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    "judges": [
      "Judge ELMORE concurs.",
      "Judge GEER dissents by separate opinion."
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    "parties": [
      "IN THE MATTER: THE APPEAL OF: TYLETA W. MORGAN from the decision of the Henderson County Board of Equalization and Review concerning the taxation of certain real property for tax years 1995 through 2003"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nHenderson County (\u201cthe County\u201d) appeals from final decision entered prohibiting it from attempting to collect unpaid back taxes and interest on real property owned by Tyleta W. Morgan (\u201cMrs. Morgan\u201d). We affirm.\nI. Background\nMrs. Morgan has owned approximately eighty-five acres of rural land in the County since 1972. In 1991, the property was placed in the Forestry Management Program as \u201cforestry\u201d land and as a result was assessed at a relatively low present use tax value.\nMrs. Morgan and her husband, now deceased, began building a house on this property in 1986 that was finished in approximately 1993. Mr. Morgan obtained all required permits from the County to build the home, and the County inspected the construction in 1986.\nIn 1993, when the residence was eighty percent complete, Mr. Morgan listed the house on his county tax listing form. The County performed countywide reappraisals effective 1 January 1999 and 1 January 2003. An appraiser with the County Tax Assessor\u2019s Office visited the Morgans\u2019 property during those reappraisals. The listed residence remained unassessed.\nIn 2004, the County Tax Assessor\u2019s Office finally assessed taxes on the Morgans\u2019 residence and asserted that Mrs. Morgan owed back taxes and interest in the amount of $8,533.61 for tax years 1995 through 2003. Mrs. Morgan paid the sum and appealed to the Henderson County Board of Equalization and Review. The Board upheld the decision of the County Tax Assessor\u2019s Office and Mrs. Morgan appealed to the North Carolina Property Tax Commission (\u201cthe Commission\u201d).\nThe Commission found that Mrs. Morgan did not question the tax valuation of the property, but the County should have \u201cascertained values for the subject residence prior to the notice ... to recover back[] taxes associated with the subject residence.\u201d Based upon its findings of fact, the Commission concluded \u201cthe failure of the Tax Assessor to include upon Taxpayer\u2019s 1995 through 2003 tax bills valuation assessments for the subject residence was not an immaterial irregularity\u201d and barred the County from attempting to collect the back taxes. The County appeals.\nII. Issue\nThe County argues the Commission erred by concluding that it improperly issued assessment notices for the years 1995 through 2003 because the failure to assess the Morgans\u2019 residence was an immaterial irregularity pursuant to N.C. Gen. Stat. \u00a7 105-394.\nTTT. Standard of Review\nThis Court reviews the Commission\u2019s decision under the whole record test. The whole record test is not a tool of judicial intrusion and this Court only considers whether the Commission\u2019s decision has a rational basis in the evidence. We may not substitute our judgment for .that of the Commission even when reasonably conflicting views of the evidence exist.\nIn re Weaver Inv. Co., 165 N.C. App. 198, 201, 598 S.E.2d 591, 593 (internal citations and quotations omitted), disc. rev. denied, 359 N.C. 188, 606 S.E.2d 695 (2004).\nIV. Immaterial Irregularities\nThe County argues the failure by the County Tax Assessor\u2019s Office to include valuation assessments for Mrs. Morgan\u2019s residence on her 1995 through 2003 tax bills was an \u201cimmaterial irregularity\u201d pursuant to N.C. Gen. Stat. \u00a7 105-394, and it is not barred from collecting nearly a decade\u2019s worth of back taxes. We disagree.\n\u2022 N.C. Gen. Stat. \u00a7 105-394 (2005) states, in relevant part:\nImmaterial irregularities in the listing, appraisal, or assessment of property for taxation or in the levy or collection of the property tax or in any other proceeding or requirement of this Subchapter shall not invalidate the tax imposed upon any property or any process of listing, appraisal, assessment, levy, collection, or any other proceeding under this Subchapter.\nThe following are examples of immaterial irregularities:\n(3) The failure to list, appraise, or assess any property for taxation or to levy any tax within the time prescribed by law.\nThe County and dissenting opinion cite In re Appeal of Dickey, 110 N.C. App. 823, 431 S.E.2d 203 (1993), to support the position that the County\u2019s failure to assess Mrs. Morgan\u2019s house for eleven years falls within the definition of \u201cimmaterial irregularities.\u201d We disagree.\nIn In re Appeal of Dickey, the tax assessor accidentally removed a portion of the Dickeys\u2019 property from the 1989 tax listing form. 110 N.C. App. at 825, 431 S.E.2d at 204. This Court reversed the Commission\u2019s decision to relieve the Dickeys from their 1989 tax obligation. This Court stated, \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 Id. at 829, 431 S.E.2d at 207 (citation omitted) (emphasis supplied). We held:\nBased 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.\nId. (emphasis supplied).\nThe Commission\u2019s final decision did not ignore In re Appeal of Dickey, but expressly distinguished that case from the facts here. The Commission found substantial evidence was presented to support its finding that \u201cthe Tax Assessor could have obtained valuations for the subject residence prior to issuing the Notices of Immaterial Irregularity for tax years 1995 through 2003.\u201d This finding of fact was based upon the Commission\u2019s recitation of the evidence Mrs. Morgan presented:\n(1) the Taxpayer\u2019s husband listed the subject residence with the Henderson County Tax Office, effective January 1, 1993, as eighty percent (80%) complete and instructed the Tax Assessor to contact him if there were questions regarding his listing; (2) The Taxpayer\u2019s husband obtained all necessary permits during the construction of the subject residence; (3) After the subject property\u2019s original listing in January 1, 1993, the Tax Assessor conducted at least two countywide reappraisals, effective as of January 1,1999 and January 1, 2003; and (4) An appraiser with the Henderson County Tax Office visited the site of the subject property during the time of the county\u2019s reappraisals. Thus, the Tax Assessor had ample information to know that a house was situated on the property.\nThe Commission concluded \u201cthe action of the Tax Assessor, under the facts and circumstances at issue ... [is not] an immaterial irregularity since his action in the matter does not constitute a clerical or administrative error.\u201d\nMrs. Morgan presented, and the Commission found, substantial evidence tending to show the County was provided multiple opportunities to assess the property, but failed to do so. This evidence supports the Commission\u2019s conclusion that the action of the County Tax Assessor\u2019s Office was neither a \u201cclerical or administrative error.\u201d Id.\nV. Adding Interest to Past Taxes\nPresuming arguendo, the dissenting opinion\u2019s application of In re Appeal of Dickey, correctly categorizes the actions of the County Tax Assessor\u2019s Office as an immaterial irregularity and the County may levy taxes upon Mrs. Morgan\u2019s residence for years 1995 through 2003, the County is barred from collecting any interest accrued during this time period. N.C. Gen. Stat. \u00a7 105-394 provides that immaterial regularities do not \u201cinvalidate taxes imposed upon any property.\u201d (Emphasis supplied). No provision in this statute supports the County\u2019s assertion that it is entitled to recover interest in addition to the property taxes, when non-payment was due to the gross and repeated failures to assess by the County Tax Assessor\u2019s Office.\nIn In re Nuzum-Cross Chevrolet, the taxpayer\u2019s business personal property was taxed at a lower rate than it should have been for three years due to a clerical error. 59 N.C. App. 332, 333, 296 S.E.2d 499, 500 (1982), disc. rev. denied, 307 N.C. 576, 299 S.E.2d 645 (1983). The tax assessor issued a notice of attachment and garnishment upon the taxpayer and the garnishee, First National Bank of Catawba County, which included the amount of unpaid taxes, plus penalties and interest fees. Id. After a hearing, the trial court issued an order directing the garnishee to remit the total taxes due \u201cminus any penalty and interest.\u201d Id. (emphasis supplied). This Court affirmed the trial court\u2019s order. Id.\nNothing in this statute allows the County to attempt to collect interest and penalties in addition to back taxes allegedly owed, when the County grossly and repeatedly failed to assess the listed property. Id.\nVI. Conclusion\n\u201cN.C. Gen. Stat. \u00a7 105-394 ... is intended to cover cases where there is no dispute that but for the clerical error, the tax would have been valid.\u201d In re Nuzum-Cross Chevrolet, 59 N.C. App. at 334, 296 S.E.2d at 500 (emphasis supplied). Under our standard of review, the Commission\u2019s findings of fact are based upon substantial evidence in the whole record and those findings support its conclusion that the failure by the County Tax Assessor\u2019s Office to assess the value of the Morgans\u2019 residence for more than ten years after it was properly listed by Mr. Morgan, was not a minor clerical or administrative error. The Commission could properly conclude N.C. Gen. Stat. \u00a7 105-394 is inapplicable to these facts.\nAs a reviewing Court, we only consider \u201cwhether the Commission\u2019s decision has a rational basis in the evidence.\u201d Weaver, 165 N.C. App. at 201, 598 S.E.2d at 593. \u201cWe may not substitute our judgment for that of the Commission even when reasonably conflicting views of the evidence exist.\u201d Id. The Commission\u2019s final decision holding that the County is barred from recovering property taxes and the interest and penalties thereon for tax years 1995 through 2003 is affirmed.\nAffirmed.\nJudge ELMORE concurs.\nJudge GEER dissents by separate opinion.",
        "type": "majority",
        "author": "TYSON, Judge."
      },
      {
        "text": "GEER, Judge,\ndissenting.\nThe majority holds that a failure to list property cannot constitute an \u201cimmaterial irregularity\u201d under N.C. Gen. Stat. \u00a7 105-394 (2005) unless the failure was due to a clerical or administrative error. I believe that the majority has inserted language into the statute. I would hold that the plain language of the statute without alteration and this Court\u2019s opinion in In re Appeal of Dickey, 110 N.C. App. 823, 431 S.E.2d 203 (1993), require reversal of the Property Tax Commission.\nI agree with the North Carolina Association of County Commissioners\u2019 assertion in its amicus brief that the Commission was improperly attempting \u201cto assert a public policy that is contrary to the policy adopted by the legislature.\u201d The Commission and the majority opinion have improperly imposed their view of appropriate public policy \u2014 fairness to individual taxpayers \u2014 to override other public policies promoted by the statute\u2019s plain language such as equality of taxation and reduction of tax rates. I, therefore, respectfully dissent.\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(1) In violation of constitutional provisions; or\n(2) In excess of statutory authority or jurisdiction of the Commission; or\n(3) Made upon unlawful proceedings; or\n(4) Affected by other errors of law; or\n(5) Unsupported by competent, material and substantial evidence in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nN.C. Gen. Stat. \u00a7 105-345.2 (2005). I would hold that the Property Commission\u2019s decision was affected by error of law and is not supported by competent evidence.\nN.C. Gen. Stat. \u00a7 105-394 provides:\nImmaterial irregularities in the listing, appraisal, or assessment of property for taxation or in the levy or collection of the property tax or in any other proceeding or requirement of this Subchapter shall not invalidate the tax imposed upon any property or any process of listing, appraisal, assessment, levy, collection, or any other proceeding under this Subchapter..\nThe statute also lists examples of immaterial irregularities, including: \u201c(3) The failure to list, appraise, or assess any property for taxation or to levy any tax within the time prescribed by law.\u201d The County contends that its failure to assess Ms. Morgan\u2019s house falls within this definition of an immaterial irregularity.\nThe Property Tax Commission, however, held that application of \u00a7 105-394(3) was \u201cnot proper under the facts and circumstances of this appeal.\u201d The Commission asserted that Dickey was distinguishable because, contrary to Dickey, in this case (1) \u201cthere is substantial evidence in this record to show that the Tax Assessor could have obtained valuations for the subject residence prior to issuing the Notices of Immaterial Irregularity for tax years 1995 through 2003\u201d because the assessor had \u201cample information\u201d to know of the house\u2019s existence, and (2) \u201c[ujnlike the facts in the matter of In re Dickey, there is substantial evidence in this record to show that the Legislature did not intend for the action of the Tax Assessor, under the facts and circumstances at issue, to be an immaterial irregularity since his action in this matter does not constitute a clerical or administrative error.\u201d The Commission then concluded that applying \u00a7 105-394(3) to allow the County to recover back taxes would \u201cviolate[] the public policy of this State because a Tax Assessor should not be permitted to benefit from his own omissions or mistakes.\u201d\nIt is, however, the responsibility of the General Assembly to determine the public policy of the State. See Rhyne v. K-Mart Corp., 358 N.C. 160, 169, 594 S.E.2d 1, 8 (2004) (holding that the legislative branch is, \u201cwithout question,\u201d the policymaking agency of the State). It is also well settled that the meaning of any statute, such as \u00a7 105-394(3), is controlled by the intent of the legislature and that this intent is determined by first looking at the plain language of the statute. Elec. Supply Co. of Durham, Inc. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991).\nThe plain language of the statute states that an immaterial irregularity includes a \u201cfailure to . . . assess any property for taxation . . . within the time prescribed by law.\u201d N.C. Gen. Stat. \u00a7 105-394(3). Contrary to the decision of the Property Tax Commission and the majority opinion, this language does not require that this failure be due to \u201ca clerical or administrative error.\u201d Although the Commission asserts that this must have been the intent of the General Assembly, our Supreme Court has stressed that when a statute is unambiguous, \u201c[w]e have no power to add to or subtract from the language of the statute.\u201d Ferguson v. Riddle, 233 N.C. 54, 57, 62 S.E.2d 525, 528 (1950). Dickey specifically held that N.C. Gen. Stat. \u00a7 105-394 had \u201cclear and unambiguous language.\u201d 110 N.C. App. at 829, 431 S.E.2d at 207. We thus should not insert into the statute, as the Commission and the majority do, a further limitation that the failure to assess be the result of a clerical or administrative error separate from the failure to assess.\nAlthough Dickey did reference an administrative error, nothing in Dickey holds that there must be a specific act that resulted in the failure to assess the property. Certainly, destruction of a house listing, as occurred in Dickey, is just as negligent as a failure to assess without an identified cause for the failure. Indeed, the Commission\u2019s decision and the majority opinion beg the question of what constitutes a clerical or administrative error sufficient to invoke N.C. Gen. Stat. \u00a7 105-394. This absence of clarity is due to the fact that the General Assembly never imposed such a requirement.\nIt is undisputed that, in the present case, the County failed to assess the Morgan residence within the time prescribed by law. Under the plain language of N.C. Gen. Stat. \u00a7 105-394(3), this failure constitutes an immaterial irregularity and did not, therefore, \u201cinvalidate the tax levied on the property.\u201d In re Nuzum-Cross Chevrolet, 59 N.C. App. 332, 333-34, 296 S.E.2d 499, 500 (1982), disc. review denied, 307 N.C. 576, 299 S.E.2d 645 (1983). I, therefore, believe the evidence and the law requires reversal of the Commission\u2019s decision.\nThe Commission, however, urges that a construction of \u00a7 105-394 to allow the County to recover property taxes and interest when Ms. Morgan had always paid her taxes promptly would be unfair. Yet, \u201c[t]he duty of a court is to construe a statute as it is written. It is not the duty of a court to determine whether the legislation is wise or unwise, appropriate or inappropriate, or necessary or unnecessary.\u201d Campbell v. First Baptist Church of the City of Durham, 298 N.C. 476, 482, 259 S.E.2d 558, 563 (1979).\nFurther, the view of the Commission and the majority opinion overlooks the public policy advantages of construing the statute as written. As the North Carolina Association of County Commissioners explained in its brief:\nWhatever the source or nature of the omission [to assess], the legislature has determined through G.S. \u00a7 105-394 that errors in listing and assessment are to be corrected when found. This policy avoids the inequity of one property owner not being taxed on some or all of his or her property while all other property owners in that county are taxed.\nThe policy also avoids any incentive on the part of the property owner to allow an assessment oversight to persist. That is, if a property owner knows that a listing or assessment error will be picked up sooner or later and that taxes will be due for the years in question, that property owner is more likely to bring any omission or other error to the attention of the county assessor\u2019s office.\nIndeed, it has been the policy of the North Carolina Department of Revenue for years to encourage county assessors to correct all listings. In this way, the tax rate for all taxpayers can be as low as possible.\n(Emphasis added.) It is the province of the General Assembly \u2014 and not this Court or the Property Commission \u2014 to determine whether these policies outweigh the unfairness to individual taxpayers.\nFinally, the County also argues that the Commission erred in concluding the County was not entitled to interest on appellee\u2019s unpaid taxes. Taxes paid on or after their due date are \u201cdelinquent and are subject to interest charges.\u201d N.C. Gen. Stat. \u00a7 105-360(a) (2005). As a general rule, \u201c[a]ll assessments of tax . . . shall bear interest at the rate established pursuant to this subsection from the time the tax was due until paid.\u201d N.C. Gen. Stat. \u00a7 105-241.l(i) (2005) (emphasis added). I see no basis for excluding tax assessments arising as a result of immaterial irregularities from this general rule. Indeed, although the majority reaches a different conclusion, Ms. Morgan does not seriously contest this issue.\nIn closing, it may well be troubling that a taxing authority can, under the immaterial irregularity provisions of N.C. Gen. Stat. \u00a7 105-394, go back 10 years to assess property that the authority has neglected to assess in a timely fashion through no fault of the taxpayer. Whether a County should be able to do so is, however, a question for the General Assembly and not for the courts. It is our responsibility to apply the statute as written.",
        "type": "dissent",
        "author": "GEER, Judge,"
      }
    ],
    "attorneys": [
      "DeVore, Acton & Stafford, PA, by Fred W. DeVore, III, for taxpayer-appellee Tyleta W. Morgan.",
      "Parker Poe Adams & Bernstein LLP, by Charles C. Meeker and Benn A. Brewington, III, for appellant Henderson County.",
      "Paul A. Meyer, for amicus curiae North Carolina Association of County Commissioners."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER: THE APPEAL OF: TYLETA W. MORGAN from the decision of the Henderson County Board of Equalization and Review concerning the taxation of certain real property for tax years 1995 through 2003\nNo. COA06-1423\n(Filed 6 November 2007)\n1. Taxation\u2014 ad valorem taxes \u2014 failure to assess \u2014 not an immaterial irregularity\nA county\u2019s failure to include an assessment for petitioner\u2019s residence in her tax bills from 1995 through 2003 was not an immaterial irregularity. There was substantial evidence tending to show that the County had multiple opportunities to assess the property but failed to do so.\n2. Taxation\u2014 ad valorem taxes \u2014 failure to assess \u2014 interest\nNothing in N.C.G.S. \u00a7 105-394 allows a county to attempt to collect interest and penalties in addition to back taxes allegedly owed when the county grossly and repeatedly failed to assess the listed property.\nJudge GEER dissenting.\nAppeal by Henderson County from final decision entered 17 July 2006 by Chairman Terry L. Wheeler for the North Carolina Property Tax Commission. Heard in the Court of Appeals 23 May 2007.\nDeVore, Acton & Stafford, PA, by Fred W. DeVore, III, for taxpayer-appellee Tyleta W. Morgan.\nParker Poe Adams & Bernstein LLP, by Charles C. Meeker and Benn A. Brewington, III, for appellant Henderson County.\nPaul A. Meyer, for amicus curiae North Carolina Association of County Commissioners."
  },
  "file_name": "0567-01",
  "first_page_order": 597,
  "last_page_order": 606
}
