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IN THE MATTER: N.C. Property Tax Commission
THE APPEAL OF: No. 05 PTC 192
TYLETA W. MORGAN from the
decision of the Henderson
County Board of Equalization
and Review concerning the
taxation of certain real
property for tax years 1995
DeVore, Acton & Stafford, PA, by Fred W. DeVore, III, for
taxpayer-appellee Tyleta W. Morgan.
Parker Poe Adams & Bernstein LLP, by Charles C. Meeker and Benn A. Brewington, III, for appellant Henderson County.
Paul A. Meyer, for amicus curiae North Carolina Association of County Commissioners.
Henderson County (the County) appeals from final decision entered prohibiting it from attempting to collect unpaid back taxes and interest on real property owned by Tyleta W. Morgan (Mrs. Morgan). We affirm.
IN THE MATTER:
THE APPEAL OF: TYLETA W.
MORGAN from the decision of
the Henderson County Board North Carolina
of Equalization and Review Property Tax Commission
concerning the taxation of No. 05 PTC 192
certain real property for
tax years 1995 through 2003.
The majority holds that a failure to list property cannot
constitute an "immaterial irregularity" under N.C. Gen. Stat. §
105-394 (2005) unless the failure was due to a clerical or
administrative error. I believe that the majority has inserted
language into the statute. I would hold that the plain language of
the statute without alteration and this Court's opinion in In re
Appeal of Dickey, 110 N.C. App. 823, 431 S.E.2d 203 (1993), require
reversal of the Property Tax Commission.
I agree with the North Carolina Association of County Commissioners' assertion in its amicus brief that the Commission was improperly attempting "to assert a public policy that is contrary to the policy adopted by the legislature." The Commission and the majority opinion have improperly imposed their view of appropriate public policy _ fairness to individual taxpayers _ to override other public policies promoted by the statute's plain language such as equality of taxation and reduction of tax rates. I, therefore, respectfully dissent.
This Court may reverse or modify a decision of the Property
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.
N.C. Gen. Stat. § 105-345.2 (2005). I would hold that the Property Commission's decision was affected by error of law and is not supported by competent evidence.
N.C. Gen. Stat. § 105-394 provides:
Immaterial irregularities in the listing, appraisal, or assessment of property for taxation or in the levy or collection of the property tax or in any other proceeding or requirement of this Subchapter shall not invalidate the tax imposed upon any property or any process of listing, appraisal, assessment, levy, collection, or any other proceeding under this Subchapter.
The statute also lists examples of immaterial irregularities, including: "(3) The failure to list, appraise, or assess any property for taxation or to levy any tax within the time prescribedby law." The County contends that its failure to assess Ms. Morgan's house falls within this definition of an immaterial irregularity.
The Property Tax Commission, however, held that application of § 105-394(3) was "not proper under the facts and circumstances of this appeal." The Commission asserted that Dickey was distinguishable because, contrary to Dickey, in this case (1) "there is substantial evidence in this record to show that the Tax Assessor could have obtained valuations for the subject residence prior to issuing the Notices of Immaterial Irregularity for tax years 1995 through 2003" because the assessor had "ample information" to know of the house's existence, and (2) "[u]nlike the facts in the matter of In re Dickey, there is substantial evidence in this record to show that the Legislature did not intend for the action of the Tax Assessor, under the facts and circumstances at issue, to be an immaterial irregularity since his action in this matter does not constitute a clerical or administrative error." The Commission then concluded that applying § 105-394(3) to allow the County to recover back taxes would "violate the public policy of this State because a Tax Assessor should not be permitted to benefit from his own omissions or mistakes."
It is, however, the responsibility of the General Assembly to determine the public policy of the State. See Rhyne v. K-Mart Corp., 358 N.C. 160, 169, 594 S.E.2d 1, 8 (2004) (holding that the legislative branch is, "without question," the policymaking agencyof the State). It is also well settled that the meaning of any statute, such as § 105-394(3), is controlled by the intent of the legislature and that this intent is determined by first looking at the plain language of the statute. Elec. Supply Co. of Durham, Inc. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991).
The plain language of the statute states that an immaterial irregularity includes a "failure to . . . assess any property for taxation . . . within the time prescribed by law." N.C. Gen. Stat. § 105-394(3). Contrary to the decision of the Property Tax Commission and the majority opinion, this language does not require that this failure be due to "a clerical or administrative error." Although the Commission asserts that this must have been the intent of the General Assembly, our Supreme Court has stressed that when a statute is unambiguous, "[w]e have no power to add to or subtract from the language of the statute." Ferguson v. Riddle, 233 N.C. 54, 57, 62 S.E.2d 525, 528 (1950). Dickey specifically held that N.C. Gen. Stat. § 105-394 had "clear and unambiguous language." 110 N.C. App. at 829, 431 S.E.2d at 207. We thus should not insert into the statute, as the Commission and the majority do, a further limitation that the failure to assess be the result of a clerical or administrative error separate from the failure to assess.
Although Dickey did reference an administrative error, nothing in Dickey holds that there must be a specific act that resulted in the failure to assess the property. Certainly, destruction of a house listing, as occurred in Dickey, is just as negligent as afailure to assess without an identified cause for the failure. Indeed, the Commission's decision and the majority opinion beg the question of what constitutes a clerical or administrative error sufficient to invoke N.C. Gen. Stat. § 105-394. This absence of clarity is due to the fact that the General Assembly never imposed such a requirement.
It is undisputed that, in the present case, the County failed to assess the Morgan residence within the time prescribed by law. Under the plain language of N.C. Gen. Stat. § 105-394(3), this failure constitutes an immaterial irregularity and did not, therefore, "invalidate the tax levied on the property." In re Nuzum-Cross Chevrolet, 59 N.C. App. 332, 333-34, 296 S.E.2d 499, 500 (1982), disc. review denied, 307 N.C. 576, 299 S.E.2d 645 (1983). I, therefore, believe the evidence and the law requires reversal of the Commission's decision.
The Commission, however, urges that a construction of § 105- 394 to allow the County to recover property taxes and interest when Ms. Morgan had always paid her taxes promptly would be unfair. Yet, "[t]he duty of a court is to construe a statute as it is written. It is not the duty of a court to determine whether the legislation is wise or unwise, appropriate or inappropriate, or necessary or unnecessary." Campbell v. First Baptist Church of the City of Durham, 298 N.C. 476, 482, 259 S.E.2d 558, 563 (1979).
Further, the view of the Commission and the majority opinion overlooks the public policy advantages of construing the statute aswritten. As the North Carolina Association of County Commissioners explained in its brief:
Whatever the source or nature of the omission [to assess], the legislature has determined through G.S. § 105-394 that errors in listing and assessment are to be corrected when found. This policy avoids the inequity of one property owner not being taxed on some or all of his or her property while all other property owners in that county are taxed.
The policy also avoids any incentive on the part of the property owner to allow an assessment oversight to persist. That is, if a property owner knows that a listing or assessment error will be picked up sooner or later and that taxes will be due for the years in question, that property owner is more likely to bring any omission or other error to the attention of the county assessor's office.
Indeed, it has been the policy of the North Carolina Department of Revenue for years to encourage county assessors to correct all listings. In this way, the tax rate for all taxpayers can be as low as possible.
(Emphasis added.) It is the province of the General Assembly _ and not this Court or the Property Commission _ to determine whether these policies outweigh the unfairness to individual taxpayers.
Finally, the County also argues that the Commission erred in concluding the County was not entitled to interest on appellee's unpaid taxes. Taxes paid on or after their due date are "delinquent and are subject to interest charges." N.C. Gen. Stat. § 105-360(a) (2005). As a general rule, "[a]ll assessments of tax . . . shall bear interest at the rate established pursuant to this subsection from the time the tax was due until paid." N.C. Gen. Stat. § 105-241.1(i) (2005) (emphasis added). I see no basis for excluding tax assessments arising as a result of immaterialirregularities from this general rule. Indeed, although the majority reaches a different conclusion, Ms. Morgan does not seriously contest this issue.
In closing, it may well be troubling that a taxing authority can, under the immaterial irregularity provisions of N.C. Gen. Stat. § 105-394, go back 10 years to assess property that the authority has neglected to assess in a timely fashion through no fault of the taxpayer. Whether a County should be able to do so is, however, a question for the General Assembly and not for the courts. It is our responsibility to apply the statute as written.
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