Dickey v. Fulton County Board of Assessors

776 S.E.2d 480, 333 Ga. App. 346, 2015 Ga. App. LEXIS 313
CourtCourt of Appeals of Georgia
DecidedMay 27, 2015
DocketA15A0582
StatusPublished

This text of 776 S.E.2d 480 (Dickey v. Fulton County Board of Assessors) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dickey v. Fulton County Board of Assessors, 776 S.E.2d 480, 333 Ga. App. 346, 2015 Ga. App. LEXIS 313 (Ga. Ct. App. 2015).

Opinion

Ray, Judge.

Patricia Dickey (“taxpayer”) appeals from the superior court’s order finding that it was without jurisdiction to consider her untimely appeal from the Fulton County Board of Equalization’s decision regarding her ad valorem tax appeal. For the following reasons, we affirm.

This is a residential property tax appeal for tax year 2011 for property located at Tuxedo Road in Atlanta. The taxpayer appealed the 2011 tax assessment for the property to the Fulton County Board of Assessors. The Board of Equalization heard the tax appeal on March 5,2012. The Board of Equalization then sent its decision letter to the taxpayer via certified mail on March 14, 2012. Instructions for how to appeal to the superior court were included with the Board of Equalization’s decision letter, which informed the taxpayer that “a written Notice of Appeal must be filed within thirty (30) days of the date of this notice[.]” The taxpayer’s appeal was not filed until April 16, 2012, which was 33 days after the notice of the Board’s decision [347]*347had been mailed to her. The superior court granted the Fulton County Board of Assessors’ motion for summary judgment on the grounds that it lacked jurisdiction to hear the matter because the appeal was not timely filed.

1. The taxpayer contends that the “time period for filing a notice of appeal is merely directory.” This argument is without merit. The “statutory limitation on the period of time in which an appeal from a judicial decision may be taken is jurisdictional.” (Citation omitted.) Webb v. Bd. of Tax Assessors of Madison County, 142 Ga. App. 784, 784 (236 SE2d 925) (1977). The version of OCGA § 48-5-311 (g) (2) in effect at the time of the trial court’s decision1 provides that the taxpayer’s notice of appeal “shall be mailed or filed within thirty (30) days from the date on which the decision of the county board of equalization or hearing officer is mailed [to the taxpayer].” Failure to file an appeal within the statutory 30 days bars any further right of appeal. See Hall County Bd. of Tax Assessors v. Avalon Hills Partners, 307 Ga. App. 520, 522, n. 7 (705 SE2d 674) (2010). Accord Webb, supra (right of appeal barred when notice of appeal filed one day late); Camden County Bd. of Tax Assessors v. Proctor, 155 Ga. App. 650, 650 (271 SE2d 902) (1980) (taxpayer lost the right to appeal when the taxpayer’s notice of appeal was mailed on the last day for filing an appeal under the statutory provision, but was not received until two days after expiration of appeal period). The taxpayer’s appeal, filed three days late, bars her right to appeal from the Board of Equalization’s decision.

2. Further, contrary to the taxpayer’s contention, the evidence shows that the Board of Equalization sent notice according to the statutory requirements. OCGA § 48-5-311 (e) (6) (D) (i) provides that “[n]otice of the [Board of Equalization] decision shall be given to each party by sending a copy of the decision by registered or certified mail or statutory overnight delivery to the appellant and by filing the original copy of the decision with the county board of tax assessors.” However, “[w]hen a taxpayer authorizes an attorney in writing to act on the taxpayer’s behalf, all notices required to be provided to the taxpayer regarding hearing times, dates, certifications, or official actions shall instead be provided to such attorney.” (Emphasis supplied.) OCGA § 48-5-311 (o).

The taxpayer argues throughout her brief that Property Tax Advisers, LLC (“PTA”) should have been served notice of the Board’s decision under OCGA § 48-5-311 (o) because it was her “attorney-in-fact,” despite the fact that it is not a law firm and there is no evidence [348]*348that any of its members are licensed attorneys. This argument is without merit. Here, the taxpayer hired PTA, a business that assists taxpayers in appealing their county tax valuations and assessments, to assist in her appeal. Peter Curnin, the managing member of PTA, filed a notice of appeal to the Board on that taxpayer’s behalf, and such notice stated that PTA had “been retained and authorized to act on behalf of” the taxpayer and requested that “[a]ll correspondence, notices or other writings related to this appeal should be addressed to [PTA].” However, PTAis not a law firm, and Curnin is not an attorney.

When applying the rules of statutory construction2 to OCGA § 48-5-311 (o), it is important to note that OCGA § 48-5-311 distinguishes between a taxpayer’s employee (such as an agent or representative) and a taxpayer’s attorney, providing that “[p]roof of service [of a notice of appeal to the Board of Assessors] may be made ... by certificate of the taxpayer, the taxpayer’s attorney, or the taxpayer’s employee by written admission or by affidavit.” (Emphasis supplied.) OCGA § 48-5-311 (n). This distinction is also made in the statute in the context of arbitration: “At the time of certification of the appeal [to arbitration], the county board of tax assessors shall serve the taxpayer and the taxpayer’s attorney of record, if any, or employee with a copy of the certification[.]” (Emphasis supplied.) OCGA § 48-5-311 (f) (3) (A). The statute also specifically provides that a non-attorney can appear on the taxpayer’s behalf during a hearing on the notice of appeal: “A taxpayer may appear before the board concerning any appeal in person, by his or her authorized agent or representative, or both. The taxpayer shall specify in writing to the board the name of any such agent or representative prior to any appearance .. . before the board.” OCGA § 48-5-311 (e) (6) (A). Applying the rules of construction to the statute, and giving the “plain and ordinary meaning” to the word “attorney” in OCGA § 48-5-311 (o), it is clear that the legislature intended there to be a distinction between a taxpayer’s employee (such as PTA) and a taxpayer’s attorney.3 Accord Grand [349]*349Partners Joint Venture I v. RealtaxResource, 225 Ga. App. 409, 411 (1) (a) (483 SE2d 922) (1997) (finding that the word “representative” does not mean “attorney” for the purpose of harmonizing OCGA § 48-5-311 (e) (6) (A) with the statutory prohibition against the unauthorized practice of law because representation does not necessarily involve the practice of law).

Decided May 27, 2015 —

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Department of Human Resources v. Hutchinson
456 S.E.2d 642 (Court of Appeals of Georgia, 1995)
Wahnschaff v. Erdman
502 S.E.2d 246 (Court of Appeals of Georgia, 1998)
Grand Partners Joint Venture I v. Realtax Resource, Inc.
483 S.E.2d 922 (Court of Appeals of Georgia, 1997)
Hall County Board of Tax Assessors v. Avalon Hills Partners, LLC
705 S.E.2d 674 (Court of Appeals of Georgia, 2010)
Webb v. Board of Tax Assessors
236 S.E.2d 925 (Court of Appeals of Georgia, 1977)
Camden County Board of Tax Assessors v. Proctor
271 S.E.2d 902 (Court of Appeals of Georgia, 1980)
Georgia Transmission Corp. v. Worley
720 S.E.2d 305 (Court of Appeals of Georgia, 2011)

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Bluebook (online)
776 S.E.2d 480, 333 Ga. App. 346, 2015 Ga. App. LEXIS 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickey-v-fulton-county-board-of-assessors-gactapp-2015.