Opinion
No. COA02-1411
Filed 4 November 2003 This case not for publication
Appeal by taxpayer from final decision entered 5 June 2002 by the North Carolina Property Tax Commission. Heard in the Court of Appeals 20 August 2003.
Long, Parker, Warren Jones, P.A., by Robert B. Long, Jr., for taxpayer-appellant. W. Paul Holt, Jr., P.A., by W. Paul Holt, Jr., and Holt York McDarris High L.L.P., by Jeffrey P. Gray, for appellee Jackson County.
From the North Carolina from the Property Tax Commission, No. 00 PTC 244.
Charles H. Taylor (Taylor) and Transylvania Tree Farms (collectively, taxpayers) appeal from the Property Tax Commission's (the Commission) decision denying present-use value classification for tax year 2000 on their six tracts of forested land located in Jackson County, North Carolina (the subject properties). For the reasons discussed herein, we affirm.
The facts pertinent to this appeal, as set forth by the parties in a post-hearing stipulation filed while the Commission held this matter under advisement, are as follows:
. . . .
The entity known as Transylvania Tree Farms is a partnership organized under the laws of the State of North Carolina and is owned by Charles H. Taylor and his wife Elizabeth Taylor.
From at least January, 1984, and continuing until July, 1999, all of the real property that is the subject of this appeal was classified and assessed as land that was part of a forest unit that was actively engaged in the commercial growing of trees under a sound management program such as to qualify its property for appraisal at its present-use value, a value lower than the market value established through lawful schedules established by the Jackson County Board of County Commissioners . . . .
. . . .
Because of the pending appeals concerning [certain other, unrelated real property located in Jackson County, which the Commission concluded should not receive present-use value classification for tax year 1997], Cecil Dills, the Tax Assessor for Jackson County, sent a letter to all of the owners of real property in Jackson County . . . with property then in the present-use classification. The letter to "Property Owner[s]" without specific reference to the taxpayers herein, was dated January 2, 1998 and was mailed, as is relevant to this pending appeal, to taxpayers herein.
. . . .
The January 2, 1998 letter of the Tax Assessor informed property owners and taxpayers of the review of all properties then assessed at present-use value under the requirements of N.C. Gen. Stat. § 105-296(j) in order to verify that property in the classification continued to meet the requirements for eligibility. The letter further stated that the Tax Assessor did not have a "forest management plan" for the property or that the plan was not current. . . .
. . . .
The letter requested a copy of any plan then in effect and informed the property owner that they [sic] must be in compliance with the plan. . . . The letter set a deadline of March 15, 1998 for submission of a current, new, or updated plan. The letter further informed the property owner that the failure to provide the plan in a timely manner would result in the property losing its eligibility [for present-use value classification] and that the deferred taxes would become immediately due.
No notice of the statutory procedures for review and the other remedies available to the taxpayers as to the requirement of a "forest management plan" imposed by the Tax Assessor and the consequences for failure to comply was given to the taxpayers by the Tax Assessor and the taxpayers did not request any review or remedy at that time. The taxpayers did not request a review by the Jackson County Board of Equalization and Review regarding the present[-]use value [sic] classification of their property in the year 1998. The taxpayers did not request a review of the January 2, 1998, letters of the Tax Assessor by the governing body of the taxing unit of the County of Jackson, i.e., the Jackson County Board of Commissioners, in the year 1998.
No further action was taken by the Tax Assessor or the taxpayers until April 6, 1999, when a letter of same date from the Tax Assessor was directed to the taxpayers, with reference to the January, 1998 letter, and once again requesting a copy of the current forest management plan and that it be provided within 30 days of the date of the letter. The letter further stated the taxpayers['] failure to comply or submit a plan would result in loss of eligibility and a roll back of deferred taxes for the previous three years.
The taxpayers responded by letter dated May 12, 1999 . . . [which] stated that "a forester is currently in the process of drafting a Forest Management Plan" with regard to the property in question which would be submitted to the Tax Assessor's office "no later than June 1, 1999." . . .
No further action was taken by the taxpayer[s] or the Tax Assessor by July 1, 1999. On July 1, 1999 the Tax Assessor made his determination the property had lost its eligibility for present-use classification and calculated the 1999 and deferred taxes owed. . . . By letter dated July 2, 1999, the Tax Assessor informed the taxpayers of his determination of loss of eligibility [for present-use value classification] and the amount of taxes due by reason thereof. . . .
Notice of the statutory procedures for review and the other remedies available to the taxpayers for the loss of eligibility determination and assessment of the deferred taxes was not given to the taxpayers by the Tax Assessor prior to or at the time of his actions herein before set out. . . . The Jackson County Board of Equalization and Review had convened on April 7, 1999 and adjourned on May 11, 1999. Notices of the first meeting and the adjournment date were published in the local newspaper. . . .
The Jackson County Board of Commissioners by Resolution dated March 4, 1999, delegated to the Board of Equalization and Review, the authority to continue to function following the formal adjournment of the County Board each year for the purpose of exercising the authority granted to the Board of Commissioners under N.C. Gen. Stat. § 105-325 and amendments thereto. . . .
The taxpayers did not request a review by the Jackson County Board of Equalization and Review regarding the letter of loss of eligibility determination and assessment of deferred taxes with regard to their property in the year 1999. . . .
No new application was filed by the taxpayers for [present] use value application of their property for the tax year 2000 after the letter of the Tax Assessor on July 2, 1999 stating their properties had lost eligibility for [present] use value classification.
No further action was taken by the taxpayer until April 3, 2000 when a fax from [taxpayers' counsel] was sent to the Tax Assessor containing language that could be part of a written forest management plan and which referenced Charles H. Taylor, Registered Forester # 320, and Member of Society of American Foresters. . . .
A Request for Hearing and Appeal to the Jackson County Board of Equalization and Review, dated April 27, 2000, was made through [taxpayers' counsel] . . . requesting that [the] removal of the property [from] the present-use value classification in the year 1999 and the process by which it was removed be reviewed and overturned.
. . . .
A Supplemental Request for Hearing and Appeal before the Board of Equalization and Review, dated June 15, 2000, was made through [taxpayers' counsel] . . . requesting that the eligibility [for present-use value classification] of the property under appeal be determined for the year 2000, as well as for the years 1996-1999.
. . . .
A hearing was set and conducted by the Board of Equalization and Review on July 10, 2000. During the hearing, Forest Management Plans prepared by John Rutland, III were presented. Mr. Rutland testified that he was hired in April 2000, the plan was dated May 10, 2000, and that he finished it on or about the first of May (2000). . . .
The Jackson County Board of Equalization and Review issued a decision by Notice dated August 14, which denied the taxpayers the present-use value classification on the properties that are the subject of this appeal for the year 2000 on the basis of the previous loss of eligibility [for present-use value classification] and the failure to file a new application and a timely forest management plan. . . . The Board refused to consider the actions taken by the Jackson County Tax Assessor in the year 1999.
Notice of Appeal from the decision of the Jackson County Board of Equalization and Review was filed with the North Carolina Property Tax Commission by the taxpayers through their counsel . . . on September 11, 2000 . . . .
Application, accompanied by the above-mentioned Forest Management Plan prepared by John Rutland, III was presented to the Tax Assessor for the year 2001 by the taxpayers for the properties that are the subject of this appeal and the properties were granted present-use value classification beginning in the year 2001.
. . . .
By its final decision entered 5 June 2002, which contained findings of fact consistent with the foregoing, the Commission affirmed the 14 August 2000 decision of the Jackson County Board of Equalization and Review (the County Board), in which the County Board (1) refused to consider taxpayers' request for a hearing regarding the removal of the subject properties from present-use value classification for tax year 1999, and (2) denied present-use value classification to the subject properties for tax year 2000. In so ruling, the Commission concluded as a matter of law, in pertinent part, as follows:
. . . .
4. The County Assessor requested the Taxpayers to provide written forest management plans to verify that the properties continue to meet the sound management requirement for present-use value taxation under the forestland classification. The County Assessor correctly deemed this information necessary in order to comply with G.S. 105-296(j), and relevant to the definition of forestland set forth in G.S. 105-277.2(2) and the requirement for sound management set forth in G.S. 105-277.2(6).
5. The County Assessor properly removed the subject properties from present-use value assessment, forestry classification, when the Taxpayers did not provide information to show that the subject properties were part of a forest unit actively engaged in the commercial growing of trees under a sound management program for tax year 1999.
6. The County Board properly denied Taxpayer's [sic] request for present-use value assessment, forestry classification, regarding the subject properties for tax year 2000 since the properties previously lost eligibility due to Taxpayers['] failure to submit timely forest management plans and failure of the Taxpayers to file new applications. The Taxpayers failed to provide the necessary information to show that the subject properties were part of a forest unit that is actively engaged in the commercial growing of trees under a sound management program as required by statute.
7. For tax year 1999, the 2000 County Board did not have jurisdiction to consider Taxpayers' hearing and appeal request since the request was not timely filed. G.S. 105-322 directs that the county board of equalization and review shall examine and review the current year tax lists and the board shall hear taxpayer's request to review the listing or appraisal of the subject property for the current year.
. . . .
Taxpayers appeal from the Commission's final decision, asserting that by allowing the county tax assessor to remove the subject properties from present-use value classification for tax year 1999 after taxpayers failed to timely submit the requested written forest management plans, the Commission erroneously allowed removal of the subject properties without proper notice and a hearing, in violation of the North Carolina Machinery Act (N.C. Gen. Stat. §§ 105-271 et. seq.) and the due process clauses of the federal and state constitutions. Taxpayers further assign error to the Commission's conclusion that taxpayers' failure to timely submit a new application for present-use value classification precluded consideration of the subject properties for present-use value classification for tax year 2000. We disagree with each of taxpayers' assertions.
At the outset, we note that under the standard of appellate review of the Commission's decisions as set forth in N.C. Gen. Stat. § 105-345.2(b), this Court "shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of any Commission action." N.C. Gen. Stat. § 105-345.2(b) (2001). This Court may affirm, reverse, declare void, remand, or modify any Commission decision which is:
(1) In violation of constitutional provisions; or
(2) In excess of statutory authority or jurisdiction of the Commission; or
(3) Made upon unlawful proceedings; or
(4) Affected by other errors of law; or
(5) Unsupported by competent, material and substantial evidence in view of the entire record submitted; or
(6) Arbitrary or capricious.
Id. In making the foregoing determinations, we must review the whole record. N.C. Gen. Stat. § 105-345.2(c) (2001). We are required under the whole record test to determine whether the Commission's decision is supported by substantial evidence, and we must review all questions of law de novo. In re Univ. for the Study of Human Goodness Creative Group Work, ___ N.C. App. ___, ___, 582 S.E.2d 645, ___ (2003). Because there is no factual dispute between the parties here, our review of the instant appeal is limited to the questions of law raised by taxpayer-appellants.
By their first assignment of error, taxpayers except to the timing of the Jackson County tax assessor's removal of the subject properties from present-use value classification, asserting that, where the evidence shows the County Board adjourned on 11 May 1999, the tax assessor was not authorized by statute to take this action on 1 July 1999. In their brief, taxpayers argue that "while N.C.G.S. [§] 105-296(j) requires review of parcels classified at present-use value to verify the qualification for the classification and allows the Assessor to `require the owner of classified property to submit any information needed by the Assessor to verify that the property continues to qualify for present-use value taxation', nothing in the General Statutes purports to give the County Assessor the authority to remove properties from the present-use value classification at the time he purported to do so."
Taxpayers correctly note that N.C. Gen. Stat. § 105-325(a) provides in pertinent part:
(a) After the board of equalization and review has finished its work and the changes it effected or ordered have been entered on the abstracts and tax records . . . the board of county commissioners shall not authorize any changes to be made on the abstracts and tax records except as follows:
. . . .
(6) Subject to the provisions of subdivisions (a)(6)a, . . . to appraise or reappraise property when the assessor reports to the board that, since adjournment of the board of equalization and review, facts have come to his attention that render it advisable to raise or lower the appraisal of some particular property of a given taxpayer in the then current calendar year.
a. The power granted by this subdivision (a)(6) shall not authorize appraisal or reappraisal because of events or circumstances that have taken place or arisen since the day as of which property is to be listed.
. . . .
(b) The board of county commissioners may give the assessor general authority to make any changes authorized by subsection (a), above, except those permitted under subdivision (a)(6), above.
. . . .
N.C. Gen. Stat. § 105-325(a) — (b) (2001) (emphasis added). In their brief, taxpayers argue that "no change in the tax records could be made with regard to the [subject properties] after the completion of the [County Board's work] and its adjournment unless done strictly in accordance with N.C.G.S. [§] 105-325," and that the tax assessor's removal of the subject properties from present — use value classification after the County Board adjourned was not in accordance with the statute.
Taxpayers also point out that the statute governing the tax assessor's powers and duties provides that "[p]rior to the first meeting of the board of equalization and review, the assessor may, for good cause, change the appraisal of any property subject to assessment for the current year." N.C. Gen. Stat. § 105-296(i) (2001) (emphasis added). Taxpayers maintain that this statute did not confer upon the tax assessor authority to remove the subject properties from present-use value classification after adjournment of the County Board.
We find no merit in taxpayers' assertions that the tax assessor's removal of the subject properties from present-use value classification on 1 July 1999 was prohibited by either N.C. Gen. Stat. § 105-325 or N.C. Gen. Stat. § 105-296(i), because we conclude from the statutes' plain language that each applies only to limit the time in which a tax assessor may change the appraisal, as opposed to classification, of real property. It is a well-settled principle of statutory construction that "[w]ords in a statute must be construed in accordance with their plain meaning unless the statute provides an alternative meaning." Kirkpatrick v. Village Council, 138 N.C. App. 79, 86, 530 S.E.2d 338, 343 (2000). N.C. Gen. Stat. § 105-273(2) (2001) defines "appraisal" as "both the true value of property and the process by which true value is ascertained." (emphasis added).
The tax assessor in the instant case did not change the subject properties' true value for purposes of determining the taxes owed thereon; he merely reclassified the subject properties by removing them from the special present-use value classification provided for forestland under N.C. Gen. Stat. §§ 105-277.2(2) and -277.4(b) (2001). The tax assessor's action here did not in any way raise or lower the subject properties' true value for tax purposes, as evidenced by the deferred taxes — representing the "difference between the taxes due on the present-use basis and the taxes . . . payable in the absence of this classification" — which became "immediately due and payable" upon this change in the subject properties' classification. N.C. Gen. Stat. § 105-277.4(c) (2001). Because the tax assessor's reclassification of the subject properties on 1 July 1999 did not change the subject properties' appraisal, we hold that neither N.C. Gen. Stat. § 105-325(a) nor § 105-296(i) precluded the tax assessor from properly removing the subject properties from present-use value classification at that time.
Taxpayers' reliance on Wolfenden v. Commissioners, 152 N.C. 81, 67 S.E. 319 (1910), in support of their argument here is misplaced. Our Supreme Court in Wolfenden held that "the county commissioners have no authority to raise the appraised value of specific listed property after final adjournment of the county board of equalization and review and the assessment and payment of the taxes thereon." In re Tire Service, 281 N.C. 293, 297, 188 S.E.2d 306, 309 (1972) (emphasis added). This holding is inapposite to the instant case, which involves a reclassification of real property from present-use value to fair market value classification, rather than, as in Wolfenden, a change in the subject properties' appraised fair market value.
Taxpayers' first assignment of error is overruled.
By their next assignment of error, taxpayers contend the Commission erred by concluding that (1) removal of the subject properties from present-use value classification in 1999 without proper notice and a hearing was proper under the applicable statutes, and (2) taxpayers were required to submit a new application for the subject properties to be considered for present-use value classification in 2000. This assignment of error is without merit.
N.C. Gen. Stat. §§ 105-277.2 through -277.7 set forth the procedure by which a taxpayer may obtain present-use value classification for certain types of real property. Pursuant to N.C. Gen. Stat. § 105-277.4, real property which meets the statutory definition of forestland "shall be eligible for taxation on the basis of the value of the property in its present use if a timely and proper application is filed with the assessor of the county in which the property is located." N.C. Gen. Stat. § 105-277.4(a) (2001). The application shall contain any "relevant information required by the assessor to properly appraise the property at its present-use value." Id. After the initial application is filed, no new application is needed "unless the property is transferred or becomes ineligible for use-value appraisal because of a change in use or acreage." Id.
Our General Assembly has defined "forestland" as "[l]and that is a part of a forest unit that is actively engaged in the commercial growing of trees under a sound management program. . . . A forest unit may consist of more than one tract of forestland, but . . . each tract must be under a sound management program." N.C. Gen. Stat. § 105-277.2(2) (2001). A "sound management program" is "[a] program of production designed to obtain the greatest net return from the land consistent with its conservation and long-term improvement." N.C. Gen. Stat. § 105-277.2(6) (2001).
Under the version of the statute in effect at the times pertinent to this appeal, the county tax assessor must periodically review parcels receiving present-use value classification, such that the assessor "shall review the eligibility of all parcels classified for taxation at present-use value in an eight-year period." N.C. Gen. Stat. § 105-296(j) (1999). In reviewing a parcel's eligibility, the assessor "may require the owner of classified property to submit any information needed by the assessor to verify that the property continues to qualify for present-use value taxation." Id. "Written notice of a change in assessment shall be given to the taxpayer at his last known address prior to the first meeting of the board of equalization and review." N.C. Gen. Stat. § 105-296(i) (2001).
In 2001, several amendments were made to various portions of Chapter 105 of our General Statutes. Among the sections amended was N.C. Gen. Stat. § 105-296(j), which now expressly provides that "[t]he assessor may require the owner of classified property to submit any information, including sound management plans for forestland, needed by the assessor to verify that the property continues to qualify for present-use value taxation. The owner has 60 days from the date a written request for the information is made to submit the information to the assessor. If the assessor determines the owner failed to make the information requested available in the time required without good cause, the property loses its present-use value classification and the property's deferred taxes become due and payable as provided in G.S. 105-277.4(c)." N.C. Gen. Stat. § 105-296(j) (2001).
Taxpayers assert in their brief that they "believe that the North Carolina Statutes should be construed to require notice and an opportunity to be heard" before the tax assessor could properly remove the subject properties from present-use value classification. After reviewing the whole record, we conclude that taxpayers received sufficient notice of the assessor's intent to reclassify the subject properties in 1999 if taxpayers did not submit the requested forest management plan. The parties stipulated that the initial applications for present-use value classification for the subject properties, filed in 1984, did not include forest management plans. It appears from the record that the subject properties' eligibility was never reviewed by the tax assessor between 1984 and 1998. By letter dated 2 January 1998, the tax assessor notified taxpayers that (1) the subject properties' eligibility for present-use value classification was being reviewed; (2) the tax assessor did not have forest management plans for the subject properties; and (3) "[i]f no [forest management plans are] submitted by [15 March 1998], your propert[ies] will lose eligibility and will result in the deferred taxes becoming due immediately for the previous three years." When taxpayers failed to either provide the requested forest management plans or request a hearing before the 1998 County Board, the tax assessor took no further action until 6 April 1999, when, by letter addressed to taxpayer Taylor one day prior to the first meeting of the 1999 County Board, the assessor stated "we have not received a Forest Management Plan on your property and therefore assume you do not wish to continue in the present use value program. . . . If you have an updated management plan, you need to send us a Copy within thirty days . . . . Failure to comply with the statutes concerning use value assessment will result in losing eligibility and a roll back of deferred taxes for the past three years." Taxpayers responded by letter dated 12 May 1999 stating that a forest management plan was being prepared and would be provided to the tax assessor "no later than June 1, 1999," but none had been provided as of 2 July 1999, when the tax assessor removed the subject properties from present-use value classification.
We hold that these two letters from the tax assessor constituted sufficient notice that the subject properties were being reviewed, and that in order to retain their present-use value classification, taxpayers needed to submit a forest management plan for each. Taxpayers were obviously aware of both the review and the necessity of providing forest management plans, as evidenced by their 12 May 1999 letter to the tax assessor promising that forest management plans would be submitted no later than 1 June 1999. Taxpayers can point to no provision in Chapter 105 of our General Statutes requiring notice in a different form or fashion.
Moreover, we conclude that taxpayers, given sufficient notice of the subject properties' review by the tax assessor, had ample opportunity, as required by statute, to request a hearing before reclassification of the subject properties in 1999. N.C. Gen. Stat. § 105-322(g)(2) provides in pertinent part as follows:
On request, the board of equalization and review shall hear any taxpayer who owns or controls property taxable in the county with respect to the listing or appraisal of the taxpayer's property or the property of others.
a. A request for a hearing under this subdivision (g)(2) shall be made in writing to or by personal appearance before the board prior to its adjournment. . . .
b. Taxpayers may file separate or joint requests for hearings under the provisions of this subdivision (g)(2) at their election.
. . . .
N.C. Gen. Stat. § 105-322(g)(2) (2001) (emphasis added). In the instant case, the 1999 county board of equalization and review first met on 7 April 1999, and notice of same was properly published in the local newspaper. However, taxpayers never requested a hearing before the County Board until 27 April 2000, over a year after they were notified of the subject properties' pending removal from present-use value classification and almost ten months after the subject properties were reclassified. While appellee Jackson County concedes that the tax assessor never gave taxpayers notice of the statutory procedures for review provided in Chapter 105, taxpayers have failed to persuade this Court that the statutory scheme required the tax assessor to do so absent a timely request by taxpayers. Taxpayers' reliance on In re Appeal of Whiteside Estates, Inc., 136 N.C. App. 360, 525 S.E.2d 196, cert. denied, 351 N.C. 473, 543 S.E.2d 511 (2000), for this proposition is misplaced, as the taxpayer in Whiteside Estates received a hearing before the board of equalization and review upon his timely request of same. Taxpayers in our case made no such request for a hearing prior to reclassification of the subject properties in 1999, despite ample opportunity to do so. Having concluded that the Commission did not err in affirming the tax assessor's removal of the subject properties from present-use value classification in 1999, we further hold that the Commission correctly concluded taxpayers were required, pursuant to N.C. Gen. Stat. § 105-277.4(a), to submit a new application if they wished the subject properties to be considered for present-use value classification in 2000. Taxpayers' failure to timely submit the requested forest management plans frustrated the tax assessor's ability to determine whether the subject properties were being managed under a "sound management program," which our Legislature has required in order to "disqualify weekend or hobby farmer[s'] or speculator[s']" land from present-use value classification. W. R. Co. v. Property Tax Comm., 48 N.C. App. 245, 257, 269 S.E.2d 636, 643 (1980), disc. review denied, 301 N.C. 727, 276 S.E.2d 287-88 (1981). We conclude that, in the absence of a forest management plan, the tax assessor could reasonably conclude that a "change in use" under N.C. Gen. Stat. § 105-277.4(a) had occurred, thus requiring taxpayers to submit a new application before the subject properties could be considered for reinstatement into the present-use value classification in 2000.
Taxpayers' second assignment of error is overruled.
By their final assignment of error, taxpayers assert the Commission erred in failing to determine that removal of the subject properties from present-use value classification for 1999 and 2000 deprived taxpayers of due process of law in violation of the federal and state constitutions. "The fundamental premise of procedural due process protection is notice and the opportunity to be heard." Peace v. Employment Sec. Comm'n, 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998); see also Cleveland Bd. of Educ. v Loudermill, 470 U.S. 532, 542, 84 L.Ed.2d 494, 503, 105 S.Ct. 1487 (1985). In light of our conclusions above that (1) taxpayers received sufficient notice that the subject properties would be removed from present-use value classification absent submission of forest management plans, and (2) taxpayers had ample opportunity, pursuant to the relevant provisions of Chapter 105 of our General Statutes, to have their objections heard by the County Board or the Board of Commissioners had they requested such a hearing, we hold that taxpayers have suffered no deprivation of their due process rights, under either our state or federal constitutions, by the subject properties' reclassification for tax years 1999 and 2000.
Affirmed.
Judges TIMMONS-GOODSON and STEELMAN concur.
Report per Rule 30(e).