BQP Industries, Inc. v. State Bd. of Equalization of State of Colo., 83CA0842

• Decision Date: 31 May 1984
• Docket Number: No. 83CA0842,83CA0842
• Parties: BQP INDUSTRIES, INC.; et al., Petitioners-Appellants, v. The STATE BOARD OF EQUALIZATION OF the STATE OF COLORADO; et al., Respondents-Appellees. . I
• Court: Colorado Court of Appeals

Page 337

694 P.2d 337

BQP INDUSTRIES, INC.; et al., Petitioners-Appellants,

v.

The STATE BOARD OF EQUALIZATION OF the STATE OF COLORADO;

et al., Respondents-Appellees.

No. 83CA0842.

Colorado Court of Appeals,

Div. I.

May 31, 1984.

Rehearings Denied June 28, 1984.

Certiorari Denied Jan. 21, 1985.

Stutz, Dyer, Miller & Delap, R. Gregory Stutz, Denver, for Cooley gravel co.

Holme, Roberts & Owen, John R. Webb, Denver, for Martin-Marietta Corp.

Bradley, Campbell & Carney, P.C., Victor F. Boog, Golden, for Adolph Coors Co., Coors Porcelain Co., and Coors Container Co.

Holland & Hart, R. Alan Poe, Terry T. Johnson, Denver, for Monfort Packing Co. and Eastman Kodak Co.

Isaacson, Rosenbaum, Spiegleman & Friedman, Seymour Joseph, Joanne McDevitt Geller, Denver, for Board of Assessment Appeals of State of Colo., Martin E. Fisch, Gerry F. Shriver and Charles H. Bradley.

Gorsuch, Kirgis, Campbell, Walker & Grover, Vicki J. Fowler, Ann E. DeVine, Denver, for Non-Jefferson County petitioners.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Denver, for Colorado State Bd. of Equalization, Colorado Property Tax Administrator, and Colorado Div. of Property Taxation.

Stephen H. Kaplan, Denver City Atty., Robert F. Strenski, Asst. City Atty., Denver, for Board of Equalization of the City and County of Denver, Jerry C. Kempf, Paul Hentzell, Harold V. Cook, F.J. Serafini, Robert P. Locke, and Elvin R. Caldwell.

Thomas O. David, Weld County Atty., Greeley, for Board of Equalization and the Board of County Com'rs for County of Weld, Herbert H. Hanson, Weld County Assessor.

James Smith, Adams County Atty., Kathryn L. Schroeder, Asst. Adams County Atty., Brighton, for Adams County Bd. of Equalization.

Larry Vana, Arapahoe County Atty. James Heiser, Asst. Arapahoe County Atty., Littleton, for Arapahoe County Bd. of Equalization.

Ann Raisch, Boulder County Atty. Nancy Terrill, Asst. Boulder County Atty., Boulder, for Boulder County Bd. of Equalization, John Murphy, Margaret Markey, Robert Jenkins, and William Goodyear.

Charles E. Berry, El Paso County Atty., Colorado Springs, for El Paso County Bd. of Equalization, and M.C. Port, El Paso County Assessor.

Patrick Mahan, Jefferson County Atty. Cile Pace, Asst. Jefferson County Atty., Golden, for Jefferson County Bd. of Equalization and Mike Sobieski, Jefferson County Assessor.

Ralph Harden, Larimer County Atty. Rick Zier, Asst. Larimer County Atty., Fort Collins, for Larimer County Bd. of Equalization, Larimer County Bd. of Com'rs and Richard Greene, Larimer County Assessor.

Caplan & Earnest, Richard Bump, Boulder, for intervenors Jefferson County School Dist. R-1 and Weld County School Dist. RE-4.

BABCOCK, Judge.

In this consolidated multi-district action, taxpayers appeal judgments of the trial court entered upon review of agency action pursuant to § 24-4-106, C.R.S. (1982 Repl.Vol. 10). We affirm in part, reverse in part, and remand with directions.

This case concerns the method of assessing the valuation of personal business property of each taxpayer for the tax years 1979 and/or 1980. The taxing authorities, the assessors and the county boards of equalization, will be referred to herein as "counties."

The 1979 taxpayers processed appeals of 1979 tax year assessments through their respective county assessors, boards of county commissioners sitting as county boards of equalization, and the Colorado State Board of Assessment Appeals (BAA). In these cases, the BAA ruled that in assessing these taxpayers' personal business property for the tax year 1979, depreciation was to be considered only as to the "base year," 1973, and not thereafter. The 1979 taxpayers' appeals of these adverse rulings to their respective county district courts were later consolidated in this action.

The 1980 taxpayers pursued the same administrative review process. In each of these cases, the BAA reversed its 1979 ruling and determined that in assessing the 1980 taxpayers' items of personal business property, the taxpayers were entitled to have the subject property valued with depreciation applied annually from the base year to the assessment date of January 1, 1980.

Pursuant to § 39-8-108(2), C.R.S. (1982 Repl.Vol. 16B), the counties filed appeals in the various district courts. However, these appeals were continued while further administrative review was taken before the Colorado State Board of Equalization (BOE). The BOE denied taxpayers' motions to dismiss for lack of jurisdiction, heard the appeals on the merits, reversed the 1980 rulings of the BAA, and ordered reinstatement of the original personal business property assessments of the counties. The taxpayers pursued a consolidated appeal of the BOE ruling to the trial court, and that appeal was thereafter consolidated with all other pending district court appeals pursuant to C.R.C.P. 42.1.

The trial court concluded that the BOE had jurisdiction to review the decisions of the BAA. Therefore, because the 1979 taxpayers did not exhaust their administrative remedies by appealing the BAA's determination of their cases to the BOE, the trial court dismissed their appeals for lack of jurisdiction.

As to the 1980 taxpayers, summary judgment was entered in favor of Weld County against Eastman Kodak Company (Kodak) and Monfort Packing Company (Monfort) on the ground that the BAA had no jurisdiction to hear these taxpayers' appeals because they were untimely filed. The trial court granted the motion of the City and County of Denver to dismiss ten corporate taxpayers' appeals upon the ground that each petition for review before the BAA was drafted and executed by a layperson on behalf of the corporation. The trial court concluded the petitions were void, and thus, the BAA had no jurisdiction. The trial court also ruled that C.P.S. Distributors, Inc. (CPS) and Power Rental Equipment, Inc. (Power Rental) failed to perfect timely appeals to the BAA. The trial court thereafter affirmed the order of the BOE which determined that under the Colorado taxing statutes, the taxpayers were not entitled to the application of depreciation annually from the base year to the date of assessment upon their personal business property. This appeal followed.

I. Jurisdictional Issues

A.

Taxpayers contend that the BOE had no jurisdiction to review the decisions of the BAA. They argue that the BOE's action constituted a valuation for assessment of specific personal business property owned by particular taxpayers rather than statewide equalization of assessed valuation of classes or subclasses of property. We agree.

The BOE's jurisdiction is limited to statewide equalization of assessed valuation of classes or subclasses of property. Colo. Const. Art. X, Sec. 15; §§ 39-2-128 and 39-9-103, C.R.S. (1982 Repl.Vol. 16B); Lamm v. Barber, 192 Colo. 511, 565 P.2d 538 (1977); Union Pacific R.R. Co. v. Board of Commissioners, 35 F.2d 785 (10th Cir.1929). Courts will not permit the exercise of authority by an administrative agency unless granted by statute. Denver v. Gibson, 37 Colo.App. 130, 546 P.2d 974 (1975). And, the BOE's orders which are in excess of statutory authority are void. Union Pacific R.R. Co. v. Board of Commissioners, supra.

"Assessment is the act of placing a value for tax purposes upon the property of a particular taxpayer. Equalization, on the other hand, is the act of raising or lowering the total valuation placed upon a class, or subclass, or property in the aggregate. Equalization deals with all the property of a class or subclass within a designated territorial limit, such as a county, without regard to who owns the individual parcels making up the class or subclass. Assessment relates to individual property; equalization relates to classes of property collectively." Lamm v. Barber, supra.

All cases before the BAA concerned specific personal business property owned by identified taxpayers. The 1980 cases culminated in orders to the counties to reduce the valuations of the property to that stipulated by the parties to be correct if depreciation had been allowed to January 1, 1980. The orders of the 1979 cases denied the petitions for review.

We conclude that the order of the BOE was in excess of its jurisdiction and void because the BOE was acting to assess rather than equalize values, Union Pacific R.R. Co. v. Board of Commissioners, supra, and that the BAA acted within its jurisdiction pursuant to § 39-2-125(1)(c), C.R.S. (1982 Repl.Vol. 16B). Therefore, the trial court erred in its conclusion.

B.

Ten Denver corporate 1980 taxpayers initiated review to the BAA by submitting "Form BAA-1 Rev.1978," a form prepared and supplied by the BAA. That form contains general instructions regarding its completion, including the number of copies required, the place of filing, and a telephone number where further information could be obtained by the taxpayer. It calls for identification and address of the taxpayer and the agency from which appeal is taken, the tax year in issue, a description of the property, the facts and law on which the appeal is based, a list of witnesses' names and exhibits to be presented at the review hearing, and the estimated time for hearing. It is to be executed by the "Petitioner or, if any, Agent or Attorney for Petitioner." (emphasis added) Each corporation executed the prescribed form through an authorized officer or director, as "agent." Thereafter, each corporation appeared and prosecuted its appeal through an attorney.

The trial court dismissed these appeals on the ground that the applications were void because signed by nonlawyer officers or directors of the corporations.

We agree that a corporation can only appear in court by a licensed attorney and that proceedings instituted in violation of this rule are void. Bennie v. Triangle Ranch Co., 73 Colo. 586, 216 P. 718 (1923). A corporation is an artificial entity created by law. Thus, unlike a natural person, it cannot...