In re the Appeal of McElwee

JOHNSON, Judge.

Petitioners present four assignments of error challenging the findings of fact and conclusions of law of the Property Tax Commission. We decline to address these assignments of error, as we believe the Property Tax Commission exceeded its authority by receiving and reviewing new evidence which formed the basis of its order.

This is the second time this case has been before the appellant courts of this state. In re McElwee, 51 N.C. App. 163, 275 S.E. 2d 865, reversed, 304 N.C. 68, 283 S.E. 2d 115 (1981). In the previous appeal before this Court, the Court affirmed the Order of the Tax Commission sustaining the county’s appraisal of the taxpayers’ property. The Supreme Court reversed and remanded the decisions of the Court of Appeals and the Commission holding that the Commission’s findings and conclusions were not supported by competent, material and substantial evidence in view of the entire record. In reversing and remanding the matter to the Commission, the Supreme Court did not vacate the proceedings and order new proceedings in order to give the taxing authorities a second opportunity to bolster its position with new evidence, although such evidence might have been available. The Court concluded that the property owners were entitled to a decision on the record before the Commission and before the Court. In re McElwee, supra; see also, In re Southern Railway, 313 N.C. 177, 328 S.E. 2d 235 (1985).

The record presently before us reveals that the Tax Commission received new evidence in the form of testimony from witnesses presented by both appellants and appellees. This procedure was error in light of the decision of the Supreme Court. Accordingly, we remand these proceedings to the Tax Commission to enter an Order based on the record before the Commission at the time of the parties’ first appeal and consistent with the opinion of the Supreme Court.

Remanded.

Judges Wells and Cozort concur.