Introduced Version
House Bill 2840 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2840
(By Delegates Armstead, Raines, McCuskey,
Walters and Lane)
[Introduced March 6, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §11-1C-4 and §11-1C-9 the Code of West
Virginia, 1931, as amended; and to amend and reenact §11-3-2a
and §11-3-24 of said code; and to amend said code by adding
thereto a new section, designated §11-3-24c, all relating to
valuation and assessment of property for ad valorem property
taxation; allowing a real property owner to submit an
independent appraisal of the property to the assessor;
providing for notice to an owner of an increase in the
assessed value that is greater than sixty percent of the value
determined by an independent appraisal; objections by property
owners to an increase in the assessed value before the board
of equalization and review; providing that the assessor bear
the burden of proof to show that the value of the independent
appraisal is incorrect; assessment of property when the
independent appraisal thereof is found to be correct; burden of proof in challenges to appraisals and assessments;
legislative findings; establishing the burden and degree of
proof necessary to challenge an assessment or appraisal of
property.
Be it enacted by the Legislature of West Virginia:
That
§11-1C-4 and §11-1C-9
of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that §11-3-2a and §11-3-
24 of said code be amended and reenacted; and that said code be
amended by adding thereto a new section, designated §11-3-24c, all
to read as follows:
ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.
§11-1C-4. Commission powers and duties; rulemaking.
(a) On or before October 1, 1990, and thereafter as necessary
the property valuation training and procedures commission shall
perform the following duties:
(1) Devise training and certification criteria for county
assessors and their employees and members of county commissions,
which shall include a definition of "appropriate staff member" as
the term is used in section six of this article relating to
required training, which definition shall include deputy assessors
as provided for in section three, article two of this chapter;
(2) Establish uniform, statewide procedures and methodologies
for the mapping, visitation, identification and collection of
information on the different species of property, which procedures and methodologies shall include reasonable requirements for
visitation of property, including a requirement that a good faith
effort be made to contact any owner of owner-occupied residential
property or to evaluate independent property appraisals provided to
the commission as provided in section nine of this article:
Provided, That the commission is not authorized to establish the
methods to value real and personal property, but shall have the
authority to approve such methods;
(3) Develop an outline of items to be included in the county
property valuation plan required in section seven of this article,
which shall include information to assist the property valuation
training and procedures commission in its determination of the
distribution of state funds provided pursuant to section eight of
this article.
(b) On or before July 1, 1991, the commission shall establish
objective criteria for the evaluation of the performance of the
duties of county assessors and the Tax Commissioner.
(c) In the event the Tax Commissioner and a county assessor
cannot agree on the content of the plan required under section
seven of this article, the commission shall examine the plan and
the objections of the Tax Commissioner and shall resolve the
dispute on or before the first day of the fiscal year following the
fiscal year in which the plan was submitted to the commission for
resolution.
(d) The commission shall have the power to make such rules as
it deems necessary to carry out the provisions of this section,
which rules shall include procedures for the maintenance, use, sale
and reproduction of microfilm, photography and tax maps. Any rules
adopted by the commission prior to October 1, 1990, under
subsection (a) of this section are exempt from the provisions of
article three of chapter twenty-nine-a of this code: Provided,
That the commission shall file a copy of any rule so exempted from
the provisions of chapter twenty-nine-a of this code with the
Legislative Rule - Making Review Committee created pursuant to
section eleven, article three of said chapter prior to November 30,
1990.
(e) The commission shall have the authority to make and enter
into all contracts and agreements necessary or incidental to the
performance of its duties and the execution of its powers under
this article.
(f) In order to fund the costs of the requirements of this
article, the valuation commission shall have the authority, on a
one-time basis, to borrow $5 million and to distribute such funds
according to need and the valuation plan submitted by the counties.
Upon request of the valuation commission, the state Board of
Investments shall loan, under commercially reasonable terms to be
determined by the parties, up to $5 million to the valuation
commission, on a one-time basis, from one of the various funds administered by the state Board of Investments.
(g) The commission shall be required, in the event that the
Tax Commissioner has failed to do so, to appoint one or more
special assessors if it is the determination of the commission that
an assessor has substantially failed to perform the duties required
by sections seven and eight of this article. A writ of mandamus
shall be the proper remedy if the commission fails to perform any
of its duties required by law.
§11-1C-9. Periodic valuations.
(a) After completion of the initial valuation required under
section seven of this article, each assessor shall maintain current
values on the real and personal property within the county. In
repeating three-year cycles, every parcel of real property shall be
visited by a member of the assessor's staff who has been trained
pursuant to section six of this article to determine if any changes
have occurred which would affect the valuation for the property:
Provided, That in lieu of a visit by a member of the assessor's
staff, the property owner may, at his or her own expense, have an
independent appraisal made of his or her property by a real estate
appraiser licensed in this state and provide the assessor with a
written appraisal of the fair market value of the property prior to
the date that the property would be assessed.
With this
information and information such as sales ratio studies provided by
the Tax Commissioner, the assessor shall make such adjustments as are necessary to maintain accurate, current valuations of all the
real and personal property in the county and shall adjust the
assessments accordingly.
(b) In any year the assessed value of a property or species of
property be less than or exceed sixty percent of current market
value, the Tax Commissioner shall direct the assessor to make the
necessary adjustments. If any assessor fails to comply with the
provisions of this section, the Tax Commissioner may, at the county
commission's expense, take reasonable steps to remedy the
assessment deficiencies.
ARTICLE 3. ASSESSMENTS GENERALLY.
§11-3-2a. Notice of increased assessment required for real
property; exceptions to notice.
(a) If the assessor determines the assessed valuation of any
item of real property appraised by him or her is more than ten
percent greater than the valuation assessed for that item in the
last tax year, the increase is $1,000 or more or if the assessed
valuation is greater than sixty percent of the value of the
property as determined by an independent appraisal submitted by
the property owner pursuant to section nine, article one-c of this
chapter
and the increase is entered in the property books as
provided in section nineteen of this article, the assessor shall
give notice of the increase to the person assessed or the person
controlling the property as provided in section two of this article. The notice shall be given on or before January 15 of the
tax year and advise the person assessed or the person controlling
the property of his or her right to appear and seek an adjustment
in the assessment: Provided, That this notification requirement
does not apply to industrial or natural resources property
appraised by the Tax Commissioner under article six-k of this
chapter which is assessed at sixty percent of its true and actual
value. The notice shall be made by first-class United States
postage mailed to the address of the person assessed or the person
controlling the property for payment of tax on the item in the
previous year, unless there was a general increase of the entire
valuation in one or more of the tax districts in which case the
notice shall be by publication of the notice by a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code. The area for the publication is
the county. The requirement of notice under this section is
satisfied and waived if personal notice of the increase is shown
by:
(1) The taxpayer having signed the assessment form after it
had been completed showing the increase;
(2) Notice was given as provided in section three-a of this
article; or
(3) The person assessed executing acknowledgment of the notice
of the increase.
(b) During the initial reappraisal of all property under
section seven, article one-c of this chapter, the Tax Commissioner
and each county assessor shall send every person owning or
controlling property appraised by the Tax Commissioner or the
county assessor a pamphlet which explains the reappraisal process
and its equalization goal in a detailed yet informal manner. The
property valuation training and procedures commission, created
under section three, article one-c of this chapter, shall design
the pamphlet for use in all counties while allowing individual
county information to be included if it determines that the
information would improve understanding of the process.
ARTICLE 3. ASSESSMENTS GENERALLY.
§11-3-24. Review and equalization by county commission.
(a) The county commission shall annually, not later than
February 1 of the tax year, meet as a board of equalization and
review for the purpose of reviewing and equalizing the assessment
made by the assessor. The board shall not adjourn for longer than
three business days at a time, not including a Saturday, Sunday or
legal holiday in this state, until this work is completed. The
board may adjourn sine die anytime after February 15 of the tax
year and shall adjourn sine die not later than the last day of
February of the tax year.
(b) At the first meeting of the board, the assessor shall
submit the property books for the current year, which shall be complete in every particular, except that the levies shall not be
extended. The assessor and the assessor's assistants shall attend
and render every assistance possible in connection with the value
of property assessed by them.
(c) The board shall proceed to examine and review the property
books, and shall add on the books the names of persons, the value
of personal property and the description and value of real estate
liable to assessment which was omitted by the assessor. The board
shall correct all errors in the names of persons, in the
description and valuation of property, and shall cause to be done
whatever else is necessary to make the assessed valuations comply
with the provisions of this chapter. But in no case shall any
question of classification or taxability be considered or reviewed
by the board.
(d) If the board determines that any property or interest is
assessed at more or less than sixty percent of its true and actual
value as determined under this chapter, it shall fix it at sixty
percent of its true and actual value: Provided, That no assessment
shall be increased without giving the taxpayer at least five days'
notice, in writing, of the intention to make the increase and no
assessment shall be greater than sixty percent of the true and
actual value of the property.
(e) Service of notice of the increase upon the taxpayer shall
be sufficient, or upon his or her agent or attorney, if served in person, or if sent by registered or certified mail to the property
owner, his or her agent, or attorney, at the last known mailing
address of the person as shown in the records of the assessor or
the tax records of the county sheriff. If such person cannot be
found and has no last known mailing address, then notice shall be
given by publication thereof as a Class I legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code and the publication area shall be the county. The
date of the publication shall be at least five days, not including
a Saturday, Sunday or legal holiday in this state, prior to the day
the board acts on the increase. When the board intends to increase
the entire valuation in any one tax district by a general increase,
notice shall be given by publication thereof as a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area shall be
the county. The date of the last publication shall be at least
five days, not including a Saturday, Sunday or legal holiday in
this state, prior to the meeting at which the increase in valuation
is acted on by the board. When an increase is made, the same
valuation shall not again be changed unless notice is again given
as heretofore provided.
The clerk of the county commission shall publish notice of the
time, place and general purpose of the meeting as a Class II legal
advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area shall be
the county. The expense of publication shall be paid out of the
county treasury.
(f) Any person who receives notice as provided in subsection
(e) of this section may appear before the board at the time and
place specified in the notice to object to the proposed increase in
the valuation of taxpayer's property. After hearing the board's
reason or reasons for the proposed increase, the taxpayer may
present his or her objection or objections to the increase and the
reason or reasons for the objections and may either orally or in
writing advise the board that the taxpayer elects for the matter to
be heard in the fall of the tax year when the county commission
meets as a board of assessment appeals as provided in section
twenty-four-b of this article: Provided, That taxpayer's election
shall not stay a decision by the board to increase the assessed
value of the property for the current tax year: Provided, however,
That in cases where the increase in assessed value of the property
is greater than sixty percent of the fair market value of the
property as determined by an independent appraisal provided to the
assessor pursuant to section nine, article one-c of this chapter,
the assessor bears the burden of proof, by a preponderance of the
evidence, to demonstrate that the independent appraisal is
incorrect and that the assessed value of the property should not be
calculated upon the value as determined by the independent appraisal: Provided further, That if the board determines that the
assessor has not demonstrated that the fair market value of the
property as determined in the independent appraisal is incorrect,
the board shall adjust the assessment of the property calculated on
the fair market value of the property as determined by the
independent appraisal.
(g) The board may approve an agreement signed by the taxpayer
or taxpayer's representative and the assessor, and by a
representative of the Tax Commissioner when the property is
industrial property or natural resources property, that resolves a
valuation matter while the land and personal property books are
before the board for equalization and review.
(h) If any person fails to apply for relief at this meeting,
he or she shall have waived the right to ask for correction in the
assessment list for the current year, and shall not thereafter be
permitted to question the correctness of the list as finally fixed
by the board, except on appeal to the circuit court or as otherwise
provided in this article.
(i) After the board completes the review and equalization of
the property books, a majority of the board shall sign a statement
that it is the completed assessment of the county for the tax year.
Then the property books shall be delivered to the assessor and the
levies extended as provided by law.
(j) A taxpayer who elects to have a hearing before the board of equalization and review may appeal the board's order as provided
in section twenty-five of this article. A taxpayer who elects to
have a hearing before the board of assessment appeals may only
appeal the assessed value as provided in section twenty-four-b of
this article.
§11-3-24c.
Burden of proof; standard of proof.
__(a) Legislative findings- The Legislature finds that the
Supreme Court of Appeals of West Virginia has held that the burden
of proof is upon a person challenging the correctness of an
assessment or valuation of property by an assessor or other taxing
authority for ad valorem property taxation to demonstrate, by clear
and convincing evidence, that the assessment or valuation is
erroneous. The Legislature further finds that this burden of proof
is an onerous burden to be met by persons challenging an assessment
valuation of property, who must use their own resources to produce
competent evidence to prove the value of their property. The
Legislature therefore finds that proof by a preponderance of the
evidence is a much more fair and reasonable burden of proof to
demonstrate the incorrectness of an assessment or valuation of
property by an assessor or other taxing authority.
__(b) In a proceeding under the provisions of this article in
which a person is claiming to be aggrieved by, or is contesting the
assessment or valuation of property by the assessor or a taxing
authority and in which the person bears the burden of proof to establish that the assessment or valuation is incorrect, the burden
of proof that the aggrieved person must meet is to establish, only
by a preponderance of the evidence, that the property was assessed
or valued too high or was otherwise improperly valued or assessed
upon the presentation of competent evidence.
NOTE: The purpose of this bill is to amend provisions relating
to challenges to increases in valuation and assessment of property
for ad valorem property taxation. The bill allows a real property
owner to submit an independent appraisal of the property to the
assessor. It provides for notice to an owner of an increase in the
assessed value that is greater than sixty percent of the value
determined by an independent appraisal. The bill also provides that
the assessor bear the burden of proof to show that the value of the
independent appraisal is incorrect before the board of equalization
and review and that the board assess the property based on the
independent appraisal if found correct. The bill also establishes
burden and degree of proof necessary to challenge an assessment or
appraisal of property for ad valorem property taxation to be proof
by a preponderance of the evidence.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language that
would be added.
§11-3-24c is new; therefore, it has been completely
underscored.
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