STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J. C. WELLBROOK & T. F. KEARNEY, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1461

) STATE OF FLORIDA, DEPARTMENT ) OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 11:30

1. on November 14, 1975, in Room 113 of the Collins Building, Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: William C. Sprott

   Suite 101, Law Building

   315 Third Street

   West Palm Beach, Florida 33401

   
   

   For Respondent: Stephen E. Mitchell

   Assistant Attorney General Department of Legal Affairs The Capitol

   Tallahassee, Florida 32304

   
   

   For Property Robert Lee Shapiro Appraiser of Levy, Plisco, Perry, Reiter Palm Beach & Shapiro, P.A.

   Coounty 120 North County Road

   Palm Beach, Florida 33480

   
   

   ISSUE

   
   

   The issue in this cause is whether petitioners are entitled to either an agricultural classification of their land under F.S. 193.461 or a reduced assessment of their land under F.S. 193.011 for purposes of ad valorem taxation. More specifically, the issue is whether the change made by the Palm Beach County Board of Tax Adjustment in the property appraiser's assessment of petitioners' property lacked legal sufficiency or whether the evidence presented was insufficient to overcome the appraiser's presumption of correctness. In accordance with F.S. 193.122(1) and the case of Hollywood Jaycees v. State Department of Revenue, 306 So. 2d 109 (Fla. 1975), the evidence and argument adduced at the hearing was limited to the scope of the record established before the Palm Beach County Board of Tax Adjustment (BTA).

   FINDINGS OF FACT

   
   

   Upon consideration of the pleadings, evidence introduced at the hearing and the oral argument presented by the parties, the following pertinent facts are found:

   
   

   1. Petitioners are the owners of approximately 300 acres of real property located in Palm Beach County.

      
      

   2. As of January 1, 1974, the subject property was used for agricultural purposes and had been so used by petitioners or their predecessor for some fifty years prior to 1974.

      
      

   3. Prior to 1974, the subject land had been assessed at $600.00 per acre and had not been reassessed in approximately six years.

      
      

   4. Prior to and including 1974, petitioners did not file an application for agricultural classification of their land.

      
      

   5. For the year 1974, the property appraiser assessed the subject property at $3,000.00 per acre under the provisions of F.S. 193.011.

      
      

   6. Petitioners appealed to the Palm Beach County BTA which found that the appraiser's presumption of correctness had been overcome and that petitioners should be allowed to retain the prior years' assessment on the property ($600.00 per acre). In support of this decision, the BTA found that it had the authority to extend the time for filing an application for agricultural classification and that it had the authority

      
      

      "in light of AGO 71-81 dated April 28, 1971, to grant the continuance of a prior years assessment where the facts and circumstances surrounding the subject property have not changed and are not expected to change."

      
      

   7. The BTA notified the respondent of the change in assessment pursuant to

      F.S. 193.122. The respondent's staff recommended that the BTA's action in this case be invalidated on the ground that the evidence presented to the BTA was insufficient to overcome the property appraiser's presumption of correctness.

      
      

   8. The petitioners requested a hearing to review the staff recommendation, the respondent's Executive Director requested the Division of Administrative Hearings to conduct the hearing and the undersigned was assigned as the Hearing Officer. Due to the fact that there was no court reporter present at the hearing, the parties stipulated that their respective positions would be reduced to writing by the submission of written memoranda. To date, no such memorandum has been received from petitioners.

      
      

      CONCLUSIONS OF LAW

      
      

   9. In order to obtain an agricultural classification of lands for the tax year 1974, taxpayers were required to file a return on or before April 1st. Failure to make a timely application results in and constitutes a waiver for one year of the privilege granted for agricultural assessment. F.S. 193.461(3)(a). In Horne v. Markham 288 So.2d 196 (Fla. 1974), the Florida Supreme Court upheld

      the reasonableness and validity of a similar homestead exemption filing deadline with the same waiver provision (F.S. 196.131).

      
      

   10. The issue of legal excuses sufficient to exempt taxpayers from similar waiver provisions has been addressed by the undersigned Hearing Officer in previous recommended orders. 1/ In those cases, it was concluded that if any excuse exempts the taxpayer from said waiver provisions that excuse must be such as to have made it legally impossible for the taxpayer to have complied with the law. This conclusion is based upon rules of statutory construction relating to exemptions from taxation, case law indicating that there may exist a legal excuse or justification for failure to file as required by law, 2/ and an Attorney General's Opinion interpreting a similar statute. 3/ It is concluded that ignorance of the filing requirement and/or satisfaction with the assessments of previous years does not legally excuse petitioners from compliance with the April 1st deadline.

       
       

   11. Further, the Legislature itself has provided that

       
       

       "In years in which proper application for agricultural assessment has not been made the land shall be assessed under the provisions

       of 193.011, Florida Statutes." F.S. 193.461(6)(b)

       
       

   12. With the foregoing principles in mind, it appears that the property appraiser had no choice but to assess the property under the provisions of F.S. 193.011, and the BTA had no authority to grant petitioners an agricultural classification of their land or extend the time for filing an application for agricultural assessment. Thus, its finding in this regard lacks legal sufficiency.

       
       

   13. The BTA further found that it had the authority, pursuant to Attorney General's Opinion 071-85, "to grant the continuance of a prior years assessment where the facts and circumstances surrounding the subject property have not changed and are not expected to change." This too is an erroneous conclusion on the part of the BTA.

       
       

   14. While the property appraiser, and thus the BTA, has no authority to classify the petitioner's lands as agricultural due to the failure of petitioners to timely file for the same, a valuation may be arrived at, pursuant to the factors listed in F.S. 193.011, which would be similar to the valuation of land classified as agricultural and assessed pursuant to the factors listed in F.S. 193.461(6)(a). This is the proposition set forth in Attorney General's Opinion 071-85; and the utilization of the factors listed in 193.011 is the procedure mandated by the Legislature in 193.461(6)(b) when an application is not timely filed. Also see Atty. Gen. Op. 071-273 (September 9, 1971). Thus, the BTA, as well as the property appraiser, may not simply grant the continuance of a prior years assessment where facts and circumstances have not changed.

       Each years' assessment for ad valorem taxation purposes must be based on its own validity and not upon the assessment of any prior or subsequent year. Container Corp. of America v. Long, 274 So. 571 (Fla. App. 1st, 1973).

       
       

   15. In arriving at an assessment of real property, the property appraiser is required to consider all the criteria set forth in 193.011, and not just the use factor set forth in subdivision two thereof. Town of Bay Harbor Island v. Lancelot Associates, 243 So.2d 437 (Fla. App. 3rd, 1971). A tax assessment is presumed to be correct and it is assumed that the appraiser, in arriving at his assessment of the land in questions properly took into account the eight factors

       listed in 193.011. In order to successfully challenge an assessment, its prima facie correctness must be affirmatively overcome by appropriate and sufficient allegations and proof which exclude every reasonable hypothesis of a legal assessment. Overstreet v. Brickell Lum Corporation, 262 So.2d 707 (Fla. App.

       3rd, 1972).

       
       

   16. In this case, the evidence before the BTA was not sufficient to overcome the property appraiser's presumption of correctness. There is absolutely no evidence in the record established before the BTA that the assessment of $3,000.00 per acre was not made in accordance with the criteria set forth in F.S. 193.011. Absent such an affirmative showing, the BTA erred in making a change and its decision should be invalidated in that it lacks legal sufficiency and the evidence was insufficient to overcome the appraiser's presumption of correctness.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the Palm Beach County Board of Tax Adjustment in granting an agricultural classification and in reducing the assessment of petitioners' property for the tax year 1974 be invalidated.

Respectfully submitted and entered this 3rd day of March, 1976, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1976.

ENDNOTES

1/ South Florida Air Academy v. Department of Revenue, Case No. 75-1598 (February l2, 1976); Elks B.P.O.E. v. Department of Revenue, Case No. 75-1525 (February 12, 1976); Fort Lauderdale Lions Club v. Department of Revenue, Case No. 75-1567 (February 12, 1976); Greater Hollywood Junior Chamber of Commerce v. Department of Revenue, Case No. 75-1529 (February 13, 1976); and Hollywood Hills Private School vs. Department of Revenue, Case No. 75-2082 (February 23, 1976).

2/ Horne v. Markham, 288 So.2d 196 (Fla. 1974); Christian and Missionary Alliance Foundation, Inc. v. Schooley, 289 So.2d 788 (Fla. App. 2nd, 1974); Jasper v. St. Petersburg Episcopal Community, Inc. 222 So. 2d 479 (Fla. App. 2nd, 1969); and Gamma Phi Chapter of Sigma Chi Building Fund Corp. v. Dade County, 199 So.2d 717 (Fla. 1967).

3/ AGO 057-374.

COPIES FURNISHED:

Mr. J. Ed Straughn Executive Director Department of Revenue The Capitol

Tallahassee, Florida 32304

William C. Sprott, Esquire

315 Third Street - Suite 101 West Palm Beach, Florida

Stephen Mitchell, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32304

Robert Lee Shapiro, Esquire

120 North County Road

Palm Beach, Florida 33480

Docket for Case No: 75-001461

Orders for Case No: 75-001461