BEFORE THE STATE BOARD OF EQUALI

BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE ALLEGATIONS BY )

DOUGLAS K. MINICK, COUNTY ASSESSOR FOR )

SHERIDAN COUNTY, WYOMING, OF VIOLATION )

OF STATE LAW REGARDING THE EQUALIZATION ) Docket No. 99-02

AND COLLECTION OF REAL ESTATE TAXES ON )

PROPERTY OWNED BY SHERIDAN COUNTY FOR )

TAX YEARS 1991 THROUGH 1998. )

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EXAMINATION REPORT

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THIS MATTER having come before the State Board of Equalization (SBOE) pursuant to a request by Douglas K. Minick, County Assessor for Sheridan County, Wyoming ⁽¹⁾, for the SBOE to examine in accordance with Wyo. Stat. 39-11-102.1(c)(x)and Chapter 4, State Board of Equalization Rules, allegations that Sheridan County is neither paying nor collecting real estate taxes owed on property owned by Sheridan County, Wyoming. This matter was considered by the State Board of Equalization, Edmund J. Schmidt, Chairman, Roberta A. Coates, Vice Chairman, and Ron Arnold, Member. The SBOE having reviewed the entire file and independently examined all information provided in this matter states the following:

1. The SBOE's jurisdiction in this matter is invoked pursuant to Wyo. Stat. 39-11-102.1(c)(x)which states that the SBOE shall:

"Carefully examine into all cases wherein it is alleged that property subject to taxation has not been assessed or has been fraudulently, improperly, or unequally assessed, or the law in any manner evaded or violated, and cause to be instituted proceedings which will remedy improper or negligent administration of the tax laws of the state; . . ."

2. This matter arises from a letter dated December 23, 1998, and filed with the SBOE on January 4, 1999, from Douglas K. Minick, Sheridan County Assessor, requesting the SBOE to examine into allegations that property taxes on property owned by Sheridan County were not being paid or collected for tax years 1991 through 1998.

3. This matter was stayed by the SBOE pending the decision of the Wyoming Supreme Court in Exxon Corporation v. Board of County Commissioners, Sublette County, 987 P.2d 158 (Wyo. 1999). The SBOE lifted the stay after the issuance of the Wyoming Supreme Court's decision and requested information from the Sheridan County Treasurer regarding the allegations. The Sheridan County Treasurer responded by letter dated April 26, 2000. Members of the SBOE subsequently met with Sheridan County officials on July 19, 2000, and requested additional information. Additional information was provided by the Sheridan County and Prosecuting Attorney by letter dated November 22, 2000.

4. The SBOE finds it has jurisdiction to conduct this examination both statutorily and pursuant to the Wyoming Supreme Court's decision in Exxon Corporation v. Board of County Commissioners, Sublette County, 987 P.2d 158 (Wyo. 1999) where the Wyoming Supreme Court reinforced the SBOE's statutory authority to conduct such an examination as part of its regulatory function.

5. Two issues are raised in this examination. The first issue is whether or not the properties in question are exempt from taxation as "[t]he property of the . . . counties . . . , when used primarily for a governmental purpose." Art. 15 12, Wyoming Constitutionand Wyo. Stat. 39-11-105. The second issue is whether or not Sheridan County officials followed the proper procedures in setting aside or canceling the assessments of the county assessor believed to be erroneous or illegal.

6. While serving as county assessor, Mr. Minick determined that the properties in question were not entitled to an exemption and assessed the properties owned by Sheridan County.

7. According to the letter response from the Sheridan County Treasurer, the current county assessor, county attorney, and county commissioners (in their role as the county board of equalization) believe in their judgment the properties were exempt from taxation and assessed in error. The officials chose to either disregard or cancel the tax assessments issued because of their collective belief that the assessments are erroneous and do not comport with the law.

8. As distasteful as it is for the SBOE to insert itself into what appears on the surface to be a local dispute, we cannot avoid our constitutional and statutory responsibilities to ensure that properties are uniformly valued throughout the state and that the tax laws of the state are properly administered.

9. Under the circumstances presented to the SBOE, we lack the authority to change assessments issued by an assessor. Nor can we or any county official circumvent the procedures set forth in the statutes for challenging an assessment believed to be erroneous or illegal.

10. While the letter responses of the Sheridan County Treasurer of April 26, 2000, and the Sheridan County and Prosecuting Attorney of November 22, 2000, are well researched and reasoned legal briefs for the proposition that the properties in question, for the most part, are entitled to an exemption from taxation as property used primarily for a governmental purpose, that determination may not be substituted for the initial determination made by the county assessor on the taxability of property owned by Sheridan County. There must be statutory authority to challenge the assessment and proper statutory procedures must be followed to contest the assessor's initial determination.

11. No matter how well reasoned and compelling the legal arguments may be, the SBOE must first consider whether or not a county treasurer can refuse to collect on the assessments issued by a county assessor, who clearly has the statutory authority to levy taxes under Wyo. Stat. 39-13-107(b)(i)(A) and Wyo. Stat. 39-13-102(g), (. . ."county assessor shall deliver the tax list and his warrant for the collection of the taxes to the county treasurer setting forth the assessment role. . . ").

12. Therefore, we must determine whether or not there is statutory authority to correct an assessment believed to be erroneous or illegal and whether or not any authorized procedures were followed in this matter to correct an assessment alleged to be either illegal or erroneous.

13. With respect to the authority of a county treasurer, the applicable Wyoming statutes, Wyo. Stat. 39-13-102(h) and Wyo. Stat. 39-13-107(b)(i)(B) state:

The county treasurer upon receiving the tax list and warrant [from the assessor] shall immediately proceed to collect the taxes levied for the current year and taxes remaining unpaid from preceding years.

Nowhere in the statutes were we able to find authorization for the county treasurer to refuse to collect an assessment issued by the county assessor, even though the treasurer believed such assessment to be erroneous.

14. However, there are several statutory methods for challenging an assessment available to any person, including the county treasurer and board of county commissioners, if the county assessor's assessment is believed erroneous.

15. First, under Wyo. Stat. 39-13-102(c), the board of county commissioners, sitting as the county board of equalization, is required to meet no earlier than the fourth Tuesday in April to consider current year assessments. The county assessor or his designee is required to attend all meetings "to explain or defend the assessments." The county board of equalization is required to:

(iii) Correct any assessment or valuation contained in and complete the assessment role;

(iv) Hear and determine the complaint of any person relative to any property assessment or value as returned by the county assessor subject to W.S. 39-13-109(b)(i);

(v) Decide all protests heard and provide the protestant with a written decision no later than the first Monday in August.

16. At the annual meeting of the county board of equalization, any person including the county treasurer or the county attorney could have challenged the correctness of the county assessor's assessments on the properties in question. Theoretically, the county board could have "corrected" the assessments by removing them from the assessment role and the county assessor would have been there to defend his assessment. In the event that the proposed correction was disputed by any person, including the county assessor or the county treasurer, the county board of equalization would have been duty bound to hold a contested case hearing and provide the parties with a written decision. Due process would have been provided and an appeal of the county board's decision could have been taken to the SBOE and beyond.

17. According to Mr. Minick, the properties in question still remain on the Sheridan County assessment roles so we must assume that no "correction" was made by the county board of equalization at its annual meetings nor was a hearing provided. If in fact, discussions were held on the validity of those assessments during the course of the annual meeting(s) of the county board of equalization, the deliberations and corrections of the assessment roles would obviously be reflected in the minutes of the meetings of the county board of equalization.

18. The importance of that annual meeting of the county board of equalization and the finality it imparts to county budgets cannot be overemphasized. Immediately after the assessment roll is corrected by the county board, the county assessor prepares the abstract of the assessment roll and transmits it to the state board. On or before the first Tuesday of August, the county board levies the requisite taxes for the year. From that information the county assessor computes the tax list and delivers his warrant to the county treasurer for collection of the taxes. Failing to collect taxes on certain county owned property adversely affects other beneficiaries of property taxes, such as school districts, special districts and others.

19. Because none of these actions appear to have been taken by the county board of equalization in its annual meeting to consider current year assessments, the grant of the treasurer's request to cancel delinquent taxes is not authorized by Wyo. Stat. 39-13-102(c).

20. No information provided to the SBOE indicates the actions of the County board of equalization were taken in response to any appeal from the original protests.

21. Therefore, only the implied authority of the board of county commissioners under Wyo. Stat. 39-13-109(c) to correct an erroneous or illegal assessment, levy or collection of taxes within one (1) year can justify their cancellation of the delinquent taxes.

22. Wyo. Stat 39-13-109(c) provides in pertinent part:

c) Refunds. The following shall apply:

(i) Within one (1) year following an illegal assessment, levy or collection of taxes an action may be filed in district court to enjoin the illegal assessment, levy or collection. The action shall be against the county assessor in the case of an illegal assessment, . . . the county treasurer if the levy is entered on the tax list, or against the governmental entity if the taxes were collected and paid to the entity;

(ii) If any person pays any tax, or portion thereof, found to have been erroneous or illegal, the board of county commissioners shall direct the county treasurer to refund the erroneous or illegal payment to the taxpayer. . . .

23. The information provided by the Sheridan County and Prosecuting Attorney in his November 22, 2000, letter reflects that the board of county commissioners took the following actions with respect to the properties in question:

A. On September 1, 1998, the board of county commissioners granted a request by the county treasurer to cancel delinquent taxes on the properties in question for several prior tax years; and

B. On July 6, 1999, the board of county commissioners unanimously voted to cancel delinquent taxes for 1998 which were assessed on the properties in question.

24. Because no appeals were taken from the decisions of the board of county commissioners in 1998 or 1999, we again feel constrained to accept the decision of the board of county commissioners with respect to the assessments for the tax years immediately preceding the board's actions, 1997 and 1998.

25. However, we cannot condone the cancellation of delinquent taxes for any years prior to 1997, because there is no indication that the board of county commissioners acted within one (1) year following the asserted erroneous or illegal assessment, levy or collection of taxes.

26. The SBOE notes that Mr. Minick waited until after he had lost his reelection bid to request the SBOE exercise its examination powers in this matter. The issue was ripe for review years ago while he was still in office. This illustrates the problem the SBOE has with the examination power provided for in Wyo. Stat. 39-11-102.1(c)(x) which sets no statutory time limitation for filing an examination request. Problems with improper or negligent administration of tax laws require immediate attention so that errors are not repeated year after year or compounded by the passage of time.

27. Except as specifically noted above, from our review of the tax statutes, we simply cannot find any justification for a county treasurer, county attorney, board of county commissioners or county board of equalization to unilaterally decide not to collect a tax assessment that has been placed on the county rolls by the county assessor, even with the tacit approval of the county board of equalization. To do so would appear to violate Wyo. Stat. 39-13-102(d) which states:

The county board of equalization has no power to and shall not set tax policy nor engage in any administrative duties concerning assessments which are delegated to the board, the department or the county assessor."

28. Finally, we feel obligated to comment that nothing contained herein should be construed as accepting the arguments of the county concerning the exempt status of any particular piece of county property.

REGULATORY FINDINGS

A. Therefore, we must respectfully instruct the county treasurer, to proceed to collect the taxes levied on all of the subject properties which remain uncollected on the Sheridan County tax rolls which were (a) not subject to a legally performed "correction" by the Sheridan County Board of Equalization at its annual meetings, (b) formally adjudicated as exempt in a protest hearing before the local board or (c) not determined to be an illegal or erroneous assessment, levy or collection of taxes within one (1) year of the assessment. Otherwise, the statutory time for protesting the county assessor's assessments for the tax years in question has long since passed.

B. If the current Sheridan County Assessor disagrees with the prior assessor and believes these properties are entitled to an exemption, it is certainly his prerogative to not assess these properties. At this time, unless an appeal of his decision is taken to the county board of equalization and ultimately appealed to the State Board, we have no jurisdiction to determine the merits of his determination as to the validity of any currently claimed exemption.

Pursuant to Wyo. Stat. 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 the appropriate district court by filing a petition for review within 30 days of the date of this decision.

Dated this 29^th day of December, 2000.

STATE BOARD OF EQUALIZATION

Edmund J. Schmidt, Chairman

Roberta A. Coates, Vice-Chairman

Ron Arnold, Member

ATTEST:

Wendy Soto, Executive Secretary