Simmons v. BOARD OF TAX ASSESSORS, A04A0185.

• Decision Date: 09 July 2004
• Docket Number: No. A04A0185.,A04A0185.
• Citation: 602 S.E.2d 213,268 Ga. App. 411
• Parties: SIMMONS v. BOARD OF TAX ASSESSORS OF EFFINGHAM COUNTY.
• Court: Georgia Court of Appeals

602 S.E.2d 213

268 Ga. App. 411

SIMMONS v. BOARD OF TAX ASSESSORS OF EFFINGHAM COUNTY.

No. A04A0185.

Court of Appeals of Georgia.

July 9, 2004.

Certiorari Denied November 22, 2004.

Neal Howard, William James, Neal H. Howard & Associates, P.C., Atlanta, William Godlove, Godlove & Carellas, Rincon, for Appellant.

Eric Gotwalt, Zipperer & Lorberbaum, P.C., Savannah, for Appellee.

BARNES, Judge.

J.E. Simmons appeals the decision by the superior court denying his request for litigation costs and attorney fees under OCGA § 48-5-311(g)(4)(B)(ii) after his successful ad valorem tax appeal. The trial court denied his request because the court found that his "failure to file the 2000 return until seven months after the deadline bars his ability to recover attorney's fees and costs." Simmons contends this was error because under OCGA § 48-5-20(a)(2), he was not required to file a tax return on his property. We agree, and therefore reverse the decision of the superior court.

1. "The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact." (Punctuation and footnotes omitted.) Page v. Braddy, 255 Ga.App. 124, 126, 564 S.E.2d 538 (2002). As the issue in this appeal is whether Simmons was required to file a property tax return for the year 2000, we must apply the plain legal error standard of review.

2. The evidence shows that Simmons owned a tract of land and that he sold a portion of the land to others pursuant to a land sales contract. He apparently continued to pay the taxes on the land, however, as if he still owned the whole tract. Subsequently, the Effingham County Board of Tax Assessors became aware of the sale and then, pursuant to evidence suggesting that Simmons had subdivided the land, valued the remaining portion of the land under the residential subdivision land schedule rather than as an agricultural timber tract.

Upon Simmons' appeal, the assessed value of his land was reduced to a value that was more than 15 percent lower than the previous assessment. OCGA § 48-5-311(g)(4)(B)(ii) provides that

[i]f the final determination of value on appeal is 80 percent or less of the valuation set by the county board of equalization as

[ 602 S.E.2d 214]

to commercial property, or 85 percent or less of the valuation set by the county board of equalization as to other property, the taxpayer, in addition to the interest provided for by this paragraph, shall recover costs of litigation and reasonable attorney's fees incurred in the action. This division shall not apply when the property owner has failed to return for taxation the property that is under appeal.

(Emphasis supplied.) As there is no dispute that the appeal resulted in the value being reduced so that Simmons would be entitled to litigation costs and attorney fees, the only question is whether he was required to file a tax return.

Simmons contends our decision in Fulton County Bd, of Tax Assessors v. Butner, 258 Ga.App. 68, 70(2), 573 S.E.2d 100 (2002), controls the decision in this case. In Butner, we recognized that a tax return filed by operation of law under OCGA § 48-5-20(a)(2)¹ would satisfy the requirements of OCGA § 48-5-311(g)(4)(B)(ii) for filing a tax return. In the same manner, we noted in Cobb County Bd. of Tax Assessors v. Morrison, 249 Ga.App. 691, 692-693, 548 S.E.2d 624 (2001), that under OCGA § 48-5-20(a)(1),²

if the property owner fails to file a return subsequent to the year after transfer, then the prior year's paid taxes are automatically deemed as the assessment value and treated as returned. Thereafter, in the following years, if no return was made, the prior

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