Weeks v. Gwinnett County Bd. of Tax Equalization, 52154

• Decision Date: 14 June 1976
• Docket Number: No. 1,No. 52154,52154,1
• Citation: 227 S.E.2d 865,139 Ga.App. 37
• Parties: W. R. WEEKS v. GWINNETT COUNTY BOARD OF TAX EQUALIZATION
• Court: Georgia Court of Appeals

Page 865

227 S.E.2d 865

139 Ga.App. 37

W. R. WEEKS v. GWINNETT COUNTY BOARD OF TAX EQUALIZATION.

No. 52154.

Court of Appeals of Georgia, Division No. 1.

June 14, 1976.

Peek, Arnold, Whaley & Cate, J. Corbett Peek, Jr., Atlanta, for appellant.

Stark, Stark & Henderson, Homer M. Stark, Lawrenceville, for appellee.

STOLZ, Judge.

Taxpayer, appellant, appeals from the jury-based judgment of the Superior Court of Gwinnett County determining the value for county ad valorem tax purposes of certain real property owned by the appellant.

At a pre-trial conference, the trial judge advised that it was his position that the Gwinnett County Board of Tax Equalization had the burden of proof and thus the right to open and conclude the presentation of evidence and argument to the jury. The appellant lodged a timely objection, the overruling of which is enumerated as error. The appellant's other enumerations of error will be discussed subsequently.

1. Unfortunately, the statutory basis for appeals in cases of this nature does not furnish us with guidance as to where the burden of proof lies in tax assessment cases appealed to the superior court. In attempting to resolve the issue, we note that the taxpayer is required to return all property at its fair market value. Code § 92-5701. 'Fair market value' is defined in Code Ann. § 92-5702. On appeal to the county board of equalization, the determination of the county board of tax assessors is deemed prima facie correct. Code Ann. § 92-6912(5)(D). Both the taxpayer and the county board of tax assessors have the right to appeal to the superior court. Code Ann. § 92-6912(6)(A). Such appeals constitute a de novo action. Code Ann. § 92-6912(6)(C); Code Ann. § 6-501 (Ga.L.1972, pp. 738, 742).

What is the effect of a de novo action, hearing, investigation, proceeding or appeal? 'It brings up the whole record from the court below, and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not; either party is entitled to be heard on the whole merits of the case.' Code Ann. § 6-501, supra. 'Such a case must be tried anew as if no trial had been had. (Citations.) It is not the province of the superior court on such an appeal to review and affirm or review the rulings of the (trial tribunal), but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.' Hall v. First Nat. Bank of Atlanta, 85 Ga.App. 498, 69 S.E.2d 679.' (Emphasis supplied.) Knowles v. Knowles, 125 Ga.App. 642, 645(1), 188 S.E.2d 800, 803. 'The appeal from (the trial tribunal) to the superior court is, upon reaching the superior court, a de novo proceeding, and insofar as is consistent with the rules of practice found in the Civil Practice Act it is governed thereby. It proceeds as do other civil cases.' (Emphasis supplied.) Strickland v. Miles, 131 Ga.App. 300, 303(2), 205 S.E.2d 880, 882.

Since the de novo action in the superior court proceeds as do other civil cases and as if it were the initial trial, which party had the burden of proof in the trial tribunal? 'The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. If a negation or negative affirmation be so essential, the proof of such negative lies on the party so affirming it.' Code § 38-103.

There are a number of cases holding to the effect that the party originally moving in the case below is entitled to opening and concluding argument on a de novo appeal to the superior court. See, e.g., Harrison v. Young, 9 Ga. 359(1); Evans v. Arnold, 52 Ga. 169; Cheney v. Cheney, 73 Ga. 66(1). This is analogous to the de novo proceeding before the full workmen's compensation board, in which the entire case may be retried with new evidence, without regard to the findings and conclusions of the administrative law judge. See Travelers Ins. Co. v. Buice, 124 Ga.App. 626(1), 185 S.E.2d 549. 'Where argument is permissible on a trial de novo in a compensation proceeding, the scope and propriety thereof are to be determined by the court, in its discretion, in accordance with general rules in civil trials.' 100 C.J.S. Workmen's Compensation § 775, p. 1306.

We have previously noted that, pursuant to Code Ann. § 92-6912(5)(D), the board of tax assessors' findings of fact are deemed prima facie correct before the county board of equalization. No similar provision applicable to such findings of fact on appeal in the superior court, is contained in Code Ann. § 92-6912(5)(D), Code Ann. § 92-6912(6) or elsewhere. We thus conclude that the county board of tax assessors' findings of fact are not deemed prima facie correct on appeals to the superior court, but are evidence which the jury may consider, along with other evidence, in resolving the issue before them.

Since either party may appeal to the superior court from the decisions of the county board of equalization with the action there being a de novo matter, and neither party is entitled to any prima facie presumption regarding the correctness of its evidence of valuation, we conclude that the burden of proof in the superior court is on the party initiating the appeal to that court-in this case...