Cain v. Custer Cty. Bd. of Equal.
291 Neb. 730
Neb.2015Background
- Donald V. Cain Jr. owned ~1,093 acres in Custer County; assessor reclassified large portions of irrigated grassland for 2012, increasing total assessed value from $734,968 to $1,834,925.
- Cain did not receive statutorily required notice of the valuation change and only learned of it in November 2012, after the county protest deadline had passed.
- Cain filed petitions directly with the Tax Equalization and Review Commission (TERC) under Neb. Rev. Stat. § 77-1507.01 (allowing direct petitions when lack of notice prevented timely county protest).
- A two-commissioner TERC panel (2 of 3 quorum) found notice was not given, concluded TERC had jurisdiction, but affirmed the assessor’s valuations by applying an appellate-style, clear-and-convincing standard; one commissioner dissented.
- Nebraska Supreme Court held TERC had jurisdiction and that § 77-1507.01 prevents lack of notice from rendering increased assessments void, but found plain error in TERC’s use of the § 77-5016(9) appellate standard rather than the preponderance standard applicable to county board protests; reversed and remanded for reconsideration under the lower standard.
Issues
| Issue | Plaintiff's Argument (Cain) | Defendant's Argument (Custer County / Assessor / TERC) | Held |
|---|---|---|---|
| Whether TERC had jurisdiction because assessments were void for lack of notice | Lack of notice voided increased assessments; TERC lacked jurisdiction | § 77-1507.01 permits direct petitions to TERC, so assessments are not void and TERC has jurisdiction | Held: TERC had jurisdiction; § 77-1507.01 provides remedy and prevents voiding for lack of notice |
| Whether lack of statutory notice rendered the increased assessments void | Void the increased assessments for failure to provide statutorily required notice | Legislature’s § 77-1507.01 postdates cases voiding assessments and allows petitioning TERC, so not void | Held: Assessments are not void where taxpayer timely petitions TERC under § 77-1507.01 |
| Proper standard of proof/standard of review for petitions filed under § 77-1507.01 | TERC should apply the same standard as county board protests (preponderance) | TERC applied § 77-5016(9) appellate standard (clear and convincing/affirm unless arbitrary) | Held: Plain error — TERC must apply preponderance (greater weight) standard applicable to county board protests; reversed and remanded |
| Validity of two-commissioner divided decision and due process challenge | (raised) Two-member divided panel violated due process / procedural requirements | Two of three commissioners constitute quorum; § 77-5016(13) requires denial unless majority present grants relief, so denial valid | Held: Majority holds the order is valid and does not decide due process challenge (not briefed); dissent would find no final order and would remand for tie-breaker |
Key Cases Cited
- Falotico v. Grant Cty. Bd. of Equal., 262 Neb. 292 (2001) (held late or missing statutory notice can void assessments; discussed interplay with later § 77-1507.01)
- Rosenbery v. Douglas County, 123 Neb. 803 (1932) (early decision holding increased assessment void when taxpayer lacked notice; strict compliance rule)
- Gamboni v. County of Otoe, 159 Neb. 417 (1954) (notice defects invalidate assessment procedures; strict compliance with statutory notice requirements)
- JQH La Vista Conf. Ctr. v. Sarpy Cty. Bd. of Equal., 285 Neb. 120 (2013) (summarizes presumption that assessor s valuation is correct and burden on taxpayer)