2. Taxation-_ad valorem--revaluation of property--race of taxpayer
The Property Tax Commission did not err by following the applicable statutory
provisions to determine the values of the pertinent properties for ad valorem taxation even
though taxpayer contends the North Carolina Constitution requires the legislature to forge a
relationship between the amount of taxes imposed and the race of the taxpayer upon whom they
are imposed, because: (1) taxpayer does not contest that the assessment reflects the true values in
money of the subject properties; (2) by taxpayer's own admission, the taxes levied on the subject
properties were uniformly determined by their fair market values or true values in money and
were not related in any way to the race or any other classification of the person responsible for
paying the taxes; (3) taxpayer failed to sufficiently demonstrate that N.C.G.S. § 105-317 was
intentionally or purposefully administered in such a way as to discriminate against the taxpayer
or others similarly situated; and (4) a holding that the current statutory scheme is
unconstitutional based on taxpayer's reasoning would require the legislature to give the taxpayer
and persons similarly situated a lower tax liability on the subject properties than what would be
proportional to their true values based upon racial considerations.
McSurely & Osment, by Alan McSurely, for taxpayer.
Coleman, Gledhill, Hargrave & Peek, P.C., by Geoffrey E.
Gledhill, Leigh Peek, and S. Sean Borhanian, for Orange
County.
CALABRIA, Judge.
In 2001, Orange County conducted a revaluation of all property
located within the county. As a result of this revaluation, two
parcels of land (the “subject properties”) owned by the Estate of
Johnnie M. Battle (the “taxpayer”) and located in the downtown area
of Chapel Hill were assigned a total value of $279,406.00.
(See footnote 1)
The
taxpayer disagreed and appealed the valuation to the Property Tax
Commission (the “Commission”) sitting as the State Board of
Equalization and Review. Prior to a hearing before the Commission,
the parties stipulated that the subject properties “ha[d] been
appraised in accord with application of the Orange County Schedule
of Values.” The parties further stipulated that “Orange County
appraised [the subject properties] without reference to the race of
the property owners, as the County's schedule of values and their
application [are] colorblind.”
The Commission heard arguments from the taxpayer and the
County. The taxpayer contended that the County's colorblind policy
perpetuated a racist structure in North Carolina that originated
prior to the Civil War. The Commission found, in pertinent part,
as follows:
5. The County properly applied its schedule
of values, rules and standards to Taxpayer's
properties consistent with the County's
appraisal of similar properties.
6. The value assigned by the County Board to
Taxpayer's properties did not substantially
exceed the true values in money of the subject
properties as of January 1, 2001.
7. The true values in money of the subject
properties, as of January 1, 2001, were [thevalues assigned by the County Board to the
subject properties].
Based on these findings of fact, the Commission concluded as a
matter of law that the taxpayer failed to show by competent,
material and substantial evidence that (1) “the subject properties
were not properly appraised” according to the applicable statutory
provisions, (2) “the County employed an arbitrary or illegal method
of appraisal” as to the subject properties, or (3) the assigned
values substantially exceeded the true values in money of the
subject properties. The Commission further concluded that the true
values in money of the subject properties were equal to the
assigned values by the County Board. The Commission then confirmed
the decision of the County Board regarding the values assigned to
the subject properties. The taxpayer appeals.
[1] The County asserts, as an initial matter, that the
taxpayer's appeal is barred as a result of the taxpayer's failure
to timely notice his appeal. North Carolina General Statutes §
105-345(a) (2003) provides:
No party to a proceeding before the Property
Tax Commission may appeal from any final order
or decision of the Commission unless within 30
days after the entry of such final order or
decision the party aggrieved by such decision
or order shall file with the Commission notice
of appeal and exceptions which shall set forth
specifically the ground or grounds on which
the aggrieved party considers said decision or
order to be unlawful, unjust, unreasonable or
unwarranted, and including errors alleged to
have been committed by the Commission.
Moreover, N.C. Gen. Stat. § 105-345.2(c) (2003) provides, in
pertinent part, that an “[a]ppellant shall not be permitted to relyupon any grounds for relief on appeal which were not set forth
specifically in his notice of appeal filed with the Commission.”
A party's right to appeal an administrative agency's decision
is limited to those situations where (1) a statute grants the right
of appeal and (2) the party's appeal “conform[s] to the statutes
granting the right of appeal and regulating the procedures.” In re
Appeal of General Tire, 102 N.C. App. 38, 40, 401 S.E.2d 391, 393-
94 (1991). In the instant case, the Commission entered its final
decision on 27 March 2003. A certified copy of the order was
delivered to the taxpayer as required by N.C. Gen. Stat. § 105-
290(b)(3) (2003), which, the taxpayer asserts, was received on 21
April 2003. The following day, the taxpayer filed a notice of
appeal; however, that notice failed to set forth any grounds for
appeal. Thereafter, the thirty-day period in which to file an
effective notice of appeal expired on 28 April 2003. On 30 April
2003, the taxpayer filed a second notice of appeal attempting to
“amend the Notice of Appeal filed . . . on 22 April 2003 to comply
with the statute's requirement that the appellant” set forth the
grounds for appeal.
The preceding facts make clear that taxpayer's first notice of
appeal failed to comply with N.C. Gen. Stat. § 105-345(a) because
it lacked any grounds on which the taxpayer asserted the Commission
erred. The second notice of appeal likewise failed to comply with
N.C. Gen. Stat. § 105-345(a) because it was filed outside of the
thirty-day time period provided. Moreover, the taxpayer has cited
no authority for the proposition that the second notice of appeal
can “amend” or relate back to the first notice of appeal, and therelevant statutory provisions do not support it. Thus, while the
taxpayer had a right to appeal, that right to appeal was lost by
the taxpayer's failure to take timely action. Nevertheless, Rule
21 of the North Carolina Rules of Appellate Procedure provides, in
pertinent part, that a “writ of certiorari may be issued . . . to
permit review of the judgments and orders of trial tribunals when
the right to prosecute an appeal has been lost by failure to take
timely action . . . .” N.C. R. App. P. 21 (2004). We choose to
consider the taxpayer's appeal as a petition for writ of certiorari
pursuant to N.C. R. App. P. 21 (2004) in order to address the
merits of the arguments.
[2] North Carolina General Statutes § 105-345.2(b) provides as
follows:
(b) So far as necessary to the decision and
where presented, the 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. The court may
affirm or reverse the decision of the
Commission, declare the same null and void, or
remand the case for further proceedings; or it
may reverse or modify the decision if the
substantial rights of the appellants have been
prejudiced because the Commission's findings,
inferences, conclusions or decisions are: (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 as submitted; or
(6) Arbitrary or capricious.
Tax assessments are presumed correct, and the burden falls on the
taxpayer to show the assessment was erroneous. In re Appeal of
Bermuda Run Prop. Owners, 145 N.C. App. 672, 674-75, 551 S.E.2d541, 543 (2001). To overcome this presumption of correctness of ad
valorem tax assessments, a taxpayer may produce “competent,
material and substantial” evidence showing (1) the county tax
supervisor used an arbitrary method of valuation or an illegal
method of valuation and (2) “'the assessment substantially exceeded
the true value in money of the property[.]'” Id. (quoting In re
Appeal of Camel City Laundry, 123 N.C. App. 210, 214, 472 S.E.2d
402, 404 (1996)).
The taxpayer does not assert the County's schedule of values
is erroneous, nor does the taxpayer assert the values resulting
from the appraisal of the subject properties were inconsistent with
the County's appraisal of similar properties. The taxpayer does
not contend that the assigned values improperly reflect the subject
properties' true values. Indeed, it was admitted before the
Commission that there were offers to purchase the subject
properties in excess of the values assigned by the County for tax
purposes. Since the taxpayer does not contest that the assessment
reflects the true values in money of the subject properties, we
hold the Commission followed the applicable statutory provisions in
correctly determining their values for ad valorem taxation.
Nonetheless, the taxpayer asserts on appeal that “century-long
de jure discrimination in educational, employment, housing and
other necessities of life” caused the County's colorblind per se
comparative method of assessing taxes to be racially
discriminatory. The taxpayer seeks “some relief from this onerous,
so-called 'colorblind' method of valuing their property as if all
other things were 'equal'” under Article I, Section 19 of the NorthCarolina Constitution, which provides “nor shall any person be
subject to discrimination by the State because of race, color,
religion, or national origin.” However, we note that by taxpayer's
own admission, the taxes levied on the subject properties were
uniformly determined by their fair market values or true values in
money and were not related in any way to the race or any other
classification of the person responsible for paying the taxes.
“The unlawful administration by state officers
of a state statute fair on its face, resulting
in its unequal application to those who are
entitled to be treated alike, is not a denial
of equal protection unless there is shown to
be present in it an element of intentional or
purposeful discrimination.”
Kresge Co. v. Davis, 277 N.C. 654, 662, 178 S.E.2d 382, 386 (1971)
(quoting Snowden v. Hughes, 321 U.S. 1, 8, 88 L. Ed. 497, 503
(1944)). In the instant case, the taxpayer has failed to
sufficiently demonstrate that N.C. Gen. Stat. § 105-317 was
intentionally or purposefully administered in such a way as to
discriminate against the taxpayer or others similarly situated.
Moreover, we note a holding that the current statutory scheme
is unconstitutional based on the taxpayer's reasoning would require
the legislature to give the taxpayer (and persons similarly
situated) a lower tax liability on the subject properties than what
would be proportional to their true values based upon racial
considerations. While classifications regarding taxation made by
the legislature can be reviewed by the courts of North Carolina and
measured against constitutional strictures, see, e.g., In re Appeal
of Chapel Hill Day Care Ctr., Inc., 144 N.C. App. 649, 658-60, 551
S.E.2d 172, 178-79 (2001), this Court is unaware of any case wherethe judiciary has been asked to force the legislature to make
classifications such as that sought by the taxpayer. When asked to
undertake such action, we find instructive our Supreme Court's
statement that “[u]nder Article V of the Constitution of North
Carolina, the power to levy taxes vests exclusively in the
legislative branch of the government; and it is within the
exclusive power of the General Assembly to provide the method and
prescribe the procedure for discovery, listing and assessing
property for taxation.” DeLoatch v. Beamon, 252 N.C. 754, 757, 114
S.E.2d 711, 713 (1960). The policy considerations involved in
measuring the propriety of taxation against past discrimination
(and making classifications based upon such considerations) are
best left to our legislature; thus, the taxpayer has sought relief
in the wrong forum. We additionally note any classification of the
kind sought by the taxpayer would have to pass constitutional
muster. See Grutter v. Bollinger, 539 U.S. 306, 326, 156 L. Ed. 2d
304, 331 (2003) (citation omitted) (reiterating that, under the
Equal Protection Clause of the federal Constitution, “all racial
classifications imposed by government 'must be analyzed by a
reviewing court under strict scrutiny'”). We conclude the
taxpayer's argument, that the North Carolina Constitution requires
the legislature to forge a relationship between the amount of the
taxes imposed and the race of the taxpayer upon whom they are
imposed, to be without merit. This case is not suited to
resolution by resort to a taxpayer's rights to equal protection,
and constitutional provisions guaranteeing such rights are
inapposite. The final decision of the Commission is affirmed. Affirmed.
Judges TIMMONS-GOODSON and STEELMAN concur.
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