Feb. 20, 2014 – Taxpayers have the burden to show an assessor’s property classification is incorrect, the Wisconsin Supreme Court has clarified in a case involving an assessment on land used for hunting but classified as “productive forest land.”
The Town of Black Creek’s Board of Review assessed a property tax against Frank Sausen’s 10-acre plot based on the assessed value of $27,500. The town assessor classified the land as “productive forest land,” and Sausen challenged that classification.
Under state statute, productive forest land may be assessed on 100 percent of the land’s value. But “undeveloped land” may only be assessed at 50 percent. Sausen argued that his land, which he only uses for hunting, was misclassified.
But in Sausen v. Town of Black Creek Board of Review, 2014 WI 9 (Feb. 19, 2013), a unanimous supreme court upheld the town’s property classification and rejected Sausen’s claim that taxpayers don’t have the burden to prove a classification is wrong.
Noting that applicable statutes do not state the burden of proof when taxpayers challenge property classifications specifically, the majority opinion invoked the general rule that a party seeking judicial review carries the burden of proof.
“A board of review is a quasi-judicial body to which this general rule governing burden of proof applies,” Chief Justice Shirley Abrahamson wrote in a majority opinion. “Applying this rule to the present case means the taxpayer has the burden of proof.”
Sausen had argued that the board’s determination to adopt the assessor’s classification was not supported by the evidence. The circuit court ruled that Sausen’s evidence was insufficient to meet his burden of proof, but Sausen argued it wasn’t his burden.
Sausen wanted the board to determine that the property classification was incorrect and argued that assessor classifications are not entitled to a presumption of correctness.
The majority noted that the applicable statutes governing the process for objections to valuations and assessments, Wis. Stat. section 70.47(7)-(8), which place the burden of proof on the objector, should also govern objections to property classifications.
“Because an assessment depends on a valuation and a classification, it makes sense to apply the burden of proof to a taxpayer’s challenge to a classification as is applied to a taxpayer’s challenge to an assessment,” wrote the chief justice.
The majority also upheld the town’s decision to accept the assessor’s classification of Sausen’s land as “low grade woods,” a subset of “productive forest land,” defined as “land that is producing or is capable of producing commercial forest products.”
“The taxpayer failed to submit evidence that the property is not capable of producing commercial forest products or that the property failed to qualify as low-grade woods,” wrote the chief justice, noting that Sausen used maps to argue it was undeveloped land.
Justice Prosser Provides a Tip
Justice David Prosser joined the majority but wrote separately “to provide additional background and analysis for disputes about the classification of real property.”
Justice Prosser noted that in certiorari review under Wis. Stat. section 70.47(13), the court will ordinarily examine only evidence that was presented to the board of review.
“If the taxpayer is able to gather additional evidence after the board of review – often with the assistance of an attorney – he should seek de novo review under Wis. Stat. § 74.37,” Justice Prosser suggested. That statute governs excessive assessment claims.
“De novo review will not shift the burden of proof from the taxpayer to the board, but it will permit the taxpayer to buttress his case with more and different evidence challenging the correctness of the board’s decision, which is normally based on the assessor’s determination,” Justice Prosser explained.
Prosser noted that Sausen may have fared better in arguing that the assessor reclassified his property, if that was the case, and a higher assessment resulted.
“This justice would have liked to have had a better explanation of ‘low grade woods’ than what was provided and evidence of whether the ‘low grade woods’ – here ‘low grade cedar’ – were capable of producing ‘commercial forest products,” he wrote.
“To sum up, the taxpayer may, in fact, have been entitled to a reclassification of his property, but not on the evidence he provided,” Justice Prosser wrote.
Justice Roggensack Completes Certiorari Review
Although the majority’s opinion focused on just one prong of certiorari review – whether evidence supported the town board’s decision – Justice Patience Roggensack also addressed the three other prongs that are considered under certiorari review.
In her concurrence, Justice Roggensack explained that board “kept within its jurisdiction; acted according to the law; was not arbitrary, oppressive or unreasonable in its decision-making; and heard evidence that reasonably supported its decision.”