As both an old tax assessor and former English teacher, I'm uncomfortable
with any line of reasoning that concludes that we should refrain from
telling the citizens something about their tax options because we might
Seems to me that the English language offers sufficient resources to allow
us to keep folks fully informed -- we just have to be careful to do it
Perhaps it would be useful here to differentiate between what public
officials are legally REQUIRED to do and what else we OUGHT to do anyway,
without any legal requirement.
I'd come down on the side of full (and carefully worded) disclosure about a
taxpayer's options at every step of the way.
John Howland Jr.
From: Charles Merriman <[log in to unmask]>
To: [log in to unmask]
Sent: August 18, 2000 5:40:20 PM GMT
Subject: Fw: Should BCA Decisions Include Notice of Appellant's Right
Hi Listers, Selectboard Members, JPs, Town Clerks and others interested in
BCA tax appeal procedures:
As many of you know, a recent superior court decision held in the context of
a delinquent tax sale that towns must give taxpayers adequate notice of
their right to request abatement of taxes and the procedure for doing so
before selling the taxpayer's property. In the words of the court, a ". .
.Town must provide [a property owner] with an adequate notice of her right
to apply for tax abatement, before the Town can validly acquire her property
by means of a tax sale." Town of Windsor v. Blanchard, Docket Number
S528-11-99 Wrcv (April 4, 2000).
The question has come up whether BCA decisions should also notify appellants
of their right to apply for tax abatement. In my opinion, the court's
reasoning in the Blanchard case -- a tax sale case --- does not apply to BCA
decisions. I also believe that adding this additional information to your
BCA decisions, while not wrong, is unnecessary and may prove confusing.
Therefore, I recommend that you not include notice and explanation of the
taxpayer's right to seek tax abatement in your BCA decisions.
The Blanchard case addressed the process required by law when the government
seeks to deprive an individual of a property interest through a tax sale.
(Protections against the deprivation of property without due process of law
are contained in the 14th Amendment to the United States Constitution and
Chapter I, Article 10 of the Vermont Constitution.) By comparison, most BCA
cases address the proper assessed value that should be applied to a
property. BCA decisions do not threaten to deprive anyone of a property
interest. Therefore, the constitutional imperative that the government
provide notice of one's right to seek abatement before depriving a person of
property is not at issue in assessment appeals and the analysis supporting
the superior court's decision does not really apply to BCA decisions. There
are rather extensive procedural rights that apply by statute to assessment
appeals; i.e., the right to receive notice, the right to be heard, the right
to a reasoned and timely decision, the right to be inspected by a committee
of the BCA, the right to appeal, etc. In my view, the BCA meets its due
process obligations when it fulfills these statutory mandates. In my view,
BCAs do not have to apprise taxpayers of their right to seek abatement also.
Having said all that, I suspect that some BCAs will consider erring on the
side of caution by including abatement information in their decision notices
anyway. Is there any harm in doing that? Perhaps not. However before you
do so, you may want to consider the confusion likely to arise from including
this information in a BCA decision.
As you know, Boards of Abatement do not have authority to abate or otherwise
alter assessments. They do, under a narrow set of circumstances, have the
authority to "abate in whole or in part taxes, interest, and collection fees
accruing to the town . . ." 24 VSA 1535. Accrue means "to come into
existence as a claim that is legally enforceable." The American Heritage
College Dictionary, 9 (3rd ed. 1997). Since there is often no tax that has
accrued at the time the BCA sends out its decision (indeed no issued tax
bill to abate), the Board of Abatement can't really hear the taxpayer's
request and would have to dismiss the request.
Therefore, at its best, including abatement information in a BCA decision is
only a "heads up" to the taxpayer that sometime down the line, after the tax
bill has issued and after the taxpayer has exhausted his/her appeal rights,
the taxpayer may seek abatement for the tax that has accrued. Including an
explanation of an inchoate right in a BCA decision regarding a non-existent
tax bill probably will create confusion for the taxpayer.
For example, imagine that a taxpayer mistakenly interprets the notice to
mean that there is a third avenue of appeal from the BCA -- the Board of
Abatement. Since appearing before the Board of Abatement costs nothing, and
since appeals to superior court cost $150 and appeals to the state
appraisers cost $30, the taxpayer may think the best choice is the Board of
Abatement. This hypothetical, unfortunate taxpayer comes before the board,
comparables in hand, cost sheets in hand, only to find that the Board can't
hear him because his tax hasn't accrued yet. Even if his tax has accrued,
the taxpayer may find that he doesn't meet the "unable to pay" criterion nor
any of the other 7 narrow criteria for abatement requests. There are all
his old friends sitting as the Board of Abatement (BCA members along with
the listers and town treasurer constitute the Board of Abatement). And
these people who apprised him of his right to go before the Board of
Abatement now tell him he doesn't have a cognizable basis for being before
them. Then they tell him he loses. Then he finds out that his other
avenues of appeal have expired. With some justification, that taxpayer
(whose assessment arguments could be right, after all) may feel slightly
beleaguered. In fairness to that taxpayer, I recommend that the town find
some other way to apprise its community of the existence of the Board of
BCA decisions should, of course, continue to include the language informing
the taxpayer of his/her appeal rights beyond the BCA.
I hope these notes help. Please e-mail me at [log in to unmask] if
you have any follow-up questions.
Charles L. Merriman
Attorney for the Division of Property Valuation and Review, Vermont
Department of Taxes
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