Gammon v. Benton County Assessor ( 2012 )

IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Property Tax
BEVERLY WINDY GAMMON )
and RICHARD DANIEL GAMMON, )
)
Plaintiffs, ) TC-MD 120778C
)
v. )
)
BENTON COUNTY ASSESSOR, )
)
)
Defendant. ) DECISION OF DISMISSAL
Plaintiffs appeal Defendant’s omitted property tax assessment for property identified as
Account 417640 (subject property), for 2007-08 through 2011-12 tax years. The assessment
added the value of Plaintiffs’ home, which was omitted from the assessment and tax rolls from
the time of construction until the date of the omitted property tax assessment in August 2012. A
telephonic case management hearing was held on November 13, 2012. Plaintiff Beverly Windy
Gammon (Gammon) appeared on behalf of Plaintiffs. Toni Blessing (Blessing) appeared on
behalf of Defendant. Based on information in Plaintiffs’ Complaint and Gammon’s statements
during the case management hearing, the court concludes that that appeal should be dismissed
for lack of a justiciable controversy.
I. STATEMENT OF FACTS
Plaintiffs purchased the subject property in September 2006. Gammon stated that at the
time of Plaintiffs’ purchase the subject property was improved with a newly-built home. (Ptfs’
Compl at 2.) Gammon stated that Plaintiffs received tax statements each year thereafter, but
because the tax liability was paid via their lender as part of their mortgage payment, they did not
notice that the statements contained a land value but no value for the structure (i.e., the home).
DECISION OF DISMISSAL TC-MD 120778C 1
When queried by the court, Gammon acknowledged that the tax statements each year beginning
with tax year 2007-08 had a dollar amount next to the “Land” section and no dollar value next to
the “Structures” section of those statements.
The error was discovered when Plaintiffs endeavored to refinance the home. (Id.) As
part of the refinance process, Gammon telephoned the Benton County Assessor’s office to
ascertain the value of the home. (Id.) Through these communications it was discovered that the
home’s value had never been added to the rolls. (Id.) Subsequently, sometime in 2012 the
subject property (primarily the home) was assessed as omitted property, resulting in additional
value being added to the assessment and tax rolls for each of the previous five years. The
additional value added increased the taxes owed for those years, with the total amount of back
taxes due (approximately $7800) being added to Plaintiffs’ 2013-14 property tax statement. (Id.)
Blessing stated that construction on the home began in February 2006 and was complete
on June 27, 2006. Blessing explained that because the improvements were incomplete as of
January 1, 2006, no improvement value was added to the rolls for the 2006-07 tax year.
Construction was complete as of January 1, 2007, which Blessing admitted should have resulted
in an improvement value added to the rolls for the 2007-08 tax year. However, for reasons
unknown to Defendant or the court, the value of the home was not added in 2007 (2007-08 tax
year).
Plaintiffs do not challenge Defendant’s legal authority to add the omitted property to the
assessment and tax rolls. Nor do Plaintiffs challenge the amount of additional value assessed for
the subject property’s home, stating that they “don’t mind paying the new reassessed property
tax from here on out.” (Id.) Rather, Plaintiffs assert that Defendant should be precluded from
retrospectively assessing the subject property because Defendant made the mistake by not adding
DECISION OF DISMISSAL TC-MD 120778C 2
the home’s value to the rolls beginning with the 2007-08 tax year. (See id.) Plaintiffs stated that
the resulting tax liability is unfair as Defendant is the one responsible for omitting the home’s
value, adding that “[p]aying [five] years of back taxes all at once” poses an extreme financial
hardship. (Id.)
II. ANALYSIS
The issue before the court is whether Plaintiffs may challenge additional taxes due on
previously omitted property on the grounds of fault, fairness, and financial hardship. The short
answer is no.
Defendant has the legal responsibility to add omitted property to the tax rolls, as provided
in ORS 311.205 to ORS 311.235.1 ORS 311.216(1) states:
“Whenever the assessor discovers or receives credible information, or if the
assessor has reason to believe that any real or personal property, including
property subject to assessment by the Department of Revenue, or any buildings,
structures, improvements or timber on land previously assessed without the same,
has from any cause been omitted, in whole or in part, from assessment and
taxation on the current assessment and tax rolls or on any such rolls for any year
or years not exceeding five years prior to the last certified roll, the assessor shall
give notice as provided in ORS 311.219.”
(Emphasis added.)
The type of property subject to assessment as omitted property is set forth in an
administrative rule promulgated by the Department of Revenue. OAR 150-311.216 states:
“(1) Omitted property includes any real or personal property, or part thereof, that
has been omitted from the certified assessment and tax roll for any reason.
Omitted property may include, but is not limited to, a separate freestanding
structure or improvement * * *.
“(2) Property may be added to the roll under ORS 311.216 if:
“(a) Omitted due to the assessor’s lack of knowledge of its existence, [or]
1
All references to the Oregon Revised Statues (ORS) and to the Oregon Administrative Rules (OAR) are to
2011.
DECISION OF DISMISSAL TC-MD 120778C 3
“(b) Improvements are added to or made a part of a property after that
property has been physically appraised, and are later discovered by the
assessor[.]”
(Emphasis added.)
To illustrate the operation of the rule, the Department of Revenue includes examples.
Example 1 is similar to the present case and states: “Two years after a reappraisal, a homesite is
developed, and a new single family residence is constructed. The new construction and the site
development are discovered on the next physical appraisal. The assessor adds the value of the
single family residence and the site development as omitted property under ORS 311.216.”
OAR 150-311.216.
Plaintiffs admit that they should have been assessed for the value of the home beginning
in the 2007-08 tax year, but request relief due to what they assert is Defendant’s oversight. As
this court noted in Jones v. Dept. of Rev., 12 OTR 237, 242 (1992), citing Running v. Dept. of
Rev., 10 OTR 42, 43 (1985), “[t]axpayers should be just as alert in auditing the assessor’s work
in property taxation as the income tax authorities are to audit a taxpayer’s self assessment of
income taxes.” Moreover, the statutes and rules regarding omitted property contemplate assessor
oversights. See ORS 311.205(1)(a). The solution adopted by the legislature was to require the
assessor to add omitted property under ORS 311.216 for up to five years from the last certified
roll if the property has been omitted “for any reason.” ORS 311.216; OAR 150-311.216.
Defendant acted in accordance with statute and rule. The court is not aware of any legal
authority it has to grant the relief requested by Plaintiffs and Plaintiffs have not directed the court
to any such authority. There is no provision in the relevant law for the court to overturn a tax
resulting from an omitted property assessment based on accusations of fault, pleas for fairness, or
financial hardship.
DECISION OF DISMISSAL TC-MD 120778C 4
III. CONCLUSION
Plaintiffs have not challenged the legal authority to impose the tax or challenged the
value placed on their home for the years at issue. Nor have Plaintiffs asserted any legal authority
for what amounts to a request for discretionary waiver of a tax imposed as part of an omitted
property assessment. The court is not aware of any legal authority to do so. Accordingly, there
is nothing for the court to resolve, and Plaintiffs’ appeal must be dismissed. Now, therefore,
IT IS THE DECISION OF THIS COURT that Plaintiffs’ appeal is dismissed.
Dated this day of December 2012.
DAN ROBINSON
MAGISTRATE
If you want to appeal this Decision, file a Complaint in the Regular Division of
the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR 97301-2563;
or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR.
Your Complaint must be submitted within 60 days after the date of the Decision
or this Decision becomes final and cannot be changed.
This Decision of Dismissal was signed by Magistrate Dan Robinson on
December 7, 2012. The Court filed and entered this Decision of Dismissal on
December 7, 2012.
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