2014 Attorney General Opinions and Court Decisions
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Listed below are recent opinions and decisions concerning various property tax issues. The list is does not include all opinions and decisions concerning property tax. The summaries are provided by the Comptroller's office as a public service intended solely as an informational resource. The summaries are not intended as substitutes for or interpretations of the opinions and decisions summarized and should not be relied upon as such. Additionally, the information provided neither constitutes nor serves as a substitute for legal advice. Questions regarding the meaning or interpretation of any information included or referenced herein should, as appropriate or necessary, be directed to an attorney or other appropriate counsel.
Attorney General Opinions
Opinion No. GA-1040 Re: The authority of a county appraisal district to place excess funds in a capital improvement fund or to spend excess funds on a one-time, lump-sum payment to its employees (RQ-1143-GA)
Summary: An expenditure an appraisal district has committed during the fiscal year to meet or secure an obligation is an expenditure that is obligated to be spent under subsection 6.06(j) of the Tax Code. Only "payments made or due to be made by the taxing units" should be included in the excess-funds calculation and returned or credited back to the taxing units as required by subsection 6.06(j). Excess funds must be returned or credited to the participating taxing units as required by subsection 6.06(j). The fact that a particular line item is not “prepared in the proposed budget” by the June 15 deadline is not by itself fatal to the expenditure. The budget process in section 6.06 does not prevent amendments to the proposed budget after the public hearing process and before the budget is finally approved. A proposed salary increase is likely not unconstitutional under Texas Constitution article III, section 53 if it operates prospectively from the time of its proper authorization. An appraisal district's participating taxing units may utilize section 6.10 of the Tax Code to disapprove the amendment of a budget by an appraisal district board.
Courts of Appeals Decisions
Galveston Central Appraisal District v. TRQ Captain’s Landing, A Texas Limited Partnership and American Housing Foundation, A Texas Non-Profit Corporation, No. 07-0010 (Texas Supreme Court)
(January 17, 2014)
This cases involves a claimed exemption under Tax Code §11.182. The Court addresses two issues: (1) whether a community housing development organization (CHDO) must have legal title to the property to qualify for the exemption, and (2) whether the CHDO’s application for exemption was timely. As set forth by the Court:
TRQ Captain’s Landing, L.P., has legal title to Captain’s Landing Apartments. American Housing Foundation formed and became the sole member of CD Captain’s Landing, LLC, which in turn acquired TRQ by purchasing the limited partners’ 99% interest and acquiring TRQ’s general partner, which owns 1% of the limited partnership. Thus, the Foundation completely controls the LLC, which owns and controls the LP, which owns the apartments.
The Foundation, a Texas nonprofit corporation, is a CHDO; the LLC and the LP are not. The LLC, the day it acquired the LP, applied for a tax exemption under section 11.182. Section 11.182(b) states that “[a]n organization is entitled to an exemption from taxation of improved or unimproved real property it owns” if the organization is a CHDO and meets certain other requirements. The Galveston Central Appraisal District denied the exemption on the ground that the LLC did not own the property. The LP filed a notice of protest, providing records to show the relationship between the property, the LP, the LLC, and the Foundation, and the Foundation’s status as a CHDO, but the Appraisal Review Board denied the protest. The Foundation and the LP then sued for a declaration that they are entitled to the exemption. The trial court granted summary judgment for the District and denied the plaintiffs’ motion for partial summary judgment.
A divided court of appeals reversed, holding that “an otherwise qualified equitable property owner may obtain an exemption from ad valorem taxes pursuant to subsection 11.182(b)”, and that plaintiffs’ application for an exemption was timely under section 11.436. We granted the District’s petition for review, but after we heard oral argument, the Foundation sought protection in bankruptcy, and we abated the case. The bankruptcy trustee and the District now agree that this case is no longer stayed. We therefore vacate our order abating this cause and reinstate this matter on the active docket.
While the case was abated, we addressed section 11.182(b)’s ownership requirement in AHF-Arbors. The CHDO in that case was Atlantic Housing Foundation, Inc., a South Carolina nonprofit corporation. Atlantic was the sole member of two limited liability companies — the “Arbors” — each of which owned an apartment complex as its sole asset. The Arbors unsuccessfully applied for the tax exemptions available to a CHDO, and sought judical review. We held that a CHDO’s equitable ownership of property qualifies for an exemption under section 11.182(b), specifically noting our agreement with the reasoning of the court of appeals in the case now before us. AHF-Arbors is thus dispositive of the ownership issue in the present case.
The District here additionally contends that the application for an exemption was untimely. Generally, eligibility for an exemption is determined as of January 1 of the year in which the exemption is sought, and a person must apply for the exemption before May 1 of that year. Because the plaintiffs did not apply for an exemption until December of the year at issue, on the day the Foundation’s LLC acquired the LP, the District argues that the application was late. But section 11.436(a) provided at the time:
An organization that acquires property that qualifies for an exemption under Section 11.181(a) or 11.182(a) may apply for the exemption for the year of acquisition not later than the 30th day after the date the organization acquires the property, and the deadline provided by Section 11.43(d) does not apply to the application for that year.
The District argues that the relevant occurrence was not the LLC’s acquisition of the LP but the LP’s acquisition of the apartments years earlier. We agree with the court of appeals that this argument is based on the District’s position that an exemption must be based only on legal title, which we have rejected. Under section 11.436, the Foundation’s application, made within thirty days of the date it acquired equitable title to the apartments, was timely.
The Supreme Court affirmed the judgment of the court of appeals and remanded the case to the trial court.
This case involves numerous challenges to a trial court judgment regarding the valuation of saltwater disposal wells. The factual and procedural backgrounds are relatively complex:
Davis Vacuum Services purchased a tract of land and the saltwater disposal well located on it on April 18, 2007. This well was known as the Davis #2. In December 2010, Davis merged with Key Energy Services, LLC. Key calls this well the Davis #5. Key leases the land on which its saltwater disposal well, known as the Davis #3, is located pursuant to a lease with John and Deborah Leggett, the owners of the land. The lease has been in effect since December 2005. Prior to 2007, the wells had been valued at approximately $300,000.00 each for purposes of ad valorem taxation. The valuations increased dramatically in 2007 and remained at that level thereafter. Key protested the valuations for the years 2007 through 2010. The Shelby County Appraisal Review Board heard the protests and determined that it would make no changes. Key appealed that decision to the trial court for a trial de novo, naming SCAD and the Shelby County Appraisal Review Board as defendants. Key later nonsuited the appraisal review board, and Key’s claims against it were dismissed.
Key filed a declaratory judgment action asking the trial court to declare that its protests to the 2007 tax year appraisal and assessment were timely and that the appraisal roll entries for the two wells for the 2007, 2008, 2009, and 2010 tax years are void. Key argued that the appraisal roll entries are void because they fail to appraise the wells in the manner required by law and fail to describe the property accurately or in proper categories. Alternatively, Key challenged the assessments for 2007, 2008, 2009, and 2010 as excessive. Key filed a motion for summary judgment requesting judgment on the 2007 tax year for the well known as the Davis #5 and that the appraisals and assessments for both wells for all four tax years are void for failure to properly describe and categorize the property. Alternatively, Key requested judgment that its challenges concerning the 2007 tax year were timely. SCAD filed a motion for partial summary judgment asking the court to find that the wells are real property subject to taxation. The trial court sent a letter to the parties, on December 17, 2010, asking one of the attorneys to prepare an order reflecting a ruling that Key’s motion for summary judgment was denied and SCAD’s motion was granted. Key filed a second motion for partial summary judgment requesting a declaratory judgment that the wells are personalty or that the Davis #3 be taxed to the landowner, John Leggett.
SCAD filed a third party petition for declaratory judgment against John and Deborah Leggett, the owners of the land on which the Davis #3 sits, requesting the court determine if the property is taxable to Key or the Leggetts. In response, the Leggetts sought rescission of Key’s lease and attorney’s fees.
The case was submitted to the trial court without a jury. At the close of the trial, the Leggetts nonsuited their claims against Key. The court denied Key’s request to change the valuation of the wells for any of the years under review and denied Key’s claims with respect to the 2007 valuation due to lack of jurisdiction. Further, the court denied all requests for relief pursuant to the Uniform Declaratory Judgments Act and ordered each party to bear its own costs and attorney’s fees. Key requested findings of fact and conclusions of law but none were filed. Key appealed the trial court’s judgment.
The first issue addressed by the appellate court is Key’s challenge to the trial court’s determination that it lacked jurisdiction to consider claims concerning the 2007 tax year as a result of failure to exhaust administrative remedies. As set forth by the appellate court:
Relying on tax code Section 31.04(a-1), Key argues that it timely filed a notice of protest with the appraisal review board and timely paid the amount of taxes not in dispute, thus complying with jurisdictional prerequisites. SCAD asserts that Section 31.04(a-1) does not apply because this case presents a supplemental appraisal decision, not an omitted property question. This distinction is important because it dictates the applicable delinquency date.
. . . .
The record shows that the subject properties were not included in the original 2007 appraisal roll or tax roll. However, by notice dated September 7, 2007, SCAD notified Davis Vacuum Services of the 2007 appraisal of each well. That notice letter advised Davis that it had until October 9, 2007, to file a written protest with the appraisal review board and even enclosed a form to send in for that purpose. SCAD certified supplemental appraisal records regarding the subject properties on December 26, 2007. On January 10, 2008, SCAD delivered to the Shelby County Tax Assessor-Collector the supplemental appraisal roll containing the two wells. The two accounts were added to the tax assessor-collector’s tax rolls on February 11, 2008. The original 2007 tax bills were mailed to Davis Vacuum on February 15, 2008. Davis sent two checks for the base tax amounts to the tax assessor-collector on October 6, 2008. These checks were returned to Davis. On December 16, 2008, Davis filed two protests with the appraisal review board. One is entitled “Motion to Correct Alleged Error in Appraisal Roll.” This motion cites to Section 25.25(c) and alleges that the appraisal roll entry reflects a clerical error, multiple appraisals in a tax year, or the inclusion of property that does not exist in the form or at the location described in the appraisal roll. Specifically, the alleged error is described as use of an inappropriate appraisal technique. The second motion is entitled “Motion to Correct Alleged 1/3 Over-Appraisal Error” and is made pursuant to Section 25.25(d) and (e).
Addressing the protest deadline, the appellate court stated:
The purpose of Section 25.25(c) is to allow late changes to otherwise finalized appraisal records only in situations where the decision to make the change is based on an objective, factual determination and the payment of taxes based on the uncorrected records would be fundamentally unfair. GE Capital Corp. v. Dallas Cent. Appraisal Dist., 971 S.W.2d 591, 593 (Tex. App.–Dallas 1998, no pet.). These limited corrections include only objective and ministerial matters such as clerical errors. Anderton, 26 S.W.3d at 543. They do not include the substantive reevaluation of a property’s market value. Id. Here, the 25.25(c) motion to correct the appraisal roll raised a complaint requesting a substantive reevaluation of the property’s market value. Thus, the 25.25(c) motion was not the proper vehicle to address Key’s complaint. Id.
Addressing the date of delinquency, the appellate court stated:
Section 25.25(d), however, contains a provision specifically directed at changing the appraisal roll due to an incorrect appraised value. See TEX. TAX CODE ANN. § 25.25(d) (West Supp. 2013). This section extends the time to file a challenge to the appraised value of land for properties that have been significantly overvalued due to an error. Anderton, 26 S.W.3d at 543. To be entitled to a correction under Section 25.25(d), the motion must be filed before the taxes become delinquent, the incorrect appraised value must exceed the correct appraised value by one-third, and the property owner must pay a penalty. TEX. TAX CODE ANN. § 25.25(d); Dallas Cent. Appraisal Dist. v. G.T.E. Directories Corp., 905 S.W.2d 318, 320 (Tex. App.–Dallas 1995, writ denied).
Here, the parties disagree about the applicable delinquency date. Generally, taxes are due on receipt of the tax bill and are delinquent if not paid before February 1 of the year following the year in which the taxes were imposed. TEX. TAX CODE ANN. § 31.02(a) (West 2008). Therefore, ordinarily, the extension under 25.25(d) ends on February 1 of the year following the tax year, the date the yearly property taxes become delinquent. However, if a tax bill is mailed after January 10, the delinquency date provided by Section 31.02 is postponed to the first day of the next month that will provide a period of at least twenty-one days after the date of mailing for payment of taxes before they become delinquent. TEX. TAX CODE ANN. § 31.04(a) (West 2008). Here, the 2007 tax bill was mailed on February 15, 2008. Relying on Section 31.04(a), under which the delinquency date is April 1, 2008, SCAD argues that the 25.25(d) motion and Key’s payment of taxes were late because Key did not meet the April 1, 2008 deadline.
Key asserts that the applicable deadline is provided for in Section 31.04(a-1), which states as follows:
If a tax bill is mailed that includes taxes for one or more preceding tax years because the property was erroneously omitted from the tax roll in those tax years, the delinquency date provided by Section 31.02 is postponed to February 1 of the first year that will provide a period of at least 180 days after the date the tax bill is mailed in which to pay the taxes before they become delinquent.
TEX. TAX CODE ANN. § 31.04(a-1) (West 2008). Applicability of Section 31.04(a-1) hinges on whether property was “erroneously omitted from the tax roll” in 2007. The chief appraiser’s listing of all taxable property in the district and its appraisal value constitutes the appraisal records. See TEX. TAX CODE ANN. § 25.01. The appraisal roll with amounts of tax entered as approved by the governing body constitutes the unit’s tax roll. TEX. TAX CODE ANN. § 25.24 (West 2008). Key’s argument is that, literally, the property did not appear on the tax roll in 2007, but was added in 2008. Therefore, the argument continues, Section 31.04(a-1) applies, making the delinquency date February 1, 2009, after Key attempted to pay the base taxes.
While we appreciate Key’s efforts to follow the plain language of the statute, there is a distinction to be made here. As SCAD explains, this was a supplemental appraisal decision, not an omitted property question. Robert Pigg, Chief Appraiser at SCAD, testified by deposition that the two properties had “existed in some form in the past.” He explained that the reason the appraisal notices were late was that Pritchard & Abbott (P&A), the private evaluation consulting firm hired by SCAD, was “trying to gather some information to value these the way they felt they should be valued.” The critical point is that the appraisal record was supplemented in 2007. The fact that the tax roll was supplemented in 2008 did not turn a late appraisal into an omitted one. Thus, because the property was not “erroneously omitted from the tax roll” in 2007, Section 31.04(a-1) does not apply. Section 31.04(a) applies, making the delinquency date April 1, 2008. Section 42.08 requires the property owner to pay taxes due on the portion of the taxable value of the property that is not in dispute before the date the taxes become delinquent or the property owner forfeits the right to appeal. TEX. TAX CODE ANN. § 42.08 (West Supp. 2013). Section 25.25(e) specifies that the movant must comply with Section 42.08. Key sent two checks for the base tax amounts in October 2008. Key’s failure to comply with Section 42.08, and to exhaust the required administrative remedies, deprived the trial court of jurisdiction over the 2007 tax year complaint. See Rourk, 194 S.W.3d at 502.
In addressing a challenge Key made as to SCAD’s categorization and description of Key’s saltwater disposal facilities, the appellate court stated:
. . . Key contends the trial court erred by allowing SCAD to value Key’s saltwater disposal facilities as categorized and described when SCAD admitted that the facilities were made up of both personal and real property and the descriptions were impermissibly vague. Key argues that SCAD was required to identify the property, place it into its proper statutory categories (real or personal), and then describe and value it appropriately. Key contends that SCAD commingled the real and personal property into a single property tax account for each facility. As a result, Key argues, “[T]hese accounts fail as legally inadequate to provide sufficient notice as to what is being taxed.” Key requests this court to void the appraisals.
The tax code requires appraisal records to be in a particular form and to include certain specified information. See TEX. TAX CODE ANN. § 25.02 (West 2008). The statute also requires the appraisal district to send notice of appraised value to property owners and that notice must include certain information. See TEX. TAX CODE ANN. § 25.19 (West 2008). However, Key has not identified the specific SCAD record or document it contends fails to follow the statute. Further, Key has not provided a record reference showing where this issue was raised in the trial court. Key has also failed to provide authority for the assertion that it is entitled to have the appraisals voided based on SCAD’s record keeping.
The tax notices we found in the record specified the SCAD property identification number, the name of the well, and the Railroad Commission identification number. Other documents contain the name, the general location, and the Railroad Commission identification number. [SCAD’s expert witness] testified that the real property component was valued separately from the personal property component and then the values were combined. We conclude that SCAD provided sufficient notice as to what it was taxing. Even assuming that sending a tax bill stating the full amount of tax owed without itemizing is error, the supreme court has ruled that including property in an incorrect category does not exempt it from taxation. See Matagorda Cnty. Appraisal Dist. v. Coastal Liquids Partners, L.P., 165 S.W.3d 329, 335 (Tex. 2005).
Regarding Key’s contention labeled by the appellate court as “Estate or Interest,” the court stated and held:
. . . Key contends the trial court erred by allowing SCAD to attribute taxable value to Key by categorizing each facility as an “estate or interest” in land when the taxes on the land had already been assessed to Key for one facility and to the Leggetts for the other facility. Specifically, Key argues that by allowing SCAD to attribute a value to the “right to inject” as an estate or interest in real property, the trial court erred as a matter of law because lesser estates are generally nontaxable as separate interests. Key asserts that the value of the entire fee necessarily contains the lesser value of the leasehold the fee contains. Key argues that the tax code prevents its leasehold interest in Davis #3 from being taxed apart from the Leggetts’ fee simple interest; otherwise, invalid double taxation results. Likewise, Key asserts, taxing both the facility under its “lesser interest” theory and the land where the #5 is located, which Key owns, caused Key to be taxed twice on the same land.
. . . .
Key owns the saltwater wells, which are, like the storage caverns in Coastal Liquids, in active commercial use. See Coastal Liquids, 165 S.W.3d at 334-35. A Section 1.04(2)(F) interest in land is taxable. Id. Taxation of the land is separate from taxation of the Section 1.04(2)(F) interest around which this litigation centers. See id. at 335. Therefore, there is no double taxation.
After addressing Key’s remaining issues, the appellate court affirmed the trial court’s judgment.