DOR Bulletins and VAB Training Materials Deemed Not Binding on VABs


A Florida Administrative Law Judge issued a Summary Final Order in Turner v. Dep’t of Revenue, finding that the Florida Department of Revenue’s advisory bulletins and Value Adjustment Board training materials are not binding on VABs or Special Magistrates, and that Rule 12D-9.020 contravenes Florida law to the extent that it provides that the disclosure of evidence by a VAB petitioner is optional.

Earlier this year, several county Property Appraisers filed a legal challenge to the Florida Department of Revenue’s 2010 Value Adjustment Board training materials and Property Tax Oversight Bulletin 11-01, contending that the materials were improperly-promulgated administrative rules that were contrary to the requirements of the Florida Constitution and statutes.  The Property Appraisers’ primary areas of concern were the DOR’s statements that the Higgs v. Good case did not apply to VABs, its statement that the petitioner has the option of initiating an evidence exchange, and its indication that a “costs of sale” adjustment under Fla. Stat. 193.011(8) should be made to values calculated by the cost and income approach, as well as the sales comparison approach.

On June 22, 2011, the Judge ruled that the bulletins and training materials do not constitute invalid, unpromulgated rules because the “value adjustment boards and their magistrates are not required to apply – and therefore possess the discretion to deviate from – the legal principles enunciated within the materials when conducting VAB hearings.”  In support of their contention that the materials should be treated as administrative rules and thus be subject to the same promulgation procedures, the Property Appraisers had submitted evidence that certain VABs and Special Magistrates had perceived the bulletins and training materials as being mandatory.  However, the Judge found that, regardless of the perception of those individuals, the DOR has no authority to enforce its bulletins or the statements in the training materials and that they were merely non-binding recommendations that the VABS and Special Magistrates were not required to adhere to.

The Judge also ruled that the DOR’s Rule 12D-9.020 was contrary to Fla. Stat. 194.011, Fla. Stat, which requires the VAB petitioners to disclose their evidence at least 15 days before the VAB hearing.  However, the effect of this part of the ruling appears to be nominal, since the Judge also acknowledged that the only penalty for the petitioner’s failure to disclose its evidence is that the Property Appraiser is not required to disclose its evidence to the petitioner.  Thus, the effect on the requirements for exchange of evidence between the parties is essentially nil.  Basically, if the Property Appraiser requests documentation, that documentation must be provided 15 days before the hearing or it may not be admitted into evidence.  But as to evidence not requested by the Property Appraiser, the Petitioner only needs to disclose that evidence if they would like to see the Property Appraiser’s evidence before the hearing.

Department of Revenue Clarifies VAB Hearing Procedures


The Florida Department of Revenue recently issued Property Tax Oversight Bulletin 09-29, which clarifies the order of presentation of evidence and other procedural issues that have arisen in the 2009 Value Adjustment Board hearings.  Among other things, the bulletin explains that:

  • The first issue to be considered at the VAB hearing is whether the Property Appraiser’s assessment will be presumed correct.
  • In determining whether the Property Appraiser’s assessment is presumed correct, the Property Appraiser should be required to present their evidence first.
  • Evidence regarding the general appraisal practices of the Property Appraiser’s office or approval of the tax roll by the Department of Revenue is insufficient to establish the presumption.  The Property Appraiser must explain how those practices were applied to the specific property at issue.
  • If the Property Appraiser does not present evidence on this issue, or if the presumption is otherwise lost, the VAB may establish the value or remand to the Property Appraiser for a reassessment.
  • Regardless of whether the Property Appraiser retains the presumption of correctness, the taxpayer still has the right to a determination of the appropriateness of the Property Appraiser’s appraisal methodology.

Evidence Disclosure Requirements for Florida VAB Hearings


The Florida statutes provide a fairly detailed procedure for the exchange of evidence between the taxpayer and the Property Appraiser.  However, the statutes are a bit vague on the consequences of failing to disclose evidence in a timely manner.  This post will try to address some common questions about Florida’s evidence disclosure requirements for Value Adjustment Board hearings.

Is the Property Appraiser required to share their evidence with the petitioner prior to the VAB hearing?

It depends.  Pursuant to section 194.011(4), Fla. Stat., the Property Appraiser is required to disclose their evidence to the petitioner at least 7 days prior to the hearing only if the petitioner discloses their evidence (witness information and copies of documentary evidence) to the Property Appraiser at least 15 days prior to the VAB hearing and the petitioner sends the Property Appraiser a written request for disclosure of the Property Appraiser’s evidence.  If the petitioner fails to disclose their evidence in a timely manner, or if the petitioner discloses their evidence but neglects to send the Property Appraiser a written request for disclosure of evidence, the Property Appraiser is under no duty to share their evidence with the petitioner.  That said, the Property Appraiser’s records are, for the most part, still subject to the disclosure requirements of the Public Records Act, and thus a petitioner may still be able to make a request for specific documents.

If the Property Appraiser does disclose their evidence in a timely manner, will it be excluded from evidence?

No.  If the petitioner complies with the requirements of section 194.011(4), Fla. Stat. and the Property Appraiser fails to disclose their evidence at least 7 days prior to the hearing, the hearing will be re-scheduled, but there is no indication in the statute that the Property Appraiser’s evidence would be inadmissible.

Is the petitioner required to disclose their evidence to the Property Appraiser prior to the VAB hearing?

No.  If the petitioner wants to see the Property Appraiser’s evidence prior to the hearing, the petitioner must disclose their evidence at least 15 days prior to the hearing.  However, according to the training materials provided by the Florida Department of Revenue to the VABs and Special Magistrates, the petitioner’s initiation of an evidence exchange with the Property Appraiser is strictly optional.  If the petitioner chooses not to disclose their evidence, the evidence is not necessarily inadmissible.  The only consequence provided in the statute is that the  petitioner does not have a right to see the Property Appraiser’s evidence in advance.

What if the Property Appraiser sends the petitioner a request for documents?  Must the petitioner respond?

Yes.  Pursuant to section 194.034(1)(d), Fla. Stat. and the Higgs v. Good case, if the Property Appraiser makes a written request for information and the taxpayer fails to respond, the taxpayer will be prohibited from using that information at the VAB hearing or in court.  Thus, while the taxpayer is  not required to initiate an evidence exchange, failing to respond to a written request from the Property Appraiser could affect their right to introduce the requested information at a later hearing.

What transmission methods can be used for exchanging evidence?

Rule 12D-10.0044 of the Florida Administrative Code provides that the exchange of evidence can be accomplished by mail, fax, e-mail, hand delivery or any other method agreed upon by the parties.  See Rule 12D-10.0044 for more information on delivery methods.

VAB Evidence Part 2: Use of Sales That Close After the January 1st Assessment Date


One of the more confusing issues that seems to arise during Value Adjustment Board hearings is the question of whether and to what extent the Property Appraiser and the taxpayer can use sales that close after the January 1st assessment date to support their respective opinions of value.  The short answer is that there is no legal prohibition against using post-assessment date sales as evidence.  Ultimately, the issue is the just value of the property as of January 1st, and any evidence that tends to indicate the value of the property on that date may be admissible.

The confusion about this issue arose, in part, because of Florida Department of Revenue Bulletin PTA 06-08, wherein the Department of Revenue advised Florida county property appraisers that the use of sales that occur after January 1st to prepare their tax rolls would be inconsistent with the requirements of Florida law.  This bulletin raised some eyebrows among the appraisal community, as many appraisers and attorneys felt that, particularly when the market was in a state of transition on January 1st, post-assessment date sales could be indicative of a market trend that affected the value of the property on January 1st.  The bulletin also appeared to conflict with the case of Bystrom v. Equitable Life Assurance Society, wherein the appellate court held that evidence (in that case, income data) that comes to light after the assessment date may be relevant to the value as of January 1st.

Thereafter, the Department of Revenue issued Bulletin PTO 08-02, which replaced Bulletin PTA 06-08.  In this new bulletin, the Department reviewed the case law in more detail and came to the conclusion that post-assessment date sales may be considered if they are probative of the just value on the assessment date.  Specifically, the Department advised county property appraisers that post-assessment date sales may only be considered in preparing the tax roll when the following four conditions are met:

1.  When post-assessment date sales are probative of just value for the subject property as of January 1st;

2.  When post-assessment date sales are not used as a substitute for pre-assessment date sales;

3.  When post-assessment date sales are considered only in conjunction with pre-assessment date sales;  and

4.  When the consideration of post-assessment date sales is otherwise consistent with law.

In short, the Department indicated that, in preparing their tax rolls, county property appraisers may consider post-assessment date sales, as long as they are considered in conjunction with pre-assessment date sales and the sales are indicative of the January 1st value.

Of course, as a practical matter, because the property appraisers must submit their tax rolls by July 1st, they are simply unable to use sales that occur late in the year.  Thus, sales that occur later in the year will likely not be admissible to prove that the Property Appraiser failed to properly consider those sales, since it would have been impossible to consider a sale that had not yet occurred.  And even when there is a sale of the actual property in question, the court in Haines v. Holley held that a sale that occurs in June should not necessarily be relied on to assess the property as of January 1st.  However, based on the current state of the law and the Department’s most recent bulletin, it appears that both the Property Appraiser and the taxpayer could conceivably use post-assessment date sales to defend their respective opinions of value, as long as they can tie the sales to the January 1st assessment date.

VAB Evidence Part 1: Assessments of Similar Properties


Florida Statute s. 194.034(5) provides that “for the purpose of review of a petition, the [VAB] may consider assessments among comparable properties within homogeneous areas or neighborhoods.”  Conversely, the Florida Supreme  Court has long held that a court may not reduce a taxpayer’s asssessment below its fair market value based on a mere showing that parcels of other taxpayers are assessed at a lesser amount.  This creates a bit of a conundrum for the taxpayer, property appraiser and the VAB in trying to determine whether and to what extent evidence of the Property Appraiser’s assessment of other properties is relevant and admissible.

In Deltona v. Bailey, the Florida Supreme Court relied on the constitutional requirement that all property be assessed at its just value in holding that taxpayers’ assessments may not be reduced below just value just because other taxpayers may be assessed at a lower amount.  The exception to this rule is when the taxpayer can plead and prove that it is being “singled out” and specifically discriminated against vis-a-vis the other taxpayers generally in the county.  Based on the Deltona case, some VABs have refused to consider evidence of the assessment of comparable properties, despite the existence of Florida Statute s. 194.034(5).  It is possible that they are correct in doing so, as any reduction based solely on the assessment of other comparable properties would likely be unconstitutional, absent evidence that the assessment of the subject property exceeded its just value. 

However, another view is that the statute allows VAB petitioners to submit evidence of assessments of comparable properties in order to help prove that the Property Appraiser’s assessment was “arbitrarily based on appraisal practices which are different from the appraisal practices generally applied by the property appraiser to comparable property within the same class and within the same county,” per Florida Statute 194.301.  Prior to 2009, if a taxpayer could meet this burden, their burden of proving that the assessment exceeded just value would be reduced from “clear and convincing evidence” to a “preponderance of the evidence.”  Beginning in 2009, if the taxpayer meets this burden, the Property Appraiser’s assessment is overturned and the VAB must either set the value or remand to the Property Appraiser for a reassessment.

Viewed this way, evidence of the assessment of comparable properties could have limited relevance if it tended to support the taxpayer’s contention that the Property Appraiser used different appraisal practices for their property that were not  used for other similar properties.  However, based on Deltona v. Bailey, the VAB would still not have the authority to reduce a taxpayer’s assessment based solely on other assessments.  To reduce the taxpayer’s value, the VAB would need to see evidence that the assessment exceeded just value.

Also, it is important to note that Fla. Stat. 194.034(5) only applies to VAB proceedings, not to actions in circuit court.  Thus, taxpayers who take their case to court should not plan to rely on this statute.

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