Summary
In Reiss, our supreme court determined a board of review may deny a taxpayer a hearing for failing to complete the objection form in writing, as required by Wis. Stat. § 70.47(7)(a).
Summary of this case from Fee v. Board of Review for Town of FlorenceOpinion
November 3, 1965. —
December 1, 1965.
APPEAL from a judgment of the circuit court for Washington county: MILTON L. MEISTER, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Richard V. Reiss of Milwaukee.
For the respondent there was a brief by Simester, Schowalter Bunk of West Bend, and oral argument by Henry O. Schowalter.
Certiorari to review a decision of the Board of Review of the town of Erin and to set aside an assessment.
Taxpayer Robert W. Reiss is the owner of 197.4 acres of land, with improvements, in the town of Erin. As of May 1, 1964, it was assessed at $21,000 for the land and $19,500 for the improvements, a total of $40,500. Taxpayer filed a purported written objection with the clerk of the board of review. The objection was on a printed form entitled "Form of Objection to Property Assessment Sec. 70.47(7) Wisconsin Statutes." It is conceded that this printed form is furnished by the state department of taxation.
As originally filed the information called for by the form was only partially supplied.
Hearings were held before the board on July 30, August 10, August 13, and August 14, 1964. At the opening of the hearing on July 30th, attorney Schowalter, on behalf of the town, stated that the form on file did not contain answers to the following questions:
"If recently purchased or constructed, state year and price paid."
"If improvements were added since, what was their nature."
"And value."
"What is the present fair market value of this property."
"Amount of fire insurance carried on buildings."
Attorney Richard Reiss, on behalf of taxpayer, called the assessor adversely. Attorney Schowalter objected to further proceedings until the form of objection was completed. Apparently at this point Attorney Reiss or the taxpayer inserted written answers for some of the unanswered questions.
Attorney Schowalter then questioned the taxpayer and elicited further answers for some of the questions, but the taxpayer replied, with respect to the fair market value of the property, "I don't know. I couldn't possibly answer that." Apparently some of the answers which had been inserted were crossed out and new ones substituted. There was further colloquy concerning the completion of the form and it was decided to adjourn until August 10th. Attorney Reiss said, "At that time we shall file the new and amended form of objection to the property assessment. This one is completely butchered up."
At the opening of the hearing on August 10th, Attorney Reiss stated, "I do not propose to amend, or file any other form than the one that's on file." After a colloquy it was stipulated that the board would allow the taxpayer to proceed on the merits, subject to the objection that the form had not been completed. It was agreed the board had not waived that statutory requirement.
Attorney Reiss then continued his examination of the assessor. This apparently lasted from 7 p. m. until five minutes before midnight, and filled 61 pages of transcript.
On August 13th, Attorney Reiss continued the examination of the assessor, apparently from 7 p. m. until 10 p. m., filling 46 pages of transcript. The board adjourned until August 14th.
When the board convened on August 14th, the chairman announced that the "Objector has failed to file a properly completed objection in writing, and the Board not having waived the requirement that such objection be in writing, and such objection not having been filed as the Statutes require, the 1964 Board will now adjourn." On motion made, seconded, and unanimously carried, the board adjourned.
Taxpayer then obtained a writ of certiorari to review the action of the board and set aside the assessment.
Upon examination of the record, the circuit court concluded that the board did not waive the requirement that taxpayer file his objections by answering the questions on the printed form; that taxpayer did not comply with the statute; and that the board was justified in refusing to continue with the hearing. In its memorandum decision the court said:
"I feel that I must comment further on the fact that in my opinion the members of the Board of Review made every effort to give the plaintiff a fair hearing. They spent a great deal of time on the matter of this objection and continually urged the plaintiff to properly prepare his form of objection. The record further discloses that the examination of the assessor was accomplishing no useful purpose and bordered on harassment rather than an attempt to give helpful information to the Board of Review. . . ."
Judgment quashing the proceeding was entered April 23, 1965. Taxpayer appealed. Additional facts will be referred to in the opinion.
The critical question is whether taxpayer never obtained a right to a hearing because he failed to file a completed form of objection. If he had a right to a hearing, then the board improperly terminated it. If he had no right to a hearing, he cannot complain of the board's refusal to continue.
The controlling statute is sec. 70.47(7) (a), Stats. It provides:
"Objections to the amount or valuation of property shall first be made in writing and filed with the clerk of the board of review prior to adjournment of public hearings by the board. If the board is in session 5 days, including its first meeting and any adjourned meetings, all objections shall be filed within such time unless failure to file within such time is waived by the board upon a showing of good cause for such failure. The board may require such objections to be submitted on forms approved by the department of taxation. No person shall be allowed in any action or proceedings to question the amount or valuation of property unless such written objection has been filed and such person in good faith presented evidence to such board in support of such objections and made full disclosure before said board, under oath of all of his property liable to assessment in such district and the value thereof. The requirement that it be in writing may be waived by express action of the board."
The record shows that the board consistently took the position that the form filed by the taxpayer was incomplete and insufficient, and that the board did not waive the requirement that a proper written objection be filed. Apparently on August 10th, the board was willing to permit taxpayer to present his case on the merits so that if the court should ultimately rule, as claimed by the taxpayer, that the objection he filed was sufficient, the merits would have been heard and further hearing would be unnecessary. After spending many hours on August 10th and 13th, listening to cross-examination of the assessor, the members of the board evidently concluded that the presentation of the merits would consume a great deal of time and that it was better to abandon the original plan. The hearing was then terminated.
We have previously quoted the comment of the learned circuit judge, indicating that no useful purpose was being accomplished by the examination of the assessor, and upon our reading of the record, we agree.
The printed form involved in this matter is reproduced herewith. Taxpayer contends that the form consists of two parts: (1) The objection, and (2) information in support of the objection. Part (1), according to taxpayer, is the upper portion of the page, in which the description of property, amount of assessment, and reasons for objection are to be filled in. This portion, according to taxpayer, closes with the words: "and it is requested that this assessment be reviewed as provided for by law." Part (2), according to taxpayer, is the lower portion of the page, beginning: "In support of this objection, the following pertinent information is submitted."
Taxpayer had completed part (1), but had not supplied the information called for in part (2).
We consider the types of information called for in part (2) to be relevant to the issues ordinarily raised on objection to an assessment, helpful to the board in the performance of its duty, and not unduly burdensome to the taxpayer. The statute does not specify the elements which must be included in a written objection, but does provide: "The board may require such objections to be submitted on forms approved by the department of taxation." We interpret the statute as giving the board, with the approval of the department, reasonable latitude in specifying relevant information which must be supplied as part of a written objection.
Taxpayer would concede that the board can insist upon the completion of part (1), but would deem the completion of part (2) optional. We, however, conclude that the entire form is authorized by the statute, and the board may insist upon completion of it.
During the hearing on July 30th, answers were written in a number of the blanks in part (2). Some were crossed out and others substituted. The final answer to "What is the present fair market value of the property" was "I do not know." Even if it were considered that the board had accepted the answers to other questions, this answer remained insufficient. Surely the single most important fact relevant to an assessment is the fair market value of the property, and a taxpayer who desires to proceed with an objection in good faith must be prepared to take a position as to what the fair market value is. Fair market value is not conclusive, where, for instance, the property in the taxing district is consistently underassessed, but it is always relevant.
Taxpayer contends that answers to part (2) constitute written evidence and cites State ex rel. deForest v. Hobe as holding that only oral and not written evidence can be considered by a board of review. The Hobe Case, however, involved a deposition, and relied upon the part of the statute requiring the board to examine persons who appear. The present statute expressly authorizes the board to compel the production of documentary evidence. In any event, sec. 70.47(7) (a), Stats., authorizes, in our opinion, the form which the department has approved and the board insisted upon.
(1905), 124 Wis. 8, 102 N.W. 350.
Sec. 70.47(8) (d), Stats.
Taxpayer argues that the real reason the board decided to terminate the hearing was that the assessor's testimony demonstrated that he had followed an illegal method of assessment. The written objection being insufficient, the board's motive in terminating the hearing may be immaterial. We consider it appropriate to say, however, that the suggestion that the board terminated the hearing in order to save an obviously improper assessment is unwarranted.
In 1963 the total assessment had been $27,000, and it was taxpayer's position that he had not added $13,500 in improvements and therefore the $40,500 assessment in 1964 was excessive.
It appears from the assessor's testimony, however, that the property had been originally assessed in the light of use for farming. It had just, however, been taken over by a commercial enterprise known as Powder Horn Limited. The land was to be used, on a fee basis, for hunting, hiking, swimming, fishing, horseback riding, and a day camp. One pond had been constructed and construction was about to begin on a second. The assessor concluded from this development of a new, commercial, use that portions of the land (marsh and woodland, for instance) had greater value than had been determined when considered as parts of a farm. The taxpayer had remodeled a house, formerly assessed at $1,600, and the assessor testified that he and taxpayer had talked about its value, and agreed on an assessment of $7,000.
A fact which taxpayer did produce at the hearing, although the assessor had not known it, was that taxpayer purchased the property in March, 1963, fourteen months before the assessment, for $45,000. Improvements were made to some extent, and these facts strongly suggest that the fair market value on May 1, 1964, was in excess of the $40,500 assessment.
". . . A taxpayer has, no complaint when a valuation which could ordinarily be obtained therefor at private sale is placed upon his property, unless there is such a general undervaluation of the other property of the assessment district as will result in an excessive tax as to him." By the Court. — Judgment affirmed.
State ex rel. Walthers v. Jung (1921), 175 Wis. 58, 61, 183 N.W. 986.
I consider the form although "somewhat butchered" with answers to be completely filled out and sufficient. No question is left unanswered. The position of the board of review and of the majority of the court rests on the slender thread of the answer "I don't know" as being insufficient to a factual inquiry of what is the present fair market value of the property. This question did not ask the owner's opinion as to the fair market value or what value he was claiming. The inquiry sought a factual answer which is adequately answered by "I don't know." If the question be considered as calling for the owner's opinion, the answer is of little importance because the objection of the owner is to the value of the property as determined by the assessor.
I think the board of review was wrong in discontinuing the hearing on the ground of an alleged incompleteness of the form. This action cannot be justified by make-weight reasons that the examination of the assessor was time-consuming and a harassment and the majority's indication the owner probably would not win in any event because of the purchase price of the land and of the court's view of the assessor's testimony. The evidence relating to the merits of the objection has no bearing on whether the board could discontinue the hearing for the reason it gave.
I would reverse.