UPDATE: The Department of Revenue just released revised DOR VAB Training Revision – September 18 2009 that reflect a significant change in the way the DOR is interpreting the new presumption statute. Contrary to what is stated in my blog below, it appears that the DOR is now advising the VABs that the Property Appraiser has the initial burden of coming forward with evidence to support his assessment, and that if the Property Appraiser loses the presumption of correctness, the VAB may set the value. I will be revising this post accordingly, so stay tuned.
Taxpayers across Florida rejoiced when the legislature passed HB 521, effectively eliminating the high hurdle that taxpayers faced in appealing their property tax assessments. Unfortunately, the new statute also raises a lot of questions about what proof is expected of the parties in a property tax case. This post will try to address some of those questions.
When does the new burden of proof statute take effect?
The significant provisions of the new statute apply to the 2009 assessments, meaning that they will be applied in this year’s VAB proceedings and in any court cases challenging 2009 assessments.
So, who has the burden of proof in a property tax appeal?
When HB 521 passed, newspaper headlines across the state proclaimed that the legislature had shifted the burden of proof to the Property Appraiser. Not so. Actually, even though the “clear and convincng evidence” hurdle has been eliminated, the party bringing the action (generally the taxpayer) still has the burden of proving their case by a preponderance of the evidence. Specifically, the taxpayer must prove by a preponderance of the evidence that either the Property Appraiser’s assessment does not represent the just value (fair market value) of the property or that the assessment was arbitrarily based on appraisal practices that are different from the appraisal practices generally applied by the property appraiser to comparable property within the same county.
What happens if the taxpayer proves that the assessment does not represent just value?
If the record contains competent, substantial evidence of value which cumulatively meets the requirements of law as set forth in section 193.011, Fla. Stat. and which complies with professionally accepted appraisal practices, then the Value Adjustment Board [“VAB”] or court must establish the value. Under prior law, the taxpayer’s evidence was only required to meet the requirements of law, but was not required to comply with professionally accepted appraisal practices. Thus, it could be inferred that, under the new law, the court cannot set the value unless the taxpayer puts a valid appraisal in the record along with testimony that the appraisal complies with professionally accepted appraisal practices.
If the evidence of value that is in the record does not meet the requirements of law or professionally accepted appraisal practices, the VAB or court must remand the matter back to the Property Appraiser with appropriate directions, which the Property Appraiser must follow. If the Property Appraiser re-assesses the property on remand and the taxpayer is still dissatisfied, they can challenge the re-assessment using these same procedures.
What happens if the taxpayer proves that the assessment was arbitrarily based on appraisal practices that are different from the appraisal practices generally applied to comparable property within the county?
This is where it gets interesting. Under prior law, if a taxpayer proved that his property was assessed by different appraisal practices than other similar property, the taxpayer was still required to prove that the assessment exceeded just value, albeit by a preponderance of the evidence, rather than clear and convincing evidence. The courts had held that, even where a taxpayer proved that other properties were assessed at a lower value, the taxpayer could not obtain a reduction of their assessment unless they could show their own property was assessed higher than fair market value. In effect, the courts were saying that just because your neighbors’ assessments may be too low, you are not entitled to have your property assessed at less than its just value. The exception to this was for taxpayers who could state a claim under the Equal Protection Clause, which required them to prove that they were arbitrarily and systematically being assessed at a higher rate than substantially all other property in the county.
With the amended statute, it appears that if a taxpayer can prove that the Property Appraiser arbitrarily used different appraisal practices for their property, even if the taxpayer cannot prove that their assessment is too high, they may be entitled to an order remanding to the Property Appraiser for a reassessment, as described above.
So why am I hearing that the Property Appraiser now has the burden of proof?
Under the old law, the Property Appraiser’s assessment was presumed correct and the taxpayer had the burden of proving their case by clear and convincing evidence. However, if the taxpayer proved that the Property Appraiser had failed to properly consider the factors of section 193.011, Fla. Stat., then the presumption of correctness was lost and the taxpayer only had to prove their case by a preponderance of the evidence.
Under the new law, if the Property Appraiser wants to retain the presumption of correctness, the Property Appraiser has the burden of proving that he properly considered the factors of section 193.011, Fla. Stat. and used appraisal methodology that complies with professionally accepted appraisal practices. However, here’s the rub. The legislature did not explain what happens if the Property Appraiser retains the presumption of correctness. Under the old law, by retaining the presumption, the Property Appraiser forced the taxpayer to prove its case by a higher burden of proof (clear and convincing evidence). The new law does not explain what benefit inures to the Property Appraiser if they go to all the trouble to retain the presumption of correctness. Thus, this section, as written, is virtually meaningless.
This section of the statute also purports to overturn prior cases that had held that it is not for the court to decide which method of assessment is superior, as long as the Property Appraiser had properly considered the factors of section 193.011, Fla. Stat. The new statute apparently requires the court, in deciding whether the Property Appraiser’s assessment is entitled to a presumption of correctness, to determine the appropriateness of the Property Appraiser’s choice of appraisal methodology (i.e. the income, cost or sales comparison approach). Again, however, I would suggest that, absent any benefit to the Property Appraiser for retaining the presumption, this section of the statute will be rarely used, as many Property Appraisers may opt to simply waive the so-called “presumption” and proceed to the next step, whereby the taxpayer must prove their case by a preponderance of the evidence.
What exactly are “professionally accepted appraisal practices”?
This will no doubt be the subject of many disputes in the future. One potential interpretation is that this requires compliance with the Uniform Standards of Professional Appraisal Practice [“USPAP”]. However, the Supreme Court of Florida and other Florida courts have referenced a variety of appraisal texts in past cases in an attempt to discern what constitutes generally accepted appraisal practices. Thus, texts published by authoritative sources such as the International Association of Assessing Officers and the Appraisal Institute might qualify as evidence, as might testimony by a local appraiser or even the Department of Revenue’s publications. This issue is definitely up in the air.
Does the new statute affect the burden of proof in exemption and classification disputes?
In my opinion, yes. Prior cases had held that a property appraiser’s assessment (which includes exemption and classification decisions) must be upheld as long as it was supported by a reasonable hypothesis of legality. The legislature did away with the “no reasonable hypothesis” burden years ago in value disputes, but trial courts have continued to apply that standard to exemption and classification disputes. The new statute provides that, beginning with 2009 assessments, taxpayers who dispute the denial of an exemption or special classification need only prove their case by a preponderance of the evidence.