SC Administrative Law Court Decisions

This matter is before me pursuant to the request of the Petitioner, Dr. Henry David Garretson ("Petitioner") for a contested case hearing under S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996) and 12-60-2540 (Supp. 1996). Petitioner objects to the Charleston County Assessor's property tax assessment of his property located at 29 Surf Song Road, Kiawah Island, South Carolina, for the tax year 1997. The Assessor asserted that Petitioner's objection and request for review of the assessment was not timely filed, and Petitioner appealed the Assessor's decision to the Charleston County Board of Assessment Appeals ("Board"). The Board denied Petitioner's appeal, stating that the objection to the Notice of Assessment was untimely. Petitioner seeks remand of this matter to the Assessor for review and conference on the ground that Petitioner substantially complied with the statutory requirements for filing a notice of objection to the assessment.

A contested case hearing was held at the offices of the Administrative Law Judge Division ("Division"), Columbia, South Carolina, on November 18, 1997. Based upon the relevant and probative evidence and the applicable law, I find that Petitioner's objection to the assessment notice was not timely filed. Accordingly, this matter must be dismissed.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and considering the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. This Division has jurisdiction to hear this matter.

2. Notice of the date, time, place and nature of the hearing was timely given to the parties.

3. The Petitioner is the owner of the property which is the subject of this action, located at 29 Surf Song Road, Kiawah Island, South Carolina, identified as PID # 97/264-14-00-029.

4. On or about June 6, 1997, the Assessor mailed a Notification of Classification, Appraisal, and Assessment of Real Estate dated June 6, 1997 concerning the subject property to the Petitioner at his home address in Louisville, Kentucky. The Notification stated on its face that any written objections to the appraisal and assessment had to be filed with the Assessor within thirty days of the date of the notice or before July 7, 1997.

5. The Petitioner received the notice and was aware that objections had to be filed with the Assessor on or before July 7, 1997.

6. On or before June 24, 1997, the Petitioner wrote the following statement on a copy of the notice: "This did not copy well so that I'd better mail it rather than send by fax," and he mailed the copy to his attorney, Claron A. Robertson, III, at Mr. Robertson's former office address at 171 Church Street #320, Charleston; it was subsequently forwarded to Mr. Robertson at his new address, 177 Meeting Street, Suite 300, Charleston, where it was received after July 7, 1997. The envelope enclosing the copy of the notice was originally postmarked June 24, 1997 in Louisville, Kentucky; it was subsequently readdressed and postmarked again on July 8, 1997.

7. On July 11, 1997, Petitioner's attorney hand delivered a written objection to the valuation and assessment to the Assessor's office.

8. By letter dated July 16, 1997, the Assessor advised the Petitioner's attorney that the objection to the notice was not timely filed for tax year 1997. On July 22, 1997, Petitioner's attorney filed a written notice of intent to appeal with the Assessor. By letter dated July 31, 1997, the Charleston County Board of Assessment Appeals also rejected Petitioner's appeal because of the untimely filing of the objection.

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1. S.C. Code Ann. § 12-60-2540 (Supp. 1996) authorizes the South Carolina Administrative Law Judge Division to hear contested cases pursuant to Chapter 23 of Title 1 of the 1976 Code, as amended.

2. S.C. Code Ann. § 12-60-2510(A)(3) (Supp. 1996) requires that a taxpayer must, within thirty days after the Assessor mails a property tax assessment notice, give the Assessor written notice of objection to one or more of the following: the fair market value, the special use value, the assessment ratio or the property tax assessment.

3. A taxpayer may object to a property tax assessment by requesting in writing to meet with the assessor within the time limits provided in Section 12-60-2510. S.C. Code Ann. § 12-60-2520(A) (Supp. 1996). If the matter is not resolved at the conference with the assessor, the taxpayer has thirty days after the date of the conference to file a written protest with the assessor. S.C. Code Ann. § 12-60-2520(B) (Supp. 1996). Within thirty days after the assessor's response to the protest, a taxpayer may appeal the assessment to the county board of assessment appeals. S.C. Code Ann. § 12-60-2530 (A) (Supp. 1996). If the taxpayer or the assessor disagrees with the board's decision, an appeal may be pursued by requesting a contested case hearing before the Administrative Law Judge Division within thirty days after the date of the board's written decision. S.C. Code Ann. § 12-60-2540 (A) (Supp. 1996).

4. In this case, the copy of the Notice, sent by the Petitioner to his attorneys, is insufficient to meet the statutory requirements. First, nowhere on the copy of the Notice or otherwise did the Petitioner indicate objection to the fair market value, the special use value, the assessment ratio, or the property tax assessment, as required under § 12-60-2510(A)(3). He merely wrote on the Notice, "This did not copy well so that I'd better mail it rather than send it by fax." Nor did the material sent by the Petitioner to his attorney satisfy the criteria of § 12-60-2520(A), which allows a taxpayer to object to a property tax assessment by requesting, in writing, to meet with the Assessor within the thirty day time limit imposed by § 12-60-2520(3). Second, even if the materials mailed by the Petitioner to his attorneys were deemed to be adequate notice of objection within the meaning of the statute, it was not timely filed with the Assessor. Petitioner failed to mail the Notice, with its written notations, to the Assessor's office. The Assessor did not receive the Notice until it was hand delivered by the Petitioner's attorney on July 11, 1997, after the thirty day time limit had expired.

5. The Petitioner contends that he provided an "objectively verifiable expression of his intent to appeal" within the statutory time limit, and therefore he should be allowed to proceed. He relies on Lindsey v. S.C. Tax Comm'n, 323 S.C. 57, 448 S.E.2d 577 (Ct. App. 1994), in support of his position. In Lindsey, the taxpayer placed his objection to a Notice of Assessment in an outside mailbox at the United States Post Office on the final day of the thirty-day period for filing objections. That day was a federal holiday and the Post Office was closed. The envelope was postmarked two days later, after the thirty-day period had expired. The Court of Appeals held that the objection was timely submitted, holding that the applicable statute allowed a property owner to "give written notice" of his objection to an assessment by either serving the notice personally upon the Assessor or by mail. The Court further stated, "Where service by mail is permitted, it is complete when the document is deposited with the United States Postal Service, properly addressed with sufficient postage." 448 S.E.2d at 578 (emphasis added).

The Petitioner's reliance upon Lindsey is ill-founded. In Lindsey, there was no dispute as to whether the objection to the assessment was properly addressed to the Assessor. Id. at 578 n. 2. Here, however, although the Petitioner's objection was deposited with the United States Postal Service prior to the deadline, it was not properly addressed to the Assessor. Instead, it was improperly addressed to the Petitioner's attorney. The only written notice of objection addressed to the Assessor was hand delivered by Petitioner's attorney on July 11, 1997, after the expiration of the thirty-day period. Therefore, Lindsey is not applicable to this case.

6. Petitioner further contends that other sections of the Revenue Procedures Act provide that the failure to have a protest in the hands of the assessor within a stated thirty-day limit is not fatal to the appeal, citing S.C. Code Ann. § 12-60-2540(B)(Supp. 1996). However, that section provides no relief for the Petitioner. It provides that "if a taxpayer requests a contested case hearing before the Administrative Law Judge Division without exhausting his pre-hearing remedy because he failed to file a protest or attend the conference with the County Board of Assessment Appeals, the Administrative Law Judge shall dismiss the action without prejudice." (Emphasis added.) The remedy provided to property tax owners under Subarticle 9 of the Revenue Procedures Act contemplates a three-step process before an objection to a property tax assessment is considered by the Division. In response to the notice of assessment, the taxpayer must first give the Assessor written notice of objection pursuant to S.C. Code Ann. § 12-60-2510. This objection triggers the requirement for a conference between the Assessor and the taxpayer. If the matter is not resolved at that conference, the taxpayer proceeds to the second level where he has the right to protest pursuant to S.C. Code Ann. § 12-60-2520(B). This protest triggers the taxpayer's appeal to the County Board of Assessment Appeals. The third level of the process involves the Board conducting a conference which the Assessor and the taxpayer must attend in accordance with S.C. Code Ann. § 12-60-2530(C). The taxpayer may then appeal a property tax assessment made by the Board of Assessment Appeals by requesting a contested case hearing before the Administrative Law Judge Division in accordance with S.C. Code Ann. § 12-60-2540(A).

S.C. Code Ann. § 12-60-2540(B) provides relief where the taxpayer failed to exhaust his prehearing remedies at the second and third levels of the process described above. If the taxpayer failed to file the protest following his conference with the Assessor, or if he failed to attend the conference with the Board of Assessment Appeals, the Administrative Law Judge is empowered to dismiss the action without prejudice so that the taxpayer may exhaust his prehearing remedies. An Administrative Law Judge, however, is not empowered by Section 12-60-2540(B) to dismiss a taxpayer's action without prejudice where the taxpayer failed to initially file a written notice of objection with the Assessor in accordance with the provisions of, and within the time limits prescribed by, S.C. Code Ann. § 12-60-2510(A).

7. Time limits for appeals are considered jurisdictional limitations and a failure to meet the required deadline divests the hearing body of jurisdiction to hear the appeal. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnett v. S.C. State Hwy. Dep't, 252 S.C. 568, 167 S.E.2d 571 (1969). Furthermore, no language in any of the applicable statutes allows the Administrative Law Judge to exercise discretion 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 which 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 the Petitioner failed to give written notice of his objection to the Assessor within the prescribed time period, this Division has no jurisdiction to hear his appeal and this matter must be dismissed.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that this matter be dismissed.

AND IT IS SO ORDERED.

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Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

January 13, 1998