Shipp v. Bevard

• Decision Date: 26 October 1981
• Docket Number: No. 66,66
• Parties: Harry S. SHIPP, Jr. v. Samuel S. BEVARD.
• Court: Maryland Court of Appeals

Page 590

291 Md. 590

435 A.2d 1114

Harry S. SHIPP, Jr. v. Samuel S. BEVARD.

No. 66.

Court of Appeals of Maryland.

Oct. 26, 1981.

Kaye T. Brooks, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.

Kenneth E. Pruden, Upper Marlboro, for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

ELDRIDGE, Judge.

The plaintiff in this real property tax assessment case is seeking reversal of an administrative decision under Maryland Code (1957, 1980 Repl. Vol.), Art. 81, § 67(a). Three previous cases in this Court have rejected attempts to overturn § 67(a) determinations. State Dep't Of A. & Tax. v. Clark, 281 Md. 385, 380 A.2d 28 (1977); Mont. Co. Council v. Supervisor, 275 Md. 339, 340 A.2d 302 (1975); La Belle v. State Tax Comm., 217 Md. 443, 142 A.2d 560, cert. denied, 358 U.S. 889, 79 S.Ct. 135, 3 L.Ed.2d 117 (1958). The plaintiff's effort in the present case will similarly be unsuccessful.

Before turning to the facts of the case, we shall briefly review the relevant statutory background. Under Art. 81, §§ 2(20), 29A(a) and 29A(c), the taxable year begins on July 1st in each year, and the assessment for the taxable year becomes final on the "date of finality" which is the previous January 1st. Notice of the assessment is ordinarily to be provided more than thirty days before the date of finality, and the taxpayer is given a specified period of time after receiving the notice to protest the assessment, Art. 81, § 29. If the taxpayer makes a timely protest, he is entitled to a hearing before the supervisor of assessments for the county, and he may appeal the supervisor's decision to the property tax assessment appeal board for the county, with the right to a hearing before the appeal board, Art. 81, § 255. The taxpayer then has thirty days after the board's decision to appeal to the Maryland Tax Court, Art. 81, § 255(d) and 256. The Tax Court proceedings "shall be de novo and shall be conducted in a manner similar to proceedings in courts of equity ...," Art. 81, § 229(c). The taxpayer is entitled to judicial review of the Tax Court's decision in the circuit court, with a right to appeal the circuit court's decision to the Court of Special Appeals, Art. 81, § 229(l,) and (p). ¹

Consequently, the Legislature has afforded a taxpayer, as a matter of right, a comprehensive administrative remedy, with judicial review, to challenge his real estate assessment. Like most administrative remedies, there is a requirement that the taxpayer comply with reasonable time limits, beginning with a timely protest of the assessment.

In addition to the above-described administrative and judicial remedy, the Legislature has authorized certain officials to decrease an assessment in order to correct an erroneous or improper assessment and to prevent injustice, regardless of whether the taxpayer had made a timely protest of his assessment. In what is now codified as part of Art. 81, § 67(a), the Legislature provided:

"The supervisor of assessments and the county treasurer (in Montgomery County the director of finance) of each county and in Baltimore City, the city solicitor and the supervisor of assessments, and in any incorporated town in Caroline County, the town boards, may by an order, decrease or abate an assessment after the date of finality for any year, whether a protest against said assessment was filed before the date of finality or not, in order to correct erroneous and improper assessments and to prevent injustice, provided, that the reasons for such decrease or abatement shall be clearly set forth in such order."

The issue in the present case concerns the extent to which a court may review administrative decisions under the above-quoted statutory provision.

The facts of this case are as follows. The plaintiff taxpayer owns a parcel of land in Prince George's County, containing approximately 251/2 acres, upon which is operated a wash plant and a sand and gravel business. The assessment on this property was increased for the taxable year 1971; the taxpayer filed a timely protest of this assessment; he exhausted his administrative remedy; and he sought judicial review in the Circuit Court for Prince George's County. The circuit court decision concerning the 1971 assessment, which ordered a reduction in the assessment, was rendered on August 5, 1976. As there had been no change in the assessment for the taxable years 1972, 1973 and 1974, and no notice of assessment for those years, Art. 81, § 214A, required that the reduction ordered by the circuit court be carried over to 1972, 1973 and 1974. ²

While the proceedings regarding the 1971 assessment were pending, the property was reassessed for 1975 and 1976, with the assessment again being increased. The taxpayer received notices of the assessments for 1975 and 1976 but failed to file protests. In fact, the taxpayer did nothing regarding the 1975 and 1976 assessments until August 4, 1977, when he filed an application under Art. 81, § 67(a), contending that the 1975 and 1976 assessments were erroneous in light of the circuit court's decision with respect to the 1971 assessment. The § 67(a) application was denied on September 2, 1977.

The taxpayer on December 19, 1977, instituted the present action by filing a "petition for affirmative injunction" in the Circuit Court for Prince George's County against the Supervisor of Assessments of Prince George's County and the County Treasurer of Prince George's County, who were the two officials authorized to grant relief under Art. 81, § 67(a). The taxpayer requested a mandatory injunction requiring a reduction in the assessments for 1975 and 1976. It was alleged that the assessments for these two years were "illegal" because they were "based upon use of the property instead of cash value as provided by statute." It was further alleged that there had been "no material change in the value of the subject property between the years 1971 and 1976" and that, therefore, the assessments were "illegal" in light of the August 5, 1976, circuit court decision ordering a reduction in the 1971 assessment. The taxpayer asserted that the position of the Supervisor of Assessments was "arbitrary, illegal, capricious, discriminatory and unreasonable" because of the adjudication that the 1971 assessment was illegal. There were no additional assertions or factual allegations explaining or supporting the contentions that the 1975 and 1976 assessments were arbitrary, illegal, capricious, discriminatory and unreasonable.

The defendants filed a motion raising preliminary objection on the ground that the circuit court had no authority to review the § 67(a) administrative decision. The circuit court rendered an opinion and order granting the motion and dismissing the action, citing La Belle v. State Tax Comm. supra, and State Dept. of A. & Tax v. Clark, supra. Thereafter, the taxpayer filed a motion for reconsideration, asserting that the assessments for 1975 and 1976 were "void and constitutionally infirm" and that, therefore, the case was distinguishable from those decisions on which the court relied. The circuit court granted the motion for reconsideration and reinstated the action, stating that judicial review would be "narrowly restricted to whether the determination of the assessing authorities met constitutional standards." Subsequently, the circuit court denied the defendants' demurrer to the petition for injunction. The defendants then answered and filed a motion for summary judgment, attaching an affidavit of the Supervisor of Assessments for Prince George's County in which the Supervisor set forth the basis upon which he exercised his discretion in determining whether to grant relief under § 67(a) and in which he gave the reason for denying relief to the plaintiff. ³ In opposing the motion for summary judgment, the taxpayer asserted that nothing in the Supervisor's affidavit contradicted the taxpayer's allegation that the original assessments for 1975 and 1976 were "illegal."

The circuit court granted the defendants' motion for summary judgment, holding that the pleadings and affidavits disclosed no material issues of fact in dispute and demonstrated that the defendants were entitled to judgment. The taxpayer appealed to the Court of Special Appeals, and that court reversed in an unreported opinion. The intermediate appellate court concluded that summary judgment was improper because the taxpayer had made "a rather general allegation of discrimination" and the "affidavit of the Supervisor was merely conclusory and did not show facts in detail and with precision which would entitle the Supervisor to summary judgment."

This Court then granted the defendants' petition for writ of certiorari, in which it was contended that the Court of Special Appeals' decision represented an erroneous application of our opinions dealing with Art. 81, § 67(a).

Art. 81, § 67(a), was first considered by this Court in La Belle v. State Tax Comm., supra, 217 Md. 443, 142 A.2d 560. The taxpayer in that case failed to make a timely protest of the assessment on her dwelling in Montgomery County. About seven months after the date of finality, she applied for a reduction under § 67(a), which was then codified as Art. 81, § 66. Relief under the statute was denied because the Director of Finance of Montgomery County and the Supervisor of Assessments could not agree. The taxpayer then appealed to the State Tax Commission, the predecessor of the Maryland Tax Court, and the Commission held that it had no authority to review determinations under what is now § 67(a). The circuit court affirmed the Commission's decision, and this Court upheld the affirmance. Judge Hammond for the Court pointed out that the consideration by the taxing and fiscal authorities under § 67(a) was "a matter of grace," and that if those authorities did not grant relief, "the statute gives (the...