STATE, DEPT. OF REVENUE v. MarkhamSTATE, DEPT. OF REVENUE v. Markham
Gaylord A. Wood, Jr., Fort Lauderdale, for appellee-Markham.
Harry A. Stewart, Gen. Counsel, and Susan F. Delegal and Larry E. Lymas-Johnson, Asst. Gen. Counsel, Fort Lauderdale, for appellee-Broward County.
GLICKSTEIN, Judge.
This is an appeal from one post-judgment order and a review of another. The Department of Revenue appeals the first order, entered by the trial court on June 5, 1981, which held that it was in the best interest of the public to declare the 1980 interim ad valorem tax roll of Broward County the final tax roll. We reverse that order. Broward County has moved for review of that portion of the second order, entered by the trial court on July 15, 1981, which imposed conditions upon the court‘s vacation of the automatic stay following the Department of Revenue‘s filing of the present appeal. We grant the motion in part and deny in part.
To understand the basic problems involved in this appeal, we must trace the brief history of the action. On April 30, 1980, the Broward County Property Appraiser wisely and helpfully brought an action in the Circuit Court of the Seventeenth Judicial Circuit, invoking the court‘s inherent equity powers to provide relief. He based his action on Slay v. Department of Revenue, 317 So. 2d 744 (Fla. 1975), which involved facts similar to those facing appellant.
In Slay, the Holmes County Property Appraiser brought an action against the Department of Revenue, alleging that the Department had disapproved the county‘s 1974 real property assessment roll for its failure to meet the constitutional requirement of just valuation.1
The circuit court dismissed his complaint on the ground that the exclusive forum to obtain review of the Department‘s action was the Assessment Administration Review Commission established under
The court found that (1) the county admitted the invalidity of its roll; (2) a financial emergency existed in the county; and (3) the circuit court had jurisdiction to provide relief through its inherent equity powers. Accordingly, Justice England, speaking for the supreme court, directed the circuit court to provide the county equitable relief, including, in the circuit court‘s discretion, the authority to collect “tentative” 1974 real property taxes based on the existing but invalid tax roll. Justice Sundberg‘s concurring opinion used the term “interim,” rather than the word “tentative” used by the majority, noting the obligation of the county to finalize the reappraisal it had undertaken in order to formulate a valid 1974 tax roll; that is, one based on the constitutional requirement of just valuation.
In the present case, the complaint which was filed alleged that on December 28, 1979, the Executive Director of the Department of Revenue issued a directive to the Property Appraiser to the effect that the 1979 real property tax assessment roll was at less than just valuation and that the 1980 roll must be at 100% of just value before it would be approved. It further alleged that in order to comply with that directive, a complete reappraisal was necessary; that the 1980 assessment roll based on that reappraisal could not be completed until April of 1981; that the governing bodies within the county had to receive 1980 tax revenues by November of 1980 or their essential governmental functions would be impaired; and that if the Property Appraiser were allowed to deliver to the County Revenue Collection Division an assessment roll for 1980 based on 1979 values and 1979 millages, he could do so by November 1, 1980. The complaint asked the court to extend the time for preparation of the 1980 real property assessment roll until April 1, 1981; that the Property Appraiser be ordered to prepare an “interim” tax roll for 1980 based on 1979 values and millages upon which tax notices could be sent; that when the 1980 roll finally had been prepared, normal administrative hearings be held, millages set and supplemental tax notices sent; and that the court supervise the interim and final 1980 rolls.
The Department of Revenue had no objection to the Property Appraiser‘s plan nоr to extending the time for finalizing the 1980 roll based on just valuation. The Board of County Commissioners of Broward County then intervened, although Broward County, pursuant to article VIII, section 8.07 of its Charter, has taken the place of the original intervenor in this appeal.
On July 22, 1980, the court entered final judgment, making three findings of fact.
First, the Property Appraiser was making diligent efforts to comply with the Department‘s directive to appraise all real and personal property in Broward County at “just value,”2 but the rolls could not be completed prior to early 1981.
Second, essential governmental functions would be impaired unless the governmental bodies in the county commenced receipt of
Third, the court took judicial notice that the Legislature enacted the TRIM (Truth in Millage) bill after aрpellant filed his suit,4
to prepare an interim roll for the year 1980, based on the 1979 roll, adjusted to the extent practicable to reflect additions, deletions and changes of ownership, classifications and exemptions since the publication of the 1979 roll. Said roll shall include new construction which would otherwise be placed on the final 1980 roll. If there are any “splits” or “cut-outs,” that is, properties appearing on the 1979 roll which are not also on the 1980 roll, Plaintiff shall use 1980 values for the purpose of the 1980 interim roll. Values for tangible personal property for 1980, which have been computed by Plaintiff, shall be included in the interim roll at their 1980 values.
Paragraph nine directed the County Revenue Collection Division to
mail to each taxpayer the notices required by law and proceed to collect taxes upon the interim roll as required by Section 193.1145 and Chapter 197, F.S., as amended. Discounts shall be allowed as provided by law, and delinquencies collected as may reasonably be accomplished. However, it shall not be necessary to advertise delinquent taxes on the interim 1980 rolls. The Revenue Collection Division shall continue to collect installment payments being made by taxpayers based on 1979 taxes, and shall make the final adjustment called for by law at the same time the final assessment rolls are approved and certified for collection.
Paragraph thirteen provided:
The entry of this Order shall not be deemed in any way to interfere with the preparation of the 1980 assessment rolls, nor the administrative procedures for the proper review thereof. Plaintiff MARKHAM is hereby granted until February 1, 1981, to submit the 1980 assessment rolls to the Executive Director of the Department of Revenue for review. Nothing contained in this Order shall limit the statutory authority of the Executive Director of the Department of Revenue to
disapprove all or any part of the assessment rolls submitted by the Plaintiff MARKHAM, not complying with law.
Had the judgment stopped there, it would have been, in our opinion, just what the doctor ordered. Instead, it went on to provide in paragraph ten:
At such time as the Revenue Collection Division receives a proper certified Final Roll for 1980, and the Property Appraiser has calculated taxes as provided in Section 193.1145(8)(a), F.S. 1980, the Property Appraiser shall present to this Court the information concerning the amounts to be supplementally billed and refunded, and the Revenue Collection Division shall provide this Court with information concerning the costs of making such further adjustments, collections and refunds. At that time, this Court will determine, pursuant to Section 193.1145(8)(d), F.S., whether the interests of justice require subsequent billing, and if not, whether the interim assessments shall be the final 1980 assessments.
As paragraph ten reflects,
The First District Court of Appeal concurs with our conclusion. In Department of Revenue v. Adkinson, 409 So. 2d 53 (Fla. 1st DCA 1982), it reversed the circuit court‘s order which had confirmed the 1980 Walton County interim roll as the final roll. After the Department of Revenue disapproved his 1980 roll, the Walton County Property Appraiser filed an action, just as the Broward County Property Appraiser did in this case, asking the court to extend the time in which he could prepare a corrected roll based on just value. He further asked that the disapproved roll be permitted to act as the interim roll. On November 26, 1980, the circuit court did exactly what the Property Appraiser asked. In June of 1981, however, although the Walton County valuations on the interim roll were admittedly at seventy-seven percent of just value, the Property Appraiser asked the circuit court to confirm the disapproved interim roll as final, which the court did, relying upon the
The language which is the subject of the instant dispute appears in a subsection which deals with remedies a court may order where the amount to be supplementally billed and refunded is “insufficient to warrant a separate billing or that the length of time until the next regular issuance of ad valorem tax bills is similarly insufficient.” The subsection provides that a court may under such circumstances authorize the tax collector to withhold issuance of supplemental bills and refunds until issuance of the next year‘s tax bills. As an alternative, it provides that, at the option of the tax collector, separate bills and statements of refund may be issued. Then, and without further explanation, the disputed language appears. It is clearly tied to the previous sentences grammatically by the phrase “in addition.” Accordingly, before the court may enter an order confirming taxes levied against the interim assessments to be final for the year in question, it must find that the amount to be supplementally billed and refunded is so insufficient that it would not be in the best interest of the taxpaying public to require preparation of a final roll, or to order reconciliation between the final and interim rolls, that is, the preparation or reconciliation would amount to a mere formality.
We know that the Property Appraiser filed the present action for the purpose of obtaining the court‘s approval of (1) an extension of time in which he could complete the mass appraisal necessary to achieve a tax roll for 1980 that the Department of Revenue would approve as being based on just valuation and (2) the use of the 1979 tax roll, subject to some adjustments, as the 1980 interim roll on which the governmental bodies could collect tax revenues essential to their existence. By including paragraph ten in the final judgment, the рarties opened the door to the elimination of reconciling the interim roll with the final roll. The parties failed to recognize the logical premise that reconciliation could not constitutionally be eliminated if the interim roll was not based on just valuation.
On March 23, 1981, the Executive Director of the Department of Revenue approved the final 1980 roll which the Property Appraiser had submitted the previous month. Four days later the Property Appraiser, not recognizing what we now perceive to be the constitutional problem, filed a Motion to Determine Tax Roll Procedures, which said:
WILLIAM MARKHAM, as Broward County Property Appraiser, pursuant to Section 193.1145(8)(d), Florida Statutes, prays that this Honorable Court hold a hearing on short notice to determine whether the implementation and administration of a reconciliation between the interim and final rolls is or is not in the best interests of the public, and to enter an order either confirming the taxes levied against the interim rolls to be final for the year 1980, or to determine whether supplemental bills and refunds should be sent or amounts due should in that event be credited against 1981 taxes due.
In rеsponse to the Property Appraiser‘s motion, the Department apparently failed to call to the court‘s attention the constitutional problem.7 As a result, after conducting a four-hour hearing on the Property Appraiser‘s motion, the court did the same thing the circuit court in Walton County did at about the same time; namely, it impermissibly dispensed with reconciliation of the rolls and ordered the interim roll final. In doing so, it made several findings, some of which would have been relevant had the
THE SECOND ORDER
On June 23, 1981, Broward County filed a motion to vacate the stay which occurred automatically pursuant to
1. That the County and cities are awaiting revenues to be generated by the sale of tax certificates pursuant to Chapter 197, F.S.;
2. That it is necessary that taxing jurisdictions within the County establish millage rates in a manner conforming with Florida Statutes for the year 1981-82 based upon certification of value prepared by the Property Appraiser;
3. That it is necessary that the County and other taxing jurisdictions be in a position to complete the collection of their revenues under the 1980 tax roll as approved by this Court and to initiate, in a timely fashion, collections under the 1981 roll.
Based on these findings, the trial court vacated the stay upon the following conditions:
a. That the Property Appraiser submit his assessment roll for 1981 to the executive director of the Department of Revenue prior to August 1, 1981; and
b. That the County not receive interest on delinquent taxes as provided by § 193.1145(10)(a), nor shall the County receive any penalties or costs as required pursuant to § 197.062(3), upon any taxes which were paid prior to thirty (30) days from the Order dated June 5, 1981, as long as the following requirements are met. In order to effectuate this condition, any person who shall request of the Division of Revenue Collection a return of the interest, penalty аnd costs upon said taxes shall be entitled to same within a reasonable time thereafter upon the presentation of a receipt showing the payment of said interest, penalty and costs. Any amounts not so claimed within thirty (30) days of the date of this Order shall not be required to be returned provided further that Broward County adequately publish notice to all persons who may be entitled to such a return in order that they may be further informed of their rights under this order.
The Department of Revenue filed an emergency motion seeking review of that portion of the order vacating the automatic stay, which we denied by earlier order. Broward County seeks review of the conditions set forth in paragraph b of the order, asserting three errors. First, it argues the trial court lacked jurisdiction to impose conditions which amended the final judgment once the notice of appeal had been filed. The order of June 5, 1981, of course, was not a final judgment, but rather a post-judgment order entered pursuant to paragraph ten of the final judgment rendered on July 22, 1980. The subject matter of that post-judgment order, and the appeal therefrom, raised the single issue whether the trial court erred in confirming the interim roll as the final roll pursuant to
1. When was the delinquent provisional taxpayer first liable for interest on provisional taxes imposed by
2. When was the delinquent provisional taxpayer subject to the provisions of
These issues, although occasioned by the finalizing of the assessment roll after March 31, were separate and apart from the single issue raised in the appeal from the order of June 5, 1981. A resolution of them neither impaired nor otherwise affected a resolution of the earlier appeal. In fact, they came within the ambit of paragraph fourteen of the final judgment, which provided:
This Court reserves jurisdiction of this cause for the entry of such other and further orders as may be necessary from time to time.
The resolution of the two issues in paragraph b was appropriate for a post-judgment order separate from that of June 5, 1981. Accordingly, the present appeal did not divest the trial court of jurisdiction to consider these issues.
Second, Broward County argues
Paragraph b refers to two statutes. The first,
Delinquent provisional taxes on real property shall not be subject to the delinquent tax provisions of chapter 197 until such time as the assessment roll is reconciled, supplemental bills are issued, and taxes on the property remain delinquent. However, delinquent provisional taxes on real property shall accrue interest at an annual rate of 12 percent, computed in accordance with s. 197.0161. Interest accrued on provisional taxes shall be added to the taxes, interest, costs, and charges due with respect to final taxes levied. When interest begins to accrue on delinquent provisional taxes, the property owner shall be given notice by first-class mail.11
The second,
The tax collector shall advertise once each week for 4 weeks and shall sell tax certificates, except as provided in s. 197.116(2), on all real property with taxes due on or before June 1 of each year. He shall make a list of such properties specifying the amount due on each parcel, including interest at the rate of 18 percent per year from April 1 to the date of sale, except that the minimum charge for any taxes redeemed prior to the sale of a tax certificate shall be 3 percent regardless of the time of redemption, with the cost of advertising and expense of sale in the same order in which the lands were assessed.
Taking one issue at a time, the first asks whether the trial court erred in denying the County interest on delinquent provisional taxes from April 1, 1981. We have no doubt in our minds the County was entitled to the interest. Had the roll been finalized prior to April 1, a delinquent taxpayer would have paid substantially more interest from and after that date pursuant to
Turning to the second issue, the first sentence of
DOWNEY and HERSEY, JJ., concur.
GLICKSTEIN, Judge.
In our original opinion, to which we adhere, we were concerned with two post-judgment orders of the trial court. The Broward County Property Appraiser and Broward County seek rehearing with respect to the primary order of the trial court. That order eliminated reconciliation of two rolls: (a) the 1980 interim roll as approved in the final judgment, and (b) the 1980 roll subsequently approved by the Executive Director of the Department of Revenue.
Subsequent to our decision,1 two others were rendered. The most recent of these is Adkinson v. Department of Revenue, 422 So. 2d 842 (Fla. 1982) (order denying petitions for review on jurisdictional grounds). There, the supreme court decided it would not review Department of Revenue v. Adkinson, 409 So. 2d 53 (Fla. 1st DCA 1982), which was cited with approval in our opinion.
The second decision is Department of Revenue v. Johnston, 422 So. 2d 935 (Fla. 5th DCA 1982), petition for review filed, No. 63,013 (Fla. Dec. 27, 1982). That decision does not mention our opinion in this case because of the proximity in dates of issuance; and we respectfully disagree with its following analysis of section 193.1145(8)(d):
But in drafting section 193.1145, the Legislature recognized the reality that many counties would take some time and special help in getting up to one hundred percent assessment, and it made provisions for that. It also created an escape window, or special waiver exception for counties who in good faith sought but failed to achieve the required one hundred percent assessment, and for whom that step would cause too great a local government disruption and crisis. The statutory technique of taxing on the interim tax basis, or allowing a one year reprieve, was borrowed (we think) from Florida Supreme Court cases, which first created those remedies based on common law and equitable consideration. We choose to read “not in the best interest of the public” in the context of those cases.
Id. at 938 (footnotes omitted). Again, we say that the legislature сannot forgive what the constitution ordains; therefore, such construction given the statute by the Fifth District Court of Appeal — taken to its logical conclusion — would compel a finding that the statute is unconstitutional. Nevertheless, there is much in that opinion to consider, but not with the foregoing statute as the foundation for the ultimate result reached by the court. Instead, if indeed governmental fiscal crisis were to occur in Flagler County should the reconciliation between the rolls be compelled, the trial court‘s inherent power to head off such crisis would have served as the basis for doing so. So it was in State ex rel. Butscher v. Dickinson, 196 So. 2d 105 (Fla. 1966), decided in November, 1966 — precisely when the governmental bodies in Bay, Hillsborough, Lee and Marion counties were expecting their revenue from their 1966 tax rolls — that the supreme court had no choice but to permit them to collect taxes although the rolls were below just value. The court first noted that the trial court had found that none of the tax assessors, in the time remaining, could compile a tax roll for 1966 which would meet the requirements of law. Therefore, it held:
Without in anywise condoning the failure of performance by the respondent tax assessors we hold the demands of county government and education must be met this year, albeit imperfectly, and the presumptively valid decrees retaining jurisdiction and ordering the compilation of adequate rolls for 1967, presents the more acceptable disposition of the problem.
It is not for us to say whether fiscal crisis would occur in Flagler County in the event of reconciliation. However, there is no evidence in the record of this case to support the conclusion that reconciliation would trigger such crisis in Broward County. First, we note that even the Fifth District Court of Appeal was not impressed with the cost of reconciliation as a basis for eliminating such requirement;2 it cited to the decision of this court in Coe v. Broward County,
A taxing authority must demonstrate more than the mere expense of processing refunds in order to deny the taxpayers their right to a refund of the illegally assessed taxes.
Second, as to the “disruptions” which the trial court in this case concluded to be the basis for its order, we observe the following:
A. As to the finding that reconciliation would postpone the sale of tax certificates for five months, postponing collection of 5% of revenues budgeted for the 1980-1981 fiscal year, and causing curtailment of services, we consider that to be a concern but not a crisis. The diminution of 5% in the gross income of a county should not affect the basic stability of that government.
B. As to the finding that the cost of reconciliation during the current budget year would require curtailment of county services, including “the Sheriff, Human Services and the Courts” because the county‘s contingency fund for the fiscal year was down to approximately $50,000 from $1,200,000, we find that to be a self-imposed disruption not required by the legislature in the implementation of
193.1145 Interim assessment rolls. —
(1) It is the intent of the Legislature that no undue restraint shall be placed on the ability of local government to finance its activities in a timely and orderly fashion, and, further, that just and uniform valuations for all parcels shall not be frustrated if the attainment of such valuations necessitates delaying a final determination of assessments beyond the normal 12-month period.
(Emphasis supplied.)
C. As to the finding that the limitations of the county‘s computer operation and personnel would require utilization of another interim roll for 1981, we consider that again to be a self-imposed disruption not required by the statute. We believe the statute requires a construction which results in implementation in a reasonable manner. The statute is remedial in nature and designed to assist the governmental units in attaining the constitutional goal. Rather than creating crisis, it eliminated it by providing for interim funding. Throughout the statute there is the implication that delays in the process, while not inevitable, surely were foreseeable. For example, disputes between property appraisers and the executive director were contemplated by the TRIM bill, as were the administrative and judicial remedies available to both.
We are very concerned about the manner in which the property appraiser‘s post-judgment motion was pled and considered. The motion, having been expressly based upon
Unlike the Flagler County case, which was a separate law suit assumably pled and tried in a conventional manner, the post-judgment motion in the present case, as quoted in our original opinion, was one paragraph long and failed to include allegations of fact, indicate what direction the
II
The motions of the Broward County Property Appraiser and Broward County were filed prior to the decision of the Fifth District Court of Appeal and seek rehearing on the ground that there is no evidence in this case that the 1980 interim roll was not based on just valuation. In fact, they argue that the only evidence in the record is that the interim roll was based on just valuation. The record does not support their contentions.
On December 28, 1979, the Executive Director of the Department of Rеvenue issued a directive to the Broward County Property Appraiser that the 1979 real property assessment roll was not based on just valuation; and that the 1980 roll must have such basis. The property appraiser did not dispute the directive by taking any action. Instead, after a period of four months, he filed the complaint in the present action and informed the trial court that he needed the court‘s order as authority for the additional time he required to comply with the directive. He alleged that he had requested of and had obtained from the executive director an extension until December 1, 1980, which was the limit of the latter‘s authority. He further alleged that it would take him until April 1, 1981, to complete the reassessed roll required by the directive; and he prayed for that relief.
The final judgment, which gave the property appraiser until February 1, 1981, to complete the roll, was not entered until July 22, 1980. By then, the legislature had added
As we have pointed out in our opinion, and hereinabove, the property appraiser‘s one-paragraph motion asked the trial court to determine whether the interim 1980 roll, primarily based on 1979 values, had to be reconciled with the approved 1980 roll,
To reiterate, the main thrust of the motions for rehearing is that there is no evidence in the record that the 1979 roll, which was used as the interim roll (and confirmed by the trial court as the 1980 tax roll), was not based upon just valuation. We reject that contention for three reasons reflected in the record. First, the 1979 roll of seventeen billion dollars was determined by the Department of Revenue not to be based upon just valuation, whereas the new 1980 reassessment roll of twenty-two billion dollars prepared by the property appraiser was approved as based on just valuation by the Department. If the 1980 roll was at just valuation, the 1979 roll could not be. Second, although the Department of Revenue notified the property appraiser that it would not approve the 1979 tax roll as just valuation for 1980, no administrative appeal or any other action was taken by the appraiser to overturn the decision. Third, the property appraiser entered upon a reassessment of the county property to bring the roll to just valuation (which resulted in the increase of five billion dollars — almost one-third of the 1979 valuation). In Slay v. Department of Revenue, 317 So. 2d 744, 746 (Fla. 1975), the supreme court said:
As we view this cause, Holmes County has admitted the invalidity of its 1974 tax roll. By failing to pursue an administrative appeal to the Commission, the County left intact the department‘s disapproval. By contracting for a massive reappraisal of properties, the County acknowledged the invalidity of assessments forming the basis of its proposed 1974 roll. (Footnote omitted.)
Suffice it to say, we conclude therefrom that the record is clear that the 1979 tax roll was substantially below just valuation.6
The property appraiser‘s remaining arguments warrant the briefest of consideration. We sua sponte strike therefrom the newspaper article attached to his motion for rehearing and any reference to it. He raises matters for the first time in his motion for rehearing, contrary to accepted practice, Sarmiento v. State, 371 So. 2d 1047 (Fla. 3d DCA 1979), approved, 397 So. 2d 643 (Fla. 1981), and alludes to specters involving title insurers, without evidentiary foundation.
With respect to the Department of Revenue‘s motion for clarification, the analysis contained in footnote nine of our opinion did not pertain to issues involving just valuation. Specifically,
Accordingly, we deny all motions and conclude that this matter be returned to the trial court for reconciliation in compliance with
DOWNEY and HERSEY, JJ., concur.