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  • February 24, 2023

    Presenting Evidence to Board of Review is Condition Precedent for Filing Claim

    A party that objected to a property tax assessment and requested that a hearing on the objection be postponed failed to comply with a state law that required it to present evidence before making a claim, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    A Black Two-Inch Binder With A Label That Reads Property Tax Along The Spine, Sitting Atop A Stack of Papers,

    Feb. 24, 2023 – A party that objected to a property tax assessment and requested that a hearing on the objection be postponed failed to comply with a state law that required it to present evidence before making a claim, the Wisconsin Court of Appeals has ruled.

    In Wal-Mart Real Estate Business Trust v. City of Merrill, 2021AP972 (Feb. 14, 2023), the Court of Appeals District III also held that the city whose assessment was challenged had not violated the challenger’s due process rights.  

    Property Tax Objection

    Wal-Mart owns property in the City of Merrill (City).​

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    For tax year 2019, the City’s assessor determined that Wal-Mart’s property was worth $9.96 million. Wal-Mart believed the property was worth $5.14 million.

    Wal-Mart filed an objection with the City’s board of review.

    The board determined that the City assessor’s figure was correct and issued a notice of decision in May 2019. Later, Wal-Mart filed with the City a claim for excessive assessment.

    City Files Lawsuit

    The City filed a motion in Lincoln County Circuit Court, seeking to dismiss Wal-Mart’s excessive assessment claim.

    The City alleged that Wal-Mart had failed to comply with Wis. Stat. section 70.47 because it didn’t present evidence to the board before filing the claim.

    Wal-Mart argued that its attorney had, before the hearing that led to the issue of the notice of decision, asked the board to either waive the hearing or allow Wal-Mart to appear by phone.

    In an affidavit, the Wal-Mart attorney stated that he believed, based on conversations with the City’s attorney, that if the board decided not to waive the hearing and require Wal-Mart to appear in person, the board would adjourn the hearing until Wal-Mart could appear in person.

    Wal-Mart argued, therefore, that it had complied with section 70.47 by filing a written objection and making a good faith attempt to present evidence.

    Wal-Mart also argued that the board had violated the company’s constitutional right to due process.

    The circuit court granted the City’s motion to dismiss. Wal-Mart appealed.

    Statutory Condition Precedent

    Writing for a three-judge panel, Judge Thomas Hruz explained that section 70.47 authorizes a board to waive the hearing of an objection.

    But if the board doesn’t waive the hearing, he explained, the board must hold a “hearing upon oath all persons who appear before it in relation to the assessment.”

    Additionally, Hruz noted, the board may allow a taxpayer to appear before the board by phone and may postpone and reschedule a hearing.

    Judge Hruz explained that under section 70.47(7)(a), a party who fails to: 1) file a written objection; 2) present in good faith evidence to the board; and 3) make a full disclosure, under oath, of all the party’s property liable to assessment in the district may not question the amount of valuation in any action or proceeding.

    More Than Objection Is Required

    Wal-Mart argued that the court of appeals should interpret section 70.47(7)(a) to require it to do no more than present its objection, along with an opinion as to value of the property, to the board without bad faith.

    But the statute required more, Judge Hruz concluded.

    “Our supreme court has recognized that these obligations under section 70.47(7)(a) are ‘significant because the assessor’s valuation is presumptively correct,’” Hruz wrote.

    “These statutory provisions compel the inescapable conclusion that an in-person presentation before the board is required unless the board has otherwise affirmatively excused that requirement,” Judge Hruz wrote.

    Against Absurd Results

    Judge Hruz reasoned that to adopt Wal-Mart’s argument would render superfluous much of the wording in section 70.47(7)(a).

    For instance, Hruz pointed out, the statute was clear that it was up to the board, and not a taxpayer, to waive a hearing on an objection.

    “It would therefore be absurd to conclude that a taxpayer could satisfy the requirements of section 70.47(a) by simply filing a written objection with the taxpayer’s opinion about the value of the property,” Judge Hruz wrote.

    That the board could have waived the hearing or allowed Wal-Mart to appear by phone, Judge Hruz concluded, did not release Wal-Mart from its obligation under section 70.47(7)(a) to present evidence in good faith and make a full disclosure of additional information.

    No Evidence of Evidence

    Furthermore, Judge Hruz reasoned, the fact the board issued a notice of decision didn’t create a reasonable inference that Wal-Mart had presented any evidence to the board as required under section 70.47.

    After all, Hruz pointed out, sections 70.47(7)(a) and 70.47(12) required the board to issue a notice regardless of whether Wal-Mart appeared at that hearing or presented evidence.

    Judge Hruz concluded that Wal-Mart’s excessive assessment claim failed to comply with the requirements of section 70.47(7)(a).

    No Due Process Violation

    Hruz also concluded that the City had not violated Wal-Mart’s procedural due process rights.

    He explained that constitutional due process entitles a person to notice and an opportunity to be heard when challenging a government action. Here, Judge Hruz concluded, the City had provided Wal-Mart with both.

    Nothing in either section 70.47(8) or 8(m), Hruz pointed out, required a board of review to first decide on challenger’s request to appear by phone or grant a request to reschedule a hearing before issuing a notice of decision.

    As for the affidavit from Wal-Mart’s attorney, Hruz noted that it did not state that the Board had agreed or promised to postpone the hearing.

    “The email from Wal-Mart’s attorney to the city attorney …plainly shows that Wal-Mart knew the Board was holding a hearing and that Wal-Mart was ‘request[ing]’ the hearing be postponed if the Board denied Wal-Mart’s other requests,” Judge Hruz wrote.

    “Thus, the email plainly demonstrates that the Board had never agreed to promise to postpone the hearing, nor was there a so-called ‘understanding’ between Wal-Mart and the Board to adjourn the hearing if Wal-Mart’s requests were denied,” Hruz wrote.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2023 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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