{ "id": 8526581, "name": "IN THE MATTER OF: THE APPEAL OF GENE A. DICKEY and DEBORAH A. DICKEY FROM THE FORSYTH COUNTY BOARD OF EQUALIZATION AND REVIEW FOR 1990", "name_abbreviation": "In re the Appeal of Dickey", "decision_date": "1993-07-06", "docket_number": "No. 9210PTC668", "first_page": "823", "last_page": "830", "citations": [ { "type": "official", "cite": "110 N.C. App. 823" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "232 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "192", "parenthetical": "where language of a statute is clear and unambiguous, courts must give it its plain meaning" } ], "opinion_index": 0 }, { "cite": "291 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558677 ], "year": 1977, "pin_cites": [ { "page": "465", "parenthetical": "where language of a statute is clear and unambiguous, courts must give it its plain meaning" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0451-01" ] }, { "cite": "299 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564299, 8564333, 8564271, 8564250, 8564220 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0576-04", "/nc/307/0576-05", "/nc/307/0576-03", "/nc/307/0576-02", "/nc/307/0576-01" ] }, { "cite": "296 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "500" }, { "page": "501", "parenthetical": "if time limit is to be put on the assertion of immaterial irregularities under Section 105-394, that is a task for the Legislature" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526394 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "333-34" }, { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0332-01" ] }, { "cite": "362 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "296", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358977 ], "year": 1987, "pin_cites": [ { "page": "639", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0637-01" ] } ], "analysis": { "cardinality": 587, "char_count": 16270, "ocr_confidence": 0.761, "pagerank": { "raw": 1.1068760849401847e-07, "percentile": 0.5697604377706963 }, "sha256": "0ab7ef2d5c48aae0ee30f9e6ca1512582c5adc940b87cded0fb17018967bd705", "simhash": "1:a0ed83ef46b670b2", "word_count": 2670 }, "last_updated": "2023-07-14T20:46:54.224272+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and WYNN concur." ], "parties": [ "IN THE MATTER OF: THE APPEAL OF GENE A. DICKEY and DEBORAH A. DICKEY FROM THE FORSYTH COUNTY BOARD OF EQUALIZATION AND REVIEW FOR 1990" ], "opinions": [ { "text": "GREENE, Judge.\nThe Forsyth County Board of Equalization and Review For 1990 (the County) appeals from a Final Decision of the North Carolina Property Tax Commission sitting as the State Board of Equalization and Review entered 20 February 1992.\nThe facts pertinent to this appeal are as follows: On 28 October 1988, Gene A. Dickey and his wife, Deborah A. Dickey (the Dickeys) purchased a lot and a newly constructed house in Winston-Salem, North Carolina, for $272,500.00. The Dickeys submitted their \u201c1989 Property Tax Listing\u201d on 17 January 1989. The Dickeys\u2019 1989 tax bill from the Forsyth County Assessor\u2019s Office (the Assessor) assessed the Dickeys for real property valued at $37,500.00. The tax bill was paid by the Dickeys\u2019 escrow agent, and the balance of the escrow account was refunded to the Dickeys.\nOn 12 June 1990, the Assessor notified the Dickeys that their property \u201cha[d] been taxed improperly\u201d for the year 1989. The Assessor, pursuant to N.C.G.S. \u00a7 105-312 (discovered property), added to the previously assigned value the sum of $185,500.00, and assessed the Dickeys an additional $2,094.30 in taxes. The Dickeys, asserting that they had properly filed their 1989 taxes, challenged the assessment as being untimely and requested and were granted a hearing with the Assessor on 18 July 1990. The Dickeys did not, and do not, dispute that their house on 1 January 1989 had a value of $185,500.00. After the hearing, the Assessor informed the Dickeys that there would be \u201cno change in the 1989 assessment for the improvements\u201d on the Dickeys\u2019 lot.\nThe Dickeys appealed to the County, appellant herein, which dismissed their appeal. On 4 January 1991, the Dickeys appealed to the North Carolina Property Tax Commission (the Commission). In its final decision, the Commission found that the Dickeys properly listed the house on their property tax listing dated 17 January 1989 \u201con a portion of the listing form which was designed to be torn off if it was not completed.\u201d According to the Commission, \u201c[a]fter receipt by the County, this portion of the form was removed and destroyed even though it had been completed by the [Dickeys].\u201d The Commission further found:\n10. While [the Dickeys\u2019] Exhibit 3, the Forsyth County 1989 tax bill for the [Dickeys], indicates a \u201creal v\u00e1lue\u201d of $37,500 and a motor vehicle value of $6,120 for a total taxable value of $43,620, the real estate excise tax stamps on the deed by which the [Dickeys] acquired the subject property (County Exhibit 1) indicate that the purchase price paid by the [Dickeys] for the house and lot was approximately $272,500. Despite the large difference between the purchase price of $272,500 and the \u201creal value\u201d of $37,500 on the 1989 tax bill, Mr. Dickey testified that he was unaware of the County\u2019s error until 1990.\nThe Commission concluded that, because the Dickeys submitted a timely and accurate 1989 property tax listing, the improvements on the Dickeys\u2019 lot cannot be considered \u201cdiscovered property\u201d under the provisions of N.C.G.S. \u00a7 105-312. The Commission also concluded that the Assessor appraised the house at a value of $0.00 for the tax year 1989, and that, under the provisions of N.C.G.S. \u00a7 105-287, the Assessor was authorized to reappraise the house in 1990, but that such reappraisal is effective as of 1 January of the year in which it is made and is not retroactive. The Commission ordered the Assessor to revise its tax records to reflect that the appraised value of the Dickeys\u2019 house for the year 1989 is $0.00. The County appeals.\nThe issues are (I) whether the Assessor properly assessed in 1990 the Dickeys\u2019 house as \u201cdiscovered property\u201d pursuant to N.C.G.S. \u00a7 105-312; (II) whether the Assessor \u201cappraised\u201d the house in 1989 at a value of $0.00 and therefore is precluded pursuant to N.C.G.S. \u00a7 105-287 from retroactively increasing the appraised value of the house; and (III) whether the Assessor\u2019s failure to assess the Dickeys in 1989 for 1989 taxes owed on the house constitutes pursuant to N.C.G.S. \u00a7 105-394 an \u201cimmaterial irregularity\u201d which does not invalidate the tax levied in 1990.\nThis Court may reverse or modify a decision of the Property Tax Commission\nif the substantial rights of the appellants have been prejudiced because the Commission\u2019s findings, inferences, conclusions or decisions are:\n(4) Affected by . . . errors of law; or\n(5) Unsupported by competent, material and substantial evidence in view of the entire record as submitted ....\nN.C.G.S. \u00a7 105-345.2 (1992). In applying the \u201cwhole record\u201d test set forth in Section 105-345.2(5), the reviewing court is not permitted \u201c \u2018to substitute its judgment for [that of the Commission] as between two reasonably conflicting views; however, it does require the court to take into account both the evidence justifying the [Commission\u2019s] decision and the contradictory evidence from which a different result could be reached.\u2019 \u201d Watson v. North Carolina Real Estate Comm\u2019n, 87 N.C. App. 637, 639, 362 S.E.2d 294, 296 (1987) (citation omitted).\nI\nThe County argues that the Commission made an error of law in failing to determine that the Dickeys\u2019 house is \u201cdiscovered property\u201d and was therefore properly taxed in 1990 for taxes owed in 1989. We disagree.\nAll property, real and personal, within the jurisdiction of the State shall, be subject to taxation unless it is excluded or exempted. N.C.G.S. \u00a7 105-274 (1992). All property subject to ad valorem taxation shall be listed annually, as a general rule during the month of January. N.C.G.S. \u00a7\u00a7 105-285(a), 105-307 (1992). The law in effect at the time the Dickeys filed their 1989 property listing and when the Assessor notified the Dickeys in June, 1990, of the \u201cdiscovered improvements\u201d on the Dickeys\u2019 lot provided:\n(1) The phrase \u201cdiscovered property\u201d shall include property that was not listed by the taxpayer or any other person during a regular listing period and also property that was listed but with regard to the value, quantity, or other measurement of which the taxpayer made a substantial understatement in listing.\nN.C.G.S. \u00a7 105-312(a)(l) (1985) (repealed effective 10 April 1991). Discovered property \u201cshall be taxed for the year in which discovered and for any of the preceding five years during which it escaped taxation.\u201d N.C.G.S. \u00a7 105-312(g) (1992).\nThe evidence in the record supports the Commission\u2019s finding that the Dickeys listed their property, including the house, on a 1989 property tax listing form signed by Mr. Dickey on 17 January 1989, and the County does not argue that the Dickeys listed the house but substantially understated its value. Therefore, we conclude that the Commission properly determined that the house cannot be considered \u201cdiscovered property\u201d as that term is defined in former Section 105-312(a)(l). Thus, Section 105-312, authorizing retroactive taxation of discovered property, provides no authority for the Assessor\u2019s challenged actions.\nII\nThe County argues that the Commission\u2019s finding that the Assessor appraised in 1989 the value of the Dickeys\u2019 house at $0.00 is not supported by competent, material and substantial evidence in view of the entire record as submitted. According to the County, the Assessor never appraised the Dickeys\u2019 house for tax purposes in 1989 and that therefore, contrary to the Commission\u2019s finding and the Dickeys\u2019 contention, N.C.G.S. \u00a7 105-287 has no application. We agree.\nThe tax assessor, in certain situations and at certain times not relevant here, may increase or decrease the appraised value of real property, but such increase or decrease \u201cis effective as of January 1 of the year in which it is made and is not retroactive.\u201d N.C.G.S. \u00a7 105-287(c) (1992). The term \u201cappraisal\u201d means both the true value of property and the process by which the true value of property is ascertained. N.C.G.S. \u00a7 105-273(2) (1992). The Commission found that the Assessor \u201cappraised\u201d the Dickeys\u2019 house in 1989 at a value of $0.00, and that the Assessor, pursuant to Section 105-287, properly \u201cincreased\u201d this \u201cappraised value\u201d in 1990 to the sum of $185,500.00. The Commission determined, however, that because any increase in appraised value is not retroactive, the increase was effective only as of 1 January 1990, and could not be applied to taxes owed by the Dickeys in 1989.\nBased on the definition of the term \u201cappraisal\u201d in Section 105-273, the Commission\u2019s finding that the Assessor appraised the house at a value of $0.00 in 1989 simply is not supported by the evidence. There is no evidence that the Assessor prior to 1990 attempt\u00e9d to ascertain the true value of the Dickeys\u2019 house, and it is undisputed that the true value of the house in 1989 was not zero dollars. Rather, the record reveals that, because the portion of the Dickeys\u2019 1989 property tax listing form which contained the listing of the house was inadvertently removed and destroyed, the Assessor was unaware for tax purposes of th\u00e9 existence of any improvements to the lot. Therefore, it defies logic to find that the Assessor could have ascertained in 1989 the true value of a house which it did not know existed. Furthermore, the 1989 tax bill received by the Dickeys lists the \u201creal value\u201d of the Dickeys\u2019 property as $37,500.00, the same value assigned to the property by the Assessor in 1988, prior to the improvement of the lot. A fair reading of the record reveals that the Assessor, due to an administrative error, simply failed to appraise the house or to bill the Dickeys in 1989 for taxes owed thereon. Therefore, contrary to the determination of the Commission, Section 105-287, prohibiting retroactive increases in appraised property values, does not operate to preclude the Assessor from levying the challenged tax in 1990.\nIll\nThe County finally argues that the Assessor\u2019s failure to levy any tax on the house in 1989 is an \u201cimmaterial irregularity\u201d which does not invalidate the tax owed on the house in 1989 and imposed by the Assessor in 1990.\nNorth Carolina Gen. Stat. \u00a7 105-394 provides that \u201c[immaterial irregularities in the listing, appraisal, or assessment of property for taxation or in the levy or collection of the property tax . . . shall not invalidate the tax imposed upon any property.\u201d N.C.G.S. \u00a7 105-394 (1992). Examples of immaterial irregularities include the \u201cfailure to list, appraise, or assess any property for taxation or to levy any tax within the time prescribed by law.\u201d Id. Furthermore, this Court has held that \u201ca clerical error by a tax supervisor\u2019s office is an immaterial irregularity under G.S. 105-394 so as not to invalidate the tax levied on the property.\u201d In re Notice of Attachment, 59 N.C. App. 332, 333-34, 296 S.E.2d 499, 500 (1982), disc. rev. denied, 307 N.C. 576, 299 S.E.2d 645 (1983).\nSignificantly, the Dickeys do not contend that their house is statutorily excluded or exempted from taxation, or that the $185,500.00 value assigned to the house by the Assessor is erroneous. Rather, they argue simply that, because an employee of the Assessor inadvertently destroyed the portion of the Dickeys\u2019 1989 tax listing form containing the listing of the house \u2014 and because the Assessor did not become aware of the error until 1990 \u2014 the Assessor is legally precluded from collecting the tax. Based on the clear and unambiguous language of Section 105-394, we conclude that the failure by the Assessor due to an administrative error to include on the Dickeys\u2019 1989 tax bill an assessment for the improvements to the lot is an immaterial irregularity and does not, contrary to the Dickeys\u2019 contention, invalidate the tax owed on the house. See State ex rel. Utilities Comm\u2019n v. Edmisten, 291 N.C. 451, 465, 232 S.E.2d 184, 192 (1977) (where language of a statute is clear and unambiguous, courts must give it its plain meaning). Because we have discovered no authority setting forth a time limit within which the Assessor may correct an immaterial irregularity, see In re Notice, 59 N.C. App. at 335, 296 S.E.2d at 501 (if time limit is to be put on the assertion of immaterial irregularities under Section 105-394, that is a task for the Legislature), the Commission\u2019s decision relieving the Dickeys from their 1989 tax obligation must be\nReversed.\nJudges JOHNSON and WYNN concur.\n. The term \u201clist,\u201d when used as a verb, is not defined in North Carolina\u2019s tax code. \u201cList\u201d or \u201clisting,\u201d when used as a noun, means \u201cthe document on which the property of a taxpayer is listed for ad valorem taxation and on which the appraised and assessed values of the property are recorded.\u201d N.C.G.S. \u00a7 105-273(9) (1992). Our use of the verb \u201clist\u201d in this opinion means the process by which the taxpayer files with the tax assessor a tax list or abstract showing the required property information. See generally N.C.G.S. \u00a7 105-309 (1992).\n. The County argues that the Assessor, not the taxpayer, is charged with the duty to \u201clist\u201d property for taxation, and that therefore, even though the Dickeys may have submitted a 1989 property tax listing, the house may nevertheless be considered discovered property under Section 105-312 because it was not listed by the Assessor. Based on our interpretation of the verb \u201clist,\u201d see n.1, supra, and on the definition of \u201cdiscovered property\u201d in Section 105-312(a)(l), we reject this argument.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Office of Forsyth County Attorney, by Forsyth County Attorney P. Eugene Price, Jr., and Assistant Forsyth County Attorneys Davida W. Martin and Paul A. Sinai, for appellant Forsyth County.", "Gene A. Dickey and Deborah A. Dickey, pro se." ], "corrections": "", "head_matter": "IN THE MATTER OF: THE APPEAL OF GENE A. DICKEY and DEBORAH A. DICKEY FROM THE FORSYTH COUNTY BOARD OF EQUALIZATION AND REVIEW FOR 1990\nNo. 9210PTC668\n(Filed 6 July 1993)\n1. Taxation \u00a7 25.3 (NCI3d)\u2014 house listed by taxpayers\u2014 administrative error by assessor\u2019s office \u2014house not \u201cdiscovered property\u201d\nThe N.C. Property Tax Commission properly determined that the house belonging to appellee taxpayers could not be considered \u201cdiscovered property\u201d as that term was defined in N.C.G.S. \u00a7 105-312(a)(l) (1985) (repealed effective 10 April 1991) since the taxpayers listed their property, including their house, on a 1989'property tax listing form signed by taxpayer husband on 17 January 1989, and the County did not argue that the taxpayers listed the house but substantially understated its value; therefore, N.C.G.S. \u00a7 105-312, authorizing retroactive taxation of discovered property, provided no authority for the county assessor\u2019s office to add a sum to the previously assessed value and assess the taxpayers an additional $2100 in taxes.\nAm Jur 2d, State and Local Taxation \u00a7 719.\n2. Taxation \u00a7 25.5 (NCI3d)\u2014 failure of assessor to appraise house \u2014 subsequent appraisal and levy of tax \u2014no retroactive increase in appraisal of property value\nN.C.G.S. \u00a7 105-287, prohibiting retroactive increases in appraised property values, did not operate to preclude the county assessor\u2019s office from levying the challenged 1989 tax on taxpayers\u2019 house in 1990, since the record revealed that the portion of the taxpayers\u2019 1989 property tax listing form which contained the listing of the house was inadvertently removed and destroyed; the Assessor was unaware for tax purposes of the existence of any improvements to the lot which had previously been appraised; the Assessor therefore could not have ascertained in 1989 the true value of a house which it did not know existed; the Assessor, due to an administrative error, simply failed to appraise the house or to bill the taxpayers in 1989 for taxes owed thereon; and the Tax Commission therefore erred in finding that the Assessor appraised in 1989 the value of the taxpayers\u2019 house at $0.00.\nAm Jur 2d, State and Local Taxation \u00a7 712.\n3. Taxation \u00a7 25.4 (NCI3d)\u2014 tax bill \u2014 failure to include assessment for improvements \u2014immaterial irregularity\nFailure by the Assessor, due to an administrative error, to include on the taxpayers\u2019 1989 tax bill an assessment for the improvements to their lot was an immaterial irregularity and did not, contrary to taxpayers\u2019 contention, invalidate the tax owed by them on their house.\nAm Jur 2d, State and Local Taxation \u00a7 712.\nAppeal by Forsyth County from Final Decision of the North Carolina Property Tax Commission entered 20 February 1992. Heard in the Court of Appeals 25 May 1993.\nOffice of Forsyth County Attorney, by Forsyth County Attorney P. Eugene Price, Jr., and Assistant Forsyth County Attorneys Davida W. Martin and Paul A. Sinai, for appellant Forsyth County.\nGene A. Dickey and Deborah A. Dickey, pro se." }, "file_name": "0823-01", "first_page_order": 853, "last_page_order": 860 }