FOSTER FOUNDATION v. Gainer
228 W. Va. 99
W. Va.2011Background
- Foster Foundation, a §501(c)(3) nonprofit, owned a Huntington retirement community that was taxed after years of exemption.
- A dispute over real estate tax assessments led to litigation and a court-ordered agreement to suspend sheriff’s tax sale while the Foundation pursued exemption litigation.
- After litigation concluded, the Sheriff listed the Foundation’s delinquent properties as sold, suspended, or redeemed and transmitted the list to the County Clerk, who then sent it to the State Auditor.
- The Foundation redeemed its delinquent properties by paying taxes, interest, and other charges, including a certification fee of $457,386.79 charged by the Auditor.
- The Foundation sues to recover the certification fee, arguing the property was not certified to the Auditor and thus not subject to the fee.
- The Court of Claims denied reimbursement; the Foundation filed for a writ of certiorari in the West Virginia Supreme Court of Appeals, which denied the writ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May the Auditor charge a certification fee on property not certified to him by sheriff sale? | Foundation: not certified, so no fee should apply. | Gainer: statute imposes fee upon property transferred to the Auditor for disposition, regardless of sheriff sale status. | Yes; fee applies to property transferred to the Auditor for disposition. |
| Does W.Va. Code § 11A-3-39 apply to all redeemed delinquent property, including suspended or noncertified property? | Foundation: statute is limited to nonentered or certified properties; otherwise fee is improper. | Auditor: statute silent on property type; must be applied to all redeemed properties to meet statutory goals. | Auditor's duty to charge certification fee upon redeemed delinquent property applies; fee upheld. |
Key Cases Cited
- City of Huntington v. State Water Comm'n, 135 W.Va. 568 (1951) (certiorari and statutory review guidance; construction of agency actions)
- G.M. McCrossin, Inc. v. West Virginia Bd. of Regents, 177 W.Va. 539 (1987) (jurisdictional and statutory interpretation principles)
- Bayer Corp. v. Prosecuting Attorney of Kanawha Cnty., 223 W.Va. 146 (2008) (limits of certiorari review; narrow scope of inquiry)
- In re Tax Assessment of Foster Foundation's Woodlands Retirement Community, 223 W.Va. 14 (2008) (precedent on Foster Foundation tax status and related procedures)
- Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445 (1982) (statutory interpretation of mandatory versus discretionary terms)