Summary
deciding that a taxpayer's failure to file an abatement petition within the statutory time period deprived the New Hampshire Board of Tax and Land Appeals of appellate jurisdiction
Summary of this case from In re D.O.Opinion
No. 2009-805.
Argued: September 15, 2010.
Opinion Issued: November 24, 2010.
1. Taxation — Judicial and Administrative Proceedings — Appeals
The plain language of the statutes governing tax abatements admits of no exceptions. Taken together, the statutes require a taxpayer to first file an abatement petition with the taxing authority within two months of the notice of tax date and not afterwards. An appeal to the Board of Tax and Land Appeals (BTLA) is permitted only if the selectmen neglect or refuse to abate. Thus, failure to file an abatement petition within two months after the notice of tax date bars BTLA review. RSA 76:16-a, I; 79-A:10.
2. Taxation — Judicial and Administrative Proceedings — Appeals
The statutory deadlines for requesting a tax abatement have historically been strictly enforced, and failure to timely submit an appeal is fatal regardless of accident, mistake, or misfortune. RSA ch. 76.
3. Taxation — Judicial and Administrative Proceedings — Appeals
A taxpayer is authorized to seek relief from the Board of Tax and Land Appeals only if the selectmen neglect or refuse to abate. The subject matter jurisdiction of the board is thus limited to the subject of the selectmen's refusal or neglect. Selectmen can be said to neglect or refuse only what a taxpayer has first requested. Hence, the jurisdiction of the board is limited to the subject of a taxpayer's original request to the selectmen. It is a truly appellate jurisdiction. RSA 76:16-a, I.
4. Taxation — Judicial and Administrative Proceedings — Particular
Cases A taxpayer filed for an abatement more than seven months after the notice of tax date; it did not apply in writing for an abatement within the two months provided by statute. The Board of Tax and Land Appeals was therefore without jurisdiction to hear the taxpayer's appeal. RSA 76:16-a, I; 79-A.-10.
5. Constitutional Law — Due Process — Notice and Hearing
Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. While notice which is a mere gesture does not satisfy due process, a chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. However, a construction of the Due Process Clause which would place impossible or impractical obstacles in the way of vital state interests could not be justified.
6. Constitutional Law — Due Process — Notice and Hearing
The overwhelming majority of courts have held that notice by mail is sufficient to satisfy due process.
7. Constitutional Law — Due Process — Notice and Hearing
While actual notice should be the goal, it is not required in every case. Reasonable risks that notice might not actually reach every beneficiary are justifiable. Due process does not require that the interested party actually receive notice. So long as the government acted reasonably in selecting means likely to inform the persons affected, then it has discharged its burden.
8. Constitutional Law — Due Process — Notice and Hearing
The Board of Tax and Land Appeals erred in concluding that due process entitled a taxpayer to actual notice. The city placed the land-use-change-tax bills in the mail, and nothing in the record indicated that the mail was returned unclaimed or undeliverable. The city's reliance on the United States Postal Service was reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. N.H. CONST, pt. I, art. 15.
Gardner, Fulton Waugh, PLLC, of Lebanon ( H. Bernard Waugh, Jr. on the brief and orally), for the petitioner.
Juniper Fells, LLC, of Manchester, filed no brief.