HomeMy WebLinkAboutR91-065 abatement for Hornsilver Corp.j 3
Commissioner J L,1dJV moved adoption of
the following Resolution:
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EAGLE, STATE OF COLORADO
RESOLUTION NO. 91 -�5
REGARDING THE PROPERTY TAX ABATEMENT PETITION OF THE
HORNSILVER CORPORATION
WHEREAS, Proper notice has been given to all parties con-
cerned; and
WHEREAS, The subject property has the following schedule
numbers: 0629147 and 0629144; and
WHEREAS, Hornsilver Corporation purchased tax sale certifi-
cates for the subject property which were not redeemed by the prior
owner and Hornsilver Corporation obtained a Treasurer's Deed to the
property on May 30, 1991; and
WHEREAS, The buyer of delinquent property taxes receives a
certificate of purchase which represents a lien on the property.
The lien may ripen into title upon the issuance of a Treasurer's
deed at the expiration of a three(3) year redemption period. Until
then, however, title remains in the former owner subject to the
lien of the tax purchaser. Moreover, property taxes are neither
assessed nor levied upon certificate holders, although they may
voluntarily pay taxes during the redemption period; and
WHEREAS, Hornsilver Corporation, voluntarily paid the taxes
on the subject property which was valued by the Eagle County
Assessor at $2,000.00 per acre for the years 1989 and 1990; and
WHEREAS, Hornsilver Corporation petitioned for abatement of
taxes for tax years 1989 and 1990, on the basis that the value
placed upon the property was excessive.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMIS-
SIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO:
THAT, Because Hornsilver Corporation was not the owner of
record of the subject property on the assessment date of the tax
years in question, Hornsilver Corporation does not have standing
to petition for abatement of taxes for tax years 1989 and 1990.
(See Roth v. Property Tax Administrator, (Colorado Board of
Assessment Appeals, Docket No. 5850) 1987, attached as Exhibit "A")
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THAT, Hornsilver Corporation further does not have standing
because the injury alleged is not to a legally protected right or
interest. In Colorado, as in many jurisdictions, the doctrine of
caveat emptor applies to bar a tax purchasers claim for reimburse-
ment against the county or other taxing authority. There is no
basis to alter the common law rule that a tax sale purchaser buys
at his peril. (See Saver v. Board of Assessment Appeals et al.,
Colo. App. No. 86CA1333 (unpublished), 1988, attached as Exhibit
"BPI)
THAT, Even if Hornsilver Corporation would have had standing,
the granting of the abatement would place an unconscionable burden
on the taxpayer to the benefit of private enterprise. This is
entirely inconsistent with the intent of the law and detrimental
to the quest for fundamental fairness.
MOVED, READ AND ADOPTED by the Board of County Commissioners
of the County of Eagle, State of Colorado, at its regular meeting
held the 19th day of September 1991.
County Commissioners
COUNTY OF EAGLE, STATE OF COLORADO,
By and Through Its
BOARD OF COUNTY COMMISSIONERS
Commissioner 0(( .4 seconded
adoption of the foregoing Resolution. The roll have been called,
the vote was as follows:
Commissioner
George A.
Gates��Oa!
-
Commissioner
Donald H.
WelchZl�
-
Commissioner
Richard L.
Gustafson
The Resolution passed by 5 -d vote of the Board of
County Commissioners of the County of Eagle, State of Colorado.
FINDINGS AND ORDER
------------------------ ---- -- - ---- --- -- -- --------- -•-- - - - - - --
JAMES P. ROM
Petitioner,
vs,
PROPERTY TAX ADMINISTRATOR,
Respondent.
----- ----- -- --- -------- -- - - - - -- ---- --- -------- ---------- -- -- -- --
THIS PLATTER coming on to be heard before the Board of
Assessment Appeals on may 14, 1987, with Joy C. Carpenter, James
T. McDowell and Elmer A. Johnson being in attendance and having
received evidence and heard statements of counsel, and being
fully advised in the premises,
THE BOARD OF ASSESSMENT APPEALS FINDS:
1. This matter has been properly brought
before this Board on the petition of
Petitioner.
2, proper notice has been given to all
parties concerned.
3. Petitioner appeared pro se.
4. Respondent was represented by Bradly J.
Holmes, Esq.
S. Subject property is described as follows:
TRACT H, CONCORD PLAZA
SUBDIVISION, JEFFERSON COUNTY
SCHEDULE NUMBER 4701- 105541.3
(Division of Property Taxation
Number 36- 06 -49)
1
FINDING5s
Counsel for the Respondent made a motion' to dismiss on the
grounds that the Petitioner lacked standing since he was not the
owner of record of the subject property on the assessment date of
the tax years in question,
CONCL�gIpNg;
The Board reviewed the evidence and testimony presented by
both parties. Respondent's Exhibit 1 shows that the subject
Property was not transferred to the Petitioner until April 28,
1986.
The Board reviewed substantial case law in making its
determination. The Board determined that the Petitioner was not
the owner of record of the subject property on the assessment
date of the tax years in question; therefore, the Petitioner has
no standing before this Board.
By unanimous vote, the Board granted the Respondent's motion
to dismiss.-
ORDER:
The petition is dismissed.
DATED this 14th day of May, 1987.
BOARD OF ASSESSMENT APPEALS
i�
10,5850 2
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�wm_ nrrMIKS ILL NU: 303 866 2251 #524 P03
Colorado Department of Local Affairs
DIVISION OF PROPERTY TAXATION
Mary Anne Maurer
Property Tax Administrator
Roy Romer
covemor March 16, 1987
James P. Roth
P.O. Box 241
Littleton, CO 80160
RE: Abatement Petition
Tract H, Concord Plaza Subdivision
Jefferson County 94701- 105641.3
D.P.T. #36 -06 -49
Dear Mr. Roth!
the amount sofb$6,387.07 because hneither athe ovaluation bnor theltaxnisn
erroneous or illegal.
You purchased the tax sale certificate on this property for 1981,
1982, 1983, and 1984. You then applied for a Treasurer's Deed in
November, 1985. Ownership of the property was acquired when the
treasurer issued the Treasurer's Deed on April 28, 1986. As a holder of
tax sale certificates, you lack standing to file a petition for
abatement /refund of taxes for taxes paid in 1981, 19820 1983, 1984, and
1985 because you were not the title owner of the real estate.
Further, if you would have -had standing, Colorado Statutes provide
the abatement remedy for owners of property if prior years' valuation or
tax is erroneous or illegal. Colorado Supreme Court cases define an
erroneous valuation as one which is incapable of adjustment. If the
valuation can be adjusted, it is considered to be an overvaluatfon.
Overvaluations must be addressed by the property owner during the same
year the value is placed on the property by the assessor, and abatement
is not a remedy..
Overvaluation is not the basis for an abatement because
overvaluations are capable of adjustment by protesting to the assessor
in June before the tax bill is mailed the following January.
By May 24 the county assessor must notify the taxpayer in writing
if the value of land or improvements increases. The notice must state
that the taxpayer has the right to protest the increase in valuation.
The protest begins the administrative remedies process.
The taxpayer should file a protest with the county assessor
between June 1 and June 25 of any year in which there is a concern over
the assigned value. The final date to file is June 25. By law, the
assessor must respond by the last working day in June. if the taxpayer
feels the assessor did not grant adequate relief, an appeal may be ed
1313 Sherman street 623 Centennial Building Denver, Colorado 80203 (303) 866 -2371
James P. Roth
March 16, 1987
Page 2
ICL NU: 303 866 2251 9524 PO4
with e County ord of Equalization Board ofAssessmentaAppeals, and, finallyhetootheyDistrictiCourt )oftthe
county wherein the property is situated, if necessary.
Each year is considered a new assessment year; and if a taxpayer
does not initiate the protest to the assessor in June, administrative
remedies are waived and the value becomes the basis of the tax bill the
following January. Due to the fact that the owner did not protest the
1981 through 1985 valuations assigned to the property, the
administrative remedies were waived for the above years' tax bills. I,
therefore, disapproved your petition.
I understand your concern over your having purchased the tax lien
for the years 1981 through 1984; however, there are no guarantees as to
the usability of the property that is acquired through tax sale. It is
always advisable to investigate the property upon which one is bidding
before participating in the sale.
You have the right to appeal my decision. You may file an appeal
with the Board of Assessment Appeals within thirty (30) days from March
16, I987, which is the date of my disapproval. Appeal forms and
.instructions may be obtained from:
Board of Assessment Appeals
Department of Local Affairs
1313 Sherman Street, #420
Denver, Colorado 80203
(303)866 -5880
If we can answer any further questions you might have, please feel
free to contact my office.
Sincerely,
Mary Anne,�Maurer
Property Tax Administrator
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COLORADO COURT OF APPEALS
No. 86CA133D
EDWARD A. SAVER, d /b /a WESTERN n(
HOMES M. ,
Petitioner - Appellant,
BOARD OF ASSESSMENT APPEALS,
COLORADO DEPARTMENT OF LOCAL
AFFAIRS; COLORADO STATE
PROPERTY TAX ADMINISTRATOR;
and PUBLIC SERVICE COMPANY OF
COLORADO, —
Respondents - Appellees.
P 1 11 1
AR HIBIi
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heat Se ed f�c Pablication
Appeal from the District Court of Adams County
No. 85CV2143
Honorable Dorothy E. Binder, Judge
DIVISION IV
opinion by CHIEF JUDGE KELLY JUDGMENT AFFIRMED
Criswell and Jones, JJ. , concur - -.� --
Edward A. Saver, Pro Se
Duane Woodard; Attorney General
•1: Chgrles B. Howe, Chief De�nty Attorney
Richard.-H. Forman, -soliciror General
?lArry etc Williams, Assistant Attorney
STATC of COLOPARO
Opinion flied and igda"
enter on I
)CLIYAIP r _ . SeLG
Clerk oZ tJta if0p'
S &AL
entrer, Colorado °�,..;.• .,,r� rr-
:.'Attorne" •for Defendants- Appellees:xsoex
` -Axsessmdfit Appeals, Colorado Depactmdi►t..of,.Lo.ca7,
Affairs-,,'and Colorado.State Property Adminketrator
Kelly,tanafield t&::d'!Dotlel#A ;'..
Thomas ,$.. O'Donc�elT
Elikabath A'— 'Kohnen
Denver, °Cblarado
°Attor4eys _for 'De£e4doeCrA0pall6e Public_urv4cs�
Company ;of Colorado �..,
�!• ,` .� ,f. .� •~ fir! n�: ''d
J.
y vp."fi o.. r r 7b ter y
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3W 866 2251 #521 F32
A
Petitioner, Edward A. Saver, d /b /a Western Homes Company,
appeals the judgment of the district court affirming the
decisions of the Property Tax Administrator and the Board of
Assessment Appeals disallowing petitioner's request for a
property tax refund. We affirm.
The diapositive issue on appeal is whether petitioner, as
purchaser of a tax certificate, has standing to seek a tax
abatement or refund. The petitioner acquired a tax
certificate to the property in question at a delinquent tax
sale in 1981. Thereafter, during the three -year statutory
redemption period, petitioner voluntarily paid taxes assessed
j on the property. Petitioner then belatedly discovered that
the property was substantially burdened by a utility easement
held by Public Service Company of Colorado. He thereupon
filed a petition for an abatement or refund of all monies paid
on the property.
The Board of County Commissioners granted the petition.
The Property Tax Administrator, however, disapproved the
_ I
petition, and the Board of Assessment Appeals upheld her
decision. Petitioner then sought judicial review in district
court. After hearing oral argument, the district court
affirmed the Board of Assessment Appeals.
Petitioner contends that the district court erred in
ruling that, because petitioner was not the owner of the
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[ property, he lacked standing to petition for an abatement or
�•+ refund of property taxes. We find no error.
To establish standing, a claimant must show that he has
suffered an injury to a legally protected interest as
contemplated by statutory or constitutional provisions.
Wimberly v. Ettenberx, 194 Colo. 1630 570 F.2d 535 (1977).
Here, we need not determine whether petitioner's allegations
are sufficient to meet the first part of the test, an actual
injury$ because we conclude that the injury alleged is not to
a legally protected right or interest.
In Colorado, as iri many jurisdictions, the doctrine of
caveat emptor applies to bar a tax purchaser's claim for
reimbursement against the county or other taxing authority.
(rid See Board of County Commissioners v. Lsyinaton, 91 Colo, 252,
14 P. 2d 493 (1932) ; see generally 72 Am.Jur.2d State and Local
Taxation §1036 (1974). Here, the trial court found, and as
agree, that Article 11 of the Tax Code, which governs property
tax sales, contains no provision to alter the common law rule
that a tax sale purchaser "buys at his peril." Lavington,
supra.
Under Article 11, the buyer of delinquent property
receives a certificate of purchase which represents a lien
upon the premises. Section 39 -11 -117, C.R.S. (1982 Repl. Vol.
f
16B). The lien may ripen into title upon the issuance of a
tax deed at the expiration of a three -year redemption period.
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JLJL- G4- "71 wtu 13:7G iD;Vtrl LUUHL HrrH1KS ILL NU: 303 866 2251 #521 PO4
♦w
Section 39 -11 -120, C.R.S. (1982 Rep1. Vol. 16B). Lbncil then,
however, title remains in the former owner subject to the lien
or encumbrance of the tax purchaser. Moreover, property wwa
are neither assessed nor levied upon certificate holders,
although they are entitled to voluntarily pay taxes during the
redemption period. Section 39 -11 -119, C.R.S. (1982 Repl. Vol.
16B); Sennett v. Shotwell, 118 Colo. 2069 194 P.2d 335
(1948). Finally, Article 11 contains no provision entitling
certificate holders to challenge the validity of tax
assessments or to seek any reimbursement for amounts paid out.
We therefore conclude that petitioner has no interest
which is legally protected, and that the trial court properly
dismissed his complaint.
�00 In view of our ruling, it is not necessary to address
petitioner's remaining contentions. 'Further, petitioner's
claim for +declaratory judgment was premature since it sought a
determination of legal rights in the event that a tax deed was.
issued. A proceeding for declaratory judgment must be based
upon an actual controversy, and here no controversy yet
existed. See Farmers Elevator Co. v'. First National Bank, 176
Colo. 168, 489 P.2d 318 (1971).
Judgment affirmed.
JUDGE CRISWELL and JUDGE JONES concur.
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