Pine Pointe Housing, L.P. v. Board of Tax Assessors

605 S.E.2d 443, 269 Ga. App. 855, 2004 Fulton County D. Rep. 3278, 2004 Ga. App. LEXIS 1318

• Court: Court of Appeals of Georgia
• Decided: October 4, 2004
• Docket: A04A1218
• Status: Published

Opinions

Ruffin, Presiding Judge.

The Lowndes County Board of Tax Assessors and Tax Commissioner Mary Nell Robertson (collectively “the tax assessors”) filed a declaratory judgment action against Pine Pointe Housing, L.P. (“Pine Pointe”) to determine Pine Pointe’s liability for 1998 and 1999 ad valorem taxes. The tax assessors moved for summary judgment, arguing that Pine Pointe had underpaid its taxes for those years and, as a result, owed additional sums. The trial court agreed, granting final judgment for the tax assessors. Pine Pointe appeals, and for reasons that follow, we affirm.

“Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law.”¹ We review a trial court’s grant of summary judgment de novo, construing the record and all reasonable inferences in favor of the nonmoving party.²

So viewed, the record shows that, in 1997, the tax assessors appraised real property owned by Pine Pointe for ad valorem tax purposes. Dissatisfied with the appraisal, Pine Pointe appealed its

1997 tax assessment to the Lowndes County Board of Equalization, which reduced the assessment in September 1997. The tax assessors appealed that decision to the superior court.

Following a bench trial in November 2000, the superior court issued an order establishing the 1997 fair market value of Pine Pointe’s property as $4,709,000, an amount greater than the value set by the board of equalization. We affirmed the trial court’s decision in Pine Pointe Housing v. Lowndes County Bd. of Tax Assessors,3 and the Supreme Court denied certiorari.⁴

Pine Pointe paid taxes in 1997, 1998, and 1999 based on the board of equalization’s 1997 valuation. Citing the higher valuation subsequently affirmed by this Court, the tax assessors sought additional payment of taxes and interest from Pine Pointe for the 1997, 1998, and 1999 tax years. Pine Pointe paid the additional amounts due for 1997. It refused, however, to pay the requested amounts for 1998 and 1999, asserting, among other things, that it had already paid its taxes for those years and that neither party had appealed the amounts paid.

Seeking a resolution of Pine Pointe’s 1998 and 1999 tax liability, the tax assessors filed this declaratory judgment action and moved for summary judgment. The assessors claimed that Pine Pointe was liable in tax years 1998 and 1999 for taxes based on the 1997 value affirmed by this Court, rather than the lower value set by the board of equalization. Thus, they argued, Pine Pointe had underpaid its taxes for 1998 and 1999, requiring additional payment. The trial court agreed. We find no error.

1. In Georgia, “[a]ll improved and unimproved real property ... which is subject to taxation shall be returned in person or by mail by the person owning the real property or by his agent or attorney to the tax receiver or tax commissioner of the county where the real property is located.”⁵ A taxpayer making such return must verify under oath that the value he or she placed on the property represents its true market value.⁶ Under certain circumstances, however, taxable property not formally returned by the taxpayer is deemed automatically returned. Pursuant to OCGA § 48-5-20 (a) (1):

Any taxpayer of any county who returned or paid taxes in the county for the preceding tax year and who fails to return his property for taxation for the current tax year . . . shall be deemed to have returned for taxation the same property as was returned or deemed to have been returned in the preceding tax year at the same valuation as the property was finally determined to be subject to taxation in the preceding year.

Pine Pointe did not formally return its real property in 1998 and 1999. Relying on its payment of taxes in 1997 and 1998, it instead invoked the automatic return provision in OCGA § 48-5-20 (a) (1). Thus, its 1998 and 1999 returns were based on the payment of taxes in the preceding year.

The automatic return provision, however, deems the property returned at the value the property was “finally determined to be subject to taxation in the preceding year.”⁷ In this case, the 1997 value of Pine Pointe’s property has been finally determined to be $4,709,000. Pine Pointe, therefore, automatically returned the property in 1998 at a value of $4,709,000. That same “finally determined” value extended to the 1999 automatic return.⁸

As noted above, Pine Pointe paid its 1998 and 1999 taxes — and in fact received tax bills from the tax assessors — based on the 1997 value set by the board of equalization. But that value is not the valuation “finally determined to be subject to taxation ”⁹ Accordingly, it is not the value at which Pine Pointe automatically returned its property in 1998 and 1999. Pine Pointe admittedly underpaid its taxes in 1997 and remitted, without objection, the additional amounts due for that year pursuant to the property’s finally determined fair market value. Given the automatic return, a similar underpayment resulted in 1998 and 1999.

On appeal, Pine Pointe argues that, because it has already paid its taxes for 1998 and 1999, the tax assessors cannot seek additional payment for those years. The dissent agrees. The cases on which Pine Pointe and the dissent rely, however, prohibit reassessments or revaluations of real property for tax years in which taxes have already been paid.¹⁰

This case does not involve a reassessment or revaluation of under-returned property. The tax assessors have not reappraised Pine Pointe’s real estate.¹¹ Instead, they seek to collect taxes due, but not paid, on the property based on the $4,709,000 value actually returned by Pine Pointe in 1998 and 1999.¹² Neither Pine Pointe nor the dissent cites any authority prohibiting collection of such unpaid taxes, and we agree with the trial court that Pine Pointe is liable as a matter of law for the deficiency.

2. Despite Pine Pointe’s claims to the contrary, OCGA § 48-5-299 (c) does not require reversal of the trial court’s decision. Under that Code section,

[r]eal property, the value of which was established by an appeal in any year, that has not been returned by the taxpayer at a different value during the next two successive years, may not be changed by the board of tax assessors during such two years for the sole purpose of changing the valuation established or decision rendered in an appeal to the board of equalization or superior court.¹³

According to Pine Pointe, because OCGA § 48-5-299 (c) prohibits a change in real property valuation for two years after an appeal establishes the value, the tax assessors could not “reassess [ ] Pine Pointe’s properties during the calendar years 1998 and 1999.” In Pine Pointe’s view, therefore, the trial court erred in awarding summary judgment to the tax assessors. This argument lacks merit.

OCGA § 48-5-299 (c) limits the circumstances under which county tax assessors may reassess property, and we have found that the General Assembly particularly intended to address upward reassessments.¹⁴ This case, however, does not involve a reassessment or a change in valuation. The tax assessors merely seek to apply the 1997 fair market land value, as determined through the appeals process and automatically returned by Pine Pointe, in the two succeeding tax years, a request that falls squarely within OCGA § 48-5-299 (c).

Citing the legislature’s reference to “real property, the value of which was established by an appeal in any year, that has not been returned ... at a different value during the next two successive years,”¹⁵ Pine Pointe contends that we can only consider a 1997 property valuation actually established on appeal during 1997. It thus suggests that, for purposes of subsection (c), the applicable 1997 valuation is the value set by the board of equalization, the only part of the appeals process completed in 1997.¹⁶ We cannot agree with this tortured reading of the statute. In our opinion, the phrase “in any year” relates to the year for which valuation is sought, not the year during which the appeals process concludes or establishes a value.

Furthermore, Pine Pointe’s reliance on OCGA § 48-5-299 (c) fails even if that subsection requires us to look to the board of equalization’s 1997 value. As noted above, Pine Pointe automatically returned the property in 1998 and 1999 at $4,709,000, a value greater than that set by the board of equalization.¹⁷ Under its clear terms, OCGA § 48-5-299 (c) only applies when the property “has not been returned by the taxpayer at a different value during the next two successive years.” Given the higher value of the 1998 and 1999 returns, therefore, the two-year moratorium in subsection (c) has no application if, as Pine Pointe suggests, we must start the statutory analysis with the board of equalization’s 1997 value.

3. Finally, Pine Pointe argues that the tax assessors failed to comply with the statutory notice requirements in OCGA § 48-5-306. Again, we disagree. That provision relates to notice that must be given if the tax assessors correct or change a taxpayer’s return.¹⁸ In this case, the assessors did not correct Pine Pointe’s 1998 or 1999 returns, change those returns, or reassess the property. Rather, Pine Pointe elected to automatically return its property in 1998 and 1999 at the $4,709,000 value. Accordingly, the statutory notice requirements of OCGA § 48-5-306 do not preclude summary judgment.

Judgment affirmed. Andrews,

P. J., Johnson, P. J., Miller, Ellington and Adams, JJ., concur. Eldridge, J., dissents.

1 Trans Link Motor Express v. Dougherty County, 265 Ga. App. 10, 11 (592 SE2d 859) (2003).

2 See id.

3 254 Ga. App. 197 (561 SE2d 860) (2002).

4 Pine Pointe Housing v. Lowndes County Bd. of Tax Assessors, Case No. S02C1045 (decided June 21, 2002).

5 OCGA § 48-5-15 (a).

6 OCGA § 48-5-19 (a).

7 OCGA § 48-5-20 (a) (1).

⁸

9 Id. Although the 1997 valuation did not become final for several years, nothing in OCGA § 48-5-20 (a) (1)prevents the final determination from relatingback to the appropriate tax year or years. We recognize that, under the statute, the automatic return is “at the same valuation as the property was finally determined to be subject to taxation in the preceding year.” (Emphasis supplied.) OCGA § 48-5-20 (a) (1). But this language does not require that the final determination actually be made in “the preceding year,” a questionable proposition given the various levels of appeal. Instead, the phrase “in the preceding year” logically refers to the year in which the property was subject to taxation. See Trent Tube v. Hurston, 261 Ga. App. 525, 527 (1) (583 SE2d 198) (2003) (“Absent clear evidence of a contrary intent, a statute’s ‘words should be assigned their ordinary, logical, and common meaning,’ [cit.], and courts must avoid constructions that render part of a statute mere surplusage.”).

10 See, e.g., Cobb County Bd. of Tax Assessors v. Morrison, 249 Ga. App. 691, 694-695 (548 SE2d 624) (2001); Eckerd Corp. v. Coweta County Bd. of Tax Assessors, 228 Ga. App. 94, 95-96 (1) (491 SE2dl73) (1997); Fulton County Bd. of Tax Assessors v. Dean, 219 Ga. App. 137, 138-139 (464 SE2d 257) (1995).

11 Compare id.

12 See OCGA §§ 48-5-27 (“Tax commissioners, tax receivers, and tax collectors shall receive returns and collect taxes due on returns for former years for which any person is in default.”); 48-5-299 (a) (“In all cases where the full amount of taxes due the state or county has not been paid, the [county board of tax assessors] shall assess against the owner ... the full amount of taxes which has accrued and which may not have been paid at any time within the statute of limitations.”).

13 OCGA § 48-5-299 (c).

14 See Cullum v. Chatham County Bd. of Tax Assessors, 243 Ga. App. 865, 866 (534 SE2d 535) (2000).

15 (Emphasis supplied.) OCGA § 48-5-299 (c).

16 The superior court did not issue its decision until 2000, approximately three years later. The dissent appears to blame the tax assessors for this delay, asserting that they allowed the appeal to ‘languish.” An appeal from the board of equalization to the superior court “must be heard ‘at the first term following the filing of the appeal unless continued by the court upon a showing of good cause.’ ” Pine Pointe, supra, 254 Ga. App. at 203 (3). Although the appealing party bears the burden of having the action tried at the first term, “a failure to do so is not fatal if a reasonable excuse or reasonable delay is shown.” Id. During the initial tax appeal, the trial court found a reasonable excuse for why a hearing was not held in the first term, and we affirmed that ruling. See id. Thus, we cannot agree that the tax assessors allowed the initial tax appeal to ‘languish.”

17 See OCGA § 48-5-20 (a) (1).

18 See OCGA § 48-5-306 (a).