BEFORE THE STATE BOARD OF EQUALIZATION
FOR THE STATE OF WYOMING
IN THE MATTER OF THE APPEAL OF )
ENERGY CORPORATION FROM )
A DECISION OF THE FREMONT COUNTY ) Docket
BOARD OF EQUALIZATION - 2003 )
PROPERTY VALUATION )
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).
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.
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,
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.
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].
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].
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.
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.
DISCUSSION OF APPLICABLE LAW
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).
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.
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.
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.
INTENTIONALLY LEFT BLANK
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.
this 7th day of January, 2004
STATE BOARD OF EQUALIZATION
A. Coates, Chairman
B. Minier, Vice-Chairman
Thomas R. Satterfield
Wendy J. Soto, Executive Secretary