Wyler /Pebble Creek Ranch v. Colorado Board of Assessment Appeals, Summit County Board of Equalization, 93CA1107
| Decision Date | 08 September 1994 |
| Docket Number | No. 93CA1107,93CA1107 |
| Citation | 883 P.2d 597 |
| Parties | Robert A. WYLER/PEBBLE CREEK RANCH, Petitioner-Appellant, v. COLORADO BOARD OF ASSESSMENT APPEALS and Summit County Board of Equalization, Respondents-Appellees. . I |
| Court | Colorado Court of Appeals |
Gloria A. Aluise, Dillon, for petitioner-appellant.
Jeffrey L. Huntley, County Atty., Stephen L. Brown, Asst. County Atty., Breckenridge, Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Mark W. Gerganoff, Asst. Atty. Gen., Denver, for respondents-appellees.
Opinion by Judge RULAND.
Petitioner, Robert A. Wyler/Pebble Creek Ranch (taxpayer), filed petitions for an abatement or refund of 1989 and 1990 real property taxes with respondent, Summit County Board of Commissioners. The County denied the petitions and petitioner appealed to the Board of Assessment Appeals (BAA). The BAA dismissed taxpayer's appeal. On taxpayer's appeal of that dismissal, we affirm.
The relevant facts are not in dispute. Taxpayer's properties were reclassified from agricultural to residential by the county assessor, thus increasing the valuation for property taxation purposes. Taxpayer first protested the 1989 valuation to the Summit County Board of Equalization (BOE) and the protest was denied.
On August 30, 1989, acting pursuant to § 39-8-108, C.R.S. (1993 Cum.Supp.), taxpayer appealed to the district court for a trial de novo. On June 11, 1990, the district court dismissed the action without prejudice on the ground that taxpayer had failed to exhaust its administrative remedy. Taxpayer did not appeal that dismissal, and thus the validity of that order is not involved in this appeal.
On June 15, 1990, taxpayer protested the 1990 valuation under the protest and adjustment procedures by sending a letter to the assessor. See § 39-5-122, C.R.S. (1993 Cum.Supp.). On June 29, 1990, the assessor sent taxpayer its notices of determination which in effect denied taxpayer's protest.
On April 30, 1992, taxpayer filed the petition involved in this appeal seeking abatement or refund for both 1989 and 1990 property taxes. Taxpayer asserted in the petition that the taxes imposed had been levied "erroneously or illegally" because of the property reclassification. Taxpayer also asserted that the property was overvalued for both years.
In support of the petition, taxpayer alleged:
Since the property identified was actually used in 1989, 1990 and continues to be used for agricultural purposes, the undersigned respectfully requests that the taxes be abated accordingly and that this petition be granted.
In its order granting the County's motion to dismiss taxpayer's appeal, the BAA concluded that the petition for refund of the 1989 taxes was not timely filed under either the 1988 or the 1991 version of the pertinent statute. The BAA dismissed taxpayer's 1990 claim based upon its interpretation of the 1991 version.
The applicable portions of the abatement and refund section of the property tax statute have been amended in each year from 1988 through and including 1992. See Colo.Sess.Laws 1988, ch. 268, § 39-10-114(1)(a)(I) at 1290; Colo.Sess.Laws 1989, ch. 324 at 1459; Colo.Sess.Laws 1990, ch. 277 at 1702; Colo.Sess.Laws 1991, ch. 309 at 1963; and Colo.Sess.Laws 1992, ch. 323 at 2239. The parties assumed that both the 1988 version and the 1991 version applied to taxpayer's petition. We do likewise and thus do not address the issue whether one statute applies to the exclusion of the other.
The relevant provisions of § 39-10-114(1)(a)(I) as enacted in 1988 provided as follows:
(A) If taxes have been levied erroneously or illegally, whether due to erroneous valuation for assessment, irregularity in levying, or clerical error, the treasurer shall report the amount thereof to the board of county commissioners, who shall proceed to abate such taxes in the manner provided by law.... No abatement or refund of taxes based upon the ground of errors in valuation shall be made for taxes levied prior to January 1, 1988; except that this provision shall not apply to any valuation which is the subject of an appeal made pursuant to section 39-8-108 which, on the effective date of this sub-subparagraph (A), is pending or upon which a final order or judgment has been issued. On or after January 1, 1990, in no case shall an abatement or refund of taxes be made unless a petition for abatement or refund is filed within one year of the date upon which the taxes were due or within one year of the issuance of a final order or judgment in an appeal filed pursuant to section 39-8-108, whichever is later....
Colo.Sess.Laws 1988, ch. 268 at 1290 (emphasis supplied).
In 1991, the same subsection was again amended to provide, as pertinent here:
(A) Except as otherwise provided in sub-subparagraph (D) of this subparagraph (I), if taxes have been levied erroneously or illegally, whether due to erroneous valuation for assessment, irregularity in levying, clerical error, or overvaluation, the treasurer shall report the amount thereof to the board of county commissioners, which shall proceed to abate such taxes in the manner provided by law.... In no case shall an abatement or refund of taxes be made unless a petition for abatement or refund is filed within two years after January 1 of the year following the year in which the taxes were levied....
. . . . .
(D) An abatement or refund of taxes based upon the grounds of overvaluation of property shall be made only for taxes levied on and after January 1, 1988.... No abatement or refund of taxes levied on and after January 1, 1990, shall be made based upon the ground of overvaluation of property if an objection or protest to such valuation has been made and a notice of determination has been mailed to the taxpayer pursuant to section 39-5-122.
Colo.Sess.Laws 1991, ch. 309 at 1963 (emphasis supplied).
Under the 1988 version of § 39-10-114(1)(a)(I), a taxpayer was permitted to seek an abatement and refund of taxes for 1988 and 1989 even after the levy of those taxes had been challenged under the protest and adjustment procedure. D.C. Burns Realty & Trust v. Jefferson County Board of County Commissioners, 849 P.2d 900 (Colo.App.1993). However, by the emphasized language quoted above, § 34-10-114(1)(a)(I)(D) of the 1991 version precluded a second challenge under the abatement and refund procedure based upon an overvaluation claim, for taxes levied "on or after January 1, 1990," if an initial challenge had already been made under the protest and adjustment procedure. See Landmark Petroleum, Inc. v. Board of County Commissioners, 870 P.2d 610 (Colo.App.1993).
Relying first upon the 1988 version of the statute in effect in 1989, taxpayer contends that the petition was filed in a timely manner because it was filed "within one year of the issuance of a final order or judgment in an appeal filed pursuant to § 39-8-108." Specifically, taxpayer notes that generally an order of dismissal without prejudice is not a final order for purposes of appeal. Based upon this premise, taxpayer contends that the district court's order was never final and that, therefore, the petition challenging the 1989 taxes was timely filed on April 30, 1992. We disagree with this analysis.
Contrary to taxpayer's...
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