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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 Abatement.
 
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