Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 3, 2016
Ms. Lisa Smith Opinion No. KP-0081
Bastrop County Auditor
804 Pecan Street Re: Whether Tax Code section 33.06 authorizes
Bastrop, Texas 78602 ad valorem property tax deferral on mixed-use
property (RQ-0067-KP)
Dear Ms. Smith:
You ask whether Tax Code section 33.06 authorizes ad valorem property tax deferral on
mixed-use property and related questions. 1 You state that the Bastrop Central Appraisal District
("District") has received requests from taxpayers seeking to defer their tax liability on property
that is used partially as a residence homestead and partially for other purposes that, you assert,
would not qualify for a homestead exemption under section 11.13 of the Tax Code. Request Letter
at 1. 2 You explain that the District appraises property by the parcel and assigns an account number
to each lot. Id. You state that the District is often unable to determine which portion of the property
is being used as a residence and cannot subdivide the lots without performing a new survey. Id.
You ask first whether Tax Code subsection 33.06(a)authorizes an appraisal district to grant a tax
deferral for property used partially as a residence home~tead and partially for other purposes, such
as commercial or agricultural purposes. Id. at 2. Second, you ask whether a tax deferral under the
subsection applies to an entire parcel in a property account that is used for both residentia~
homestead and nomesidential homestead purposes. Id. We address these questions together.
In construing statutes, courts attempt to ascertain and "give effect to the Legislature's
intent" as expressed by the language of the statute. Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex.
2000). Courts "construe the words of a. statute according to their plain meaning ... and in the
context of the statute's surrounding provisions." In re Office of the Att'y Gen. ofTex., 456 S.W.3d
153, 155 (Tex. 2015). Subsection 33.06(a) provides:
(a) An individual is entitled to defer collection of a tax, abate a suit
to collect a delinquent tax, or abate a sale to foreclose a tax lien
if the individual:
1
Ms. Lisa Smith, Bastrop Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Nov. 4, 2015),
https ://www.texasattorneygeneral.govI op in ion/requests-for-opinion-rqs ("Request Letter").
2
Specifically, you mention commercial property, agricultural-use property pursuant to article VIII, section
1-d of the Texas Constitution, and open-space property pursuant to article VIII, section l-d-1. Request Letter at I.
Ms. Lisa Smith - Page 2 (KP-0081)
(I) is 65 years of age or older or is disabled as defined by Section
l l .13(m); and
(2) the tax was imposed against property that the individual
owns and occupies as a residence homestead.
TEX. TAX CODE § 33 .06(a). The requirements for entitlement to tax deferral are in subsection (b ),
which states that "[t]o obtain a deferral, an individual must file with the chief appraiser for the
appraisal district in which the property is located an affidavit stating the facts required to be
established by Subsection (a)." Id. § 33.06(b); see also id. § 33.06(c), (c-1) (requirements for
abatement of suit or sale). Section 11.13 of the Tax Code defines "residence homestead" as:
a structure (including a mobile home) or a separately secured and
occupied portion of a structure (together with the land, not to exceed
20 acres, and improvements used in the residential occupancy of the
structure, if the structure and the land and improvements have
identical ownership) that:
(A) is owned by one or more individuals, either directly or
through a beneficial interest in a qualifying trust;
(B) is designed or adapted for human residence;
(C) is used as a residence; and
(D) is occupied as the individual's principal residence by an
owner, by an owner's surviving spouse who has a life estate
in the property, or, for property owned through a beneficial
interest in a qualifying trust, by a trustor or beneficiary of the
trust who qualifies for the exemption.
Id. § 11.130)(1 ). Once the owner files the affidavit required under section 33.06(b), "a taxing unit
may not file suit to collect delinquent taxes on the property and the property may not be sold at a
sale to foreclose the tax lien until the 181 st day after the date the individual no longer owns and
occupies the property as a residence homestead." Id.§ 33.06(b). 3
Section 33.06 does not address the extent of an appraisal district's discretion when it
receives an affidavit for deferral. Subsection 33.06(a) has only two substantive requirements
entitling an owner to deferral-the individual must qualify by age or disability and must own and
occupy the taxed property as a residential homestead. Id.§ 33.06(a); see also Tex. Att'y Gen. Op.
No. GA-0787 (2010) at 2. The owner obtains entitlement to deferral by an affidavit attesting to
the facts establishing these requirements. TEX. TAX CODE§ 33.06(b). When the requirements of
3
Similarly, the Tax Code provides for tax deferral or suit abatement for an appreciating residence homestead.
TEX.TAX CODE§ 33.065.
Ms. Lisa Smith - Page 3 (KP-0081)
section 33.06 are met, an appraisal district must allow deferral. Id. Section 33.06 does not,
however, require that the district take the affidavit at face value. The plain language of section
33.06 requires that the facts entitling an individual to deferral "be established," i.e., that the owner
and the property qualify in fact. Id. Section 33.06 impliedly authorizes a chief appraiser to
evaluate an affidavit for deferral, analogous to the chief appraiser's authority to consider an
application for a homestead exemption. Under section 11.45 of the Tax Code, a chief appraiser is
authorized and has the duty to determine an applicant's right to a homestead exemption. See id.
§ 11.45 ("Action on Exemption Applications"). Thus, a court would likely conclude that section
33.06 impliedly authorizes a chief appraiser receiving an affidavit to investigate or request
additional information and to allow or not allow a deferral as warranted by the law and facts.
Section 33.06 also does not address the right to deferral when the affidavit identifies
mixed-use property. But courts have held that "[w]hen a tax-paying landowner is actually residing
on a parcel of less than twenty acres of land, the chief appraiser may not refuse to accord residence
homestead status to the entire parcel ofland." Parker Cty. Appraisal Dist. v. Francis, 436 S.W.3d
845, 848 (Tex. App.-Fort Worth 2014, no pet.) (considering a residence homestead exemption);
accord Kubovy v. Cypress-Fairbanks Indep. Sch. Dist., 972 S.W.2d 130, 135 (Tex. App.-
Houston [14th Dist.] 1998, no pet.) (abating post-judgment action when defendant filed a section
33.06 affidavit); see also Tex. Att'y Gen. Op. No. GA-0752 (2009) at 3 (stating that "so long as
the chief appraiser determines that contiguous lots of less than twenty acres are being used as a
residence homestead, the taxpayer would be entitled to an exemption"). Some statutorily-
recognized uses of property may be fully compatible with occupancy as a residence homestead
and would not defeat entitlement to deferral. See Parker Cty. Appraisal Dist., 436 S.W.3d at 854
(determining on particular facts that property qualified for both homestead exemption and open-
space property valuation). On the other hand, some uses of property may be incompatible with
occupancy of the entire parcel as a residence homestead. See Harris Cty. Appraisal Dist. v. Nunu,
No. 14-08-00528-CV, 2009 WL 2620732, at *6 (Tex. App.-Houston [14th Dist.] 2009, pet.
denied) (mem. op.) (determining that a particular business use of property was incompatible with
a use as a residence homestead for Tax Code valuation purposes to the extent of the business use).
When an individual seeks deferral for an entire parcel that includes property not occupied as a
residence homestead, an appraisal district would be authorized to disallow the deferral. Whether
an individual occupies a parcel of land as a residence homestead, in whole or in part, will depend
on particular facts. See Zorrilla v. Aypco, Constr. II, LLC, 469 S.W.3d 143, 160 (Tex. 2015)
(stating that"[ w]hether a property is a homestead is a question of fact"); Tex. Att'y Gen. Op. No.
GA-07 52 (2009) at 3 (determining that whether contiguous lots of less than twenty acres are being
used as a residence homestead is a question of fact).
Your third question is whether an appraisal district may require an individual requesting
tax deferral under subsection 33.06(a) to provide at the owner's expense a land survey to separate
property used for residential homestead purposes from property used for other purposes. Request
Letter at 2. An appraisal district may exercise only powers that are expressly delegated to it by
the constitution or statutes and those necessarily implied from such express powers. Tex. Att'y
Gen. Op. No. GA-0681 (2008) at 2. Section 33.06 states that an owner is entitled to deferral ifthe
owner and the owner's occupancy of property meets certain requirements and the owner files an
affidavit to that effect. TEX. TAX CODE § 33.06(a)-(b). An appraisal district "may not impose
additional burdens, conditions, or restrictions in excess of or inconsistent with the statutory
Ms. Lisa Smith - Page 4 (KP-0081)
provisions." Riess v. Appraisal Dist. of Williamson Cty., 735 S.W.2d 633, 638 (Tex. App.-Austin
1987, writ denied). Thus, while article 33.06(a) implicitly authorizes an appraisal district to
investigate and disallow a tax deferral where the facts and the law warrant, it does not authorize
an appraisal district to impose additional requirements for an individual to request a tax deferral.
Accordingly, a court would likely conclude that section 33.06 does not authorize an appraisal
district to require a property owner to provide a survey at the owner's expense in order to claim
entitlement to tax deferral under subsection 33.06(a) of the Tax Code.
Ms. Lisa Smith - Page 5 (KP-0081)
SUMMARY
A court would likely conclude that section 33.06 of the Tax
Code impliedly authorizes a district to investigate facts recited in an
affidavit for deferral, request additional information, and allow or
deny a deferral as warranted by the law and facts. An appraisal
district may grant deferral on mixed-use property provided that all
uses are compatible with occupancy as a residence homestead.
Whether an owner occupies an entire parcel as a residence
homestead will depend on the particular facts.
Section 33.06 of the Tax Code does not authorize an
appraisal district to require a property owner to provide a survey at
the owner's expense in order to claim entitlement to tax deferral
under subsection 33.06(a) of the Tax Code.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee