Opinion
Robert L. Russel, Dist. Atty., Charles W. Heim, Deputy Dist. Atty., Colorado Springs, for defendants-appellees Sharon Shipley and M. C. Port.
William V. Cox, Denver, Cole, Herbert, Hecox, Tolley & Edwards, Daniel P. Edwards, Colorado Springs, for plaintiff-appellant.
James E. Tarter, Colorado Springs, for defendant-appellee Board of County Commissioners.
SMITH, Judge.
Notices of increased assessed valuation of taxable property are required by 1965 Perm.Supp., C.R.S. 1963, 137--5--21, to be mailed 'no later than the first day of June in each year.' Subsequent to June 1, 1968, defendant Port, Assessor of El Paso County, mailed notices to plaintiff of increased valuation on 15 properties in the county owned or leased by plaintiff. Because of the lateness of the notices, the Assessor and the County Commissioners directed that any limitation on the time for protesting the increases under the provisions of 1965 Perm.Supp., C.R.S. 1963, 137--5--22, be deleted from the notices.
Plaintiff did nothing to protest the increased valuation of its property until April, 1969, when it paid the taxes in question to defendant Shipley, Treasurer of El Paso County. The taxes were paid 'under protest' and a petition for abatement or refund of taxes paid was subsequently filed with the defendant Board of County Commissioners. The petition was referred to Port, who as County Assessor, refused to grant the same, but even at that late date offered plaintiff the opportunity to file a protest as to the assessment and obtain a hearing before him. The plaintiff was notified that, if a protest were made within a reasonable time, a hearing would be held and that administrative remedies were available to appeal an adverse result to the Board of Equalization consisting of the Assessor and the County Commissioners. Plaintiff declined to avail itself of these administrative remedies and, instead, instigated the present action on the basis of 1965 Perm.Supp., C.R.S. 1963, 137--8--6, providing for appeal to the district court. The case was tried to the court upon a stipulated set of facts, and the court found that the plaintiff had in no way been prejudiced by the assessor's delay in sending notices of increased valuation. The court further found that at no time had the plaintiff complained that the increases in valuation were excessive or improper and that plaintiff had not been effectively deprived of any administrative remedies. The court on this basis upheld the denial of the petition for abatement or refund. We affirm.
Plaintiff contends that the lateness of the notice rendered the increase in assessed valuation, and thus the levy of additional taxes, void. It argues that the statutory limits of time for notice and the exercise of administrative remedies contained in 1965 Perm.Supp., C.R.S. 1963, 137--5--21(1) and 137--5--22(4), are mandatory.
We hold that these statutory requirements should be construed as mandatory only if an aggrieved taxpayer can show that non-compliance with the statutory requirements by the county officials has deprived him of an opportunity for a hearing or other rights which he might otherwise have had. Northcutt v. Burton, 127 Colo. 145, 254 P.2d 1013; Citizens' Committee for Fair Property Taxation v. Warner, 127 Colo. 121, 254 P.2d 1005; Tallon v. Vindicator Consolidated Gold Mining Co., 59 Colo. 316, 149 P. 108. See also Rico Argentine Mining Co. v. Board of County Commissioners, D.C., 215 F.Supp. 208.
Although it had the opportunity to do so by administrative means, plaintiff did not contest the amount of the increased valuation. Instead, it elected to base its case solely on the proposition that the increase in valuation was void because of the late sending of the notice. Plaintiff has totally failed to demonstrate any way in which it has been prejudiced by late receipt of notice of increased valuation on its properties. The trial court was therefore correct.
We affirm.
SILVERSTEIN, C.J., and PIERCE, J., concur.