Opinion
No. 74-200
Decided April 15, 1975. Rehearing denied May 6, 1975. Certiorari granted July 14, 1975.
Taxpayer brought action alleging that erroneous real property assessment valuation notice had operated to preclude it from pursuing its administrative and judicial remedies relative to the property assessment valuation. From dismissal of complaint, taxpayer appealed.
Affirmed
1. TAXATION — Erroneous Assessment Notice — Objections — Purely Technical — Not Interfere — Collection — Public Revenue — Taxpayer — Not Complaint. Since in action by taxpayer premised on erroneous assessment notice, the taxpayer did not specify in its complaint nor introduce any evidence on any of the specific statutory bases for challenging an assessment valuation, the objection to the erroneous notice was purely technical, and that objection being without substantial merit, it should not interfere with the collection of the public revenue; nor may the taxpayer complaint about the erroneous notice.
2. Erroneous Assessment Notice — Knowledge — Taxpayer — Duty — Make Investigation — Not — Shift Burden — Claim Negligence. Since the taxpayer knew, or should have known, that first notice of assessment that it received was in error, that knowledge placed the taxpayer under a duty to investigate the actual assessment records on file in the assessor's office, and since there is no question that such an investigation could have been conducted so as to allow the timely filing of a protest to the assessment, the taxpayer may not now put upon the public officials the burden which rested on it, nor, by blaming the officials, excuse its own negligence in failing to obtain the correct assessment.
Appeal from the District Court of the County of Adams, Honorable Oyer G. Leary, Judge.
Wallace, Armatas Hahn, David Hahn, for plaintiff-appellant.
Berger, Rothstein, Gehler Cohen, David Berger, for defendants-appellees.
Plaintiff, Modular Communities, Inc., (Modular) appeals from a judgment denying its claim for return of $16,635.49 for property taxes paid under protest to the Adams County Treasurer. We affirm.
On May 28, 1971, the assessor of Adams County mailed to Modular a notice of assessed valuation on land and improvements owned by Modular. This notice advised Modular that the assessed valuation of its property for the year 1971 had been increased from $36,950, the assessed valuation for the year 1970, to $192,320 for the year 1971, or an increase of $155,370. This notice was mailed pursuant to § 39-5-121, C.R.S. 1973 (at that time 1965 Perm. Supp., C.R.S. 1963, 137-5-21(1)).
Shortly after January 1, 1972, Modular received a tax statement from the treasurer of Adams County showing the total valuation for the property to be $352,050 instead of the valuation shown in the May 28 notice. This represented a $16,635.49 difference in taxes, which Modular paid under protest.
Thereafter, Modular filed a complaint in district court seeking a return of the $16,635.49, claiming that the failure of the assessor to give Modular proper statutory notice of the change in the assessed valuation of its property was a denial of its substantive rights in that its time for a hearing before the assessor, the county board of equalization, the state board of assessment appeals, and then to the district court, had expired prior to the receipt of the tax statement.
Defendants answered admitting that the notice of May 28 had been mailed, but asserting that the notice "mistakenly reported the assessed valuation of the property at $192,320.00 instead of at $352,050.00 the correct determination of assessed value made by the Assessor," and "that the plaintiff knew or should have known that the Notice of assessed valuation was in error, which error was patent on the face of said Notice of assessed valuation."
After trial, the court made findings of fact that the assessment was made in the tax assessor's record by June 1, and showed the property to be of the value of $1,173,490; that there was an error in the notice of assessment mailed to the plaintiff on May 28, but that the assessment as it appeared on the assessor's records was always properly recorded with the correct figure and the assessor's records had been properly certified on the tax assessment roll that was sent to the treasurer on or before December 31, 1971; that Modular's complaint did not allege either that the assessment was erroneous or excessive; and that Modular knew or should have known that the figures on the May 28 notice of assessment were in error and that this was patent on the face of the notice.
The court ruled that an allegation that the assessment was either erroneous or excessive was essential to any administrative review of the assessor's actions. Hence, since Modular had made no such allegation, the trial court dismissed Modular's complaint and entered judgment for defendants. Modular then filed this appeal.
Modular's appeal is based upon questions of law and it does not content that the findings of the trial court are not supported by the evidence.
In dismissing the complaint, the trial court ruled that Modular could have protested under § 39-5-122, C.R.S. 1973, even after the receipt of the tax statement in January, and that, if it were deprived of its opportunity to protest, it could have asked the court to direct the assessor to consider its protest. Modular urges that this ruling of the trial court was error and that the failure to give it timely notice under § 39-5-121, C.R.S. 1973, of the correct amount of the increased valuation deprived it of the right to administrative relief.
Under the facts of this case it was unnecessary for the trial court to rule on Modular's post-January protest rights, and our affirmance of its judgment should not be considered as approval of such rulings. See Fellers-Schoonmaker Homes, Inc., v. Five Star Homes Real Estate, Inc., 158 Colo. 163, 405 P.2d 677.
Modular, in its complaint, did not claim that its property had been "valued too high, or [had] been twice valued, or [was] exempt by law from taxation, or that [it] did not own taxable property on the assessment date, or that property [had] been erroneously assessed to [it]." Section 39-5-122(2), C.R.S. 1973. Therefore, Modular had no basis upon which it could appear before the assessor to present an objection and protest. The appearance before the assessor with "objection and protest," which are then "refused or denied," is a prerequisite to an appeal to the county board of equalization. Section 39-5-122(3), C.R.S. 1973, and § 39-8-106(1), C.R.S. 1973.
[1] Not having specified in its complaint nor introduced any evidence as to any of the above grounds upon which it desired to protest to the assessor, Modular was not entitled to file an initial protest before the assessor, and, as a result, it was not entitled to the additional administrative remedies authorized by statute. Hence, the objection to the notice is purely technical and such objections, "without substantial merit, should not interfere with the collection of the public revenue." Haley v. Elliott, 20 Colo. 379, 38 P. 771. Since Modular had no grievance as to the assessed valuation, it could not complain about the improper notice. See Citizens' Committee for Fair Property Taxation v. Warner, 127 Colo. 121, 254 P.2d 1005.
[2] Additionally, since, by an unchallenged finding of the district court, Modular knew, or should have known, that the May 28 notice of assessment was in error, and since this error was found to be patent on the face of said notice, this knowledge placed Modular under a duty to investigate the actual assessment records on file in the assessor's office. "The prime objective of [Modular's obligation in] seeking to inquire [would be] to ascertain the assessed valuation of [its] property in order to determine whether [it] should present a protest." Northcutt v. Burton, 127 Colo. 145, 254 P.2d 1013.
There is no question that Modular received the notice of assessment shortly after its mailing date and within sufficient time to have made an actual investigation of the assessor's records and to have filed a protest during the month of June 1971. Having failed to do this, Modular may not now put upon the public officials the burden which rested upon its own shoulders, nor by blaming the officials, excuse its own negligence in failing to obtain the correct assessment by pursuit of the avenues open to it through the assessor's records. Northcutt v. Burton, supra. Any prejudice which it claims to have suffered was due to its own inaction and it may not now complain thereof.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN concurs specially.
JUDGE KELLY dissents.