Agenda - 11-05-2013 - 5e - Laserfiche WebLink

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2 the 2004 tax year. Orange County strictly complied with the Consent Order by placing both the market value and present-use value on official records. Orange County then issued a $148.75 refund to Mr. Pope, cited by Orange County Finance as RL# 29589 and check# 202124. During the County's 2005 countywide revaluation, the tax assessment of Mr. Pope's property increased, but it was not appealed. Nor, per staff research, was it appealed in any subsequent year until 2013. For 2013 the Board of Equalization and Review revised the property's tax assessment and changed the improvement's square footage for the current year. The statute recognizes two different situations: one where the taxpayer has already paid the tax under appeal and the other where the taxpayer has yet to pay the tax. Mr. Pope's referenced tax bills have been paid. Paraphrased, 105-381(a)(3) affords taxpayers who present a successful statement of defense relief for up to five years of taxes paid. Mr. Chris McLaughlin at the UNC School of Government and his predecessors have opined that requests such as this presented to the Board are not supported by state law. A recent blog and a Property Tax Bulletin from Mr. McLaughlin, both attached, are leaned upon heavily for staff's recommendation to the Board. In summary, it is opined that square footage differences may be assessment errors and, as such, would not qualify as either a clerical error or an illegal tax. Moreover, NC General Statute 105-322 affords taxpayers an annual opportunity to appeal a tax record and assessment. Such annual requests are mutually exclusive, too. The County Attorney notes that, as stated above, North Carolina General Statute 105-381 provides limited statutory reasons whereby a county governing board may lawfully refund taxes. The statutory reason that comes nearest to these situations is one of "clerical error". However, the North Carolina Court of Appeals in the 1997 case of Ammons v. Wake County defined clerical error as something readily apparent on the face of the instrument. This is interpreted as being a typographical error or an error of transposition, not an error of judgment, or a lack of documented available information to amend the tax record. Additionally, North Carolina General Statute 105-380(c) provides in part: a) The governing body of a taxing unit is prohibited from releasing, refunding, or compromising all or any portion of the taxes levied against any property within its jurisdiction except as expressly provided in this Subchapter. b) Taxes that have been released, refunded, or compromised in violation of this section shall be deemed to be unpaid and shall be collectible by any means provided by this Subchapter, and the existence and priority of any tax lien on property shall not be affected by the unauthorized release, refund, or compromise of the tax liability. c) Any tax that has been released, refunded, or compromised in violation of this section may be recovered from any member or members of the governing body who voted for the release, refund, or compromise by civil action instituted by any resident of the taxing unit, and when collected, the recovered tax shall be paid to the treasurer of the taxing unit. The costs of bringing the action, including reasonable attorneys' fees, shall be allowed the plaintiff in the event the tax is recovered. For the reasons stated above, the County Attorney advises the Board of Commissioners that in his opinion issuing the requested refund is not supported by current North Carolina law and could subject the individual members of the Board of Commissioners to personal liability. FINANCIAL IMPACT: Approval of Mr. Pope's request would result in a net reduction in revenue of$2,945.87 to the County, municipalities, and special districts.