a retroactive application. See 84 C.J.S. Taxation § 421 (1954).

6. The Act's repeal of prior provisions of Title 12 concerning tax appeals does not destroy the taxpayer's pending matter 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).

7. If the assessor provides a notice of assessment, the taxpayer must file a written objection with the assessor within thirty (30) days after the assessor mails the assessment notice. S.C. Code Ann. § 12-60-2510 (Supp. 1996).

8. The taxpayer's date of mailing of his protest to an assessment is the date a property owner gives notice to the assessor. Lindsey v. S.C. Tax Comm'n., ___ S.C. ___, 448 S.E.2d 577 (Ct. App. 1994).

9. With due diligence the taxpayer could have timely protested the assessment. SC Code Ann. § 12-60-2510 (Supp. 1996); Lindsey v. S.C. Tax Comm'n., ___ S.C. ___, 448 S.E.2d 577 (Ct. App. 1994).

10. 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).

11. The Board has no authority to consider mitigating circumstances for a late protest of an assessment notice resulting from a reassessment year. S.C. Code Ann. § 12-60-2510 (Supp. 1996).

12. While the date of mailing starts the time for a protest, the controlling statute does not require the assessment notice to show a date of mailing. S.C. Code Ann. § 12-60-2510 (Supp. 1996).

13. The enumeration of particular things excludes the idea of something else not mentioned. Little v. Town of Conway, 171 S.C. 27, 171 S.E. 447 (1933).

14. The notice of assessment contained reasonable information informing the taxpayer that the assessor mailed the notice on June 1, 1993. S.C. Code Ann. § 12-60-2510 (Supp. 1996).

15. The notice of assessment is not defective on the ground that no date of mailing is listed. S.C. Code Ann. § 12-60-2510 (Supp. 1996).

16. The notice of assessment is not defective on the ground that no acreage measurement is listed. S.C. Code Ann. § 12-60-2510 (Supp. 1996).

17. Except property required by law to be assessed by the Department of Revenue, the assessor is statutorily the sole person responsible for the valuation of real property with the values set by the assessor incapable of being altered except by the assessor or by an appellate body or the courts. S.C. Code Ann. § 12-37-90(h) (Supp. 1996).

18. The use of an alternative source of valuation outside the assessor is not permitted. S. C. Code § 12-37-90(h) (Supp. 1996).

19. The ALJD has no subject matter jurisdiction in this matter. S.C. Code Ann. § 12-60-2510 (Supp. 1996).

Based upon the foregoing Discussion, Findings of Fact, and Conclusions of Law, the following ORDER is issued:

Since no subject matter jurisdiction exists to protest the assessor's value, the taxpayer's challenge to the assessor's value of $249,000 for tax year 1993 is dismissed.

IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 9th day of May, 1997.

Columbia, South Carolina

1. 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).