When attorney Shari Johnson woke up the morning of February 16, 2016, she was scheduled to argue a case of first impressions before Florida’s Fourth District Court of Appeals in Broward County. Her client had been harmed, and the trial court had not provided relief. By the time Ms. Johnson arrived at the courthouse, admittedly, in her car in the parking lot out front right before she walked in, Ms. Johnson learned that this was no longer a case of first impression. In a twist which injected entirely more excitement than one would expect of a property tax case, the issue was decided that very morning by another court.[1] February 16, 2016, the First DCA decided the Genesis Ministries case, which interpreted the time in which an aggrieved property owner can file suit for a lien for prior year taxes after the loss of an exemption.
To understand the issue is to understand the problem. The general rule in Florida property tax is that a taxpayer has 60 days to appeal an assessment, or the right to bring an action is lost. The intent behind the deadline is logical. There is a clear need to find the intersect between affording due process to taxpayers, while granting counties the stability to rely on tax revenues in order to continue to finance services such as schools and roads. The issue in Genesis dealt with a problem separate from just the collection of tax and certification of rolls. Genesis lost their religious exemption, which caused a lien for 8 year of back taxes.
The statute of nonclaim, the one which is at the core of both these cases, is Section 194.171(2), Florida Statutes (“F.S.”), which states:
No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2), or after 60 days from the date a decision is rendered concerning such assessment by the value adjustment board if a petition contesting the assessment had not received final action by the value adjustment board prior to extension of the roll under s. 197.323.
194.171(2), Florida Statutes, (“F.S.”).
The language of this rule creates two problems which warrant discussion. The first, most obvious, problem is that no one knows when tax rolls are certified. A Google search will not tell you, and the date is not consistent from one year to the next, or one county to the next. Generally, it is the first or second week of October, but until the county publishes notice of the certification of the rolls, that date is anyone’s guess. From that date, a Taxpayer is limited to 60 days to file suit.
The second problem this statute creates is the void in the language which would accommodate property which has lost its exemption and has taxes which exist in prior years. Put more simply, if a taxpayer has 60 days from the date of the assessment or the date the rolls were certified to contest a lien, what if the Property Appraiser disallows a homestead going back 10 years. The long standing rule is even back assessments are barred from being contested after 60 days, in spite of the general time frame in tax being three years.[2] What is the date of assessment? In the instance of an exemption which has been disallowed, the issue become determining the trigger date.
In the Genesis case, the church was given notice of removal of a religious exemption, and a lien for back taxes for 8 years totaling $298,000. The Taxpayer sold the property, paid the lien, and brought an action for refund approximately a year from the date the lien was filed. The trial court took the position that the action for the periods 2005 through 2012 the action was not timely because it was more than 60 days from the date the lien was recorded. Case dismissed.
On appeal, the First DCA reversed the trial court’s opinions. Genesis argued that the statute of nonclaim does not apply to tax liens. Specifically, the language of the statute plainly identifies that it is intended to govern “a tax assessment.” A tax lien is not a tax assessment. A tax lien is not certified on the rolls. The court identified that the 60-day tolling period is inapplicable to tax liens, as that would require a rewrite of the statute, which is beyond the court’s authority, and that taken to its logical extreme, creates an absurd result. Specifically:
We find it highly unlikely that the Legislature intended such a draconian result, which would effectively require property owners to routinely (at least every 60 days) check the public records to determine whether a tax lien has been reordered against their property.
Genesis Ministries v. Brown, Case 1D15-1310 (Fla. 1st DCA February 16, 2016).
As noted by the court, the language of the rule, in its pre-Genesis interpretation, effectively puts a burden on Taxpayers to check the public records every 60 days. The lien is recorded, and available, online but short of checking with the clerk of court, or on the property appraiser site, Taxpayer’s who have liens filed against them are given an accelerated deadline, with no warning. Current year assessments are delivered to Taxpayers in a TRIM notice. But there is no requirement that taxpayers be given notice of a lien. This was an issue so ripe for review it came up twice in a day. The Genesis case was remanded back to the lower court for proceedings in light of the DCA’s opinion regarding the statute of nonclaim. This case is a long overdue win for Taxpayers in Florida.
If you have been affected by property appraiser’s action, contact us. At the Law Office of the Law Offices of Moffa, Sutton, & Donnini, P.A., our primary practice area is Florida taxes. We represent taxpayers and business owners from the entire state of Florida, from Department of Revenue to County Property Appraisers and Tax Collectors. Call our offices today for a FREE INITIAL CONSULTATION to confidentially discuss how we can help put this nightmare behind you.
About the author: Ms. Levine is an associate attorney with the Law Offices of Moffa, Sutton,
& Donnini, P.A. Her primary practice area is Florida tax controversy,
with focus on real property issues. Ms. Levine received a B.S. in Accounting
from University of Central Florida. She spent several years working in
public accounting before attending Nova Southeastern University Law School.
She received her Juris Doctorate in 2014. During her time at Nova Law,
Ms. Levine was the Executive Justice of Academics for the Moot Court Honor
Society, as well as the Finance Chair. She was awarded by the National
Order of the Barrister, a national honor society which encourages oral
advocacy and brief writing skills. You may contact Amanda via email at
AmandaLevine@FloridaSalesTax.com or 954-642-1088.
Authority
192.0105, F.S. – Taxpayer Property Tax Bill of Rights
194.171(2), F.S. - Circuit Court Jurisdiction over Property tax cases
195.0012, F.S – Legislative Intent
Genesis Ministries v. Brown, Case 1D15-1310 (Fla. 1st DCA February 16, 2016). – Citing a lien is not an assessment for purposes of the 60 day statute of nonclaim.
Markham v. Neptune Hollywood Beach Club, 527 So. 2d 814, 816 (Fla. 1988). -Citing that classification differences do not affect the statute of nonclaim in property tax cases.
Additional Resources
Florida Homestead Under Fire by Hired Guns, published Mar 20, 2016, by Amanda Levine, Esq.
Florida Homestead Tax Exemption Case – Mary Jane, published March 15, 2015, by Amanda Levine, Esq.
Miami-Dade Property Owners Take on Tax Collector, published on Apr 11, 2015, by Amanda Levine, Esq
Burden of Proof-Persuasion: FL Ad Valorem Tax, published Aug 3, 2015, by James McAuley, Esq.
[1] Admittedly, as someone who chose to pursue this practice area, the author finds these cases very interesting. She also recognizes this is not the common opinion of ad-valorem tax law, or state tax practice as a whole.
[2] See Ward v. Brown 894 So.2d 811 ay 814(Fla. 2004) (Identifying the denial of an exemption, and subsequent lien, are subject to the requirements of section 194.171(2), and must be brought within 60 days). See also: Markham v. Neptune Hollywood Beach Club, 527 So. 2d 814, 816 (Fla. 1988).