ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 484
(Senators McCabe, Prezioso, Fanning, Boley, Plymale, K. Facemyer, Wells and
Minard, original sponsors)
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[Passed April 11, 2009; in effect ninety days from passage.]
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AN ACT to amend and reenact §11-3-1, §11-3-2a, §11-3-10, §11-3-12,
§11-3-15, §11-3-19, §11-3-24, §11-3-24a and §11-3-25 of the
Code of West Virginia, 1931, as amended; to amend said code by
adding thereto eleven new sections, designated §11-3-15a,
§11-3-15b, §11-3-15c, §11-3-15d, §11-3-15e, §11-3-15f,
§11-3-15g, §11-3-15h, §11-3-15i, §11-3-25a and §11-3-32; and
to amend said code by adding thereto a new article, designated
§11-6J-1, §11-6J-2, §11-6J-3, §11-6J-4, §11-6J-5, §11-6J-6 and
§11-6J-7, all relating to taxation of real and personal
property for ad valorem property tax purposes; making
technical corrections in certain code sections; accelerating
date for issuance of notices of increase in assessed value of
real property; updating forfeiture penalties for failure to
file required property tax reports and returns; clarifying report and return filing requirements; accelerating due dates
for filing reports and returns; requiring assessors to notify
owners of commercial business personal property of increases
in assessed values for current assessment year by an
established deadline; providing procedures for property owners
to protest notices of assessed valuation; providing procedures
for obtaining appropriate adjustments from county assessors;
providing for appeal of protested assessments to county board
of equalization and review and circuit court; providing for
protest of classification or taxability to Tax Commissioner;
providing methods for assessment of industrial property and
natural resources property; establishing time and basis for
assessments; providing for pertinent definitions; specifying
form and manner of making returns; establishing criminal
penalties for failure to file; providing for tentative
appraisals by Tax Commissioner and notification to taxpayers;
providing procedures for informal review of tentative
appraisals; making of final appraisals; transmitting final
appraisals to assessors; providing for appeals; authorizing
reductions of assessments upon instruction of Tax Commissioner
in certain circumstances; and specifying effective dates.
Be it enacted by the Legislature of West Virginia:
That §11-3-1, §11-3-2a, §11-3-10, §11-3-12, §11-3-15,§11-3-19,
§11-3-24, §11-3-24a and §11-3-25 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by
adding thereto eleven new sections, designated §11-3-15a, §11-3-15b,
§11-3-15c, §11-3-15d, §11-3-15e, §11-3-15f, §11-3-15g, §11-3-15h,
§11-3-15i, §11-3-25a and §11-3-32; and that said code be amended by
adding thereto a new article, designated §11-6J-1, §11-6J-2,
§11-6J-3, §11-6J-4, §11-6J-5, §11-6J-6 and §11-6J-7, all to read as
follows:
ARTICLE 3. PROPERTY TAX ASSESSMENTS GENERALLY.
§11-3-1. Time and basis of assessments; true and actual value;
default; reassessment; special assessors; criminal
penalty.
(a) All property, except public service businesses assessed
pursuant to article six of this chapter and industrial property and
natural resources property assessed pursuant to article six-j of
this chapter and section ten, article one-c of this chapter, shall
be assessed annually as of July 1 at sixty percent of its true and
actual value, that is to say, at the price for which the property
would sell if voluntarily offered for sale by the owner thereof,
upon the terms as the property, the value of which is sought to be
ascertained, is usually sold, and not the price which might be
realized if the property were sold at a forced sale.
(b) Any conflicting provisions of subsection (a) of this
section notwithstanding, the true and actual value of all property
owned, used and occupied by the owner thereof exclusively for residential purposes shall be arrived at by giving primary, but not
exclusive, consideration to the fair and reasonable amount of income
which the same might be expected to earn, under normal conditions
in the locality wherein situated, if rented:
Provided, That the true
and actual value of all farms used, occupied and cultivated by their
owners or bona fide tenants shall be arrived at according to the
fair and reasonable value of the property for the purpose for which
it is actually used regardless of what the value of the property
would be if used for some other purpose; and that the true and
actual value shall be arrived at by giving consideration to the fair
and reasonable income which the same might be expected to earn under
normal conditions in the locality wherein situated, if rented:
Provided, however, That nothing herein shall alter the method of
assessment of lands or minerals owned by domestic or foreign
corporations.
(c) The taxes upon all property shall be paid by those who are
the owners thereof on the first day of the assessment year whether
it be assessed to them or others.
(d) If at any time after the beginning of the assessment year,
it be ascertained by the Tax Commissioner that the assessor, or any
of his or her deputies, is not complying with this provision or that
they have failed, neglected or refused, or is failing, neglecting
or refusing after five days' notice to list and assess all property
therein at sixty percent of its true and actual value as determined under this chapter, the Tax Commissioner may order and direct a
reassessment of any or all of the property in any county, district
or municipality, where any assessor, or deputy, fails, neglects or
refuses to assess the property in the manner herein provided. And,
for the purpose of making assessment and correction of values, the
Tax Commissioner may appoint one or more special assessors, as
necessity may require, to make assessment in any county and any such
special assessor or assessors, as the case may be, has the power and
authority now vested by law in assessors, and the work of such
special assessor or assessors shall be accepted and treated for all
purposes by the county boards of review and equalization and the
levying bodies, subject to any revisions of value on appeal, as the
true and lawful assessment of that year as to all property valued
by him or her or them. The Tax Commissioner shall fix the
compensation of all special assessors appointed, which, together
with their actual expenses, shall be paid out of the county fund by
the county commission of the county in which any such assessment is
ordered, upon the receipt of a certificate of the Tax Commissioner
filed with the clerk of the county commission showing the amounts
due and to whom payable, after such expenses have been audited by
the county commission.
(e) Any assessor who knowingly fails, neglects or refuses to
assess all the property of his or her county, as herein provided,
shall be guilty of malfeasance in office and, upon conviction thereof, shall be fined not less than $100 nor more than $500, or
imprisoned not less than three nor more than six months, or both,
in the discretion of the court, and upon conviction, shall be
removed from office.
(f) For purposes of this article, the following terms have the
meaning ascribed to them in this section unless the context in which
the term is used clearly indicates that a different meaning is
intended by the Legislature:
(1) "Assessment year" means the twelve-month period that begins
on July 1 of the year preceding the tax year:
Provided, That in the
case of industrial or natural resources property appraised by the
Tax Commissioner, "assessment year" means the twelve-month period
that begins on the first day of January of the year preceding the
tax year.
(2) "Tax year" or "property tax year" means the calendar year
in which property taxes for that tax year are first due to be paid.
(3) "Taxpayer" means the owner and any other person in whose
name the taxes on the subject property are assessed.
§11-3-2a. Notice of increased assessment required for real
property; exceptions to notice
.
(a) If the assessor determines the assessed valuation of any
item of real property appraised by him or her is more than ten
percent greater than the valuation assessed for that item in the
last tax year, the increase is $1,000 or more and the increase is entered in the property books as provided in section nineteen of
this article, the assessor shall give notice of the increase to the
person assessed or the person controlling the property as provided
in section two of this article. The notice shall be given on or
before January 15 of the tax year and advise the person assessed or
the person controlling the property of his or her right to appear
and seek an adjustment in the assessment:
Provided, That this
notification requirement does not apply to industrial or natural
resources property appraised by the Tax Commissioner under article
six-j of this chapter which is assessed at sixty percent of its
appraised value as determined by the Tax Commissioner. The notice
shall be made by first-class United States postage mailed to the
address of the person assessed or the person controlling the
property for payment of tax on the item in the previous year, unless
there was a general increase of the entire valuation in any one or
more tax districts in which case the notice shall be by publication
of the notice by a Class II-0 legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this code.
The area for the publication is the county. The requirement of
notice under this section is satisfied and waived if personal notice
of the increase is shown by:
(1) The taxpayer having signed the assessment form after it had
been completed showing the increase;
(2) Notice was given as provided in section three-a of this article; or
(3) The person assessed executing acknowledgment of the notice
of the increase.
(b) During the initial reappraisal of all property under
section seven, article one-c of this chapter, the Tax Commissioner
and each county assessor shall send every person owning or
controlling property appraised by the Tax Commissioner or the county
assessor a pamphlet which explains the reappraisal process and its
equalization goal in a detailed yet informal manner. The Property
Valuation Training and Procedures Commission, created under section
three, article one-c of this chapter, shall design the pamphlet for
use in all counties while allowing individual county information to
be included if it determines that the information would improve
understanding of the process.
§11-3-10. Failure to list property, etc.; collection of penalties
and forfeitures.
(a) If any person, firm or corporation, including public
service corporations, whose duty it is by law to list any real
estate or personal property for taxation, refuses to furnish a
proper list thereof or refuse to list within the time required by
law, or if any person, firm or corporation, including public service
corporations, refuses to answer or answers falsely any question
asked by the assessor or by the Tax Commissioner, or fails or
refuses to deliver any statement required by law, the person, firm or corporation may forfeit, at the discretion of the assessor or the
Tax Commissioner for good cause shown, $25 for a first failure or
refusal; $50 for a second failure or refusal; and $100 for a third
and each subsequent failure or refusal and for each third or
subsequent failure or refusal the person, firm or corporation shall
be denied all remedy provided by law for the correction of any
assessment made by the assessor or by the Board of Public Works.
(b) If any person, firm or corporation, including public
service corporations, required by law to make return of property for
taxation, whether the return is to be made to the assessor, the
Board of Public Works, or any other assessing officer or body, fails
to return a true list of all property which should be assessed in
this state, the person, firm or corporation, in addition to all
other penalties provided by law, shall forfeit one percent of the
value of the property not yet returned and not otherwise taxed in
this state.
(c) A forfeiture as to all property aforesaid may be enforced
for any default occurring in any year not exceeding five years
immediately prior to the time the default is discovered.
(d) Each failure to make a true return as herein required
constitutes a separate offense, and a forfeiture shall apply to each
of them, but all forfeitures, to which the same person, firm or
corporation is liable, shall be enforced in one proceeding against
the person, firm or corporation, or against the estate of any deceased person, and may not exceed five percent of the value of the
property not returned that is required to be returned for taxation
by this chapter.
(e) Forfeitures shall be collected as provided in article two,
chapter eleven-a of this code, the same as any tax liability,
against the defaulting taxpayer, or in case of a decedent, against
his or her personal representative. The sheriff shall apportion
such fund among the state, county, district, school district and
municipalities which would have been entitled to the taxes upon the
property if it had been assessed, in proportion to the rates of
taxation for each levying unit for the year in which the judgment
was obtained bears to the sum of rates for all.
(f) When the list of property returned by the appraisers of the
estate of any deceased person shows an amount greater than the last
assessment list of real and tangible personal property of the
deceased person next preceding the appraisal of his or her estate,
it is prima facie evidence that the deceased person returned an
imperfect list of his or her property:
Provided, That any person
liable for the tax, or his or her personal representative, may
always be permitted to prove by competent evidence that the
discrepancy between the assessment list and the appraisal of the
estate is caused by a difference of valuation returned by the
assessor and that made by the appraisers of the same property or by
property acquired after assessment, or that any property enumerated in the appraisers' list had been otherwise listed for taxation, or
that it was not liable for taxation.
(g) Any judgment recovered under this section is a lien, from
the time of the service of the notice, upon all real estate and
personal property of the defaulting taxpayer, owned at the time or
subsequently acquired, in preference to any other lien.
§11-3-12. Assessment of corporate property; reports to assessors
by corporations.
(a) Each incorporated company, banking institution and national
banking association, foreign or domestic, having its principal
office or chief place of business in this state, owning property
subject to taxation in this state, except railroad, telegraph and
express companies, telephone companies, pipeline, car line companies
and other public utility companies, shall annually, between the
first day of the assessment year and September 1, make a written
report, verified by the oath of the president or chief accounting
officer, to the assessor of the county in which its principal office
or chief place of business is situated or in which property subject
to taxation in this state is located if the corporation does not
have a principal office or chief place of business in this state,
showing the following items: (1) The quantity, location and fair
market value of all of its real estate, and tax district or
districts in which it is located; and (2) the kinds, quantity and
fair market value of all its tangible property in each tax district in which it is located.
(b) The oath required for this section shall be substantially
as follows:
State of West Virginia, County .........., ss:
I, .........., president (treasurer or manager) of (here insert
name of corporation), do solemnly swear (or affirm) that the
foregoing is, to the best of my knowledge and judgment, true in all
respects; that it contains a statement of all the real estate and
tangible personal property that the value affixed to such property
is, in my opinion, its value, by which I mean the price at which it
would sell if voluntarily offered for sale on such terms as are
usually employed in selling such property, and not the price which
might be realized at a forced or auction sale; and said corporation
has not, to my knowledge, during the sixty-day period immediately
prior to the first day of the assessment year converted any of its
assets into nontaxable securities or notes or other evidence of
indebtedness for the purposes of evading the assessment of taxes
thereon; so help me, God.
The officer administering the oath shall append thereto the
following certificate:
Subscribed and sworn to before me by .......... this the
.......... day of.........., 20 .....
....................
(c) The amendments to this section enacted in the year 2009 shall be effective for assessment years beginning on and after July
1, 2010.
§11-3-15. Assessment of capital used in trade or business by
natural persons or unincorporated businesses.
(a) The value of the capital used by any individual or firm not
incorporated, in any trade or business taxable by law, shall be
ascertained in the following manner: The owner, agent or chief
accountant of every trade or business, except the business of
agriculture, carried on in any county of the state, shall, annually,
between the first day of the assessment year and September 1 of the
current year, make a written report as of the first day of the
assessment year, to the assessor, verified by his or her affidavit,
showing the following matters and things:
(1) The amount, the true and actual value and classification
of all tangible personal property used in connection with the trade
or business, other than that regularly kept for sale therein,
including chattels real and personal;
(2) The true and actual value and classification of all goods
and property kept for sale and remaining unsold; and
(3) The location, quantity, the true and actual value and
classification of all real estate owned by the individuals or firm
and used in the trade or business.
(b) The assessor shall, upon the receipt of such report,
properly verified, if the assessor is satisfied with the correctness thereof, enter the real estate in the land book of the county in the
tax district wherein the same is situated and assess the same with
taxes, if not otherwise assessed, to the owner thereof:
Provided,
That the personal property mentioned in the report shall be entered
in the personal property book of the county for assessment with
taxes as follows: Items (1) and (2) shall be entered in the tax
districts where they are for the greater part of the year kept of
any or located; and item (3) shall be entered under their
appropriate heading, in the municipality or tax district wherein the
principal place of business of the individual or firm is located in
this state.
(c) If the assessor is not satisfied with the correctness of
the report, the assessor may proceed to ascertain a correct list of
the property on which the individual or firm is liable to be
assessed with taxes, and to value the same as in other cases.
(d) The person making the report shall take and subscribe an
oath in substantially the following form:
I, ..............., do solemnly swear (or affirm) that the
foregoing list is true and correct to the best of my knowledge; that
the value affixed to the property therein listed I believe to be the
true and actual value thereof; that none of the assets belonging to
(here state the name of individual or firm) and used in the business
of (here describe the business) have to my knowledge, since the
first day of the assessment year, been converted into nontaxable securities for the purpose of evading the assessment of taxes
thereon; so help me, God.
The officer administering the oath shall append thereto the
following certificate:
Subscribed and sworn to before me by (here insert affiant's
name) this ........... day of ..............., 20 ...........
§11-3-15a. Assessment of property of limited liability companies.
Limited liability companies that elect to be treated as a
corporation for federal income tax purposes shall make and file the
report required of corporations in section twelve of this article.
Limited liability companies treated as a partnership for federal
income tax purposes shall make and file the report required of
partnerships in section fifteen of this article. A limited
liability company that elects to be treated as a disregarded entity
for federal income tax purposes shall be treated as a disregarded
entity under this article and its owner shall make and file the
report required by section twelve or section fifteen of this article
depending upon whether the owner is a corporation, a firm or an
individual.
§11-3-15b. Notice of increase in assessed value of business
personal property.
(a) On or before January 15 of the tax year, the assessor shall
mail a notice of assessed value to any corporation, partnership,
limited partnership, limited liability company, firm, association, company or other form of organization engaging in business activity
in the county showing the aggregated assessed value of taxpayer's
tangible personal property situated in the county on July 1 of the
assessment year, if known, that is not appraised by the Tax
Commissioner:
Provided, That notice is only required if:
(1) The aggregated assessed value of taxpayer's tangible
personal property used in business activity is more than ten percent
greater than the aggregated assessed value of the property in the
prior tax year; and
(2) The aggregated assessed value of property has increased by
more than $100,000 since the prior tax year.
However, this notification requirement does not apply to
industrial or natural resources personal property that is appraised
by the Tax Commissioner under article six-j of this chapter which
is assessed at sixty percent of its appraised value as determined
by the Tax Commissioner.
(b) The assessor shall include in the assessment notice:
(1) The assessed value of the property for the preceding
assessment year and the taxes levied on that value;
(2) The proposed assessed value of the property for the current
assessment year and that taxes that may be levied on that value,
assuming the levy rates are neither increased or decreased;
(3) The classification of the property pursuant to section one,
article X of the constitution of this state;
(4) The mailing date of the notice; and
(5) The last date on which the taxpayer may file a petition
for
review with the assessor from the valuation or classification
assigned to the property.
(c) The notice required by this section shall be in writing,
in the form prescribed by the Tax Commissioner, and mailed to the
taxpayer's last known mailing address.
(d) No later than the sixteenth day of the tax year, the
assessor shall certify to the county commission and to the Tax
Commissioner the date on which all notices under this section were
mailed.
(e) After the mailing date of the notice any person who owns,
claims, possesses or controls property that is valued by the
assessor may inquire of and be advised by the assessor as to the
valuation of the property determined by the assessor.
(f) The owner or person in possession of the tangible personal
property may petition the assessor for review as provided in section
fifteen-d of this article.
§11-3-15c. Petition for assessor review of improper valuation of
real property.
(a) A taxpayer who is of the opinion that his or her real
property has been valued too high or otherwise improperly valued or
listed in the notice given as provided in section two-a of this
article may, but is not required to, file a petition for review with the assessor on a written form prescribed by the Tax Commissioner.
This section shall not apply to industrial and natural resource
property appraised by the Tax Commissioner.
(b) The petition shall state the taxpayer's opinion of the true
and actual value of the property and substantial information that
justifies that opinion of value for the assessor to consider for
purposes of basing a change in classification or correction of the
valuation. For purposes of this subsection, the taxpayer provides
substantial information to justify the opinion of value by stating
the method or methods of valuation on which the opinion is based:
(1) Under the income approach, including the information
required in section fifteen-e of this article;
(2) Under the market approach, including the true and actual
value of at least one comparable property in the same geographic
area or the sale of the subject property; or
(3) Under the cost approach, including the cost to build or
rebuild the property plus the true and actual value of the land.
(c) The petition may include more than one parcel of property
if they are part of the same economic unit according to the Tax
Commissioner's guidelines or if they are owned by the same owner,
have the same use, are appealed on the same basis and are located
in the same tax district or in contiguous tax districts of the
county, and are in a form prescribed by the Tax Commissioner.
(d) The petition shall be filed within five days after the date the taxpayer receives the notice of increased assessment under
section two-a of this article or the notice of increased value was
published as a Class II-0 legal advertisement as provided in that
section.
§11-3-15d. Administrative review of tangible personal property
valuation by assessor.
(a) The owner of business tangible personal property that is
valued by the assessor or the person in whose possession it is found
on July 1 of the assessment year may appeal to the assessor within
five days after the date the notice of increased assessment required
by section fifteen-b of this article was received by filing a
petition with the assessor on a form prescribed by the Tax
Commissioner. The petition shall set forth in writing:
(1) The taxpayer's opinion of the value of the tangible
personal property; and
(2) Substantial information that justifies the opinion of value
in order for the assessor to consider the information for the
purpose of basing a change in the valuation.
(b) The assessor shall rule on each petition within five days
after it is filed.
(c) The notice of the assessor's ruling provided under this
section shall be given in the same manner as prescribed in section
fifteen-h of this article.
(d) If the request of the petitioner is denied, in whole or in part, the notice required by subsection (c) of this section shall
include the grounds for refusing to grant the request contained in
the petition.
(e) This section shall not apply to tangible personal property
appraised by the Tax Commissioner as part of an industrial or
natural resources property appraisal.
§11-3-15e. Contents of petition based on income approach to value
of real property.
(a) A petition that is filed with the assessor under section
fifteen-c or fifteen-d of this article based on the income approach
to value shall include income and expense data relating to the
property for the three most recent consecutive fiscal years of the
petitioner ending on or before June 30 preceding the then current
assessment year. If the income and expense data is available to the
petitioner, the petitioner shall file with the petition such income
and expense data as is available. The Tax Commissioner, by rule,
may establish additional information to be filed if the required
income and expense data are not available.
(b) If a petitioner under this article uses the income approach
to determine valuation, the petitioner, an officer of a corporate
petitioner, a general partner or a designated agent shall file a
sworn affidavit under penalty of perjury that the information
contained in the petition is true and correct to the best of the
petitioner's knowledge.
§11-3-15f. Rejection of petition for failure to include
substantial information; amended petition; appeal.
If the assessor rejects a petition filed pursuant to section
fifteen-c, fifteen-d or fifteen-e of this article, the petitioner
may appeal to the county board of equalization and review as
provided in section twenty-four of this article.
§11-3-15g. Meeting between assessor and petitioner.
(a) At the petitioner's written request, the assessor or a
member of his or her staff shall meet with the petitioner and the
petitioner's representative, if any, at a time and place designated
at least three working days in advance by the assessor after the
petition is filed.
(b) If the petitioner is unable to appear and meet with the
assessor at the time and place set by the assessor, the petitioner
may submit written evidence to support the petition if it is
submitted before the date of the meeting.
§11-3-15h. Ruling on petition.
(a) In all cases the assessor shall consider the petition and
shall rule on each petition filed pursuant to section fifteen-c,
fifteen-d or fifteen-e of this article by January 28 of the
assessment year. Written notice shall be served by regular mail on
the person who filed the petition.
(b) In considering a petition filed pursuant to section
fifteen-c, fifteen-d or fifteen-e of this article, the assessor shall consider the valuation fixed by the assessor on other similar
property that is similarly situated.
§11-3-15i. Petitioner's right to appeal.
(a) If the assessor grants the requested relief, the petitioner
may not appeal the ruling of the assessor.
(b) If the petitioner and the assessor reach an agreement
within five business days after the conclusion of the meeting held
as provided in section fifteen-g of this article, both parties shall
sign the agreement and both parties waive the right to further
appeal.
(c) If all or part of the petitioner's request under section
fifteen-c, fifteen-d or fifteen-e of this article is denied, the
assessor shall mail, on the date of the ruling, to the petitioner
at the address shown on the petition notice of the grounds of the
refusal to make the change or changes requested in the petition.
A petitioner whose request is denied, in whole or in part, or a
petitioner who does not receive a response from the assessor by
January 28, as provided in section fifteen-h of this article, may
file a protest with the county commission sitting as a board of
equalization and review, as provided in section twenty-four of this
article.
§11-3-19. Property books; time for completing; extension of
levies; copies.
The assessor shall complete the assessment and make up the assessor's official copy of the land and personal property books in
time to submit the same to the board of equalization and review not
later than February 1 of the assessment year. The assessor shall,
as soon as practicable after the levy is laid, extend the levies on
the land and personal property books, and shall forthwith make three
copies of the land books and two copies of the personal property
books with the levies extended. One of the copies of the land books
shall be delivered to the sheriff not later than June 7; one copy
shall be delivered to the clerk of the county commission not later
than July 1; and one copy shall be sent to the State Auditor not
later than July 1. One of the copies of the personal property books
shall be delivered to the sheriff and one copy shall be delivered
to the clerk of the county commission on or before the same date
fixed above for the delivery of the land books. The copies shall
be official records of the respective officers. The assessor may
require the written receipt of each of the officers. Before
delivering any of the copies the assessor shall make and subscribe
the following oath at the foot of each of them:
I, ................., assessor of the county of .............,
do solemnly swear, (or affirm) that in making the foregoing
assessment I have to the best of my knowledge and ability pursued
the law prescribing the duties of assessors and that I have not been
influenced in making the same by fear, favor or partiality; so help
me, God.
...............................................................
assessor.
The officer administering the foregoing oath shall append
thereto a certificate in substantially the following form:
Subscribed and sworn to before me, a .................. for
the County of .............. and State of West Virginia, by
.........., assessor for said county, this the ...... day of
.........., 20.
§11-3-24. Review and equalization by county commission.
(a) The county commission shall annually, not later than the
first day of February, meet as a board of equalization and review
for the purpose of reviewing and equalizing the assessment made by
the assessor. The board shall not adjourn for longer than three
business days at a time until this work is completed and shall not
remain in session for a longer period than twenty-eight days and
shall not adjourn sine die before February 15.
(b) At the first meeting of the board, the assessor shall
submit the property books for the current year, which shall be
complete in every particular, except that the levies shall not be
extended. The assessor and the assessor's assistants shall attend
and render every assistance possible in connection with the value
of property assessed by them.
(c) The board shall proceed to examine and review the property
books, and shall add on the books the names of persons, the value of personal property and the description and value of real estate
liable to assessment which was omitted by the assessor. The board
shall correct all errors in the names of persons, in the description
and valuation of property, and shall cause to be done whatever else
may be necessary to make the assessed valuations comply with the
provisions of this chapter. But in no case shall any question of
classification or taxability be considered or reviewed by the board.
(d) If the board determines that any property or interest is
assessed at more or less than sixty percent of its true and actual
value as determined under this chapter, it shall fix it at sixty
percent of its true and actual value. But no assessment shall be
increased without giving the taxpayer at least five days' notice,
in writing, of the intention to make the increase and no assessment
shall be greater than sixty percent of the appraised value of
property valued by the Tax Commissioner.
(e) Service of notice of the increase upon the taxpayer shall
be sufficient, or upon his or her agent or attorney in person, or
if sent by registered or certified mail to the property owner, his
or her agent, or attorney, at the last known mailing address of the
person as shown in the records of the assessor or the tax records
of the county sheriff. If such person cannot be found and has no
last known mailing address, then notice shall be given by
publication thereof as a Class I legal advertisement in compliance
with the provisions of article three, chapter fifty-nine of this code and the publication area shall be the county. The date of the
publication shall be at least five days, not including a Saturday,
Sunday or legal holiday in this state, prior to the increase. When
the board intends to increase the entire valuation in any one tax
district by a general increase, notice shall be given by publication
thereof as a Class II-0 legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code and the
publication area shall be the county. The date of the last
publication shall be at least five days, not including a Saturday,
Sunday or legal holiday in this state, prior to the meeting at which
the increase in valuation is ordered by the board. When an increase
is made, the same valuation shall not again be changed unless notice
is again given as heretofore provided.
The clerk of the county commission shall publish notice of the
time, place and general purpose of the meeting as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area shall be
the county. The expense of publication shall be paid out of the
county treasury.
(f) If a taxpayer fails to apply for relief at this meeting,
the taxpayer shall have waived the right to ask for correction in
the assessment list for the current year, and shall not thereafter
be permitted to question the correctness of the list as finally
fixed by the board, except on appeal to the circuit court or as otherwise provided in this article. After the board completes the
review and equalization of the property books, a majority of the
board shall sign a statement that it is the completed assessment of
the county for the year; then the property books shall be delivered
to the assessor and the levies extended as provided by law.
§11-3-24a. Protest of classification or taxability to assessor;
appeal to Tax Commissioner.
(a) At any time after property is returned for taxation and up
to and including the time the property books are before the county
commission sitting as a board of equalization and review, any
taxpayer may apply to the assessor for information regarding the
classification and taxability of the taxpayer's property. In case
the taxpayer is dissatisfied with the classification of property
assessed to the taxpayer or believes that the property is exempt or
otherwise not subject to taxation, the taxpayer shall file
objections in writing with the assessor. The assessor shall decide
the question by either sustaining the protest and making proper
corrections, or by stating, in writing if requested, the reasons for
refusal to grant the protest.
(b) The assessor may, and if the taxpayer requests, the
assessor shall, certify the question to the Tax Commissioner in a
statement sworn to by both parties, or if the parties are unable to
agree, in separate sworn statements, giving a full description of
the property and any other information which the Tax Commissioner may require. The Tax Commissioner shall prescribe forms on which
the aforesaid question shall be certified and the Tax Commissioner
shall have the authority to pursue any inquiry and procure any
information which may be necessary for the disposition of the issue.
(c) The Tax Commissioner shall, as soon as possible on receipt
of the question, but in no case later than February 28 of the
assessment year, instruct the assessor as to how the property shall
be treated. The instructions issued and forwarded by mail to the
assessor shall be binding upon the assessor, but either the assessor
or the taxpayer may apply to the circuit court of the county within
thirty days after receiving written notice of the Tax Commissioner's
ruling, for review of the question of classification or taxability
in the same fashion as is provided for appeals from the county
commission sitting as a board of equalization and review in section
twenty-five of this article.
(d) The amendments to this section enacted in the year 2009
shall apply to classification and taxability rulings issued for
taxes levied after December 31, 2009.
§11-3-25. Relief in circuit court against erroneous assessment.
(a) Any taxpayer claiming to be aggrieved by any assessment in
any land or personal property book of any county who shall have
appeared and contested the valuation or whose assessment has been
raised by the county commission sitting as a board of equalization
and review above the assessment fixed by the assessor may, at any time up to thirty days after the adjournment of the board, apply for
relief to the circuit court of the county in which the property
books are made out; but any person applying for relief in circuit
court shall, before any application is heard, give ten days' notice
to the prosecuting attorney of the county, whose duty it shall be
to attend to the interests of the state, county and district in the
matter, and the prosecuting attorney shall give at least five days'
notice of hearing to the Tax Commissioner.
(b) The right of appeal from any assessment by the board, as
provided in this section, may be taken either by the applicant or
by the state, and in case the applicant, by his or her agent or
attorney, or the state, by its prosecuting attorney or Tax
Commissioner, desires to take an appeal from the decision of the
board, the party desiring to take an appeal shall have the evidence
taken at the hearing of the application before the board, including
a transcript of all testimony and all papers, motions, documents,
evidence and records as were before the board, certified by the
county clerk and transmitted to the circuit court as provided in
section four, article three, chapter fifty-eight of this code,
except that, any other provision of this code notwithstanding, the
evidence shall be certified and transmitted within thirty days after
the petition for appeal is filed with the court or judge, in
vacation.
(c) If there was an appearance by or on behalf of the taxpayer before the board, or if actual notice, certified by the board, was
given to the taxpayer, the appeal, when allowed by the court or
judge, in vacation, shall be determined by the court from the record
as so certified: Provided, That in cases where the court determines
that the record made before the board is inadequate as a result of
the parties having had insufficient time to present evidence at the
hearing before the board to make a proper record, as a result of the
parties having received insufficient notice of changes in the
assessed value of the property to make a proper record at the
hearing before the board, as a result of irregularities in the
procedures followed at the hearing before the board, or for any
other reason not involving the negligence of the party alleging that
the record is inadequate, the court may supplement the record to
make it adequate by allowing the submission of additional exhibits
or additional testimony or may remand the appeal back to the county
commission of the county in which the property is located, even
after the county commission has adjourned sine die as a board of
equalization and review for the tax year in which the appeal arose,
for the purpose of developing an adequate record upon which the
appeal can be decided. If, however, there was no actual notice to
the taxpayer, and no appearance by or on behalf of the taxpayer
before the board, the matter shall be heard de novo by the circuit
court.
(d) If, upon the hearing of appeal, it is determined that any property has been assessed at more than sixty percent of its true
and actual value determined as provided in this chapter, the circuit
court shall, by an order entered of record, correct the assessment,
and fix the assessed value of the property at sixty percent of its
true and actual value. A copy of the order or orders entered by the
circuit court reducing the valuation shall be certified to the
Auditor, if the order or orders pertain to real property, by the
clerk within twenty days after the entering of the same, and every
order or judgment shall show that the prosecuting attorney or Tax
Commissioner was present and defended the interest of the state,
county and district. If it be ascertained that any property has
been valued too high, and that the taxpayer has paid the excess tax,
it shall be refunded to the taxpayer and if not paid, the taxpayer
shall be relieved from the payment thereof. If it is ascertained
that any property is valued too low, the circuit court shall, by an
order entered of record, correct the valuation and fix it at sixty
percent of its true and actual value. A copy of any order entered
by any circuit court increasing the valuation of property shall be
certified within twenty days, if the order pertains to real
property, to the Auditor, the county clerk and the sheriff.
However, if the order pertains only to personal property, then the
copy shall be certified within twenty days to the county clerk and
to the sheriff and it shall be the duty of the Auditor, the county
clerk and the sheriff to charge the taxpayer affected with the increase of taxes occasioned by the increase of valuation by
applying the rate of levies for every purpose in the district where
the property is situated for the current year. The order shall also
be filed in the office of the Auditor and clerk of the county
commission. The circuit court shall review the record submitted
from the board. If the court determines that the record is
adequate, it shall establish a briefing and argument schedule that
will result in the appeal being submitted to the court for decision
within a reasonable time, but not to exceed eight months after the
appeal is filed. All final decisions or orders of the circuit court
shall be issued within a reasonable time, not to exceed ninety days,
from the date the last brief is filed and the case is submitted to
the court for decision. The state or the aggrieved taxpayer may
appeal a question of valuation to the Supreme Court of Appeals if
the assessed value of the property is $50,000 or more.
§11-3-25a. Payment of taxes that become due while appeal is
pending.
(a) All taxes levied and assessed against the property for the
year on which a protest or an appeal has been filed by the taxpayer
as provided in section twenty-four of this article shall be paid
before they become delinquent. If the taxes are not paid before
becoming delinquent, the circuit court, having jurisdiction of the
appeal, as appropriate, shall dismiss the appeal unless the
delinquent taxes and interest due are paid in full within thirty days after taxes for the second half of the tax year become
delinquent.
(b) In the event the order of a court becomes final and the
order results in an overpayment of taxes levied for the tax year
that have been paid to the sheriff, the amount of the overpayment
shall be refunded to the taxpayer if the overpayment is $25,000 or
less within thirty days after the decision or order becomes final.
If the overpayment is more than $25,000, a credit in the amount or
the overpayment shall be established by the county sheriff and
allowed as a credit against taxes owed for up to the following two
tax years: Provided, That the county commission may elect to refund
the amount of overpayment rather than having a credit established
as provided in this section. Whenever an overpayment is refunded
or credited under this section, the county shall pay interest at the
rate established in sections seventeen and seventeen-a, article ten
of this chapter for overpayments of taxes collected by the Tax
Commissioner, which interest shall be computed from the date the
overpayment was received by the sheriff to the date of the refund
check or the date the credit is actually taken against taxes that
become due after the order of the court becomes final.
§11-3-32. Effective date of amendments.
All amendments to this article adopted in the year 2009 shall
apply to the assessment years beginning on or after July 1, 2010.
ARTICLE 6J. ASSESSMENT OF INDUSTRIAL PROPERTY AND NATURAL RESOURCES PROPERTY.
§11-6J-1. Time and basis of assessments; true and actual value;
and returns of property to Tax Commissioner.
(a) All industrial property and natural resources property
shall be assessed annually as of January 1 of the year preceding the
tax year at sixty percent of its true and actual value as determined
by the Tax Commissioner under this article and under section ten,
article one-c of this chapter.
(b) If required by the Tax Commissioner, all owners or
operators of industrial property and natural resources property
shall, on or before May 1 of each year, make a return to the Tax
Commissioner and, if requested in writing by the assessor of the
county where situated, to the county assessor, at a time and in the
form specified by the Tax Commissioner, of all industrial property
or natural resources property owned by them. Tax returns required
to be filed pursuant to this section may be filed electronically in
the discretion of the Tax Commissioner. The Tax Commissioner may
require the filing of all information which would be useful in
valuing the property covered by the returns. Upon written
application by the taxpayer filed prior to the due date of any
return required to be filed by this section, the Tax Commissioner
may for reasonable cause shown grant an extension of no more than
one month in the due date of any return.
(c) Assessments of property interests made pursuant to this article shall not be combined with assessments of property interests
having a different assessment date.
§11-6J-2. Definitions.
As used in this article:
(1) "Active coal mining property" means a mineable bed of coal
on a property or portion of a property involved in a permitted
mining operation. Each and every bed of coal being mined in a
permitted mining operation is a separate active mining property.
(2) "Industrial property" means the real and personal property
integrated as a functioning unit intended for the assembling,
processing and manufacturing of finished or partially finished
products.
(3) "Managed timberland" means surface real property, except
farm woodlots, of not less than ten contiguous acres which is
devoted primarily to forest use and which, in consideration of its
size, has sufficient numbers of commercially valuable species of
trees to constitute at least forty percent normal stocking of forest
trees which are well distributed over the growing site, and that it
is certified as managed timberland by the Division of Forestry.
(4) "Natural gas-producing property" means the property from
which natural gas has been produced or extracted at any time during
the calendar year preceding January 1 assessment date. Natural gas-
producing property includes the property interest or interests
underlying an area of up to one hundred twenty-five acres of surface per well for property with active wells on the parcel.
(5) "Natural resources property" means any of the following:
Active coal mining property, reserve coal property, natural gas-
producing property, oil-producing property, managed timberland or
other natural resources property.
(6) "Oil-producing property" means property from which oil has
been produced or extracted at any time during the calendar year
preceding January 1 assessment date. Oil-producing property
includes the interest or interests underlying an area of up to forty
acres of surface per well with one or more active wells on the
parcel.
(7) "Operator" means an individual, limited liability company,
partnership, corporation, joint venture or other enterprise which
proposes to or does locate, drill, produce, manage or abandon any
oil and/or natural gas well or which is engaged in actively
obtaining or preparing to obtain coal and/or its by-products from
the earth's crust on an active coal mining property.
(8) "Reserve coal property" means any property for which coal
rights are part of the owned estate and which is not part of an
active coal mining property.
§11-6J-3. Form and manner of making return; failure to timely make
return; penalties.
(a) All returns required to be made to the Tax Commissioner
under this article shall be made in conformity with any reasonable requirements of the Tax Commissioner of which the person making the
return shall have had notice, and shall be made upon forms
prescribed by the Tax Commissioner who is invested with full power
and authority to prescribe the forms as will be required from any
owner, operator or producer that may be of use to the Tax
Commissioner in determining the true and actual value of the
properties of the owners, operators or producers.
(b) All returns shall be signed and sworn to by the owner,
operator or producer if a natural person, or, if the owner, operator
or producer shall be a limited liability company, corporation,
partnership, joint venture or other enterprise, shall be signed and
sworn to by its president, vice president, secretary or other
individual authorized to act on behalf of the taxpayer.
(c) If any owner, operator or producer fails to make a return
within the time required by section one of this article, it shall
be the duty of the Tax Commissioner to take steps as necessary to
compel compliance and to enforce any and all penalties imposed by
law for failure to do so.
(d) Any owner, operator or producer, whether a natural person,
limited liability company, corporation, partnership, joint venture
or other enterprise, failing to make a return as herein required
shall be guilty of a misdemeanor and, upon conviction thereof, fined
$100 for each month the failure continues. In addition, any
penalties provided for in this chapter or elsewhere in this code relating to failure to list any property or to file any return or
report for ad valorem taxation purposes may be applied to any owner
of property required to make a return pursuant to this section.
§11-6J-4. Review of returns; procuring information for tentative
appraisals; tentative appraisals by Tax Commissioner;
and notification to taxpayers.
(a) All returns delivered to the Tax Commissioner shall be
examined by him or her, and if found insufficient in form or in any
respect defective, imperfect or not in compliance with law, he or
she shall compel the person required to make it to do so in proper
and sufficient form and in all respects as required by law.
(b) If any owner, operator or producer fails to make a required
return, the Tax Commissioner shall proceed to obtain the facts and
information required to be furnished by the returns.
(c) For the purposes of ascertaining the correctness of any
return filed pursuant to this article and/or of valuing the property
of any industrial taxpayer or natural resources property owner or
operator, the Tax Commissioner may exercise all of the powers and
authority granted to him or her by sections five-a, five-b and
five-c, article ten of this chapter.
(d) Using information provided on the returns and all other
pertinent evidence, information and data he or she has been able to
procure, the Tax Commissioner shall annually value and make
tentative appraisals of all industrial property and natural resources property as provided in section ten, article one-c of this
chapter.
(e) On or before September 15 of each year, the Tax
Commissioner shall complete the preparation of tentative appraisals
of all industrial property and natural resources property and shall
notify the owner or operator affected thereby of the amount of such
tentative appraisals. Notification may, at the reasonable
discretion of the Tax Commissioner, be: (1) By written notice
deposited in the United States mail, addressed to the owner or
operator at the principal office or place of business of the owner
or operator; (2) by electronic notification; or (3) by any other
means designed to communicate the tentative appraisal information
to the owner or operator in a timely and efficient manner and in a
convenient useable form. The Tax Commissioner shall retain in his
or her office true copies of tentative appraisals and of the
underlying work sheets used to compute the tentative appraisals, all
of which shall be available for inspection by any owner or operator
or his or her duly authorized representative.
§11-6J-5. Informal petition to Tax Commissioner for review of
tentative appraisals.
(a) A taxpayer who is of the opinion that the tentative
appraisal of its industrial property or natural resources property
does not reflect the true and actual value of the property or
otherwise improperly valued property may, after receiving its tentative appraisal and on or before November 1 of the year
preceding the assessment year, informally petition the Tax
Commissioner requesting a review of the tentative appraisal. The
Tax Commissioner may require the petition be made on a written form
prescribed by the Tax Commissioner.
(b) At the petitioner's request, the Tax Commissioner or his
or her representative shall meet with the petitioner and/or the
petitioner's representative, if any, to discuss the petition at a
time and place designated at least five working days in advance by
the Tax Commissioner after the petition is filed. If the petitioner
is unable to appear and meet with the Tax Commissioner at the time
and place set by the Tax Commissioner, the petitioner may submit
written evidence to support the petition if it is submitted before
the date of the meeting.
(c) The Tax Commissioner shall consider and rule on each
informal petition filed under this section on or before December 15
of the year preceding the assessment year. If the Tax Commissioner
agrees with the petition he or she shall modify the tentative
appraisal accordingly. If the Tax Commissioner does not agree with
the petition, he or she shall so notify the petitioner in writing.
§11-6J-6. Final appraisal of industrial property and natural
resources property by Tax Commissioner; appraisals
sent to assessors; appeals of Tax Commissioner's
appraisals.
(a) The Tax Commissioner shall finalize the tentative
appraisals made pursuant to section three of this article and make
his or her final appraisals of industrial property and natural
resources property on or before December 15 of the year preceding
the assessment year.
(b) On or before December 15 of the year preceding the
assessment year, the Tax Commissioner shall forward each industrial
property and natural resources property appraisal to the county
assessor of the county in which that property is located and the
assessor shall multiply each appraisal by sixty percent and include
the resulting assessed value in the land book or the personal
property book, as appropriate for each tax year. The Tax
Commissioner shall supply supporting data that the assessor might
need to evaluate the appraisal.
(c) Any taxpayer claiming to be aggrieved by any assessment
made pursuant to this article may appeal the assessment as provided
under the provisions of article three of this chapter: Provided,
That if the assessment exceeds sixty percent of the final appraisal
by the Tax Commissioner, the taxpayer may notify the Tax
Commissioner in writing of this error, whereupon the Tax
Commissioner shall, if such error is confirmed by the Tax
Commissioner, instruct the assessor in writing to lower the
assessment to sixty percent of the final appraisal. The assessor
shall, upon receipt of such instruction from the Tax Commissioner, lower the assessment as required.
§11-6J-7. Effective date.
The provisions of this article enacted in the year 2009 shall
be effective for the tax year 2011 and thereafter.
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