Hall County Board of Tax Assessors v. Avalon Hills Partners, LLC

The Hall County Board of Tax Assessors (BTA) contends that the superior court erred by denying its motion to dismiss the tax appeals of three companies: (i) Avalon Hills Partners, LLC; (ii) Elrod Road Development, LLC; and (iii) Clermont Station Development Partners, LLC (collectively hereinafter “LLCs”). The BTA acknowledges that the LLCs complied with the statutory procedure for filing returns of their real property for tax year 2009; 1 however, the BTA argues that, upon receiving the resulting 2009 notices of assessment, the LLCs failed to satisfy a separate statutory requirement for effectuating the distinct procedure of appealing from those assessments to the Hall County Board of Equalization (BOE). Specifically, the BTA points out that the LLCs failed to comply with OCGA § 48-5-311 (e) (2) (A)’s mandate of mailing or filing a notice of appeal within 30 days from the date of the assessment mailings. Consequently, the BTA asserts, the LLCs lost their right to appeal further to the superior court. 2

The LLCs counter that they did not lose that right. They point out that, in addition to filing tax returns, they communicated their disagreement with their property assessments through both written and oral communications with personnel of the Hall County Tax Assessors’ Office.

We agree with the BTA. Notwithstanding the measures taken by the LLCs, their failure to satisfy the cited statutory requirement *521 barred any further right to appeal. 3 Accordingly, we reverse the superior court’s denial of the BTA’s motion to dismiss the LLCs’ appeals.

The underlying properties at issue here are subdivision land lots owned by the LLCs. In January and early February 2009, the Hall County Tax Assessors’ office received three letters from the LLCs’ representative, Robbie Robison, each “requesting that you reduce our assessment^].” 4 In the letter written on Avalon’s behalf, Robi-son stated further that he was “authoriz[ed] ... to appeal the property taxes.” Along with the letters for the Elrod and Clermont properties, Robison submitted to the tax assessors’ office on February 6, returns for tax year 2009 proposing lower values.

Thereafter, the BTA issued notices dated April 8, 2009 to each LLC that each of their respective properties at issue was being assessed for tax year 2009 based on the value stated on the notice. The BTA’s values were significantly higher than those proposed by the LLCs. 5 Each one-page notice advised, in a prominent box on the bottom half of the page, that the notice was provided pursuant to OCGA § 48-5-306; that the LLC had the right to file an appeal with the BOE by giving written notice within 30 days; and that: “If you wish to file an appeal, you must do so in writing no later than 30 days after 04/08/2009 which is on or before 05/08/2009.” Each notice cautioned: “If you do not file an appeal by this date, your right to file an appeal will be lost.”

It is undisputed that none of the LLCs filed a written appeal within the specified 30-day period. Nevertheless, Robison thereafter requested and was granted a hearing for the LLCs before the BOE. At the hearing, the LLCs argued that they should not be barred from pursuing appeals to the BOE and proceeded to complain about their 2009 property assessments. The BTA countered that the LLCs had lost their right to appeal because they had not filed notices of appeal as statutorily mandated. The BOE decided that “No Change” would be made to the valuations.

The LLCs appealed to the superior court. 6 The BTA moved to *522 dismiss the appeals, maintaining that the LLCs had failed to comply with statutory mandates to obtain a tax appeal. After a hearing, the superior court denied the motion. We granted interlocutory review thereof. 7

OCGA § 48-5-306, which was expressly cited in the assessment notices to the LLCs, requires each county board of tax assessors to examine all the returns of real property of each taxpayer, and “if in the opinion of the board any taxpayer . . . has failed to return any of such taxpayer’s property at its fair market value, the board shall correct the returns.” 8 That Code section further provides that, when any such correction has been made by the board, the board shall give written notice to the taxpayer of any such changes made in such taxpayer’s returns; 9 and that the notice must include a “statement of the taxpayer’s right to an appeal” 10 and an admonition that, if the taxpayer wishes to file an appeal, the taxpayer must do so in writing within a specified number of days. 11

OCGA § 48-5-311 (e), governing a taxpayer’s appeal from an assessment by a board of tax assessors to the board of equalization as to matters of value, 12 instructs, “Appeals to the county board of equalization shall be conducted in the manner provided in paragraph (2) of this subsection.” 13 That paragraph pertinently sets forth:

An appeal shall be effected by mailing to or filing with the county board of tax assessors a notice of appeal within [30 14 ] days from the date of mailing the notice pursuant to Code Section 48-5-306. ... A written objection to an assessment of real property received by a county board of tax assessors stating the location of the real property and the *523 identification number, if any, contained in the tax notice shall be deemed a notice of appeal by the taxpayer. . . , 15

The LLCs conceded at the hearing that no such objection was submitted to the BTA within 30 days from the date of the assessment mailings. Notwithstanding, the LLCs argued at the hearing on the dismissal motion that their letters and returns — although received by the tax assessors’ office two or more months before the assessment notices were mailed — should serve as substitutes for the timely notices of appeal contemplated by OCGA § 48-5-311 (e). In support of that position, Robison testified that he had believed that he had appealed by submitting the January and February letters. Two of the letters, Robison recounted, he had personally delivered to the tax assessors’ office and informed a clerk at a window that he was “appealing my taxes.” Robison further recounted that he also had handed that clerk the tax returns at issue in this case. Having done so, Robison testified, “I thought I was appealing,” even though the pre-printed tax return forms were captioned, “TAXPAYER’S RETURN OF REAL PROPERTY.” Copies of the submitted returns introduced in evidence contained handwritten notations: “Appealing value Several lots.” But Robison testified that he had not written the notations, did not know who wrote them, and speculated they were added by that clerk.

Robison further testified that, also before the notices of assessment were sent, he had at least two conversations with an appraiser at the tax assessors’ office. While he acknowledged at the hearing, “I never talked to him about the appeals process[,]” Robison insisted at the hearing, “I was led to believe that I would be going in front of the Board of Appeals . . . and that I would receive a letter.” Robison therefore had waited for “[s]ome type of letter saying when my appeals date would be.” When he instead received the notices of assessment, Robison admitted, “I didn’t pay attention to [any such notice]. It’s not a tax bill, so I felt like I had already appealed my taxes. I didn’t read the fine print down at the bottom.”

Having considered the evidence and argument presented by the parties, the superior court ruled that the LLCs’ right to appeal had not been lost for failure to timely file notices of appeal. It found that the letters and returns that Robison had submitted — albeit before the 2009 assessments were mailed — had given the BTA “ample notice of [the LLCs’] desire to appeal the 2009 assessed values of [their] properties.” The superior court determined that the BTA was therefore not prejudiced because “[it] was on notice of [the LLCs’] *524 desire to appeal the assessed values.” And the superior court concluded that the record showed “premature appeals filed by [the LLCs that] became effective when the assessment notices were sent to [the LLCs].”

But under similar circumstances, the Supreme Court of Georgia held that the failure to file timely a notice of appeal extinguished the taxpayers’ right to appeal, even though the taxpayers had indicated disagreement with valuations before receiving the formal notices of assessment. In Peagler v. Georgetown Assoc., 16 the taxpayers received notices of proposed new valuations of their properties from a company that apparently had been authorized to determine fair market value. 17 The taxpayers contacted the company by letter requesting an appointment to discuss the valuations and thereafter placed at least two telephone calls requesting information as to a hearing date. 18 No date was ever set, 19 and when the board of tax assessors sent formal notices of assessment, the taxpayers failed to file a timely appeal therefrom. 20 The Court held:

The [taxpayers] failed to file a notice of appeal within the time provided by law from the official and only notice from the board of tax assessors. Regardless of the prior communications with the firm apparently employed by the Board of Tax Assessors to assist them in making valuations the appellees were not excused from complying with the provisions of the law relative to filing a notice of appeal from the official notice given by the Board of Tax Assessors. 21

While there are distinctions between the facts of that case and those here — e.g., Robison’s letters (and returns) were received directly by the tax assessors’ office, not a hired third party — we are guided by Peagler. Accordingly, we hold that the letters and returns submitted by Robison months before the assessment notices were mailed did not excuse the LLCs from complying with OCGA § 48-5-311 (e) (2) (A)’s requirement that a taxpayer mail or file a notice of appeal within 30 days “from the date of mailing the notice pursuant to Code Section 48-5-306.”

*525 This holding accords with the plain language, as well as the intent of OCGA § 48-5-311, which is “to ensure proper and timely notice to parties in tax appeals and to provide procedures which expedite the tax appeal process.” 22 As the BTA asserts in its appellate brief, to hold otherwise would place an unintended and “impossible burden on the tax assessor’s office to interpret what might constitute an appeal of a [future] tax assessment.” 23 And as the BTA argued at the hearing, the LLCs’ position conflates two statutorily distinct procedures: returning property and appealing assessments. 24

The LLCs assert that “[i]t is undisputed that [they] submitted notices indicating their desire to appeal the value assessment of their respective properties.” But the only assessments of their properties at the time they “submitted notices” were those for tax year 2008, and it was far too late to appeal from those assessments to the BOE. 25 And as discussed above, construing the “submitted notices” as notices of appeal with respect to 2009 assessments contravenes the intent and plain language of OCGA § 48-5-311.

Finally, the LLCs argue that the letters and returns should be construed as premature notices of appeal from the 2009 tax assessments, citing the non-tax case, In the Interest of J. D. A. 26 Given the statutory framework governing tax returns and tax appeals, together with the fact that at the time the letters and returns were submitted and received by the tax assessors’ office, the 2009 assessments for the properties had not yet been made, 27 we reject the LLCs’ argument. Because the factual, procedural, and statutory underpinnings of the instant case render it inapposite from In the Interest ofJ D. A., 28 that case does not provide for an outcome in the LLCs’ favor.

The LLCs failed to comply with OCGA § 48-5-311 (e) so as to effectuate an appeal to the BOE; 29 consequently, their appeals to the superior court should have been dismissed. 30

Judgment reversed.