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
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