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August 2000


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Charles Merriman <[log in to unmask]>
Reply To:
Vermont Municipal Government Discussion Network <[log in to unmask]>
Mon, 21 Aug 2000 15:13:14 -0400
text/plain (210 lines)
Hi John:

I re-read my message in light of your note.  It is inaccurate to suggest
that my message contained the reasoning you imply.  Obviously, a town should
never hold back information from its citizens (and noncitizens) regarding
tax options or any other matter of public record.  But that is not the issue
here. The issue is first, whether towns are legally required to provide such
notice in BCA decisions. Second, if there is no legal requirement to do so,
whether Towns should include such notice in BCA decisions anyway.

A BCA decision simply does not threaten to deprive the recipient of a
property right.  Therefore, the due process issues that were addressed in
the Blanchard case do not apply and BCA notices do not need to include
abatement information.

Should Towns include the information anyway?  They certainly can if they
wish.  But at best, they would be performing an empty service for the
recipient.  As I pointed out in my previous note, many BCA decisions are
rendered before the Town has issued tax bills. Informing a recipient of
his/her right to seek abatement on a liability that has not attached is
illogical.  The taxpayer couldn't act on the notice until after the tax bill
issued.  A notice which essentially tells recipients, 'don't forget,
somewhere down the line you may want to seek abatement' is, frankly, inane.

As you're probably aware, the abatement statute (24 VSA 1535) is extremely
narrow in scope.  The Board of Abatement may abate taxes in the following
cases and NO others: (1) taxpayer died insolvent, (2) taxpayer was removed
from the state, (3) taxpayer is unable to pay his/her taxes, (4) taxes
contain manifest error or mistake, (5) taxed property was destroyed or lost,
(6) taxpayer who is eligible for the Veteran's exemption missed the deadline
on that exemption, (7) the tax is a use change tax and taxpayer is an apple
farmer enrolled in current use who had to sell off some of his farm to keep
the remainder of the farm solvent, and (8) the tax is a use change tax and
taxpayer is subject to the tax because of the death or permanent physical
incapacity of the farmer.

I am willing to wager that there are very few taxpayers in any given town
who could meet the jurisdictional requirements of the Board of Abatement.
Notwithstanding one's expertise at wordsmithing, including notice of
abatement rights in BCA decisions is more likely to raise false expectations
among taxpayers than provide meaningful notice to persons who could benefit
from section 1535.  If a Town wishes to provide meaningful notice, it ought
to find a meaningful vehicle for providing the notice.  BCA decisions are
not the correct vehicle.

Charles Merriman

----- Original Message -----
From: John Howland <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, August 18, 2000 6:25 PM
Subject: Re: Fw: Should BCA Decisions Include Notice of Appellant's Right

> 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
> confuse them.
> 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
> right.
> 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
> taxpayer's options at every step of the way.
> John Howland Jr.
> Burlington
> ------Original Message------
> 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
> 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
> 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
> 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
> 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
> seeks to deprive an individual of a property interest through a tax sale.
> (Protections against the deprivation of property without due process of
> are contained in the 14th Amendment to the United States Constitution and
> Chapter I, Article 10 of the Vermont Constitution.)  By comparison, most
> 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
> property is not at issue in assessment appeals and the analysis supporting
> the superior court's decision does not really apply to BCA decisions.
> 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
> to a reasoned and timely decision, the right to be inspected by a
> 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
> BCAs do not have to apprise taxpayers of their right to seek abatement
> Having said all that, I suspect that some BCAs will consider erring on the
> side of caution by including abatement information in their decision
> 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
> this information in a BCA decision.
> As you know, Boards of Abatement do not have authority to abate or
> alter assessments.  They do, under a narrow set of circumstances, have the
> authority to "abate in whole or in part taxes, interest, and collection
> 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
> 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
> only a "heads up" to the taxpayer that sometime down the line, after the
> bill has issued and after the taxpayer has exhausted his/her appeal
> the taxpayer may seek abatement for the tax that has accrued.  Including
> explanation of an inchoate right in a BCA decision regarding a
> 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,
> 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
> Abatement.  This hypothetical, unfortunate taxpayer comes before the
> comparables in hand, cost sheets in hand, only to find that the Board
> 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
> 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
> Abatement.
> BCA decisions should, of course, continue to include the language
> 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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