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Hall County Board of Tax Assessors v. Westrec Properties, Inc.

Supreme Court of Georgia

January 29, 2018

HALL COUNTY BOARD OF TAX ASSESSORS
v.
WESTREC PROPERTIES, INC. HALL COUNTY BOARD OF TAX ASSESSORS
v.
PS RECREATIONAL PROPERTIES, I. HALL COUNTY BOARD OF TAX ASSESSORS
v.
CHATTAHOOCHEE PARKS, INC. HALL COUNTY BOARD OF TAX ASSESSORS
v.
MARCH FIRST, INC. HALL COUNTY BOARD OF TAX ASSESSORS
v.
AMP III-LAZY DAYS, LLC.

          Boggs, Justice.

         These five essentially identical appeals arise from the assessment of taxes by the Hall County Board of Tax Assessors.[1] The trial court granted summary judgment in favor of appellee taxpayers based upon the Board's failure to schedule a timely settlement conference as required by the 2015 amendment to OCGA § 48-5-311 (g) (2), 2015 Ga. Laws p. 1219 et seq. ("the Act"), [2] and the Board appeals. Because the plain language of the statute, as amended by the Act, requires the Board to schedule and notice a settlement conference with the taxpayer within 45 days of receipt of a taxpayer's notice of appeal, and provides that the appeal shall terminate in the event the Board elects not to do so, we affirm.

         The relevant facts are not in dispute. Appellee-taxpayers Westrec Properties, Inc. (Sunrise Cove & Snug Harbor Marinas), PS Recreational Properties, I. (Holiday Marina), Chattahoochee Parks, Inc. (Aqualand Marina), March First, Inc. (Gainesville Marina), and AMP III - Lazy Days, LLC (Lazy Days Marina) operate marinas on Lake Lanier in Hall County. The marinas are located on shoreline property leased from the U.S. Army Corps of Engineers. For the 2015 tax year, the Board revised its real property tax assessments to include the assessed value of docks and other improvements as part of the leasehold interest instead of personalty, as in previous years. This increased the assessed value substantially: according to the taxpayers, between 345 and 3200 percent. On June 1, 2015, the taxpayers appealed to the Board of Equalization. After hearings on December 10 and December 17 to determine the fair market value of the taxpayers' property, the Board of Equalization upheld the assessments.[3]

         On January 1, 2016, the Act went into effect.[4] It extensively amended the provisions of OCGA § 48-5-311 governing county boards of equalization and tax appeals, including subsection (g) relating to appeals to superior courts. The subsection as amended requires the county board of tax assessors to schedule a settlement conference in the event of the taxpayer's filing of a notice of appeal to the superior court. With respect to the latter, subsection (g) (2) provides:

Within 45 days of receipt of a taxpayer's notice of appeal and before certification of the appeal to the superior court, the county board of tax assessors shall send to the taxpayer notice that a settlement conference, in which the county board of tax assessors and the taxpayer shall confer in good faith, will be held at a specified date and time which shall be no later than 30 days from the notice of the settlement conference, and notice of the amount of the filing fee, if any, required by the clerk of the superior court. The taxpayer may exercise a one-time option to reschedule the settlement conference to a different date and time acceptable to the taxpayer, but in no event later than 30 days from the date of the notice. If at the end of the 45 day review period the county board of tax assessors elects not to hold a settlement conference, then the appeal shall terminate and the taxpayer's stated value shall be entered in the records of the board of tax assessors as the fair market value for the year under appeal and the provisions of subsection (c) of Code Section 48-5-299 shall apply to such value.

         On January 8, 2016, the taxpayers filed with the Board their respective Notices of Appeal to the Superior Court of Hall County. The 45-day notice period provided by OCGA § 48-5-311 (g) (2), as amended by the Act, accordingly ended on February 22, 2016. On March 8, 2016, the taxpayers mailed to the Board letters noting the failure to provide timely notice of a settlement conference and demanding that the Board "(i) enter into the records of the board of tax assessors the taxpayer's stated value of [dollar amount], (ii) refund any overage of taxes paid for the Subject Property for Tax Year 2015, and (iii) reimburse the [taxpayer] its costs of litigation and reasonable attorney's fees accumulated in this matter." On March 17, 2016, the Board's counsel responded, declining to comply with the taxpayers' March 8 demands.

         On June 10, 2016, the Board provided notice to the taxpayers of a settlement conference scheduled for June 20, 2016. On June 13, 2016, prior to the settlement conference, the Board certified the appeal to the Hall County Superior Court. On June 20, 2016, the taxpayers' attorney, under protest, attended the settlement conference with the Board. Unable to agree on a fair market value, the parties proceeded with the superior court litigation.

         On July 15, 2016, the taxpayers filed their motions for summary judgment. After oral argument, the trial court found that the revised version of OCGA § 48-5-311 (g) (2) applied to the parties, that the Board failed to send notice of a settlement conference within 45 days and before certifying the appeal, and that the Board therefore elected not to hold a settlement conference within the mandatory time provided by statute. It therefore granted summary judgment in favor of all taxpayers, directed that the Board enter the taxpayers' stated values and that the valuation carry forward in accordance with OCGA § 48-5-299 (c). The trial court also determined that the taxpayers were entitled to attorney fees pursuant to OCGA § 48-5-311 (g) (4) (B) (ii), and that the statute was not unconstitutional on the grounds asserted by the Board. This appeal by the Board followed.

         1. Relying upon Ga. Const. Art. I, Sec. II, Par. III, [5] the Board complains that the Act is unconstitutional because it usurps the function of the judiciary and thus violates the separation of powers clause. The Board contends that the termination of the appeal for failure to meet the requirement to schedule a settlement conference divests the superior court of jurisdiction after it has taken the appeal, and that such legislative action interferes with the superior court by taking away its power to decide a case pending in its court. We disagree. The requirements imposed by the Act do not remove a case from the jurisdiction of the superior court. Rather, they are part of an administrative procedure that, like many others, imposes threshold conditions before the appeal reaches the jurisdiction of the superior court.

         In McCauley v. Bd. of Tax Assessors, 243 Ga. 844 (257 S.E.2d 266) (1979), this Court interpreted former Ga. Code Ann. § 92-6912 (6) (B), which provided:

An appeal by the taxpayer shall be effected by filing with the county board of tax assessors a written notice of appeal . . . . The county board of tax assessors shall certify the notice of appeal, any other papers specified by the appellant, including the staff information from the file used by either the board of tax assessors or the board of equalization, all of which papers and information shall become a part of the record on appeal to the superior court, to the clerk of the superior court.

See 243 Ga. at 845. In McCauley, the taxpayer, "out of an abundance of caution, " id., filed a notice of appeal in the superior court as well as with the board of tax assessors. The superior court dismissed the appeal because the taxpayer failed to avail himself of trial "at the first term following the filing of the appeal" pursuant to former Ga. Code Ann. § 92-6912 (6) (D) (1).[6] This Court reversed, holding that the taxpayer's notice of appeal to the superior court was premature, and that "the appeal was not officially filed in superior court until . . . the date of the board's certification of the notice of appeal and filing of the statutorily required documents." Id.

         The relevant statutory language in McCauley remains largely unchanged in the current Code. OCGA § 48-5-311 (g) (2) provides: "An appeal by the taxpayer as provided in paragraph (1) of this subsection shall be effected by e-mailing, if the county board of tax assessors has adopted a written policy consenting to electronic service, or by mailing to or filing with the county board of tax assessors a written notice of appeal." (Emphasis supplied.) As provided in the former Code section, the taxpayer is required to file a notice of appeal with the Board, not the superior court, and nothing is transmitted to the court at that time.

         The Act does not change this long-standing administrative process, but simply provides for additional requirements to be met, by both the Board and the taxpayer, before the appeal is "officially filed in superior court, " as stated in McCauley. Within 45 days of the taxpayer's notice of appeal and before certification of the appeal to superior court, the board of tax assessors is required to give notice of a settlement conference, to be held within 30 days of the notice. OCGA § 48-5-311 (g) (2). That subsection further provides: "If at the end of the 45 day review period the county board of tax assessors elects not to hold a settlement conference, then the appeal shall terminate." Since this is contemplated to occur before the certification to superior court, the appeal is still not "officially filed" at the time provided for such termination. In contrast, if after the settlement conference the parties fail to agree, then written notice of the filing fee is given to the taxpayer, that fee is paid, and the proceeds are remitted to the county. Within 30 days of receipt of the proof of payment from the clerk of the superior court, the Board is required to "certify to the clerk of the superior court the notice of appeal ...


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