(536 P.2d 1168)
No. 74-200Colorado Court of Appeals.
Decided April 15, 1975. Rehearing denied May 6, 1975. Certiorari granted July 14, 1975.
Taxpayer brought action alleging that erroneous real property assessment valuation notice had operated to preclude it from pursuing its administrative and judicial remedies relative to the property assessment valuation. From dismissal of complaint, taxpayer appealed.
Affirmed
1. TAXATION — Erroneous Assessment Notice — Objections — Purely Technical — Not Interfere — Collection — Public Revenue — Taxpayer — Not Complaint. Since in action by taxpayer premised on erroneous assessment notice, the taxpayer did not specify in its complaint nor introduce any evidence on any of the specific statutory bases for challenging an assessment valuation, the objection to the erroneous notice was purely technical, and that objection being without substantial merit, it should not interfere with the collection of the public revenue; nor may the taxpayer complaint about the erroneous notice.
2. Erroneous Assessment Notice — Knowledge — Taxpayer — Duty — Make Investigation — Not — Shift Burden — Claim Negligence. Since the taxpayer knew, or should have known, that first notice of assessment that it
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received was in error, that knowledge placed the taxpayer under a duty to investigate the actual assessment records on file in the assessor’s office, and since there is no question that such an investigation could have been conducted so as to allow the timely filing of a protest to the assessment, the taxpayer may not now put upon the public officials the burden which rested on it, nor, by blaming the officials, excuse its own negligence in failing to obtain the correct assessment.
Appeal from the District Court of the County of Adams, Honorable Oyer G. Leary, Judge.
Wallace, Armatas Hahn, David Hahn, for plaintiff-appellant.
Berger, Rothstein, Gehler Cohen, David Berger, for defendants-appellees.
Division I.
Opinion by JUDGE BERMAN.
Plaintiff, Modular Communities, Inc., (Modular) appeals from a judgment denying its claim for return of $16,635.49 for property taxes paid under protest to the Adams County Treasurer. We affirm.
On May 28, 1971, the assessor of Adams County mailed to Modular a notice of assessed valuation on land and improvements owned by Modular. This notice advised Modular that the assessed valuation of its property for the year 1971 had been increased from $36,950, the assessed valuation for the year 1970, to $192,320 for the year 1971, or an increase of $155,370. This notice was mailed pursuant to § 39-5-121, C.R.S. 1973 (at that time 1965 Perm. Supp., C.R.S. 1963, 137-5-21(1)).
Shortly after January 1, 1972, Modular received a tax statement from the treasurer of Adams County showing the total valuation for the property to be $352,050 instead of the valuation shown in the May 28 notice. This represented a $16,635.49 difference in taxes, which Modular paid under protest.
Thereafter, Modular filed a complaint in district court seeking a return
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of the $16,635.49, claiming that the failure of the assessor to give Modular proper statutory notice of the change in the assessed valuation of its property was a denial of its substantive rights in that its time for a hearing before the assessor, the county board of equalization, the state board of assessment appeals, and then to the district court, had expired prior to the receipt of the tax statement.
Defendants answered admitting that the notice of May 28 had been mailed, but asserting that the notice “mistakenly reported the assessed valuation of the property at $192,320.00 instead of at $352,050.00 the correct determination of assessed value made by the Assessor,” and “that the plaintiff knew or should have known that the Notice of assessed valuation was in error, which error was patent on the face of said Notice of assessed valuation.”
After trial, the court made findings of fact that the assessment was made in the tax assessor’s record by June 1, and showed the property to be of the value of $1,173,490; that there was an error in the notice of assessment mailed to the plaintiff on May 28, but that the assessment as it appeared on the assessor’s records was always properly recorded with the correct figure and the assessor’s records had been properly certified on the tax assessment roll that was sent to the treasurer on or before December 31, 1971; that Modular’s complaint did not allege either that the assessment was erroneous or excessive; and that Modular knew or should have known that the figures on the May 28 notice of assessment were in error and that this was patent on the face of the notice.
The court ruled that an allegation that the assessment was either erroneous or excessive was essential to any administrative review of the assessor’s actions. Hence, since Modular had made no such allegation, the trial court dismissed Modular’s complaint and entered judgment for defendants. Modular then filed this appeal.
Modular’s appeal is based upon questions of law and it does not content that the findings of the trial court are not supported by the evidence.
In dismissing the complaint, the trial court ruled that Modular could
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have protested under § 39-5-122, C.R.S. 1973, even after the receipt of the tax statement in January, and that, if it were deprived of its opportunity to protest, it could have asked the court to direct the assessor to consider its protest. Modular urges that this ruling of the trial court was error and that the failure to give it timely notice under § 39-5-121, C.R.S. 1973, of the correct amount of the increased valuation deprived it of the right to administrative relief.
Under the facts of this case it was unnecessary for the trial court to rule on Modular’s post-January protest rights, and our affirmance of its judgment should not be considered as approval of such rulings. See Fellers-Schoonmaker Homes, Inc., v. Five Star Homes Real Estate, Inc., 158 Colo. 163, 405 P.2d 677.
Modular, in its complaint, did not claim that its property had been “valued too high, or [had] been twice valued, or [was] exempt by law from taxation, or that [it] did not own taxable property on the assessment date, or that property [had] been erroneously assessed to [it].” Section 39-5-122(2), C.R.S. 1973. Therefore, Modular had no basis upon which it could appear before the assessor to present an objection and protest. The appearance before the assessor with “objection and protest,” which are then “refused or denied,” is a prerequisite to an appeal to the county board of equalization. Section 39-5-122(3), C.R.S. 1973, and § 39-8-106(1), C.R.S. 1973.
[1] Not having specified in its complaint nor introduced any evidence as to any of the above grounds upon which it desired to protest to the assessor, Modular was not entitled to file an initial protest before the assessor, and, as a result, it was not entitled to the additional administrative remedies authorized by statute. Hence, the objection to the notice is purely technical and such objections, “without substantial merit, should not interfere with the collection of the public revenue.” Haley v. Elliott, 20 Colo. 379, 38 P. 771. Since Modular had no grievance as to the assessed valuation, it could not complain about the improper notice. See Citizens’ Committee for Fair Property Taxation v. Warner, 127 Colo. 121, 254 P.2d 1005. [2] Additionally, since, by an unchallenged finding of the districtPage 42
court, Modular knew, or should have known, that the May 28 notice of assessment was in error, and since this error was found to be patent on the face of said notice, this knowledge placed Modular under a duty to investigate the actual assessment records on file in the assessor’s office. “The prime objective of [Modular’s obligation in] seeking to inquire [would be] to ascertain the assessed valuation of [its] property in order to determine whether [it] should present a protest.” Northcutt v. Burton, 127 Colo. 145, 254 P.2d 1013.
There is no question that Modular received the notice of assessment shortly after its mailing date and within sufficient time to have made an actual investigation of the assessor’s records and to have filed a protest during the month of June 1971. Having failed to do this, Modular may not now put upon the public officials the burden which rested upon its own shoulders, nor by blaming the officials, excuse its own negligence in failing to obtain the correct assessment by pursuit of the avenues open to it through the assessor’s records. Northcutt v. Burton, supra. Any prejudice which it claims to have suffered was due to its own inaction and it may not now complain thereof.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN concurs specially.
JUDGE KELLY dissents.
CHIEF JUDGE SILVERSTEIN specially concurring:
I would affirm the judgment of the trial court. However, I would base the affirmance solely on the ground that since Modular had no grievance as to the assessed valuation, it had no valid complaint about the improper notice, and the objection to the levy is purely technical and without substantial merit. Haley v. Elliot, 20 Colo. 379, 38 P. 771. See Citizens’ Committee for Fair Property Taxation v. Warner, 127 Colo. 121, 254 P.2d 1005.
JUDGE KELLY dissenting.
I respectfully dissent.
In my view, the majority opinion puts the cart before the horse. The fact that Modular did not allege in its complaint the statutory grounds set forth in § 39-1-122(2), C.R.S. 1973, for administrative review by the
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assessor begs the question whether Modular was given a proper notice as required by § 39-5-121, C.R.S. 1973, as a necessary prerequisite to that administrative review. Nor do I agree that Northcutt v. Burton, 127 Colo. 145, 254 P.2d 1013, imposes on the taxpayer the duty to investigate and examine the assessor’s records to determine the accuracy of the assessor’s notice of increased valuation.
The issue in this case is whether a taxpayer is entitled to due process and there is nothing equivocal about Colorado statutes and judicial decisions on that question. Both Goldsmith v. Standard Chemical Co., 77 Colo. 1, 233 P. 1110 and Gale v. Statler, 47 Colo. 72, 105 P. 858, address this problem and stand for the propositions that notice is essential; that it is a substantial right; and that compliance with the statutory requirements is a condition precedent to the validity of a tax levy.[1]
Section 39-5-121, C.R.S. 1973, requires that:
“No later than the first day of June in each year, the assessor shall mail to each person whose taxable personal property has been valued at an amount greater than that returned by him in his personal property schedule and to each person whose land or improvements has been valued at an amount greater than the same was valued in the previous year a notice setting forth the amount of such increase in valuation.”
Section 39-5-122, C.R.S. 1973 requires the assessor to hold public hearings at which a taxpayer may appear to present objection and protest if the taxpayer “is of the opinion that his property has been valued too high, or has been twice valued, or is exempt by law from taxation, or that he did not own taxable property on the assessment date, or that property has been erroneously assessed to him.”
If denied relief by the assessor, a taxpayer is given the right to appeal, first to the county board of equalization as authorized by § 39-8-104, C.R.S. 1973 and § 39-8-107, C.R.S. 1973, and then to the board of assessment appeals pursuant to § 39-8-108, C.R.S. 1973. Only after
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pursuit of these administrative remedies may a taxpayer seek judicial review under the administrative code. Section 39-8-108(2), C.R.S. 1973 See Denver v. Athmar Park Building Co., 151 Colo. 424, 378 P.2d 638 Simmons v. Board of County Commissioners, 146 Colo. 392, 361 P.2d 769.
The statutory provisions affording these administrative remedies to taxpayers clearly manifest the legislative intent that these administrative procedures be concluded within the calendar year in which the property was assessed. The assessor is required to conclude his administrative hearings by the last working day in June, § 39-5-122(4), C.R.S. 1973; the county board of equalization is required to conclude its hearings on appeal by the last business day of July, § 39-8-107(2), C.R.S. 1973; and the board of assessment appeals is required by § 39-2-125(1)(c), C.R.S. 1973 to decide appeals from the county board of equalization within 30 days after the date of its hearing “or by the last day of the same calendar year, whichever is the earlier date.” Additionally, § 39-2-126, C.R.S. 1973 establishes “the property tax valuations for the current year” in the event “the finality of a decision of the board of assessment appeals is suspended until after the last day of the calendar year by a pending judicial review.”
In the absence of express statutory language authorizing a taxpayer to pursue these administrative remedies beyond the calendar year in which the property was assessed, the courts cannot engraft such provisions onto the tax statutes. See Jones v. People, 155 Colo. 148, 393 P.2d 366. Therefore, the trial court’s rulings that Modular could have protested to the assessor in the succeeding year, or, if denied a hearing, that the trial court could have ordered the assessor to hear Modular’s protest, were without foundation in law.
That these statutory provisions provide the exclusive remedy for obtaining relief from excessive, erroneous, or illegal tax assessments seems clear. See South Broadway National Bank v. Denver, 51 F.2d 703 (10th Cir.); Denver v. Athmar Park Building Co., supra; Simmons v. Board of County Commissioners, supra. This conclusion is fortified by the legislature’s elimination of the duality of the legal remedies formerly provided, which was so clearly addressed by our Supreme Court in Simmons,
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supra. Compare C.R.S. 1963, 137-1-15(2) and C.R.S. 1963, 137-2-34 and 3 with 1965 Perm. Supp., C.R.S. 1963, 137-10-14(1) (now § 39-10-114(1), C.R.S. 1973) and 1965 Perm. Supp., C.R.S. 1963, 137-5-22(2) (now §39-5-122(2), C.R.S. 1973).
As a result of these statutory changes, all of a taxpayer’s remedies, whether the grounds be excessive valuation of the property or an entirely erroneous and illegal assessment, are now reposed in the provisions of §39-5-122(2), C.R.S. 1973. Except for actions to obtain injunctive relief from the collection of taxes, there is no longer authority for direct resort to the courts for judicial review of such matters.
It follows, “as the night the day,”[2] that strict compliance with the requirements of § 39-5-121, C.R.S. 1973 is mandatory. See Holly Sugar Corp. v. Board of Commissioners, 10 F.2d 506 (D. Colo.); Tallon v. Vindicator Consolidated Gold Mining Co., 59 Colo. 316, 149 P. 108. Plainly, Goldsmith v. Standard Chemical Co., supra, and Gale v. Statler, supra, compel the conclusion that Modular was denied a substantive right, requiring invalidation of the tax levy.
The judgment should be reversed and the cause remanded with directions to reinstate the complaint and enter judgment for plaintiff modifying the valuation for assessment of its property to $192,320 and ordering the defendants-appellees to comply with the requirements of § 39-8-109, C.R.S. 1973.
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