BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF )

DEVON ENERGY CORPORATION FROM )

A DECISION OF THE FREMONT COUNTY ) Docket No. 2003-105

BOARD OF EQUALIZATION - 2003 )

PROPERTY VALUATION )

DECISION AND ORDER

APPEARANCES

R. Gregg West, Senior Property Tax Representative, for Devon Energy Corporation, (Petitioner).

Terrance R. Martin, Deputy Fremont County Attorney, for Eileen Oakley, Fremont County Assessor, (Assessor).

DIGEST

This is an appeal from the Fremont County Board of Equalization (County Board). The State Board of Equalization (State Board), comprised of Roberta A. Coates, Chairman, Alan B. Minier, Vice-Chairman and Tom Satterfield, Board Member, considered the hearing record and decision of the County Board, and briefs filed pursuant to a Briefing Order (Locally Assessed Property) dated October 1, 2003. The Petitioner appealed a decision of the County Board affirming the Fremont County Assessor’s 2003 valuation of the real property and improvements of Petitioner’s Beaver Creek Phosphoria Plant and Beaver Creek Gas Plant, located in Fremont County, Wyoming. The Assessor determined the value of the subject properties to be $7,703,210, and the County Board found for the Assessor. Petitioner asks the State Board to remand this case to the County Board with a directive that Petitioner’s property and improvements be assessed at a value of $4,490,470.

However, our review of the record indicates that the Petitioner did not file a timely protest. We will remand this matter to the County Board, and instruct the County Board to determine whether the Petitioner’s Statement to Contest Property Tax Assessment was filed by the deadline stated in Wyo. Stat. Ann. §39-13-109(b)(i).

PROCEEDINGS BEFORE THE COUNTY BOARD

The County Board conducted a hearing on July 14, 2003. The County Board consisted of Douglas L. Thompson, Chairman of the Board of County Commissioners of Fremont County, and Fremont County Commissioners Crosby Allen, Lanny Applegate, Pat Hickerson and Gary Jennings. Teresa M. McKee acted as Hearing Examiner. The Petitioner called one witness, R. Gregg West. The Assessor called two witnesses, Eileen Oakley and Robert Lehn of Thos. Y. Pickett & Company. The record includes Petitioner’s Exhibit 1, Assessor’s Exhibits A - U, two recorded tapes, the Decision and Order of the County Board, and several other documents related to the proceedings.

The County Board’s findings of fact addressed the expert testimony offered on behalf of the Assessor, found that testimony to be credible, and found as a matter of law that the Petitioner had not presented sufficient credible evidence to overcome the presumption favoring the Assessor. [County Board Record, pp. 369-371].

JURISDICTION

The State Board is required to “hear appeals from county boards of equalization.” Wyo. Stat. Ann. § 39-11-102.1(c). The County Board entered its Decision and Order on August 5, 2003, and Petitioner filed an appeal with the State Board dated September 2, 2003. Rules, Wyoming State Board of Equalization, Chapter 3, §2.

The State Board entered a Briefing Order on October 1, 2003. Petitioner submitted an Opening Brief dated October 28, 2003. The Assessor submitted a Response Brief dated December 1, 2003. The Petitioner did not exercise its right to submit a Reply Brief by December 17, 2003, and neither party requested oral argument.

Our review of the record indicates that the Petitioner did not file a timely statement to contest the assessment. However, the County Board did not address this issue. We therefore remand the matter to the County Board to determine whether the Petitioner met the statutory deadline for contesting its assessment.

PERTINENT FACTS

1. Petitioner, Devon Energy Corporation, owns the Beaver Creek Phosphoria Plant and the Beaver Creek Gas Plant, located in Fremont County, Wyoming. [Record, Tape 1]. Generally speaking, the Phosphoria Plant is a gas sweetening plant which pretreats wet, sour natural gas before that gas is commingled with other gas for processing at the Gas Plant. [Record, Tape 1].

2. The Assessor issued an Assessment Notice for Petitioner’s property on April 23, 2003. [Record, Exhibit A]. The Assessor determined the fair market value of the two Plants to be $7,703,210. [Record, Exhibit A].

3. R. Gregg West, Senior Property Tax Representative for Petitioner, sent a letter to Ms. Eileen Oakley, the Fremont County Assessor, on May 16, 2003. [Record, Exhibit B, pp. 120-121]. The stated purpose of the letter was to explain how Mr. West “determined the market value of the referenced plants” by his own method. [Record, Exhibit B, p. 120]. Mr. West addressed the “difference between my proposed market value and the market value proposed by the county...” [Record, Exhibit B, p. 120]. Mr. West closed his letter with an offer “to visit your office to discuss these issues more thoroughly.” [Record, Exhibit B, p. 120]. Nothing in the letter expressed an intention to contest the Assessor’s market value by an appeal to the County Board.

4. Mr. West thereafter executed a sworn Statement to Contest Property Tax Assessment on May 29, 2003. [Record, Exhibit B, pp. 119-120]. On its face, the Statement is a form that is filed “for the purpose of contesting a property tax assessment of property owned or controlled by the undersigned” which also “states the following reasons why the assessment is incorrect....” [Record, Exhibit B, p. 119]. A file stamp on the sworn Statement shows that it was received in the Assessor’s office on June 2, 2003. [Record, Exhibit B, p. 119].

DISCUSSION OF APPLICABLE LAW

5. Wyoming Statute Annotated Section 39-13-109(b)(i) establishes a deadline for appeals to a county board of equalization. The deadline relates back to the distribution of assessment schedules by a county assessor: “On or before the fourth Monday in April, or as soon thereafter as practicable, the county assessor shall mail all assessment schedules to taxpayers at their last known address....” Wyo. Stat. Ann. §39-13-103(b)(vii). The statute sets a deadline for responding to the assessment schedule:

...Any person wishing to contest an assessment of his property shall file not later than thirty (30) days after the date or postmark date of the assessment schedule properly sent pursuant to W. S. 39-13-103(b)(vii), whichever is later, a statement with the county assessor specifying the reasons why the assessment is incorrect...

Wyo. Stat. Ann. §39-13-109(b)(i) [emphasis supplied]. The use of “shall” in a statute is considered mandatory language requiring that the statute be obeyed. Russell v. State ex rel. Wyoming Workers’ Safety and Compensation Division, 944 P.2d 1151, 155 (Wyo. 1997). The Wyoming Supreme Court held a similar filing requirement for appeals to the State Board to be “mandatory and jurisdictional.” Antelope Valley Imp. v. State Board of Equalization, 992 P.2d 563, 567 (Wyo. 1999).

6. The assessment schedule in this case was dated April 23, 2003. The Statement to Contest Property Tax Assessment was executed on May 29, 2003, and bears a file stamp of June 2, 2003. On the face of the record, Petitioner failed to meet the statutory deadline for contesting the assessment. The County Board could not hear the Petitioner’s appeal, and we cannot hear the Petitioner’s appeal from the County Board.

7. However, we do not know the postmark date of the assessment schedule, which could conceivably be later than the date of the assessment schedule itself. Further, the parties did not address the question of whether the protest was timely filed, although the Assessor’s Response Brief states that the Assessor issued the tax assessment schedule on April 23, 2003, and Petitioner filed a Statement to Contest Property Tax Assessment on May 29, 2003. [Response Brief, p. 2]. From April 23 to May 29 is more than thirty days. Fundamental fairness obliges us to remand this matter to the County Board to determine whether there is some reason that this matter should not be dismissed for lack of jurisdiction.

8. We note in passing that the County Board has Rules dated May 1, 1990, which provide that, “Any person wishing to contest an assessment of his property shall file on or before the third Tuesday in May a statement under oath with the County Assessor or County Clerk, as Clerk of the County Board of Equalization, specifying the reasons why the assessment is incorrect....” These Rules conflict with the statute, and are therefore beyond the authority of the County Board of Equalization. U S West Communications, Inc. v. Wyoming Public Service Commission, 992 P.2d 1092 (Wyo. 1999). However, even if the County Board Rules were effective, they would provide no comfort to a Petitioner that did not file a “statement under oath” until after the specified deadline.

THIS SPACE INTENTIONALLY LEFT BLANK

ORDER

IT IS THEREFORE HEREBY ORDERED that the Fremont County Board of Equalization Order denying the Petitioner’s protest and affirming the 2003 assessment of Petitioner’s property known as the Beaver Creek Phosphoria Plant and Beaver Creek Gas Plant located in Fremont County, Wyoming, is remanded to determine whether the Petitioner’s Statement to Contest Property Tax Assessment was timely filed.

Pursuant to Wyo. Stat. Ann. § 16-3-114 and Rule 12, Wyoming Rules of Appellate Procedure, any person aggrieved or adversely affected in fact by this decision may seek judicial review in at the appropriate district court by filing a petition for review within 30 days of the date of this decision.

Dated this 7^th day of January, 2004

STATE BOARD OF EQUALIZATION

________________________________

Roberta A. Coates, Chairman

________________________________

Alan B. Minier, Vice-Chairman

________________________________

Thomas R. Satterfield

ATTEST:

________________________________

Wendy J. Soto, Executive Secretary