Yen, LLC v. Jefferson County Board of Commissioners ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 12, 2021
2021COA107
No. 20CA0516, Yen, LLC v. Jefferson County Board of
Commissioners — Taxation — Property Tax — Correction of
Errors
A division of the court of appeals considers when county tax
assessors may correct errors in real property valuations. The
division concludes that, under section 39-5-125(2), C.R.S. 2020,
assessors may only correct “errors in the assessment roll.” The
division also concludes that assessors do not have broad
constitutional authority to correct any and all errors. Instead,
assessors’ authority to correct errors derives from the detailed
statutory scheme enacted by the General Assembly.
Because the county has not alleged that the error in this case
fits the statutory criteria, the division rejects the county’s position
and affirms the board of assessment appeals’ order voiding the
corrected notice of valuation.
COLORADO COURT OF APPEALS 2021COA107
Court of Appeals No. 20CA0516
Board of Assessment Appeals No. 75342
Yen, LLC,
Petitioner-Appellee,
v.
Jefferson County Board of Commissioners,
Respondent-Appellant,
and
Board of Assessment Appeals,
Appellee.
ORDER AFFIRMED
Division VI
Opinion by JUDGE BERGER
Richman and Welling, JJ., concur
Announced August 12, 2021
Goldstein Law Firm, L.L.C., Mark W. Gerganoff, Denver, Colorado, for
Petitioner-Appellee
Kimberly Sorrells, County Attorney, Rebecca Klymkowsky, Assistant County
Attorney, Rachel Bender, Assistant County Attorney, Jason W. Soronson,
Assistant County Attorney, Golden, Colorado, for Respondent-Appellant
Philip J. Weiser, Attorney General, Ashley Barrett Carter, Assistant Attorney
General, Denver, Colorado, for Appellee Board of Assessment Appeals
¶1 This case requires us to address county tax assessors’
authority to correct errors in real property valuations. The
Jefferson County Board of Commissioners (the county) appeals an
order of the Board of Assessment Appeals (BAA) voiding the
county’s corrected notice of valuation (NOV) for real property owned
by taxpayer Yen, LLC (Yen). Because it is undisputed that the
county’s corrected NOV did not correct an “error[] in the assessment
roll,” the correction did not meet the statutory criteria in section
39-5-125(2), C.R.S. 2020. The county therefore did not have the
authority to correct the valuation error under that statute. We
reject the county’s other asserted bases for error correction, so we
affirm the BAA’s order.
I. Relevant Facts and Procedural History
¶2 Colorado assessors are statutorily required to mail an NOV to
real property owners no later than May 1 in each year. § 39-5-
121(1)(a)(I), C.R.S. 2020. About two weeks before this statutory
deadline, the assessor mailed an NOV to Yen. This NOV valued
Yen’s commercial real property, a four-bay self-service car wash, at
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$99,715, which represented an approximate 5% increase from the
prior year’s valuation.
¶3 However, after mailing this NOV, for reasons not disclosed by
the record, the assessor determined that the NOV undervalued
Yen’s property. To rectify this supposed undervaluation, the
assessor mailed Yen a second NOV after the statutory deadline
(corrected NOV). The corrected NOV valued the property at
$299,099, nearly triple the assessed value in the original NOV.
¶4 Yen timely protested the valuation contained in the corrected
NOV with the assessor, who denied the protest. Yen did not further
appeal the protest denial.
¶5 Instead, as permitted under a separate statutory procedure,
Yen petitioned for an abatement or refund with the county. See
§ 39-10-114, C.R.S. 2020. Yen asserted that the corrected NOV
was void because the assessor did not have the statutory authority
to issue the corrected NOV after the statutory deadline. The county
denied the petition, and Yen appealed to the BAA.
¶6 The BAA concluded that the corrected NOV was void. The BAA
reasoned that assessors must usually mail NOVs by the statutory
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deadline and that the corrected NOV did not fall under any of the
statutorily prescribed exceptions to that requirement. Specifically,
the BAA concluded that the corrected NOV did not fall under the
statutory exception allowing for a change in value when the
taxpayer protests an assessor’s valuation because the corrected
NOV was not issued in response to a protest by the taxpayer.
¶7 The BAA also concluded that the corrected NOV did not fall
under the statutory exception pertaining to omissions and errors.
Regarding omissions, the BAA reasoned that the corrected NOV did
not correct an omission of property because the assessor had
already complied with the statute by timely mailing an NOV valuing
Yen’s property. Regarding errors, citing section 39-5-125(2), the
BAA explained that “the error here has not been shown to be a type
that could be readily ascertained what was intended. No evidence
has been presented that any such . . . error has occurred.”
¶8 The county appeals, and we have appellate jurisdiction under
section 39-10-114.5(2), C.R.S. 2020.
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II. Analysis
¶9 The county argues that the BAA erred by voiding the corrected
NOV. Specifically, the county contends that it has the authority to
send a corrected NOV at any time before it delivers the tax warrant
to the state treasurer in January of the following year. Because the
statutes governing property taxation do not authorize the corrected
NOV in the circumstances presented here, we reject the county’s
argument.
A. Standard of Review and Statutory Construction
¶ 10 A challenge to an order of the BAA regarding a property tax
assessment presents mixed questions of law and fact. Thibodeau v.
Denver Cnty. Bd. of Comm’rs, 2018 COA 124, ¶ 6. We defer to the
BAA’s findings of fact if they are supported by the record. See id. at
¶ 7. But we review questions of law de novo, including the BAA’s
interpretation of relevant statutes. Id. at ¶ 6.
¶ 11 “When interpreting a statute, our primary aim is to effectuate
the legislature’s intent.” Nieto v. Clark’s Market, 2021 CO 48, ¶ 12;
see also Riley v. People, 104 P.3d 218, 220 (Colo. 2004). We look
first to a statute’s plain language. Bostelman v. People, 162 P.3d
4686, 690 (Colo. 2007). This requires “reading applicable statutory
provisions as a whole in order to accord consistent, harmonious,
and sensible effect to all their parts.” Prairie Mountain Publ’g v.
Regents of Univ. of Colo., 2021 COA 26, ¶ 12 (quoting People in
Interest of W.P., 2013 CO 11, ¶ 11). “If the statutory language is
clear and unambiguous, we do not engage in further statutory
analysis.” Bostelman, 162 P.3d at 690.
¶ 12 “If a statute is ambiguous, the court, in determining the
intention of the general assembly, may consider . . . [t]he
administrative construction of the statute.” § 2-4-203(1)(f), C.R.S.
2020. “[W]hile agency interpretations should be given due
consideration, they are ‘not binding on the court.’” Nieto, ¶ 38
(quoting El Paso Cnty. Bd. of Equalization v. Craddock, 850 P.2d
702, 704-05 (Colo. 1993)).
¶ 13 Fundamentally, “we must respect the legislature’s choice of
language, and we do not add words to the statute or subtract words
from it.” Oakwood Holdings, LLC v. Mortg. Invs. Enters., LLC, 2018
CO 12, ¶ 12. “An exception not made by the legislature is not to be
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read into the statute.” Lang v. Colo. Mental Health Inst., 44 P.3d
262, 264 (Colo. App. 2001).
B. Law of Property Taxation
¶ 14 Colorado’s Constitution provides that
[e]ach property tax levy shall be uniform upon
all real and personal property . . . within the
territorial limits of the authority levying the
tax. The actual value of all real and personal
property . . . shall be determined under general
laws, which shall prescribe such methods and
regulations as shall secure just and equalized
valuations for assessments of all real and
personal property.
Colo. Const. art. X, § 3(1)(a).
¶ 15 To effectuate this constitutional mandate, the General
Assembly enacted a comprehensive statutory framework. Section
39-5-121(1)(a)(I) provides, “[n]o later than May 1 in each year, the
assessor shall mail to each person who owns land or improvements
a notice setting forth the valuation of such land or improvements.”
¶ 16 There are two statutory avenues by which a taxpayer may
contest a property valuation. See Bea Kay Real Est. Corp. v.
Aragon, 782 P.2d 837, 838-39 (Colo. App. 1989) (addressing prior
versions of the two statutes). One avenue is a taxpayer protest
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under section 39-5-122, C.R.S. 2020.1 If that protest is denied, the
taxpayer “may appeal to the county board of equalization.” § 39-5-
122(3). The second avenue is under the abatement statute, which
is the statutory basis for the matter before us. See § 39-10-114.
¶ 17 After the board of equalization completes protest appeals, the
assessor compiles the assessment roll, listing the taxes due on all
taxable property in the county. § 39-5-123(1)(a), C.R.S. 2020.
¶ 18 The statutes permit or mandate the correction of valuation
errors in specific circumstances. For example, an assessor must
correct errors that he or she discovers during a taxpayer protest
under section 39-5-122(2). San Miguel Cnty. Bd. of Equalization v.
Telluride Co., 947 P.2d 1381, 1384 (Colo. 1997).
¶ 19 Errors must also be corrected under section 39-5-125(1):
[W]henever it is discovered that any taxable
property has been omitted from the
assessment roll of any year or series of years,
the assessor shall immediately determine the
value of such omitted property and shall list
the same on the assessment roll of the year in
which the discovery was made . . . .
1 This statute was recently amended by the General Assembly, to
take effect in the tax year 2022. Ch. 301, sec. 12, § 39-5-122, 2021
Colo. Sess. Laws 1812.
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This provision, however, does not apply to “previously taxed
property that has been undervalued.” In Stitches, Inc. v. Denver
Cnty. Bd. of Comm’rs, 62 P.3d 1080, 1081 (Colo. App. 2002). The In
Stitches division concluded that the provision “authorize[s]
retroactive assessments of property taxes only against ‘omitted
property,’ and not against ‘omitted value.’” Id.¶ 20 Errors may also be corrected under section 39-5-125(2):
Omissions and errors in the assessment roll,
when it can be ascertained therefrom what was
intended, may be supplied or corrected by the
assessor at any time before the tax warrant is
delivered to the treasurer or by the treasurer at
any time after the tax warrant has come into
his hands.
(Emphasis added.)
¶ 21 The assessor must “deliver the tax warrant under his hand
and official seal to the treasurer” by January 10 of the following
year. § 39-5-129, C.R.S. 2020.
C. Correcting Errors in the Assessment Roll
¶ 22 The parties agree that this case does not involve a corrected
valuation made during a taxpayer protest, nor does it involve
omitted property. Instead, the county argues that it had the
8
authority to issue a corrected NOV to remedy a valuation error
under section 39-5-125(2) and the cases construing it.
¶ 23 While the county and the BAA disagree on the scope of error
correction afforded under section 39-5-125(2), they agree that the
provision permits county assessors to mail corrected NOVs under
some circumstances. The county contends that it has authority to
correct errors at any time, and presumably for any reason, before it
delivers the tax warrant to the treasurer. Yen, on the other hand,
asserts that section 39-5-125(2) does not apply because that
provision addresses “errors in the assessment roll,” not errors in
NOVs. Based on the statute’s plain language, we agree with Yen.
¶ 24 By its plain terms, section 39-5-125(2) allows the county to
correct “errors in the assessment roll, when it can be ascertained
therefrom what was intended.” The county claims that the original
notice “mistakenly” and “incorrectly” undervalued Yen’s property,
requiring the corrected NOV. But all parties agree that the county
was not correcting an error in the assessment roll. In fact, all
parties agree that, at the time the county sent the corrected NOV,
the assessment roll had not yet been created. Therefore, even
9
assuming that section 39-5-125(2) permits assessors to send
corrected NOVs to remedy an error in the assessment roll,2 the
county had no authority to issue the corrected NOV under that
section in this case.
¶ 25 Colorado Supreme Court precedent supports our plain
language analysis. In Modular Communities, Inc. v. McKnight, the
supreme court addressed a prior version of section 39-5-125 and
held that it “expressly authorizes the assessor and treasurer to
correct errors in the assessment roll at any time, before or after, the
treasurer receives the tax warrant.” 191 Colo. 101, 103, 550 P.2d
866, 868 (1976) (emphasis added). This holding tracks the
statutory language.
¶ 26 True, the correction in Modular did not correct an error in the
assessment roll. Id. at 102, 550 P.2d at 867. Based on these facts,
the county argues (and the BAA apparently agrees) that Modular
2 The statute says that “errors in the assessment roll . . . may be
supplied or corrected by the assessor.” § 39-5-125(2), C.R.S. 2020.
Because there was no assessment roll, we need not and do not
decide the meaning of the “supplied or corrected” language, or
whether it permits an assessor to mail a corrected NOV to correct
the assessment roll.
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permits corrected NOVs even if they are not correcting errors in the
assessment roll. We disagree because Modular did not address or
approve a corrected NOV under these circumstances. Instead, the
supreme court addressed the enforceability of a county treasurer’s
“tax notice,” which is essentially a tax bill. Id. A tax notice,
informing the taxpayer of the property tax due for the past year, is a
fundamentally different document than an NOV, which provides the
county’s assessed value for a taxpayer’s property. Modular
therefore did not address the situation before us: a corrected NOV
issued before the creation of the assessment roll.
¶ 27 Neither does Telluride Co. require a construction contrary to
the statute’s plain language. There, the supreme court addressed
error correction in response to a taxpayer protest under section
39-5-122(2), C.R.S. 1997. Telluride Co., 947 P.2d at 1383-84. The
court held that this statutory provision “requires the assessor to
correct ‘any valuation’ that is ‘erroneous’ or ‘otherwise improper’”
that the county discovers during a taxpayer protest proceeding. Id.
at 1384 (quoting § 39-5-122(2), C.R.S. 1997). As noted, the
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corrected NOV in this case was not issued in response to a taxpayer
protest.
¶ 28 In discussing other avenues for error correction, the supreme
court said that “[t]he General Assembly has authorized the assessor
to raise valuations that fail to reflect a property’s actual value
regardless of when the error in valuation is discovered.” Id. at 1385
(citing § 39-5-125(2), C.R.S. 1997). This broad statement was
unnecessary to the court’s decision. The court’s interpretation of
section 39-5-125(2) in Telluride Co. was therefore dictum. The
supreme court itself has defined dictum as “judicial comment . . .
that is unnecessary to the decision in the case and therefore not
precedential.” Sullivan v. People, 2020 CO 58, ¶ 21 n.5 (citation
omitted); see also Main Elec., Ltd. v. Printz Servs. Corp., 980 P.2d
522, 526 (Colo. 1999) (“[T]his statement is conclusory and made
without analyzing the contract terms and appears as dictum.”).
“Dictum is not . . . controlling precedent.” Main Elec., 980 P.2d at
526 n.2.
¶ 29 We do not apply Telluride Co.’s dictum in this case because
doing so would require us to violate the supreme court’s more
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recent and ubiquitous teaching: we must give effect to all parts of a
statute, and our construction must not render parts of the statute
meaningless. Robinson v. Legro, 2014 CO 40, ¶ 14; People v.
Hernandez, 250 P.3d 568, 572 (Colo. 2011); People v. Terry, 791
P.2d 374, 376 (Colo. 1990).
¶ 30 Applying Telluride Co.’s dictum, as the county would have us
do, would render meaningless much of the statutory language
addressing error correction. For example, if an assessor could
correct an error whenever he or she saw fit, the statutory language
specifying “errors in the assessment roll” would be meaningless, as
would the requirement that “it can be ascertained therefrom what
was intended.” See § 39-5-125(2). The statutory language
addressing the correction of errors of omission would also be
superfluous. See § 39-5-125(1), (2). And the May 1 deadline for
mailing notices would be of no consequence if the assessor could
change that valuation at any time thereafter for any reason.
¶ 31 In sum, to be faithful to Robinson (and a multitude of other
supreme court cases) we must reject the county’s construction of
section 39-5-125(2) because we must construe “applicable statutory
13
provisions as a whole in order to accord consistent, harmonious,
and sensible effect to all their parts.” Prairie Mountain, ¶ 12
(emphasis added) (quoting W.P., ¶ 11); see also Nieto, ¶ 12.
¶ 32 We recognize that the statute’s plain language compels a
potentially anomalous result as to when county assessors can
correct the information contained in NOVs. If the assessor
proactively identifies an error and mails a corrected NOV before the
assessment roll is created, as the assessor did here, that is not
permissible under the statute; but if the assessor waits until the
assessment roll is created, a correction of an NOV may be
permissible.3 This result may be criticized, but it is not the role of
this court to rewrite statutes to improve them. Dep’t of Transp. v.
City of Idaho Springs, 192 P.3d 490, 494 (Colo. App. 2008). Absent
express supreme court direction to the contrary, which does not
exist here, we will not construe a statute contrary to its plain
language.
¶ 33 However, even assuming the validity of the county’s position
that section 39-5-125(2) allows correction of an erroneous valuation
3 See supra note 2.
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prior to the compilation of the assessment roll, the county’s
argument founders on another statutory ground. The county has
not asserted, in this court or in the proceedings below, that this is a
case in which the correct value could “be ascertained therefrom
what was intended.” § 39-5-125(2). The county ignores this
statutory language, instead arguing that it has broad authority to
issue corrected NOVs at any time before delivering the tax warrant
to the treasurer. We reject the county’s argument because we must
give effect to all the statutory language. W.P., ¶ 11; see also § 2-4-
201(1)(b), C.R.S. 2020 (“In enacting a statute, it is presumed
that: . . . [t]he entire statute is intended to be effective.”). Therefore,
the county had no authority to issue a corrected NOV under section
39-5-125(2).4
4Because the county does not contend that it satisfied the statutory
criteria, we need not and do not address the meaning of “when it
can be ascertained therefrom what was intended.” § 39-5-125(2).
15
D. Assessors Do Not Have Nonstatutory Error Correction
Authority
¶ 34 The county also contends that it has plenary authority under
the Constitution to correct valuation errors.5 We reject this
argument because the pertinent constitutional language does not
support it.
¶ 35 Article X, section 3 of the Colorado Constitution requires that
“[t]he actual value of all real and personal property . . . shall be
determined under general laws, which shall prescribe such methods
and regulations as shall secure just and equalized valuations for
assessments of all real and personal property.” (Emphasis added.)
The Constitution does not contain self-implementing authority for
county assessors but instead expressly requires that statutes
govern the rules of property taxation.
¶ 36 To that end, the General Assembly has enacted a detailed
legislative scheme. Nothing in the statutes authorizes county
5 At oral argument, the county appeared to narrow its position,
claiming this plenary authority only until the assessment roll is
created. Regardless, our analysis and rejection of the county’s
claim of broad constitutional authority (or any form of
extra-statutory authority) is the same.
16
assessors to send corrected NOVs whenever they wish. Instead, as
discussed, the statutes prescribe specific circumstances in which
county assessors may correct errors.
¶ 37 Bea Kay, a decision by this court, does not support the
county’s argument for broad, nonstatutory correction power. In
that case, the assessor did not mail a timely NOV, instead mailing
one months after the statutory deadline. Bea Kay, 782 P.2d at 837.
Because no timely NOV had been issued at all, the case addressed
omitted property — not error correction, as we have here. See id. It
is undisputed that the assessor in this case mailed a timely NOV
and that Yen’s property was not omitted; Bea Kay is therefore
inapplicable.
E. Windfall Considerations Cannot Defeat the Statutory
Language
¶ 38 Finally, the county contends that our construction leads to an
improper windfall for the taxpayer. We agree that the county’s error
will result in Yen paying less taxes than the county believes Yen
owes for the tax year at issue.6 But windfall considerations do not
6 Of course, any error does not affect an assessor’s ability to adjust
the valuation in succeeding years.
17
permit us to rewrite the statute’s clear language. “Courts may not
rewrite statutes to improve them.”7 City of Idaho Springs, 192 P.3d
at 494.
III. Conclusion
¶ 39 The BAA’s order is affirmed.
JUDGE RICHMAN and JUDGE WELLING concur.
7Because of our disposition, we need not and do not address Yen’s
other arguments for voiding the corrected notice, or whether those
arguments are properly preserved for our review.
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