8 Or. Tax 440 | Or. T.C. | 1980
Submitted on stipulation and briefs. Decision for defendant November 6, 1980, dismissing suit. *441 Plaintiffs have appealed to this court from the defendant's Order No. VL 80-159, dated April 23, 1980. Plaintiffs are contract purchasers of a parcel of property located in Sections 26, 27, 34 and 35, T 14 S, R 9 W, WM, Benton County, Oregon, with a total area of approximately 70 acres.1
The complaint alleges that the plaintiffs made a timely application to the county assessor for special assessment as farm use property pursuant to ORS
Following the filing of the complaint, counsel for the plaintiffs and the defendant entered into a stipulation "that the decree may be entered in this suit based on the following facts:
"1. That Plaintiff's [sic] property, the subject of this suit, is about 70 acres in size;
"2. That it is zoned as recreational property;
"3. That it was platted after September 9, 1971;
"4. That 45-plus acres are in timber production;
"5. That there is a homesite on the property;
"6. That the remaining acreage is in use as farmland *442 or is being developed to farm use in perennial crops of fruit or nut trees; and such use has existed for two years prior to the assessment year.
"7. That the income in 1978 did not exceed $1,999;
"8. That the income limitations of ORS
308.372 should be waived for pre-mature [sic] perennial crops if the property otherwise qualifies under ORS215.203 ."9. That the land would be eligible for farm use classification even though platted after September 9, 1971 since the actual use is farming;
"10. That the Department of Revenue Opinion and Order VL-80-159 is in error in relying solely on the platting under chapter 192 ORS [ORS ch 92], if the property qualifies otherwise under ORS
215.203 ."11. That Plaintiff's [sic] complaint be dismissed based upon these stipulated findings with costs to neither [sic] party." (Emphasis supplied.)
Because of the conclusion of law set out in paragraph 9 and the prayer or motion contained in paragraph 11, the court asked for and received briefs in support and explanation of the stipulation quoted above. They refer to the provisions for "unzoned farmland" found in ORS
*443[1.] "(1) Upon approval of an application [filed pursuant to ORS
308.375 ], the county assessor shall assess land approved under ORS308.375 at the special assessment provided in subsection (2) of ORS308.370 and shall also enter on the assessment and the tax roll the notation 'potential additional tax liability' until the land becomes disqualified for such assessment by:"(a) Notification by the taxpayer to the assessor to remove such special assessment;
"(b) Sale or transfer to an ownership making it exempt from ad valorem property taxation;
"(c) Removal of the special assessment by the assessor upon the discovery that the land is no longer in farm use; or
"(d) Platting the land after September 9, 1971, under the provisions of ORS chapter 92." (Emphasis supplied.)2
ORS
There is some logic in counsel's reasoning and there is some latent ambiguity in the statutory drafting which must be given consideration.4
[2.] What is the legislative intent with respect to ORS
[3.] It is obvious that subdivision of land, usually followed by the building of improvements, is anti-pathetic to farming requirements. However, the first legislative amendment (following the original 1963 act) which referred to platting in relation to farmland is found in Or Laws 1971, ch 629, § 3, adding ORS
[4.] Casting about for guides to legislative intent, the court notes that the legislature has followed a similar policy in the special taxation of forest land (which, like the farm use measure, creates special tax advantages). The Western Oregon Forest Land and Severance Tax Act, ORS
"(2) The application shall be made upon forms prepared by the Department of Revenue and supplied by the county assessor, and shall include the following:
"* * * * *
"(g) Whether the land has been subdivided or a plat has been filed under ORS
92.100 .
"* * * * *
"(3) Land is not being held or used for the predominant purpose of growing and harvesting trees of marketable species * * * if it is subject to a plat filed under ORS
92.100 * * *. Otherwise, the determination [by the county assessor] shall be made with due regard to all relevant evidence and without any one or more items of evidence necessarily being determinative. (Emphasis supplied.)
The intent of the legislature here appears to be to give *446
to the county assessor an area of discretion in weighing the effect of the requirements of ORS
The provisions of the Western Oregon Small [Forest] Tract optional tax (relating to the special assessment and taxation of certain forest land within the provisions of ORS
"(d) Whether the land has been subdivided or a plat has been filed under ORS
92.120 ."
In addition, two further subsections of ORS
"(2) The State Forester, in determining whether the application submitted under subsection (1) of this section should be approved, shall weigh the relevant evidence submitted on the application form required by subsection (1) of this section.
"(3) If the State Forester determines that an applicant's land is eligible for classification under ORS
In this instance, it appears that the legislature has given the administrative officer, the State Forester, full discretion to determine whether the subdividing or platting of the property should be deemed significant to the use of the land for forest cultivation.
As above stated, there is logic in the contentions of counsel; i.e., the provision for subdivision of property or the platting thereof may be significant in revealing the underlying intentions of a particular property holder. If the platting has long been abandoned as a useful tool with respect to specific property and if the *447
applicant's bona fide efforts to farm the property for a profit are apparent, it appears logical that the discretion given to the administrator in ORS
"(2) The application shall be made upon forms prepared by the Department of Revenue and supplied by the county assessor, and shall include the following:
"* * * *
"(g) Whether the land has been subdivided or a plat has been filed under ORS92.120 .
"* * * *
"(3) It shall be conclusively presumed that land is not being held or used for the predominant purpose of growing and harvesting trees of marketable species * * * if it is subject to a plat filed under ORS92.120 . Otherwise, the determination shall be made with due regard to all relevant evidence and without any one or more items of evidence necessarily being determinative." (Emphasis supplied.)
This last example further testifies to the very great importance which the Oregon legislature seemingly attributes to the fact of platting in an application for farm use or for forest use where special tax concessions are involved.5 *448
In this state of the law, it is the court's conclusion that its best policy is to adopt an adage attributed to Abraham Lincoln: "The best way to get rid of a bad law is to enforce it." The legislative policy respecting the weight to be given to platting in the partial tax exemption statutes set out above is equivocal and cannot be resolved in the present suit.
The usual rules of construction of statutory provisions support the defendant's Order No. VL 80-159, on which this court's jurisdiction rests.
[5, 6.] To begin with, this is a statute relating to a partial tax exemption and such statutes are subject to a "strict but reasonable construction." Eman. Luth. Char. Bd. v.Dept. of Rev.,
In effect, counsel are urging the court to rewrite ORS
Sympathy must be felt for the plaintiffs. However, relief should be sought from the legislature. Schmitt v. Commission,
Defendant's Order No. VL 80-159 is affirmed and this suit is dismissed, with prejudice. No costs to either party.
These authorities are useful but not determinative in reaching a conclusion in the present case. However, Rogers etal v. Dept. of Rev., 6. OTR 139 (1975), cited by counsel, is clearly distinguishable from the present case on both facts and the law, and is used by the court herein to illustrate the difficulty in ascertaining both the basic legislative policy and the weight to be accorded the factor of platting.
Note should also be taken by plaintiffs of the legislative provision for the vacation of undeveloped subdivisions, found in ORS