Wе granted certiorari to review the decision of the court of appeals in
Benbrook v.
*861
Board of Assessment Appeals,
I.
The taxpayers are the owners of 41 of the 48 condominium units known as Valley Hi Condominiums in Colorado Springs. In 1979 the condominiums were converted from apartments and sold by the corporate owner to the taxpayers, many of whom had occupied the units as tenants before the conversion. No physical improvements to the units were made, but because the procedure for valuing individual condominium units differed from the procedure for valuing multi-unit apartment complexes, see Div. of Property Taxation, Dep’t of Local Affairs, State of Colorado, Appraisal Procedures and Instructions for 1981 (AH300) at 5, the El Paso County assessor increased the assessed valuation of the total complex from $184,240 to $348,657, resulting in property taxes for each unit increasing from $299.44 in 1979 to $598 for 1980.
At the time the assessor increased the valuation, section 39-1-104(1l)(b), 16B C.R.S. (1982), provided:
The provisions of subsection (9) and (10) of this section are not intended to prevent the assessor from taking into account, in determining actual value during the intervening years between base years, any unusual conditions in or related to any real property which would result in an increase or decrease in actual value. For the purposes of this paragraph (b), an unusual condition which could result in an increase or decrease in actual value is limited to the installation of an on-site improvement, addition to or remodeling of the structure, change of use of the land, the regulations restricting or increasing the use of the land, or a combination thereof, detrimental acts of nature, and damage due to accident, vandalism, fire, or explosion. When taking into account such unusual conditions which would increase or decrease the actual value of a property, the assessor must relatе such changes to the base year level of values as if the conditions had existed at that time.
Ch. 494, sec. 5, § 39-l-104(ll)(b), 1977 Colo. Sess. Laws 1728, 1732. 1 Although section 39-l-104(9)(a), 16B C.R.S. (1982), required the assessor to determine the actual value of the condominiums according to the manual and associated data published for 1973 by the state property tax administrator, a directive issued by the administrator, AH300 at 46, required local assessors to consider condominium conversion as a “change of use of the land.” Newly constructed condominiums had been assessed at a far higher rate than converted condominiums, and the directive was intended to equalize the tax rate for all condominiums by allowing the assessor to change the tax rate for converted condominiums in a year other than a base year.
The El Paso County assessor mailed a notice of valuation to the owners of the *862 Valley Hi Condominiums on June 17, 1980. 2 After receipt of the notices, seven or eight of the condominium owners filed protests with the county assessor under section 39-5-122, 16B C.R.S. (1982). The assessor denied the protests, and two of the owners appealed to the county board of equalization, which also denied the protests. Only one of the owners, Melvyn Brooks, appealed to the Colorado Board of Assessment Appeals (the board), and the board ruled in Brooks’ favor. The board determined that condominium conversion was not a “change of use of the land” under section 39-1-104(ll)(b) and, therefore, the incrеased assessments were illegal. 3 The district court for El Paso County affirmed the board’s decision. 4 The county did not appeal the district court ruling, and the correctness of that ruling is not before us. 5
The taxpayers, who are the owners of 41 of the other condominiums in Brooks’ complex, paid their 1980 taxes and subsequently filed petitions with the El Paso County commissioners in June, July and August 1981, for a partial abatement and refund of 1980 taxes under sections 39-1-113 and 39-10-114, 16B C.R.S. (1982). 6 The county commissioners recommended to the state property tax administrator that a portion of the taxes be abated and the refunds granted, based on the decision in the Brooks’ case. The administrator denied the commissioners’ application for abatement under section 39-2-116, 16B C.R.S. (1982), because the taxpayers had failed to exhaust their administrative remedies in 1980 under the protest and adjustment procedures in section 39-5-122. Each taxpayer then appealed to the board under section 39-2-125(l)(b)(I), 16B C.R.S. (1982). The board consolidated the appeals and, after a hearing, affirmed the administrator’s decision. The taxpayers appealed to the district court under section 39-8-108(2), 16B C.R.S. (1982), and the district court reversed the board’s ruling on the basis that the taxpayers need not exhaust their administrative remedies under section 39-5-122 before challenging an illegal increase in assessment of their condominiums and qualifying for a partial abatement and refund of taxes paid.
The court of apрeals affirmed the district court ruling, relying on a line of Colorado cases holding that if a tax is wholly illegal or entirely erroneous and incapable of adjustment, a taxpayer may file an abatement and refund petition.
Benbrook,
II.
The court of appeals’ bifurcated approach to administrative remedies in the property tax code — protest and adjustment for an overvaluation in assessment, and abatement and refund for a tax that is illegal — leaves unresolved the appropriate route to seek administrative relief if a tax is partially illegal. As reflected in a series of opinions from this court and the court of appeals, including the instant case, a taxpayer seeking a partial refund of taxes based on an illegal assessment does not have a clear choice of the appropriate administrative remedy.
See City and County of Denver v. Athmar Park Buildg. Co.,
The statutory provisions at issue in this case have been part of the general property tax law in Colorado since 1902.
Miller v. Board of County Com’rs of City and County of Denver,
Section 39-5-122(2), 16B C.R.S. (1986 Supp.), describes the first step of the administrative remedy:
If any person is of the opinion that his property has been valued too high, or has been twice valued, or is exempt by law from taxation, or that he did not own taxable property on the assessment date, or that property has been erroneously аssessed to him, he may ... protest_ 7
If the assessor finds that a valuation is erroneous or otherwise improper, he is required to correct the error; if the assessor declines to change the valuation, he states his reasons in writing on a prescribed form and mails the form denying the protest to the taxpayer. § 39-5-122(2), 16B C.R.S. (1982). A taxpayer whose protest has been denied by the assessor may appeal by petition to the county board of equalization under section 39-8-106, 16B C.R.S. (1982). If the county board of equalization grants the petition, the assessor is required to adjust the valuation for assessment of the taxpayer’s property, but if the petition is denied, the taxpayer may appeal to the board of assessment appeals. § 39-8-108(1), 16B C.R.S. (1982). 8 If the decision of the board is against the taxpayer, the taxpayer may petition the district court of the county where his property is located for judicial review of the board’s decision. *864 § 39-8-108(2), 16B C.R.S. (1982). If the taxpayer prevails before the board or the district court, the county treasurer is required to pay the appropriate refund of taxes to the taxpayer upon presentation of a certified copy of the order or judgment. § 39-8-109, 16B C.R.S. (1982).
Under section 39-5-122, the assessor is required to hear and decide, beginning the first working day of June and concluding by June 25, all protests concerning valuation of taxable real property for the current year. 9 If the assessor denies a taxpayer’s protеst, the taxpayer has until the second Monday in July to appeal the assessor’s decision to the county board of equalization. § 39-8-106(l)(a), 16B C.R.S. (1982). The board of equalization is required to render its decision by the close of business on the last business day of July. § 39-8-107, 16B C.R.S. (1982). There are recently enacted time limits for action by the board of assessment appeals; 10 an appeal before the board usually will be decided within six months, while an appeal to the district court often takes longer. See Low, Appealing Property Tax Assessments, 15 Colo.Law. 798, 804 (1986).
Because the decisions of the board of assessment appeals and the district court may occur after the challenged property taxes are due, 11 section 39-8-109, 16B C.R.S. (1982), provides for a refund of taxes should the taxpayer prevail on appeal. If the taxpayer persuades the assessor that his valuation should be adjusted before his property tax is levied, the assessed valuation is adjusted; otherwise, the successful taxpayer’s protest results in a refund.
After the assessor determines the valuation for assessment of all taxable property located in the county, the board of county commissioners in each county, no later than November 15 in each year, levies property taxes against the valuation for assessment. § 39-1-111, 16B C.R.S. (1982 and 1986 Supp.). In contrast to section 39-5-122, which applies to an assessor’s valuation for assessment, the abatement and refund provisions in sections 39-10-114 and 39-1-113, 16B C.R.S. (1982), apply to taxes that have beеn erroneously or illegally levied by action of the county commissioners. Section 39-10-114(l)(a) provides:
If taxes have been levied erroneously or illegally, whether due to erroneous valuation for assessment, irregularity in levying, or clerical error, the treasurer shall report the amount thereof to the board of county commissioners, who shall proceed to abate such taxes in the manner provided by law. If such taxes have been collected by the treasurer, the board of county commissioners shall authorize refund of the same in the manner provided by law. However, in no case shall an abatement or refund of taxes be made more than six years after the taxes were due.
Section 39-1-113 provides:
No abatemеnt or refund of taxes erroneously or illegally levied shall be made by the board of county commissioners unless a hearing is had thereon, at which hearing the assessor shall have the opportunity to be present. Whenever any abatement or refund is recommended by *865 the board of county commissioners, an application therefor, reciting the amount of such abatement or refund and the grounds upon which it should be allowed, shall be submitted to the [state property tax] administrator for his review pursuant to section 39-2-116. If an application is approved, the board of county commissioners shall order the abatement of taxes pro rata for all levies applicable to such property, or, in the case of a refund, the board of county commissioners shall order the refund of taxes pro rata by all taxing jurisdictions receiving payment thereof. However, in no case shall an abatement or refund of taxes be made more than six years after the taxes were due. 12
These sections apply to the refund of taxes paid under section 39-8-109 after a taxpayer who sought administrative relief under section 39-5-122 prevailed before the board of assessment appeals or the district court. They also apply when property taxes cannot be challenged under section 39-5-122.
Lamm v. Barber,
The statutes were interpreted as described above until this court, in
Northcutt v. Burton,
Two years later in
Weidenhaft v. Board of County Com ’rs of El Paso County,
In a subsequent case involving facts similar to those presently before us, this court considered the legality of a nеw method of appraising land used as trailer courts.
Simmons v. Board of County Com’rs of Jefferson County,
This court abandoned the “wholly illegal” requirement for abatement in
Modular Communities, Inc. v. McKnight,
In
Lamm v. Barber
the state board of equalization sought mandamus to compel three county assessors to implement increases in their assessment abstracts as ordered by the board to achieve statewide equalization of property assessments. The assessors argued that taxpayers were denied due process when their assessed valuations were increased without affording them individual hearings under the protest and adjustment procedure. This court acknowledged that a taxpayer whose property had been revalued would not have a right to a hearing under section 39-5-122 before paying the tax because the time specified in the statute had passed and because the assessor’s original assessments were not involved. Instead, the court determined that a taxpayer had a remedy through the abatement and refund procedure in sections 39-1-113 and 39-10-114, including “a right to protest to the county treasurer and a full hearing before the county commissioners followed by acсess to the courts after exhausting the statutory administrative remedies.” 192 Colo, at 524,
The assessors in
Lamm v. Barber
argued that the abatement and refund provisions did not provide a remedy because under them a taxpayer is not afforded an opportunity to contest an assessment increase that the taxpayer claims is higher than it should be but admittedly is not “illegal” or “erroneous.” The assessors relied on the language in
Northcutt
that described the term “erroneous assessment” as implying “more than mere over-assessment and refers to a tax levy that for any reason is wholly illegal or invalid.” 127 Colo, at 152,
Despite this court’s disavowal of the “wholly illegal or entirely erroneous” language in
Northcutt,
the court of appeals revived the language in several cases, including the instant one. In
Schmidt-Tiago Const. Co. v. Property Tax Adm’r for State of Colo.,
In the case before us, the board of assessment appeals argues the Northcutt line of cases, particularly the Simmons decision involving taxpayers who relied on the relief obtained by other trailer court owners under the protest and adjustment provision to seek an abatement and refund of the taxes they had paid on the increased assessment of their trailer courts. The court in Simmons held that because the taxpayers were not contending that the tax they had paid was wholly illegal they were not entitled to relief under the abatement provision. The condominium owner-taxpayers in the instant case rely on the languagе in sections 39-1-113 and 39-10-114 and Lamm v. Barber, contending that they are entitled to an abatement and refund for payment of a tax that was declared illegal by the district court when one of the condominium owners successfully obtained relief through the protest and adjustment procedure. Although this court in Lamm v. Barber avoided directly overruling North-cutt on the basis that the “wholly illegal” language was dictum, we cannot avoid addressing those cases because Simmons would be controlling were we persuaded that the Northcutt line of cases was correctly decided.
We overrule the language in Northcutt, Weidenhaft, and Simmons describing the abatement and refund provision as applicable only if a tax is wholly illegal or entirely erroneous and incapable of adjustment. The Northcutt rationale ignores the statutory scheme for obtaining relief from an error in assessment or an erroneous or illegal imposition of property taxes. Northcutt refused to еquate excessive valuation under the protest and adjustment provision with “erroneous valuation for assessment” in the abatement and refund provision. Lamm v. Barber held that the two terms refer to the same process of assessment; the opinion restored the administrative process for protesting erroneous assessment or seeking refund of an erroneous or illegal tax to its original statutory scheme. As the facts in all of the cases involving property taxes illustrate, the scheme is designed to accommodate a variety of types of challenges, provided that the complaining taxpayer gives the county and state officials, who are responsible for insuring adequate revenue to operate our government, notice of the alleged erroneous assessment or illegal tax and an opportunity to respond within the administrative framework.
The court of appeals ruled in favor of the taxpayers in the instant case by determining that because an increase in the assessment of the converted condominiums was prohibited, the taxes imposed as a result of such an increase were also prohibited and wholly illegal rather than simply the result of an overvaluation. 695 P.2d *869 803-804. Although we disagree with the court of appeals’ reasoning, we conclude that the taxpayers’ reliance on the abatement and refund procedures in sections 39-1-113 and 39-10-114 was sufficient to exhaust their administrative remеdies. One of the owners of a converted condominium pursued administrative relief under the protest and adjustment procedure in section 39-5-122 on the basis that his property had been overvalued. 16 After exhausting administrative remedies, the owner obtained a declaration from the district court that the imposition of an increased tax on his converted condominium was illegal. The county did not appeal the district court ruling. Thus, the other owners of identical condominiums became entitled to seek relief under the abatement and refund provisions in section 39-1-113 and 39-10-114 because the tax, which by then had been levied, had been declared illegal. Each of the other owners applied under sections 39-1-113 and 39-10-114 for аn individual abatement and refund of that portion of taxes paid that was declared illegal. There is no need to characterize the tax paid as wholly illegal before the taxpayer may obtain abatement and refund.
Judgment affirmed.
Notes
. The current version of this section allows "the creation of a condominium ownership of real property as recognized in the ‘Condominium Ownership Act,’ article 33 of title 38, C.R.S." to result in an increased valuation during the intervening years between base years. § 39-1-104(1 l)(b)(I), 16B C.R.S. (1986 Supp.).
. The assessor mailed the notice of valuation 17 days after the deadline in section 39-5-121(1), 16B C.R.S. (1982). From the date of mailing, only eight days remained for the taxpayers to protest the assessment under section 39-5-122(2), 16B C.R.S. (1982). The taxpayers have not asserted that this delay excused them from complying with section 39-5-122.
See Lamm v. Barber,
. The board made similar rulings in
Collins v. Board of Assessment Appeals,
. When the board granted Brooks’ request for relief, it recommended that the matter was one of statewide concern under section 39-8-108(2), 16B C.R.S. (1982), which permitted the county to seek judicial review. In the current version of the statute, the county may appeal the board’s adverse ruling without a recommendation of statewide concern. § 39-8-108(2), 16B C.R.S. (1986 Supp.).
. Because section 39-1-104(1 l)(b) has been amended, see note 1, supra, the question of the legality of an increase in assessed valuation of condominiums converted from apartments between base years will not arise again.
. Although several of the taxpayers had commenced a protest seeking an adjustment of taxes under section 39-5-122, 16B C.R.S. (1982), the record before the board reveals that they dropped these protests after they learned from Brooks that an abatement and refund might be possible under section 39-10-114 if he prevailed on his protest under section 39-5-122. Instead of pursuing individual protests, the taxpayers contributed to the costs of Brooks’ protest.
. Section 39-5-122, 16B C.R.S. (1986 Supp.), allows a taxpayer to either appear before the assessor or file a written objection by mail; a written objection was not allowed before 1984.
. Section 39-8-108(1), 16B C.R.S. (1982), was amended in 1985 to allow a taxpayer to appeal to the board of assessment appeals or directly to the district court.
. All protests of assessed valuation must be filed by June 25 under section 39-5-122(4), and failure tо meet that deadline means that the valuation cannot be protested until the following year.
See
Low, "Appealing Property Tax Assessments,” 15 Colorado Lawyer 798, 803 (1986);
see abo City and County of Denver v. Athmar Park Bldg. Co.,
. Section 39-2-125(l)(c), 16B C.R.S. (1986 Supp.), provides that the board of assessment appeals shall: “Hear appeals from decisions of county boards of equalization filed not later than thirty days after the entry of any such decision. Appeal decisions shall be rendered within thirty days after the date of hearing or by the last day of the same calendar year, whichever is the earlier date. However, if the board by resolution finds and determines that, as a result of an extraordinary work load, all hearings cannot be completed before the last day of the sаme calendar year, the board may schedule hearings for a period of up to the first four months of the succeeding calendar year and shall render a decision within thirty days after the date of hearing or by May 1, whichever is the earlier date.”
.Section 39-10-104, 16B C.R.S. (1982), indicates that property taxes generally are due on the last day of April of the year following that in which the taxes are levied.
. Under section 39-2-116, 16B C.R.S. (1982), the state property tax administrator is to review applications submitted by county commissioners for abatement and refund of taxes, and if the application is found to be in proper form and recommended in conformity with the law, the administrator is to approve the application. If the аdministrator disapproves the application, the disapproval may be appealed to the board of assessment appeals. § 39-2-125(l)(b), 16B C.R.S. (1982).
. This court, in
First National Bank of Greeley v. Patterson,
.
Northcutt v. Burton,
Northcutt
relied on
First National Bank of Greeley v. Patterson,
Northcutt
also relied on
South Broadway Nat. Bank v. City and County of Denver,
. In
City and County of Denver v. Athmar Park Bldg. Co.,
. The protest of the condominium owner who exhausted his administrative remedies under section 39-5-122 was not that his property had been valued too high but that a condominium conversion was not a “change of use of the land,” and therefore the increased assessment was illegal in a year other than a base year. The property owner, not certain whether a court later would declare the increased tax he had paid illegal because it was based on an erroneous valuation or illegal because it could not be imposed in that year, followed the adjustment and refund provision in section 39-5-122. Our holding today should not be construed to require that a taxpayer protesting a tax on a basis other than those set out in section 39-5-122 ("If any person is of the opinion that his property has been valued too high, or has been twice valued, or is exempt by law from taxation, or that he did not own taxable property on the assessment date, or that property has been erroneously assessed to him, he may ... pro-test_”) must exhaust the administrative remedies under section 39-5-122. There are a number of situations in which a taxpayer might seek relief from local and state officials under sections 39-1-113 and 39-10-114.
See Modular Communities, Inc. v. McKnight,