Mid America Agri Prods. v. Perkins Cty. Bd. of Equal. , 312 Neb. 341 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/30/2022 01:05 AM CDT
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341Mid America Agri Products/Wheatland
Industries LLC, appellant, v.
Perkins County Board of
Equalization, appellee.
___ N.W.2d ___
Filed August 26, 2022. No. S-21-944.
1. Taxation: Judgments: Appeal and Error. Appellate courts review
decisions rendered by the Tax Equalization and Review Commission for
errors appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. Taxation: Appeal and Error. Questions of law arising during appellate
review of the Tax Equalization and Review Commission’s decisions are
reviewed de novo on the record.
4. Statutes. Statutory interpretation presents a question of law.
5. Administrative Law: Statutes. Agency regulations properly adopted
and filed with the Secretary of State of Nebraska have the effect of
statutory law.
6. Taxation: Property: Valuation: Statutes: Time: Dismissal and
Nonsuit. When a protest of property valuation is not timely filed on or
before June 30 as required under Neb. Rev. Stat. § 77-1502(1) (Reissue
2018), the county board of equalization lacks statutory authority to
review and decide the merits of the protest, and it does not have statu-
tory authority to do anything other than dismiss the protest.
7. Courts: Words and Phrases. A court generally does not read the use of
the terms “must” and “shall” as permissive rather than mandatory.
8. Taxation: Property: Valuation: Time: Appeal and Error. When a
county board of equalization lacks authority to review and decide a
protest of property valuation on the merits because the protest was not
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341timely filed, the Tax Equalization and Review Commission likewise
lacks authority to review the merits of the protest.
Appeal from the Tax Equalization and Review Commission.
Affirmed.
Frederick D. Stehlik and Zachary W. Lutz-Priefert, of Gross,
Welch, Marks & Clare, P.C., L.L.O., for appellant.
Timothy L. Moll, of Rembolt Ludtke, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
The Perkins County Board of Equalization (the Board) dis-
missed the 2021 property valuation protest of Mid America
Agri Products/Wheatland Industries LLC (Wheatland) because
it was not timely filed. The Tax Equalization and Review
Commission (TERC) affirmed the dismissal. Wheatland
appeals. Wheatland argues that the statutory deadline for
filing a protest may be waived by a board of equalization
and that the Board waived the deadline in this case because
it allegedly accepted the protest and heard argument on the
merits of the protest. We affirm TERC’s order which affirmed
the dismissal.
STATEMENT OF FACTS
Wheatland owns a parcel of real estate in Perkins County.
The Perkins County assessor changed the valuation of the
property for the 2018 tax year and again for the 2019 tax year,
and each of these years the assessor sent Wheatland a notice
of valuation change. Wheatland filed timely protests to the
valuations for both 2018 and 2019. The valuation for the 2019
tax year was $13,385,246.
For the 2020 tax year, the assessor did not change the valu-
ation of the property and therefore did not send Wheatland a
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341notice of valuation change. However, Wheatland filed a timely
protest to the 2020 valuation. The Board denied Wheatland’s
protests for the 2018, 2019, and 2020 tax years. Wheatland
appealed the denials to TERC, and those appeals were still
pending at the time of the dismissal of the 2021 protest at
issue in this appeal.
For the 2021 tax year, the assessor again maintained the
valuation of Wheatland’s property from 2019 and 2020. The
assessor therefore did not send a notice of valuation change.
On July 1, 2021, Wheatland’s attorney hand delivered a prop-
erty valuation protest form to the Perkins County clerk. The
clerk received the protest on that date, but on July 2, the clerk
sent a letter to Wheatland informing it that it had missed the
June 30 deadline to file a protest and that therefore, the protest
would not be heard by the Board. The Board maintains that
the 2021 protest was automatically dismissed by operation
of law.
Notwithstanding the clerk’s letter, Wheatland’s attorney
attended the July 19, 2021, meeting of the Board. Wheatland
asserts that despite claiming that its protest was not timely,
the Board discussed Wheatland’s protest of the 2021 valua-
tion at the July 19 meeting. To the contrary, the Board asserts
that it did not discuss the 2021 valuation, but, instead, that
it discussed a TERC hearing that had been held on July
12 concerning Wheatland’s appeals of the 2018, 2019, and
2020 valuations.
Wheatland appealed to TERC and claimed that the asses-
sor’s failure to give notice prevented Wheatland from timely
filing its protest. TERC thereafter entered an order to show
cause and notice of hearing in which it ordered that a “hear-
ing must be held to determine whether [TERC] has jurisdic-
tion over this matter.” TERC set a hearing date and stated
that the hearing would only address the jurisdictional issue
and that a separate hearing on the valuation of the property
would be scheduled at a later date if TERC determined it
had jurisdiction.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341After the hearing, TERC filed an “Order for Dismissal” on
October 27, 2021. TERC began its analysis by citing Neb.
Rev. Stat. § 77-5013(1) (Reissue 2018), which provides the
requirements for TERC to obtain exclusive jurisdiction over an
appeal. TERC further stated it could not “acquire jurisdiction
over an issue if the body from which the appeal is taken had no
jurisdiction of the subject matter.”
Turning to the timeliness of Wheatland’s protest, TERC
rejected Wheatland’s contention to the effect that it could not
timely file its protest because the assessor failed to provide
notice of the 2021 valuation. TERC stated that the assessor
was not required to send Wheatland a notice for the tax year
2021 because the assessed valuation of Wheatland’s property
was not changed from the prior year. See Neb. Rev. Stat.
§ 77-1315(2) (Reissue 2018).
TERC stated that a statutory remedy existed to challenge a
property’s assessment, and it cited Neb. Rev. Stat. § 77-1502(1)
(Reissue 2018), which provides that “[p]rotests regarding real
property shall be signed and filed . . . on or before June 30.”
TERC also noted 350 Neb. Admin. Code, ch. 10, § 003.03A
(2014), which provides in part that “[i]f the protest is not
timely filed, it will automatically be dismissed.”
In its order, TERC stated that Wheatland did not file its
protest on or before June 30, 2021, and that Wheatland did
not dispute that its filing on July 1 was late. TERC noted that
Wheatland nevertheless argued that the Board “waived any
issues concerning the timeliness of the protest by ‘accepting’
the protest.” Wheatland asserted that the Board accepted the
protest when the clerk received the protest that its attorney had
hand delivered on July 1 and told the attorney the date that
the Board would hold a hearing on protests. Wheatland also
asserted that the Board discussed Wheatland’s protest at the
July 19 hearing. TERC noted in its order that witnesses dis-
agreed as to whether Wheatland’s protest of the 2021 valuation
was discussed at the Board’s hearing and that two members
of the Board attested they had discussed Wheatland’s appeals
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341of the 2018, 2019, and 2020 valuations but had not discussed
the 2021 valuation. TERC stated that a preponderance of the
evidence did not support a finding that the Board had con-
sidered Wheatland’s protest of the 2021 valuation. But TERC
determined that whether or not the Board had considered the
protest, TERC consistently applied the rule that subject matter
jurisdiction may not be created by waiver, estoppel, consent,
or conduct of the parties. TERC further stated that equitable
estoppel was not normally applied in administrative proceed-
ings, that TERC did not have equitable power, and that even if
it had equitable power, the statutes regarding protests provided
an adequate remedy at law.
In its order, TERC concluded that the Board correctly dis-
missed Wheatland’s protest because the protest was not timely
filed. TERC cited Village at North Platte v. Lincoln Cty. Bd. of
Equal., 292 Neb. 533, 873 N.W.2d 201 (2016), for the proposi-
tion that when a statute requires a county board of equalization
to dismiss a protest, the county board does not have authority
to do anything except dismiss the protest. TERC further stated
that “[w]hen a county board correctly dismisses a protest
because it lacked statutory authority to hear the protest on the
merits, [TERC] should decline to reach the merits of the appeal
and affirm the dismissal of the county board.” TERC therefore
affirmed the Board’s dismissal of the protest and dismissed
Wheatland’s appeal with prejudice.
Wheatland appeals TERC’s order.
ASSIGNMENT OF ERROR
Wheatland claims, restated, that TERC erred when it
affirmed the Board’s dismissal of Wheatland’s protest because
the 2021 protest had not been timely filed.
STANDARDS OF REVIEW
[1,2] Appellate courts review decisions rendered by TERC
for errors appearing on the record. Betty L. Green Living Trust
v. Morrill Cty. Bd. of Equal., 299 Neb. 933, 911 N.W.2d 551- 346 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341(2018). When reviewing a judgment for errors appearing on
the record, an appellate court’s inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Id.[3,4] Questions of law arising during appellate review of
TERC’s decisions are reviewed de novo on the record. Id.Statutory interpretation presents a question of law. County of
Webster v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 751,
896 N.W.2d 887 (2017).
ANALYSIS
Wheatland claims that TERC erred when it affirmed the
Board’s dismissal of Wheatland’s protest because the filing
of the protest was late. Wheatland argues that its filing of the
protest on July 1, 2021, did not deprive the Board of authority
to consider the protest because the June 30 deadline set forth
in § 77-1502(1) is merely “an administrative timeline which
an administrative agency has the ability to waive.” Brief for
appellant at 9. Wheatland further argues that the Board waived
the June 30 requirement, because it accepted the protest and
heard argument on the protest, and that therefore, TERC had
jurisdiction to review the valuation on its merits. We disagree
with Wheatland’s contention that the June 30 requirement may
be waived, and we conclude that because the Board did not
err when it dismissed the protest, TERC did not err when it
affirmed the dismissal.
In its order, TERC relied largely on Village at North Platte
v. Lincoln Cty. Bd. of Equal., 292 Neb. 533, 873 N.W.2d 201(2016). In Village at North Platte, the taxpayer filed a protest
that did not meet a requirement of § 77-1502(2) because it
did not include “a statement of the reason or reasons why the
requested change [in valuation] should be made.” We noted
that § 77-1502(2) provided that if a protest failed to “contain
or have attached the statement of the reason or reasons for the
protest . . . the protest shall be dismissed by the county board
of equalization.” We determined in Village at North Platte
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341that because the taxpayer failed to include a statement of
reason or reasons, the board in that case “did not have [statu-
tory] authority to do anything other than dismiss the protest.”
292 Neb. at 540, 873 N.W.2d at 206. We further reasoned in
Village at North Platte that because the board “lacked author-
ity to hear the taxpayer’s . . . protest on the merits of the
valuation, TERC likewise lacked authority to do so.” 292 Neb.
at 541, 873 N.W.2d at 207. We concluded that the board in
Village at North Platte “lacked statutory authority to take any
other action” than to dismiss the protest and that therefore,
TERC “correctly declined to reach the merits of the appeal
regarding the property’s value.” 292 Neb. at 542, 873 N.W.2d
at 208.
[5] In the present case, Wheatland failed to meet the require-
ment in § 77-1502(1) that a protest “regarding real property
shall be signed and filed . . . on or before June 30.” Unlike
§ 77-1502(2) with regard to the required statement of reason or
reasons at issue in Village at North Platte, § 77-1502(1) does
not specifically state that a protest that fails to meet the June
30 filing requirement must be dismissed by the county board of
equalization. However, as TERC noted in its order, the applica-
ble regulation, § 003.03A, provides in part that “[i]f the protest
is not timely filed, it will automatically be dismissed.” Agency
regulations properly adopted and filed with the Secretary of
State of Nebraska have the effect of statutory law. Ash Grove
Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947, 947
N.W.2d 731 (2020).
[6] We determine that our reasoning in Village at North
Platte regarding the statutory requirements in § 77-1502
logically applies to the statutory requirement that a protest
must be filed on or before June 30. Section 77-1502 pro-
vides the statutory authority for a county board of equaliza-
tion to review and decide protests, and the requirements of
the statute must be met in order for a board to exercise that
authority. Section 77-1502 requires that a protest must be
filed on or before June 30 in order for a board to exercise the
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341authority. Furthermore, the applicable regulation, § 003.03A,
specifically provides that a protest that is not timely filed will
“automatically be dismissed.” Therefore, when a protest of
property valuation is not timely filed on or before June 30,
the county board of equalization lacks statutory authority to
review and decide the merits of the protest, and it does not
have statutory authority to do anything other than dismiss
the protest.
Wheatland argues in this case that the Board could, and did,
waive the June 30 requirement when it allegedly accepted the
protest and heard argument on the protest. We note that TERC
stated that the preponderance of the evidence did not support
Wheatland’s assertion that the Board heard argument on the
protest; instead, two Board members attested that the Board
discussed Wheatland’s appeals to TERC of prior years’ valua-
tions but did not discuss the protest of the 2021 valuation. With
regard to Wheatland’s assertion that the Board accepted the
protest, we note that after receiving the protest from Wheatland
on July 1, the clerk sent a letter the next day stating that the
protest was late and would not be heard.
[7] TERC found that the Board did not “waive” the filing
deadline, and such filing is supported by the record. However,
whether or not the Board attempted to waive the June 30
requirement in this case, the Board did not have authority to
do so. Wheatland argues that “shall” as used in § 77-1502(1)
indicates merely a directory, rather than a mandatory, require-
ment and that as such, the requirement may be waived. We
disagree. We have stated that we generally do not read the use
of the terms “must” and “shall” as permissive rather than man-
datory. See, Williams v. Williams, 311 Neb. 772, 975 N.W.2d
523 (2022); Karo v. NAU Country Ins. Co., 297 Neb. 798, 901
N.W.2d 689 (2017). The requirement in § 77-1502(1) that the
protest “shall” be filed on or before June 30 is mandatory,
and timely filing is required in order to give the Board statu-
tory authority to consider a protest. The mandatory nature of
this requirement is bolstered by the regulation, § 003.03A,
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341requiring that if the protest is not timely filed, the protest is
automatically dismissed.
[8] Because the Board was required to dismiss the pro-
test, we determine that it was proper for TERC to affirm
the Board’s dismissal of Wheatland’s protest. Similar to our
reasoning in Village at North Platte v. Lincoln Cty. Bd. of
Equal., 292 Neb. 533, 873 N.W.2d 201 (2016), we conclude
that when a county board of equalization lacks authority to
review and decide a protest of property valuation on the mer-
its because the protest was not timely filed, TERC likewise
lacks authority to review the merits of the protest. Because a
county board of equalization lacks statutory authority to take
any other action than to dismiss a protest that is not timely
filed, TERC, as it did in this case, should decline to reach the
merits of the appeal of a proper dismissal and instead should
affirm the dismissal.
Although we read TERC’s order as affirming the Board’s
dismissal of the protest, there is language in TERC’s order
referring to “jurisdiction” and stating that the appeal must be
dismissed for lack of jurisdiction. We noted similar references
to jurisdiction in Village at North Platte; we recognized that
TERC’s jurisdiction over an appeal is derived from § 77-5013,
which we described as providing that
TERC obtains exclusive jurisdiction over an appeal when:
(1) TERC has the power or authority to hear the appeal;
(2) the appeal is timely filed; (3) the filing fee, if applica-
ble, is timely received and thereafter paid; and (4) a copy
of the decision, order, determination, or action appealed
from, . . . is timely filed.
292 Neb. at 540, 873 N.W.2d at 206-07. We further observed
in Village at North Platte that § 77-5013(1) provides that
“‘[o]nly the requirements of this subsection shall be deemed
jurisdictional’” and that TERC “has the power and duty to hear
and determine appeals of any decision of any county board of
equalization” so long as jurisdictional requirements are met.
292 Neb. at 540, 873 N.W.2d at 207. See, similarly, Karo v.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341NAU Country Ins. Co., 297 Neb. at 810, 901 N.W.2d at 697,
698 (noting distinction between “jurisdictional” and “‘claim-
processing rules’”).
In Village at North Platte, we acknowledged the proposi-
tion that if the court from which an appeal was taken lacked
jurisdiction, then the appellate court acquires no jurisdiction,
and we determined that a “comparable rule” was applicable
with regard to appeals to TERC from decisions of boards of
equalization. 292 Neb. at 541, 873 N.W.2d at 207. We stated
that when a board of equalization lacks authority to hear a
protest on the merits, TERC likewise lacks authority to do
so. In the present case, although it made references to “juris-
diction,” TERC properly recognized that because the Board
lacked statutory authority to review Wheatland’s protest on
the merits, TERC also lacked authority to review the merits
of the protest. TERC therefore properly affirmed the Board’s
dismissal of the protest.
CONCLUSION
The Board properly dismissed Wheatland’s protest of the
2021 property valuation because the protest was filed after the
statutory June 30 deadline, and we therefore affirm TERC’s
order which affirmed the Board’s dismissal of Wheatland’s
2021 protest.
Affirmed.