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HomeMy WebLinkAboutAgenda - 11-17-1998 - 9cORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: November 17, 1998 Action Agenda Item No. R ~ C SUBJECT: Frances Mikles Property Tax Refund Request DEPARTMENT: Assessor's Office PUBLIC HEARING: (Y/N) BUDGET AMENDMENT: (Y/N) 1~0 ~:' ATTACHMENT(S): Resolution Tax Refund Requests INFORMATION CONTACT: John Smith, Jr., ext 2101 TELEPHONE NUMBERS: Hillsborough 732-8181 Chapel Hill 968-4501 Durham 688-7331 Mebane 227-2031 PURPOSE: To consider adoption of refund resolution related to 1 request for property tax refund. BACKGROUND: General Statute 105-381(b), "Action of Governing Body" provides that "upon receiving a taxpayer's written statement of defense and request for release or refund, the governing body of the Taxing Unit shall within 90 days after receipt of such a request determine whether the taxpayer has a valid defense to the tax imposed or any part thereof and shall either release or refund that portion of the amount that is determined to be in excess of the correct liability or notify the taxpayer in writing that no release or refund will be made". At the November 4, 1998 meeting, the Board considered a request from Mrs. Frances Mikles to refund a portion of property taxes that she paid for tax years 1993 through 1997. The requested refund totals $759.99. The Assessor's office ascertained that she had been improperly taxed for 288 square feet of heated space, which should have been taxed instead as an unheated carport. This error has been corrected for 1998 and subsequent tax years. The County Attorney advised that the measurement error involved in this case is not a "clerical error" within the meaning of the applicable statute, and that there is not a statutory basis for granting the requested refund. The Board's vote was 2-2 on a motion to grant the refund request by Mrs. Mikles. The Board indicated that it would like to take this issue up again when all Board members will be present at the November 17 meeting. Per the County Attorney's advice, parliamentary procedure requires that one of the Board members who did not vote in favor of the November 4 motion (Commissioners Carey, Crowther, or Gordon) must make a motion to reconsider this item and that motion must be carried in order for the Board to reconsider the tax refund request of Mrs. Mikles. If the Board adopts such a motion, the Board would then conduct a separate vote on the refund request itself. RECOMMENDATION: As the Board decides. ?a Map Nbr:4.42E..13 Tract Nbr: 421609 Account Nbr: 80810 Rate Code: 23 Name: Frances Mikles & Toni Mikles Address: 109 Nutbush Ct. Hillsborough, NC 27278 Action Requested: Request property tax refund for 1993 - 1997. Recommendation: Disapprove total property tax refund of $759.99 Explanation: Home was listed with dimensions of 52 ft x 24 ft. The true dimensions are 40 ft x 24 ft. The owner is requesting refund based on incorrect measurements. Error does not fall under the valid defense for a refund as defined in G.S. 105-381 (a) (1): a tax imposed through clerical error, an illegal tax, or a tax levied for an illegal purpose. See attached letter from county attorney Geoff Gledhill. Reference: General Statute 105-381(a)(1) NORTH CAROLINA ORANGE COUNTY REFUND RESOLUTION (Denial) Whereas, North Carolina General Statutes 105-381 allows for the refund of taxes when the Board of County Commissioners determines that a taxpayer applying for the refund has a valid defense to the tax imposed; and Whereas, the properties listed in each of the attached "Request for Property Tax Refunds" has been taxed and the tax has been collected: and Whereas, as to each of the properties listed in the Request for Property Tax Refunds, the taxpayer has timely applied in writing for a refund of the tax imposed but has not presented a valid defense to the tax imposed as indicated on the Request for Property Tax Refunds. NOW, THEREFORE, IT IS RESOLVED BY THE BOARD OF COUNTY CONIlVIISSIONERS OF ORANGE COUNTY THAT the property tax refund(s) recommended for denial are denied. Upon motion duly made and seconded, the foregoing resolution was passed by the following votes: Ayes: Commissioners Noes: I, Beverly A. Blythe, Clerk to the Boazd of Commissioners for the County of Orange, North Carolina, DO HEREBY CERTIFY that the foregoing has been cazefully copied from the recorded minutes of the Boazd of Commissioners for said County at a regulaz meeting of said Board held on said record having been made in the Minute Book of the minutes of said Boazd, and is a true copy of so much of said proceedings of said Board as relates in any way to the passage of the resolution described in said proceedings. WITNESS my hand and the corporate seal of said County, this day of 199 3 Clerk to the Board of Commissioners NORTH CAROLINA ORANGE COUNTY REFUND RESOLUTION (Approval) Whereas, North Carolina General Statutes 105-381 allows for the refund of taxes when the Board of County Commissioners determines that a taxpayer applying for the refund has a valid defense to the tax imposed; and Whereas, the properties listed in each of the attached "Request for Property Tax Refunds" has been taxed and the tax has been collected: and Whereas, as to each of the properties listed in the Request for Property Tax Refunds, the taxpayer has timely applied in writing for a refund of the tax imposed and has presented a valid defense to the tax imposed as indicated on the Request for Property Tax Refunds. NOW, THEREFORE, IT IS RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF ORANGE COUNTY THAT the recommended property tax refund(s) are approved. Upon motion duly made and seconded, the foregoing resolution was passed by the following votes: Ayes: Commissioners Noes: I, Beverly A. Blythe, Clerk to the Board of Commissioners for the County of Orange, North Carolina, DO HEREBY CERTIFY that the foregoing has been cazefully copied from the recorded minutes of the Boazd of Commissioners for said County at a regulaz meeting of said Boazd held on said record having been made in the Minute Book of the minutes of said Board, and is a true copy of so much of said proceedings of said Board as relates in any way to the passage of the resolution described in said proceedings. WITNESS my hand and the corporate seal of said County, this day of 199 3a Clerk to the Board of Commissioners LAW OFFTCFS COLEMAN, GLEDHILL & HARGRAVE A FROFESSIONAL CORPORATION 129 E. TRYON STREET P. O. DRAWER 1529 HILLSBOROUGH, NORTH CAROLINA 27278 919.732.2196 FAX 929.732.7997 September 11, 1998 Mr. John Smith Orange County Tax Assessor Post Office Box 8181 Hillsborough, North Carolina 27278 FROM THE DESK OF GEOFFREY E. GLEDHILL RE: Measurement Error as Basis for a Tax Refund Dear John: This letter confirms my view that appraisal mistakes, measurement or otherwise, do not give a basis for a release or refund of property taxes. They do give a basis for a prospective correction under G.S. § 105-287. A measurement mistake does not create an illegal tax on the theory that "the property taxed 'was not there.'" On the other hand if a structure is determined to not be there or to have been removed, then a release or refund would be appropriate under the illegal tax authority. I recognize that the distinction between the two situations is a "fine" one. However, I think it is the right one if Orange County is to avoid converting every measurement mistake made in the tax assessment process into an illegal tax. Very truly yours, GLEDHILL & HARGRAVE, P.C. E. Gledhill GEG/lsg 4 mydocuments\smith4.ltr Orange County Tax Assessor's Office 5 PO Box 8181 Hillsborough, NC 27278 Orange County Tax Office October 2, 1998 Frances Mikles 109 Nutbush Ct. Hillsborough, NC 27278 Dear Ms. Mikles: Re: 4.42E..13 This is in response to your letter requesting a property tax refund due to a significant measurement error in the listing of your home. Based on my inspection and re-measurement of your home, I found that you have been taxed for 288 square feet more than actually exists. This error occurred when the county appraiser measured your home and included the 12-foot carport, located on the end of your home, as part of the heated square feet measurement. As a result, your home has been listed with measurements of 24 x 52 instead of the correct measurements of 24 x 40. On the day that I inspected your home and verified the error, you and I spoke about the possibility of a tax refund. I explained that once your written request for refund was received, I would review the applicable statutes governing refunds. I also explained that, if a refund could be made then you would be entitled to a refund equal to up to five years of overpayment. My review of the laws governing refunds, lead me to believe that there was a possibility of a refund but that it was somewhat of a gray area. I say this since the error, in my opinion, was clearly an appraisal error which is not refundable, there was the possibility that we could consider the taxation of 288 non-existent square feet to be a duplication of taxation which is refundable. In the process that we go through in qualifying refunds, the county attorney reviewed the details of the refund request and indicated to me that the error is appropriately considered to be an appraisal error rather than an error of duplication or double taxation. In conclusion, your tax records have been corrected for 1998 and your tax bill has been adjusted as well. Related to the refund request, I have decided to recommend to the Board Of County Commissioners that the five Should you have questions please call John Smi 732-8181 ext 2101. . October- 2, 1994 Pcrge 2 year refund totaling $759.99 be denied. It is my expectation that your refund request will be considered during the Commissioners meeting scheduled for November 4th, 1998. I am recommending placing it on the agenda for this meeting so that it will be most convenient for you to attend since the meeting will be in Hillsborough, in the new courthouse, in the newly constructed F. Gordon Battle Courtroom, at 7:30 PM. I know that the commissioners would be very interested in hearing from you on this issue and I hope that you will be able to attend. I hope you understand that refund decisions are some of the most difficult decisions that I have to make. There are several reasons as to why this is. One reason is that the laws governing refunds are often gray, there is very little case law to help us in determining the proper decision, plus tax laws often are simply "not fair" to the taxpayer. Another serious consideration is also the personal liability that the laws of North Carolina place on the commissioners when they approve a refund. Since each commissioner can be held personally liable for refunds they approve, that are not properly approved under the statutes, each refund has to be carefully considered. Ultimately, only the commissioners can approve or deny a refund request such as yours. Should the recommendation to deny be accepted by the board then you still have the opportunity to be heard by the North Carolina Property Tax Commission and by the courts of the state. Whatever the outcome, the county commissioners, and I understand your concern and the unfairness of the situation. Please keep in touch and I personally will continue working in every capacity possible to assist you. Sincerely 6 Smith,` AE range County