Yen, LLC v. Jefferson Cnty. Bd. of Comm'rs

• Decision Date: 12 August 2021
• Docket Number: Court of Appeals No. 20CA0516
• Citation: 2021 COA 107,498 P.3d 1140
• Parties: YEN, LLC, Petitioner-Appellee, v. JEFFERSON COUNTY BOARD OF COMMISSIONERS, Respondent-Appellant, and Board of Assessment Appeals, Appellee.
• Court: Colorado Court of Appeals

498 P.3d 1140

2021 COA 107

YEN, LLC, Petitioner-Appellee,

v. JEFFERSON COUNTY BOARD OF COMMISSIONERS, Respondent-Appellant,andBoard of Assessment Appeals, Appellee.

Court of Appeals No. 20CA0516

Colorado Court of Appeals, Division VI.

Announced August 12, 2021

Goldstein Law Firm, L.L.C., Mark W. Gerganoff, Denver, Colorado, for Petitioner-Appellee

Kimberly Sorrells, County Attorney, Rebecca Klymkowsky, Assistant County Attorney, Rachel Bender, Assistant County Attorney, Jason W. Soronson, Assistant County Attorney, Golden, Colorado, for Respondent-Appellant

Philip J. Weiser, Attorney General, Ashley Barrett Carter, Assistant Attorney General, Denver, Colorado, for Appellee Board of Assessment Appeals

Opinion by JUDGE BERGER

¶ 1 This case requires us to address county tax assessors’ authority to correct errors in real property valuations. The Jefferson County Board of Commissioners (the county) appeals an order of the Board of Assessment Appeals (BAA) voiding the county's corrected notice of valuation (NOV) for real property owned by taxpayer Yen, LLC (Yen). Because it is undisputed that the county's corrected NOV did not correct an "error[ ] in the assessment roll," the correction did not meet the statutory criteria in section 39-5-125(2), C.R.S. 2020. The county therefore did not have the authority to correct the valuation error under that statute. We reject the county's other asserted bases for error correction, so we affirm the BAA's order.

I. Relevant Facts and Procedural History

¶ 2 Colorado assessors are statutorily required to mail an NOV to real property owners no later than May 1 in each year. § 39-5-121(1)(a)(I), C.R.S. 2020. About two weeks before this statutory deadline, the assessor mailed an NOV to Yen. This NOV valued Yen's commercial real property, a four-bay self-service car wash, at $99,715, which represented an approximate 5% increase from the prior year's valuation.

¶ 3 However, after mailing this NOV, for reasons not disclosed by the record, the assessor determined that the NOV undervalued Yen's property. To rectify this supposed undervaluation, the assessor mailed Yen a second NOV after the statutory deadline (corrected NOV). The corrected NOV valued the property at $299,099, nearly triple the assessed value in the original NOV.

¶ 4 Yen timely protested the valuation contained in the corrected NOV with the assessor, who denied the protest. Yen did not further appeal the protest denial.

¶ 5 Instead, as permitted under a separate statutory procedure, Yen petitioned for an abatement or refund with the county. See § 39-10-114, C.R.S. 2020. Yen asserted that the corrected NOV was void because the assessor did not have the statutory authority to issue the corrected NOV after the statutory deadline. The county denied the petition, and Yen appealed to the BAA.

¶ 6 The BAA concluded that the corrected NOV was void. The BAA reasoned that assessors must usually mail NOVs by the statutory deadline and that the corrected NOV did not fall under any of the statutorily prescribed exceptions to that requirement. Specifically, the BAA concluded that the corrected NOV did not fall under the statutory exception allowing for a change in value when the taxpayer protests an assessor's valuation because the corrected NOV was not issued in response to a protest by the taxpayer.

¶ 7 The BAA also concluded that the corrected NOV did not fall under the statutory exception pertaining to omissions and errors. Regarding omissions, the BAA reasoned that the corrected NOV did not correct an omission of property because the assessor had already complied with the statute by timely mailing an NOV valuing Yen's property. Regarding errors, citing section 39-5-125(2), the BAA explained that "the error here has not been shown to be a type that could be readily ascertained what was intended. No evidence has been presented that any such ... error has occurred."

¶ 8 The county appeals, and we have appellate jurisdiction under section 39-10-114.5(2), C.R.S. 2020.

II. Analysis

¶ 9 The county argues that the BAA erred by voiding the corrected NOV. Specifically, the county contends that it has the authority to send a corrected NOV at any time before it delivers the tax warrant to the state treasurer in January of the following year. Because the statutes governing property taxation do not authorize the corrected NOV in the circumstances presented here, we reject the county's argument.

A. Standard of Review and Statutory Construction

¶ 10 A challenge to an order of the BAA regarding a property tax assessment presents mixed questions of law and fact. Thibodeau v. Denver Cnty. Bd. of Comm'rs , 2018 COA 124, ¶ 6, 428 P.3d 706. We defer to the BAA's findings of fact if they are supported by the record. See id. at ¶ 7. But we review questions of law de novo, including the BAA's interpretation of relevant statutes. Id. at ¶ 6.

¶ 11 "When interpreting a statute, our primary aim is to effectuate the legislature's intent." Nieto v. Clark's Market , 2021 CO 48, ¶ 12, 488 P.3d 1140 ; see also Riley v. People , 104 P.3d 218, 220 (Colo. 2004). We look first to a statute's plain language. Bostelman v. People , 162 P.3d 686, 690 (Colo. 2007). This requires "reading applicable statutory provisions as a whole in order to accord consistent, harmonious, and sensible effect to all their parts." Prairie Mountain Publ'g v. Regents of Univ. of Colo. , 2021 COA 26, ¶ 12 (quoting People in Interest of W.P. , 2013 CO 11, ¶ 11, 295 P.3d 514 ). "If the statutory language is clear and unambiguous, we do not engage in further statutory analysis." Bostelman , 162 P.3d at 690.

¶ 12 "If a statute is ambiguous, the court, in determining the intention of the general assembly, may consider ... [t]he administrative construction of the statute." § 2-4-203(1)(f), C.R.S. 2020. "[W]hile agency interpretations should be given due consideration, they are ‘not binding on the court.’ " Nieto , ¶ 38 (quoting El Paso Cnty. Bd. of Equalization v. Craddock , 850 P.2d 702, 704-05 (Colo. 1993) ).

¶ 13 Fundamentally, "we must respect the legislature's choice of language, and we do not add words to the statute or subtract words from it." Oakwood Holdings, LLC v. Mortg. Invs. Enters., LLC , 2018 CO 12, ¶ 12, 410 P.3d 1249. "An exception not made by the legislature is not to be read into the statute." Lang v. Colo. Mental Health Inst. , 44 P.3d 262, 264 (Colo. App. 2001).

B. Law of Property Taxation

¶ 14 Colorado's Constitution provides that

[e]ach property tax levy shall be uniform upon all real and personal property ... within the territorial limits of the authority levying the tax. The actual value of all real and personal property ... shall be determined under general laws, which shall prescribe such methods and regulations as shall secure just and equalized valuations for assessments of all real and personal property.

Colo. Const. art. X, § 3 (1)(a).

¶ 15 To effectuate this constitutional mandate, the General Assembly enacted a comprehensive statutory framework. Section 39-5-121(1)(a)(I) provides, "[n]o later than May 1 in each year, the assessor shall mail to each person who owns land or improvements a notice setting forth the valuation of such land or improvements."

¶ 16 There are two statutory avenues by which a taxpayer may contest a property valuation. See Bea Kay Real Est. Corp. v. Aragon , 782 P.2d 837, 838-39 (Colo. App. 1989) (addressing prior versions of the two statutes). One avenue is a taxpayer protest under section 39-5-122, C.R.S. 2020.¹ If that protest is denied, the taxpayer "may appeal to the county board of equalization." § 39-5-122(3). The second avenue is under the abatement statute, which is the statutory basis for the matter before us. See § 39-10-114.

¶ 17 After the board of equalization completes protest appeals, the assessor compiles the assessment roll, listing the taxes due on all taxable property in the county. § 39-5-123(1)(a), C.R.S. 2020.

¶ 18 The statutes permit or mandate the correction of valuation errors in specific circumstances. For example, an assessor must correct errors that he or she discovers during a taxpayer protest under section 39-5-122(2). San Miguel Cnty. Bd. of Equalization v. Telluride Co. , 947 P.2d 1381, 1384 (Colo. 1997).

¶ 19 Errors must also be corrected under section 39-5-125(1) :

[W]henever it is discovered that any taxable property has been omitted from the assessment roll of any year or series of years, the assessor shall immediately determine the value of such omitted property and shall list the same on the assessment roll of the year in which the discovery was made ....

This provision, however, does not apply to "previously taxed property that has been undervalued." In Stitches, Inc. v. Denver Cnty. Bd. of Comm'rs , 62 P.3d 1080, 1081 (Colo. App. 2002). The In Stitches division concluded that the provision "authorize[s] retroactive assessments of property taxes only against ‘omitted property ,’ and not against ‘omitted value .’ " Id.

¶ 20 Errors may also be corrected under section 39-5-125(2) :

Omissions and errors in the assessment roll , when it can be ascertained therefrom what was intended, may be supplied or corrected by the assessor at any time before the tax warrant is delivered to the treasurer or by the treasurer at any time after the tax warrant has come into his hands.

(Emphasis added.)

¶ 21 The assessor must "deliver the tax warrant under his hand and official seal to the treasurer" by January 10 of the following year. § 39-5-129, C.R.S. 2020.

C. Correcting Errors in the Assessment Roll

¶ 22 The parties agree that this case does not involve a corrected valuation made during a taxpayer protest, nor does it involve omitted property. Instead, the county argues that it had the authority to issue a corrected NOV to remedy a valuation error under section 39-5-125(2) and the cases construing it.

¶ 23 While the county and the BAA disagree on the scope of error correction afforded under section 39-5-125(2), they agree that the provision...