{ "id": 12139688, "name": "In the Matter of: The appeal of Bass Income Fund and Bass Real Estate Fund III from the appraisal of Sabal Park I and Sabal Park II by the Mecklenburg County Board of Equalization and Review for 1991", "name_abbreviation": "In re the Appeal of Bass Income Fund", "decision_date": "1994-08-02", "docket_number": "No. 9310PTC89", "first_page": "703", "last_page": "707", "citations": [ { "type": "official", "cite": "115 N.C. App. 703" } ], "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": "586 S.W.2d 137", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9928595 ], "year": 1979, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/sw2d/586/0137-01" ] }, { "cite": "170 So.2d 188", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9834193 ], "year": 1964, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/so2d/170/0188-01" ] }, { "cite": "567 A.2d 342", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1397382 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/pa-commw/130/0106-01" ] }, { "cite": "169 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 179", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547285 ], "year": 1969, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0179-01" ] }, { "cite": "200 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "640" } ], "opinion_index": 0 }, { "cite": "284 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561942 ], "year": 1973, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0375-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "119" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "year": 1994, "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "273 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "715" } ], "opinion_index": 0 }, { "cite": "302 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564204 ], "year": 1981, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0164-01" ] }, { "cite": "420 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "128" } ], "opinion_index": 0 }, { "cite": "332 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505670 ], "year": 1992, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0184-01" ] } ], "analysis": { "cardinality": 559, "char_count": 10415, "ocr_confidence": 0.732, "pagerank": { "raw": 2.7618878003839945e-07, "percentile": 0.8336343161319444 }, "sha256": "0189f1016f0e03e8ccc89b09b44fc5b670c2d6f81062d77cbbda865b5832c9bf", "simhash": "1:c51cc2ec80422e44", "word_count": 1730 }, "last_updated": "2023-07-14T22:58:18.676868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and LEWIS concur." ], "parties": [ "In the Matter of: The appeal of Bass Income Fund and Bass Real Estate Fund III from the appraisal of Sabal Park I and Sabal Park II by the Mecklenburg County Board of Equalization and Review for 1991" ], "opinions": [ { "text": "JOHN, Judge.\nBass Income Fund and. Bass Real Estate Fund III (taxpayers) challenge a 27 October 1992 order of the Property Tax Commission (the Commission) dismissing their appeal to the Commission. Upon review, we find taxpayers\u2019 arguments unpersuasive.\nThe essential facts are undisputed. On 23 March 1992, the Mecklenburg County Board of Equalization and Review for 1991 (the Board) entered a property tax assessment order affecting real property owned by taxpayers. On that same date, the Clerk of the Board mailed notice of this action to taxpayers\u2019 representative located in Atlanta, Georgia. The representative thereafter submitted notice of appeal to the Commission by certified mail dated 21 April 1992 and deposited it in a United States Postal Service (Postal Service) mailbox. The envelope containing the notice was stamped with a postal meter postmark in the office of taxpayers\u2019 representative, but the Postal Service never affixed its own postmark.\nOn 23 April 1992, the notice of appeal was received by the Commission via the Postal Service, 31 days after the Board had mailed its notice of decision to taxpayers. The Commission concluded taxpayers\u2019 appeal was untimely filed and that it was therefore without jurisdiction to hear the matter. See N.C.G.S. \u00a7 105-290 (Cum. Supp. 1990) (current version at G.S. \u00a7 105-290 (1992)).\nThe sole issue before us is: whether a notice of appeal to the Commission is considered filed on the postmark date when the postmark is affixed by a postal meter rather than by the Postal Service.\nWe commence with an examination of G.S. \u00a7 105-290. The statute first requires that an appeal be filed with the Commission within 30 days of mailing by the Board of its notice of decision to the taxpayer. G.S. \u00a7 105-290(e). Further, the statute establishes that the date on which a notice of appeal is deemed filed is dependent upon the manner in which it is submitted to the Commission. G.S. \u00a7 105-290(g) provides:\n(g) What Constitutes Filing. \u2014 [1] A notice of appeal submitted to the Property Tax Commission by a means other than United States mail is considered to be filed on the date it is received in the office of the Commission. [2] A notice of appeal submitted to the Property Tax Commission by United States mail is considered to be filed on the date shown on the postmark stamped by the United States Postal Service. [3] If an appeal submitted by United States mail is not postmarked or the postmark does not show the date of mailing, the appeal is considered to be filed on the date it is received in the office of the Commission. A property owner who files an appeal with the Commission has the burden of proving that the appeal is timely.\nG.S. \u00a7 105-290(g) (emphasis added).\nThe meaning intended by the General Assembly to be accorded the expression \u201cpostmark\u201d in the third sentence of subsection (g) above is dispositive of the issue herein. We therefore consider whether \u201cpostmark\u201d was meant to refer to any postmark, or rather to that term as set out in the second sentence, i.e., \u201cpostmark stamped by the United States Postal Service. \u201d\nThe primary rule of statutory construction is to \u201censure that the purpose of the legislature is accomplished.\u201d Harris v. Nationwide Mut. Ins. Co., 332 N.C. 184, 191, 420 S.E.2d 124, 128 (1992). In seeking to observe this rule, a court should consider the \u201cnature and purpose of the statute\u201d as well as the consequences which would follow proposed interpretations. In re Kirkman, 302 N.C. 164, 167, 273 S.E.2d 712, 715 (1981). In addition, the statute should be read as a whole. \u201cThe words and phrases of a statute must be interpreted contextually,\u201d and read in a manner which effectuates the legislative purpose. Id.\nA reading of G.S. \u00a7 105-290(g) in its entirety reveals an effort to account for all potential contingencies regarding filing of notices of appeal to the Commission, and an intent that this classification be exhaustive. Under the statutory scheme, a determination of the date upon which a notice of appeal is deemed filed depends upon classification of the notice into one of the legislatively created categories.\nThe first concerns notices of appeal submitted to the Commission other than through the Postal Service. These are considered filed on the date received by the Commission. The second deals with notices submitted to the Commission via the Postal Service and which carry a postmark stamped by the Postal Service indicating the date of mailing. These are accorded legislative favor and are treated as filed on the postmark date. The third legislative category appears to have been designed to encompass those notices submitted through the Postal Service which, for whatever reason, do not display a \u201cpostmark\u201d or which bear a postmark not containing a date. These are regarded as filed upon receipt by the Commission.\nThe statute does not specifically describe the type of \u201cpostmark\u201d cited in the final category. However, considered in context with the remainder of the subsection, \u201cpostmark\u201d in the third sentence can only be read to refer to the term as used in the second sentence, that is, \u201cpostmark stamped by the United States Postal Service.\u201d We therefore hold the statute to establish that a notice of appeal submitted to the Commission via the Postal Service, but which does not bear a postmark stamped by the Service, is considered filed only upon receipt by the Commission. We further hold that a postmark affixed by a private individual employing a postal meter, admittedly obtained from the Postal Service, does not under the statute constitute a \u201cpostmark stamped by the United States Postal Service.\u201d\nTaxpayers argue that such an interpretation of the statute is hypertechnical, endorses the bureaucratic rigidity they assert is present in the case sub judice, and penalizes those entities or individuals which utilize postal meters, intended as office efficiency and automation systems. While these points may be well taken, legislation by the General Assembly is presumed to have a purpose, Amanini v. N. C. Dept. of Human Resources, 114 N.C. App. 668, 676, 443 S.E.2d 114, 119 (1994), and it is our duty to apply legislation as written, whatever our opinion may be as to its efficacy or as to the hardship it may impose in individual cases. Peele v. Finch, 284 N.C. 375, 382, 200 S.E.2d 635, 640 (1973).\nIn this context, we observe the statute in question was amended in 1989 to create the \u201cstamped by the United States Postal Service\u201d category as a single exception to the general proviso that notices were deemed filed upon receipt by the Commission. Were we to adopt taxpayers\u2019 argument, therefore, it would have the effect of treating those notices of appeal bearing a postal meter postmark, as opposed to a postmark stamped by the Postal Service, in a manner other than provided in the statute. Whatever our sympathies, we \u201cmay not, under the guise of judicial interpretation, interpolate provisions which are wanting in the statute and thereupon adjudicate the rights of the parties thereunder.\u201d Simmonds v. Wilder, 6 N.C. App. 179, 181, 169 S.E.2d 480, 481 (1969). The General Assembly unequivocally granted a favored filing privilege to such notices of appeal as may be postmarked by the Postal Service. It is not for us now to extend such consideration to notices outside this precisely limited category. Had the General Assembly intended this effect, it would have been a simple matter to include the explicit phrase \u201cor by a postal meter issued by the United States Postal Service,\u201d or some similar language.\nOur holding finds support in decisions from other jurisdictions which have considered this issue, see, e.g., Upper Allegheny Joint Sanitary Auth. v. Commonwealth, 567 A.2d 342 (Pa. Commw. Ct. 1989), as well as in reasons of public policy. Postmarks stamped by the Postal Service, for example, are affixed by official individuals independent of the correspondence involved and unaffected by the consequences of accurate dating; postage meters, on the other hand, are easily susceptible to manipulation, either intentional or unintentional, by private, non-postal personnel who may indeed have an interest in the date affixed. See Roberts v. Houston Fire & Casualty Co., 170 So.2d 188, 189 (La. Ct. App. 1964); see also Albaugh v. State Bank of LaVernia, 586 S.W.2d 137, 138 (Tex. Ct. App. 1979). Therefore, while the official postmark of the Postal Service may reliably be considered determinative of the date of mailing, the date appearing in a metered postmark is actually no more than the date set in the machine by the operator.\nAccordingly, since the notice of appeal at issue contained a postal meter postmark rather than a postmark \u201cstamped by the United States Postal Service,\u201d it falls within the third category established by G.S. \u00a7 105-290(g) and was not \u201cfiled\u201d until received by the Commission. Because taxpayers\u2019 notice of appeal was not received by the Commission until after expiration of the 30 day limitation period in G.S. \u00a7 105-290(e), therefore, the Commission\u2019s determination it was without jurisdiction to entertain taxpayers\u2019 appeal is affirmed.\nAffirmed.\nJudges ORR and LEWIS concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Moore & Van Allen, by Joseph D. Joyner, Jr. and A. Bailey Nager, for appellant Bass Income Fund and Bass Real Estate Fund III.", "Ruff, Bond, Cobb, Wade & McNair, by Hamlin L. Wade and Paul R. Baynard, for appellee Mecklenburg County." ], "corrections": "", "head_matter": "In the Matter of: The appeal of Bass Income Fund and Bass Real Estate Fund III from the appraisal of Sabal Park I and Sabal Park II by the Mecklenburg County Board of Equalization and Review for 1991\nNo. 9310PTC89\n(Filed 2 August 1994)\nNotice \u00a7 4 (NCI4th)\u2014 notice of appeal \u2014 postmark affixed by postal meter \u2014 notice not filed on postmark date\nA notice of appeal to the Property Tax Commission was not considered filed on the postmark date where the postmark was affixed by a postal meter in the office of the taxpayer\u2019s representative rather than by the U. S. Postal Service. Therefore, the notice was not filed until it was received by the Commission, and the Commission had no jurisdiction to hear the appeal where it was received after the expiration of the appeal period. N.C.G.S. \u00a7 105-290(g).\nAm Jur 2d, Notice \u00a7\u00a7 5-12, 32-40.\nAppeal by taxpayers from order entered 27 October 1992 by Chairman John A. Cocklereece of the North Carolina Property Tax Commission. Heard in the Court of Appeals 1 December 1993.\nMoore & Van Allen, by Joseph D. Joyner, Jr. and A. Bailey Nager, for appellant Bass Income Fund and Bass Real Estate Fund III.\nRuff, Bond, Cobb, Wade & McNair, by Hamlin L. Wade and Paul R. Baynard, for appellee Mecklenburg County." }, "file_name": "0703-01", "first_page_order": 735, "last_page_order": 739 }