Seley v. Georgetown Cnty. Assessor

• Decision Date: 27 September 2022
• Docket Number: 22-ALJ-17-0116-CC
• Parties: Brian Seley and Donna Altman, Petitioners. v. Georgetown County Assessor, Respondent.
• Court: South Carolina Administrative Law Court Decisions

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Brian Seley and Donna Altman, Petitioners. v. Georgetown CountyAssessor, Respondent.

No. 22-ALJ-17-0116-CC

South Carolina Administrative Law Court Decisions

September 27, 2022

Donna Altman, pro se

Brian Seley, pro sePetitioners

John D. Watson, III, Esquire For Respondent Georgetown County Assessor

ORDER

SHIRLEY C. ROBINSON, ADMINISTRATIVE LAW JUDGE

STATEMENT OF THE CASE

This matter is before the Administrative Law Court(ALC or Court) pursuant to a Request for Contested Case Hearing filed on March 18, 2022, by Brian Seley and Donna Altman(Petitioners).Petitioners contest the Georgetown County Board of Assessment Appeals' Decision of March 18, 2022 upholding a determination of Respondent Georgetown County Assessor(Assessor) that the property located at 24 Bobcat Drive.Pawleys Island.South Carolina, did not qualify for the four-percent residential assessment ratio because Petitioners rented the subject property for more than the statutorily allowed maximum of seventy-two days as set forth in section 12-43-220. S.C. Code Ann. § 12-43-220(2014 and Supp. 2021).Petitioners seek reinstatement of their four percent residential assessment for tax year 2021.^[1]

This Court has jurisdiction to hear this matter pursuant to Sections 1-23-660; 12-60-2540; and 12-30-2560 of the South Carolina Code.S.C. Code Ann. § 1-23-660(Supp. 2021);S.C. Code Ann. §§ 12-60-2540 and -2560 (2014).For reasons shown below, the County's Decision is affirmed.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and considering the credibility and accuracy of the evidence, the Court makes the following factual findings by a preponderance of the evidence:

1.In 2018, Petitioners purchased their home at 24 Bobcat Drive, Pawleys Island, South Carolina, in Georgetown County.This home is Petitioners legal residence and domicile.

2.Tax year 2021 is the year at issue in this case,

3.The Assessor denied Petitioners' request to be taxed at the four-percent residential assessment rate for tax year 2021 maintaining Petitioners rented their residence for more than seventy-two days in the tax year in question.

4.Petitioners concede and their records indicate they rented the house for a total of eighty-five days.Petitioners maintain, however, that they are still entitled to the four-percent residential assessment because they only rented the entire home for sixty-four days.^[2] and were present in the home the other twenty-one days during which only rooms or portions of their home were rented.

5.Petitioners rely on section 12-43-220(c)(1) and a 2017 South Carolina Municipal Association guide addressing short-term rentals to support their position that they can retain the four-percent residential assessment if they rent rooms or a portion of their home in excess of the statutory limit of seventy-two days provided, they remain in the home with the renters,

CONCLUSIONS OF LAW

Based upon the findings of fact, the Court concludes the following as a matter of law:

1.The South Carolina Administrative Law Court has jurisdiction over this matter pursuant to section l-23-600(A) of the South Carolina Code. S.C. CodeAnn. § l-23-600(A)(Supp 2021).

2.The weight and credibility of evidence presented at the hearing is a matter within the province of the trier of fact.SeeS.C. Cable Television Ass'n. vs. S. Bell Tel. &Tel. Co..308 S.C. 216, 222, 417 S.E.2d 586, 589(1992).Furthermore, a trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and to evaluate the credibility of his testimony.See, e.g., Woodall vs. Woodall,322 S.C. 7,10,471 S.E.2d 154,157(1996);Wallace vs. Milliken & Co.,300 S.C. 553. 556, 389 S.E.2d 448, 450(Ct App.1990).In presiding over a contested case, the court serves as the finder of fact and makes a de novo determination regarding the matter at issue.SeeS.C. CodeAnn. § l-23-600(A)(Supp. 2021);Brown vs. S.C. Dep'l of Health & Envtl. Control,348 S.C. 507, 512, 560 S.E.2d 410, 413(2002);Marlboro Park Hasp. vs. S.C. Dep 7 of Health & Envtl. Control, 358 S.C. 573, 57-79, 595 S.E.2d 851, 853-54(Ct. App.2004).

3.The Court reviews the decision of the Assessor de novo.Reliance Ins. Co. v. Smith,327 S.C. 528, 534, 489 S.E.2d 674. 677 (Ct.App. 1997)(explaining ""although a case involving a property tax assessment reaches the ALJ in the posture of an appeal, the ALJ is not sitting in an appellate capacity and is not restricted to a review of the decision below.Instead, the proceeding before the ALJ is in the nature of a de novo hearing.").The burden of proof is on the party challenging the Board's decision.Id.Here, the burden rests on Petitioners.SeeCFRE, LLC v. Greenville Cty. Assessor,395 S.C. 67, 74, 716 S.E.2d 877, 881(2011)(South Carolina policy is to strictly construe tax exemption statutes against the taxpayer).

4.The applicable code section is 12-43-220.Subsection 12-43-220(c)(1) provides in part:

The legal residence and not more than five acres contiguous thereto, when owned totally or in part in fee or by life estate and occupied by the owner of the interest, and additional dwellings located on the same property and occupied by immediate family members of the owner of the interest, are taxed on an assessment equal to four percent of the fair market value of the property . . . If this property has located on it any rented mobile homes or residences which are rented or any business for profit, this four percent value docs not apply to those businesses or rental properties.However, if the person claiming the four percent assessment ratio resides in the mobile home or single family residence and only rents a portion of the mobile home or single family residence to another individual as a residence, the foregoing provision does not apply and the four percent assessment ratio must he applied to the entire mobile home or single family residence.For purposes of the assessment ratio allowed pursuant to this item, a residence does not qualify as a legal residence unless the residence is determined to be the domicile of the owner-applicant.

(Emphasis added).Subsection 12-43-220(c)(2)(iv) continues by stating the burden of proving eligibility for the four percent assessment ratio is on the owner-occupant, and if he has made proper certificate and is otherwise eligible, he is deemed to have met the burden of proof and is allowed the four percent assessment ratio "if the residence that is the subject of the application is not rented for more than seventy-two days^[3]in a calendar year.”(Emphasis added).

5.Petitioners readily admit the house was rented for eighty-five days in 2021. but rely upon the following exception in subsection 12-43-22()(e)(1):

However, if the person claiming the four percent assessment ratio resides in the mobile home or single family residence and only rents a portion of the mobile home or single family residence to another individual as a residence, the foregoing provision does not apply and the four percent assessment ratio must be applied to the entire mobile home or single family residence.

6."The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the legislature."Sloan v. Hardee,371 S.C. 495, 498. 640 S.E.2d 457. 459 (2007).In doing so, the Court must give the words found in the statute their "plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation."Id. at 499, 640 S.E.2d at 459.Thus, if the words are unambiguous, the Court must apply their literal meaning.Id. at 498, 640 S.E.2d at 459.Additionally, a statute must be read as a whole and in a manner consonant and in harmony with its purpose.CFRE, LLC v. Greenville County Assessor,395 S.C. 67, 716 S.E.2d 877(2011).The statute must be read so "that no word, clause, sentence, provision, or part shall be rendered surplusage, or superfluous."Id. at 74, 716 S.E.2d at 881 (quoting State v. Sweat,379 S.C. 367, 377. 665 S.E.2d 645, 651(Ct. App.2008).

7.Merriam-Webster *s online dictionary defines "residence" in part as "the act or fact of dwelling in a place for some time." '"the act or fact of living or regularly staying at or in some place for the discharge of a duty or enjoyment of a benefit," and "the place where one actually lives as distinguished from one's domicile or a place of temporary sojourn."Residence, Merriam-Webster, https://www.merriam-webster.com/dictionary7residence(last visited September 15.2022)."Domicile" is defined in part as "a person's fixed, permanent, and principal home for legal purposes."Domicile, Merriam-Webster. https://www.merriam-webster.com/dictionary/domicile(last visited September 1 5, 2022).

8."Residence" has also been defined by Black's Law Dictionary as "[t]he place where one actually lives as distinguished from a domicile...."Residence.Black's Law Dictionary,(9th ed. 2009)."Domicile" has been defined as "[f]he place at which a person is physically present and that the person regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though...