Tax Assessments Against Pocahontas Land Co., In re

• Decision Date: 25 May 1983
• Docket Number: No. 15409,15409
• Citation: 303 S.E.2d 691,172 W.Va. 53
• Parties: In re TAX ASSESSMENTS AGAINST POCAHONTAS LAND CO., et al.
• Court: West Virginia Supreme Court

Page 691

303 S.E.2d 691

172 W.Va. 53

In re TAX ASSESSMENTS AGAINST POCAHONTAS LAND CO., et al.

No. 15409.

Supreme Court of Appeals of

West Virginia.

May 25, 1983.

[172 W.Va. 54] Syllabus by the Court

1. "Insofar as W.Va.Code §§ 18-9A-11 and 11-3-25 both relate to the standing of taxpayers and residents to insure full and proper assessment of all the county's land, they are to be read together. Any interested party may compel compliance with the State Tax Commissioner's report through a writ of mandamus, as provided in W.Va.Code § 18-9A-11; persons likewise have standing to contest the assessment of property in their home counties by way of statutory appeal after having appeared before the Board of Equalization and Review. W.Va.Code § 11-3-25." Syllabus Point 3, Tug Valley Recovery Center, Inc. v. Mingo County Commission, W.Va., 261 S.E.2d 165, 9 A.L.R.4th 413 (1979).

2. Under W.Va.Code, 11-3-25, providing in part that "[t]he right of an appeal from any assessment by the county court [county commission], as hereinbefore provided, may be taken either by the applicant or by the State," a taxpayer who challenges the property assessment of another may appear or intervene in the circuit court on an appeal of such assessment.

3. A taxpayer making such a challenge and losing in the circuit court is an "aggrieved taxpayer" under the last sentence of W.Va.Code, 11-3-25, and may pursue an appeal to this Court.

4. The provisions of W.Va.Code, 11-3-24, are met so long as the county commission sitting as a board of equalization and review sends an appropriate notice to the involved taxpayers at least five days in advance of the date when the increase in assessment will take effect.

5. W.Va.Code, 11-3-24, provides for two types of notice requirements: newspaper publication for general increases affecting a given class of property owners and personal notice for increases involving individual property owners.

6. Even though W.Va.Code, 11-3-24, provides for newspaper publication where a general increase in property valuations is proposed by the Board, defective newspaper publication can be cured by adequate notice by mail or by the appearance of the affected taxpayer at a protest hearing.

7. It is a general rule that valuations for taxation purposes fixed by an assessing officer are presumed to be correct. The burden of showing an assessment to be erroneous is, of course, upon the taxpayer, and proof of such fact must be clear.

Norman Googal, Welch, Jane Moran, Williamson, Alice Green, Jacqueline A. Kinnaman, Charleston, for appellants-Scott King, et al.

Lynn C. Johnson and Ernest F. Hays, II, Bluefield, Jackson, Kelly, Holt & O'Farrell, Thomas G. Freeman, II and Thomas N. Chambers, Charleston, for appellee.

Wade T. Watson, Pros. Atty., McDowell County, Welch, for Assessor.

MILLER, Justice:

This case raises certain procedural issues relating to the reassessment of real property by a county commission acting as a board of equalization and review. Among the issues is the question of the right of the appellants who are taxpayers to intervene in the circuit court after the landowners had appealed their assessments to the circuit court and their subsequent right to bring this appeal. Also challenged is the trial court's ruling as to the procedural sufficiency of the hearings before the Board of The controversy originated when Scott King and certain other citizens and taxpayers of McDowell County, the appellants, appeared before the Board on February 14, 1980, with a petition and certain documentary evidence, seeking to demonstrate that the Pocahontas Land Company's Class III surface real property was not assessed at the fair market value. The Board denied the petition but announced its intention to reappraise all Class III surface real property at $300 an acre.

Equalization and Review [hereinafter Board] including a claim of inadequate notice.

The Board subsequently by a registered letter dated February 19, 1980, advised Pocahontas Land and other Class III property owners of its decision to reappraise the Class III surface real property at $300 an acre as of February 28, 1980. Legal notices were published in the local newspaper on February 25 and 27, 1980, regarding the increase in valuation of Class III surface real property.

After receiving a written letter notice of the increased assessment, Pocahontas Land filed a protest with the Board and requested a hearing on February 26, 1980. It was informed that its protest would be heard on February 28, 1980, along with the other taxpayer protests.

On February 28, 1980, hearings were held before the Board and Pocahontas Land's protest was heard shortly before 4:00 p.m. It is conceded by the parties that the hearing was rather chaotic. Two members of the Board were absent during Pocahontas Land's hearing. A court stenographer was present and Pocahontas Land did get some of its evidence on record. Shortly before midnight, the Board adjourned after confirming its previous increase of the appraised values to $300 an acre.

Following the hearing before the Board, Pocahontas Land and several other Class III taxpayers appealed to the circuit court. The appellants sought and were granted intervention. Ultimately, the circuit court concluded that the procedures before the Board were so inadequate as to require vacating the Board's new appraisal figure of $300 an acre and the court directed that the preceding year's figures be used. The appellants appeal this ruling.

I. THE MOTION TO DISMISS

Pocahontas Land moved to dismiss this appeal based on the premise that the appellants had no standing to intervene at the circuit court level or to bring this appeal. Pocahontas Land asserts that while Tug Valley Recovery Center, Inc. v. Mingo County Commission, 164 W.Va. 94, 261 S.E.2d 165, 9 A.L.R.4th 413 (1979), permits intervention before the Board, it is not authority for intervention at the circuit court level.

In Tug Valley, we referred to W.Va.Code, 11-3-25 and 18-9A-11, ¹ and concluded in Syllabus Point 3 that these statutes provide standing for taxpayers and residents of counties to contest property tax assessments:

"Insofar as W.Va.Code §§ 18-9A-11 and 11-3-25 both relate to the standing of taxpayers and residents to insure full and proper assessment of all the county's land, they are to be read together. Any interested party may compel compliance with the State Tax Commissioner's report through a writ of mandamus, as provided The thrust of Pocahontas Land's argument is that the appellants did not appear before the Board and, therefore, under W.Va.Code, 11-3-25, they were not entitled to intervene in the circuit court. Furthermore, in connection with the appeal to this Court, Pocahontas Land points to the last sentence of the statute and contends that since the appellants are not "the State or the aggrieved taxpayer," ² they have no standing to appeal the circuit court's ruling. We decline to accept either argument.

in W.Va.Code § 18-9A-11; persons likewise have standing to contest the assessment of property in their home counties by way of statutory appeal after having appeared before the Board of Equalization and Review. W.Va.Code § 11-3-25."

From a factual standpoint, we believe the appellants did appear and contest Pocahontas Land's valuation before the Board. The written petition filed by the appellants was rejected by the Board but the Board did decide to raise the valuation of all Class III surface real property. Thus, in effect, the appellants prevailed before the Board and it was not until Pocahontas Land brought its appeal in the circuit court that the appellants sought to intervene.

The only difference between the facts in this case and those in Tug Valley is that in Tug Valley the citizen-taxpayer lost before the Board and appealed to the circuit court. In Tug Valley, we concluded: "[P]ersons ... have standing to contest the assessment of property in their home counties by way of statutory appeal after having appeared before the Board of Equalization and Review. W.Va.Code, 11-3-25." 164 W.Va. at 103, 261 S.E.2d at 170. ³ In the present case, we believe the appellants prevailed before the Board by causing the Board to increase the Class III valuations. They should be entitled to defend their position in the circuit court, the same as the petitioners in Tug Valley who lost before the Board and were able to present their position to the circuit court. The language of W.Va.Code, 11-3-25, is persuasive to this result since it couches the right of appeal to the circuit court in general language of an "applicant" rather than "taxpayer." Under W.Va.Code, 11-3-25, providing in part that "[t]he right of an appeal from any assessment by the county court [county commission], as hereinbefore provided, may be taken either by the applicant or by the State," a taxpayer who challenges the property assessment of another may appear or intervene in the circuit court on an appeal of such assessment.

Furthermore, we decline to restrict the meaning of the last sentence of W.Va.Code, 11-3-25, to prohibit an appeal to this court by taxpayers such as the appellants who have brought a challenge to other taxpayers' property valuations. Since they have the right to be heard in the circuit court, they have a right to appeal an adverse decision from that court. Again, we note that Tug Valley concluded that a taxpayer has standing to challenge the property valuation set for other taxpayers. Thus, a taxpayer making such a challenge and losing in the circuit court is an "aggrieved taxpayer" under the last sentence of W.Va.Code, 11-3-25, and may pursue an appeal to this Court.

II. THE NOTICE

The trial court held that the notice given by the Board was defective for several reasons. First, it concluded that under W.Va.Code, 11-3-24, when the Board decided to make a general increase in valuation "notice shall be given by publication.... [T]he date of the last publication shall be at least...