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Home My WebLink About820841.tiff Innt 154-.A.,41.96 i ), 1982 PENDLETON &SABIAN, . . GREEI.E1E• COGS ATTORNEYS AND COUNSELORS AT LAW BRIAN PENDLETON SUITE 1700 LINCOLN CENTER MICHAEL A.SABIAN 1660 LINCOLN STREET ALAN C.FRIEDBERG DENVER,COLORADO 80264 W.MICHAEL CLOWDUS TELEPHONE:(303)839-1204 MARTIN A.ROSEN TWX:910-931-0407 ROBERT F.WILSON ANTHONY K.MALLGREN J.WILLIAM BARNETT ANDREA BLOOM CHRISTA K.MEYER RONALD A.MILZER• LARRY D.GALLEGOS June 21, 1982 *Admitted to prattiu only in District of Columbia Board of County Commissioners Weld County c/o Weld County Clerk & Assessor P. 0. Box 458 Greeley, Colorado 80632 RE: Appeal of Central Power and Light Company - Disapproval of Property Tax Administrator of Petition for Refund or Abatement - Weld County Gentlemen: Enclosed please find a copy of Central Power and Light ' s appeal (Form BAA-1) filed in connection with the disapproval of the Property Tax Administrator to Central Power and Light ' s Petition for Refund or Abatement in Weld County. Very trujy yours , .? , " „ Robert F.�Wilson fox( Pendleton & Sabian, P.C. RFW:mg Enclosure 820841 c (�,ett.t,24f4 ci - C° (R. IL 7)L-Z (7.) 3%c; FORM BAA-1 Rev. 1978 GENERAL INSTRUCTIONS: 1. This petition form is to be filled out completely. 2. ONE COPY of this petition form is to be mailed (or hand delivered) to the appropriate County Board of Equalization (or Property Tax Administrator if appeal is for exemption, refund, or abatement). 3. FOUR COPIES (the original and three copies) of this petition form, together with four copies of the decision appealed from and four copies of the Assessor's Notice of Denial are to be returned to the Board of Assessment Appeals, Department of Local Affairs, Room 518, State Centennial Building, 1313 Sherman Street, Denver, Colorado 80203. 4. If further information is needed, please call (303) 839-2603. Date: June 21 , 19 82 TO THE HONORABLE BOARD OF ASSESSMENT APPEALS: Gentlemen: Your Petitioner, Central Power and Light Company , whose (name) address is P. O. Box 2121 , Corpus Christi, Texas Zip Code 78403 , hereby appeals the decision of the ( 7i1Mit?yxg y Cgf (Property Tax Administrator) that was dated June 2 , 19 82 , concerning Refund and/or Abatement for the year 19 81 (valuation) (exemption) (refund) (abatement) as applied to: Petitioner ' s open gondola railroad rolling stock allocated to Weld County DESCRIPTION OF PROPERTY (One set of forms for each property; attach additional sheets if necessary) : SET FORTH IN DETAIL THE FACTS AND LAW ON WHICH THE APPEAL IS BASED: See Attached - "Basis of Appeal" LIST THE NAMES OF WITNESSES AND EXHIBITS TO BE USED AT THE HEARING: See Attached - "List of Witnesses" and "List of Exhibits" ATTACH COPIES OF EXHIBITS, IF ANY (not larger than 81/2" x 14"; see Rule 25) : See Attached - "List of Exhibits" - PLEASE ESTIMATE TIME IT WILL TAKE PETITIONER TO PRESENT APPEAL: 3Aprc es. CERTIFICATE OF SERVICE I certify that I have mailed (or hand delivered) ONE COPY of this petition and the form to the ( Weld County Board of Equalization)/(Property Tax Administrator) at Denver , Colorado, on June 21 , 1992 . Central Power and Light Company Petitioner or, if any, ) t"J,e verinColoradoe802641700 A t or Attorney for Petitioner Address Zip Code ndleton & Sabian, P.C. by Robert F. Wilson (3081) (303) 839-1204 Telephone Number CENTRAL POWER AND LIGHT COMPANY APPEAL TO THE BOARD OF ASSESSMENT APPEALS STATE OF COLORADO --PROPERTY TAX YEAR 1981-- Basis for Appeal Review of Facts. The Petitioner owns open gondola railroad rolling stock forming a "unit train" which carries coal from sites within the State of Colorado to sites outside the State of Colorado for use in connection with Petitioner' s business as a public utility. By letter dated June 1, 1981, the Colorado Property Tax Administrator attributed an aggregate assessed valuation in the amount of $3,972,000.00 to Petitioner' s Colorado taxable personal property. The apportioned assessment value attributable to the County from which this appeal is taken is set forth in Petitioner' s Petition for Abatement or Refund of Taxes attached hereto as an exhibit. That assessed valuation was based on an assessment ratio of 30% of the actual value of Petitioner' s Colorado taxable personal property notwithstanding the Property Tax Administrator' s indication in the assessment notice that Petitioner' s property may be subject to the Federal Quad R Act ( "4R Act" ) which would limit the assessment ratio to 15. 13% of actual value. The Petitioner' s Colorado taxable property was assessed by the County from which this appeal is taken on the basis of the apportioned assessed value set by the Property Tax Administrator. If Petitioner' s Colorado taxable property apportioned to the County from which this appeal is taken had been assessed in light of the 4R Act, the proper assessed value would have been as set forth in the attached Petition for Abatement or Refund of Taxes at the line denominated "Balance" . The amount of tax subject to abatement or refund pursuant to said Petition is also set forth therein. The Petitioner has made the first installment payment of taxes due, and is seeking a refund to the extent that first installment payment exceeds the amount of taxes due or an abatement of taxes to the extent remaining taxes payable under the second installment would exceed that payable by reason of the application of the 4R Act to the instant case. Legal Position. This case squarely presents the situation of a wholly illegal or invalid tax levy. Therefore, Petitioner' s Petition for Refund or Abatement of Taxes is within the purview of §39-1-113 and §39-10-114, C. R.S. 1973, as amended. In the instant case, the taxes requested to be refunded or abated are due to the illegal or erroneous assessment of the Colorado Property Tax Administrator for 1981 as implemented by the County from which this appeal is taken. The 4R Act (49 U. S.C. §11503) specifically declares that state action assessing "rail transportation property" at a value having a higher ratio to true market value than the ratio of assessed value of other commercial and industrial property in the assessing jurisdiction unreasonably burdens interstate commerce. Through the enactment of the 4R Act, the Congress expressly prohibited, after February 5, 1979, any discriminatory tax treatment of railroad properties and delineated several kinds of state action which would constitute prohibited discrimination, such as differential assessment between railroad and other commercial and industrial property; collection of a tax based on such an assessment; the application of a tax rate higher than upon commercial and industrial property; and the imposition of any other tax which results in discriminatory treatment. Thus , any assessment or tax levy which is violative of the 4R Act is an illegal or invalid assessment and any tax so levied is illegal . See for example, Trailer Train Company, et. al . v. State Board of Equalization, 511 F. Supp. 553 (N. D. Cal. 1981) . Further, the 4R Act has been interpreted as applying to the rolling stock owned by private parties such as the Petitioner. See for example, General American Transportation Corporation, et al . v. Louisiana Tax Commission, 511 F. Supp. 610 (M.D. La . 1981 ) . That is , the 4R Act applies " irrespective of ownership. " Id. at 612. There is no question that Petitioner' s gondola rolling stock (coal cars) falls within the definition of rail transportation property under the 4R Act. We understand the Colorado Board of Assessment Appeals has held as much, and we understand that the Colorado Property Tax Administrator has similarly held that unit train cars fall within the prohibitions under the Act. So long as the Petitioner' s rolling stock is devoted to an operating unit engaged in rail transportation service, they fall under the provisions of the 4R Act. See 49 C.F. R. § 1201[ii] (33) and General American Transportation Corporation, supra at 612. The Colorado Property Tax Administrator in her Notice of Assessment dated June 1, 1981 , admitted that rail transportation property in Colorado must be assessed in light of the 4R Act on the basis of an assessment ratio of 15.13% , not the 30% ratio under which the Petitioner was assessed. Petitioner' s rail transportation property falls within the mandate of the 4R Act , and any assessed valuation in excess of the 15. 13% ratio is per se invalid under the 4R Act. Consequently, the assessment and taxes computed thereunder are illegal and erroneous , and any taxes payable or paid in excess of that permitted by a legal assessment or levy are subject to refund or abatement under the governing Colorado statutes . See for example, Northcutt v. Burton, 127 Colo. 145, 254 P.2d 1013. We submit that this result occurs irrespective of whether Petitioner protested the original assessment as the 4R Act constitutes an absolute prohibition on such state action. To view the situation in any other manner would be to deny the obvious legislative intent and the statutory language of the 4R Act. Finally, we understand that in 1981 the Colorado Property Tax Administrator permitted other unit train rolling stock owners the benefits of the 4R Act. The Colorado Constitution prohibits discrimination among taxpayers with respect to the same class of property. See, Article X, §3. Since the Colorado Property Tax Administrator has violated the Colorado Constitutional Prohibition by permitting some unit train car owners the benefits of the 4R Act, but not others including the Petitioner, the original assessment was illegal and any tax levy based thereon is similarily illegal. We respectfully submit that we are entitled to a refund or abatement of the indicated 1981 Colorado property taxes under applicable law. The subject tax assessment and tax levy were in violation of the 4R Act and the Constitution of the State of Colorado. Consequently, refund or abatement is a remedy available in the instant case under the applicable Colorado statutes and case law. List of Witnesses Taxpayer may call: 1 . Floyd G. Anderson or other representatives of Petitioner to be named at the hearing . 2. The Colorado Property Tax Administrator. 3. Representatives of other companies having railroad rolling stock (unit train) in Colorado to be specified at or before the hearing. 4. Representatives of in-state and other out-of-state utility companies having railroad rolling stock (unit train) in Colorado to be specified at or before the hearing. -2- 5 . The County Assessor of the County from which this appeal is taken. 6 . An expert witness concerning the Federal 4R Act to be specified at or prior to the hearing. 7. Any witnesses indicated by the County Assessor or the County Board of Equalization of the County or the Property Tax Administrator from which this appeal is taken. 8 . Any witnesses indicated by the Colorado Property Tax Administrator or any other intervenor. List of Exhibits 1. Copy of Petition for Abatement or Refund of Taxes filed with the County from which this appeal is taken. 2 . Copy of the Property Tax Administrator ' s Notice of Disapproval of the Approved Petition for Abatement or Refund of Taxes referred to in 1 above . (May be combined with 1 above) . 3. Copy of Federal 4R Act (49 U. S .C. §11503) . 4 . Copy of Congress ' Conference Report pertaining to enactment of Federal 4R Act. 5. Copy of Trailer Train Company v. State Board of Equalization, 511 F. Supp. 553 (N.D. Cal. 1981) 6 . Copy of General American Transportation Corporation et. al. v. Louisiana Tax Commission, 511 F. Supp. 610 (M.D. La. 1981) . -3- EITIttfEgir ASE a ia $ $'a .. sa p trr ETe r r ED [ri;'ilitririi Er to p : A = , -- - p;a . L g.. ; F`,eI E g R - ri F : g it— - i . ,� :i..$ i,a ,la iiiliE ' air . 31 4 r ' lwilE ° 3 f; UEflu!t1E1I!: flI isi¢ Rg ; R W ; a w ^ 2 c.a1^ei E :1 ifr.i3 � °ipCi6gai�. .s. Ern i " R i .� ^ e WI B " c et r i is - , i a. lufin i vw ,� &{i •—I= x H e � ice Sli _h : ; I Ce n$ ^ r; r ,s F� .a�.,_S€ f^ tei < . ;- : : : c R a EagK rt `s $ g2 'QrtP,^' ;r� n_ FE ! s R : . r $ a E • a."rev 'gt e ..rir`� i ^ Qe FE r !g<. F C' F s $ LC i E.: 74 r S e t :s < I in g i i n T i'i 4 0 , F R i 9 a s i WO aF :iFtis LL,ttii{ :�^..-:aFe?eiil - a � a „ L a Ei I ; L a - li . L € .aL `� ;(151 i iT^i1' .- Li^ "I r; Era i ^ _ EL ? `rdl�lit.1 1`a i;t !;:i:ii •EI:ii: ;%1 ! $ �e SC ^_ L i - : . -: . .eiii- . at; ii4l Lii i �a > o c4`, . i 1.:1 ii: ii:s ` “kgrAt-WIrlds.i= Pi ` 8 ^ r- : : : - _ grg _ ••e! . . Y C _ _ - .r !E:l !E : _L; € Ljt :20 YiE t ..f.t. , •: , F Pr � � Rs 'e > . �_ _ _ ”tc y.- T:: E :: i'^e 4 i I r e-ys 1 T : . F r• is T:a-i T:lta "1.-7g. `;y. i; ii. Lu.. i . i i ri .1 ' ; s_ f s iaErii-€i:EiI triiii p .c: iii=�L`::2;L ' z N a . .7.- p.- .- E -g ,c ° . =. .S L ::I:c!ttin . L:ii':7 'TT!ifi:i . ^. p • ctl •. DM = c _-_ it 4q P !.•t!L;Fa i=i5 i tlrf:€eii?iiiit- `�: i € 't • �� t � u LL . i grit ` :r. : II , it:aIF . . . ,,I_iiiti9i Y5 i S: a :' 1aa` e i ; 11 csi'r_€ ri';`a:Lr.S.iii!*Eiii. e[2 ii`- t lo S c , fd? 2 " u C "T FLj'a Et:is`r il.i5 :�iQigir: :: i; : : N, : F t: • c r l v Woil !.111.1 E�iii •₹i cii' e:- SPiy yi.• i ;iae e w e4 a o -c 2= y`;i• i .dirt ' L . LT Iiii!E^.L_ 1` e.f i '=' Hen , .i S` . ;iTE� :. F :irfyi :€ e . 'L -iL t E ito . . = ai':i L 11:1.:"T-i s ,iT3.ii" ritirr.iy -[;a ' re° g = ^ St i .O4 ip : ,Ei i•' t F` t :i..+Ttt %t s€ESa^LtET, ` si. `zi. — i ,• gg "c ` O riirt' iii;it! i ;Ftiii:i ittil,trEE: co. , €6 �r $ = = `- rt w • r . ice. - . • • Kress and the Commission its comments on the proposed rules of prac- 1 tree drafted be the Commission. 1 Within 30 days after the receipt of comments from the Administra- five Law Conference, the Commission was required to consider such comments and to submit to the Congress a final proposal setting forth ;the rules of practice before the Commission. The Congress was given 160 calendar days of continuous session in which to disapprove the final IproposaL If either House of Congress did not disapprove such pro- posal,then it would become effective. ++ If either House of Congress passed a resolution of disapproval then Ithe Commission was to develop a revised proposal setting forth the !rules of practice before the Commission. Both Houses of Congress would again have 60 days in which to disapprove such resolution; if - they did not disapprove, it would go into effect If either House Is- }approved,the proposal was to be revised by the Commission and again 'submitted to the Congress :. • The Commission was required, periodically, but not less than once every 3 years,to review the rules of practice,adopted pursuant to this •-- .section. _ Conference niliatitute . The conference substitute follows the House amendment, except as to the time requirements, which are as follows: the initial proposal shall be submitted to Congress within 360 days after the date of ennct- scaat: within 420 days the Administrative Conference of the United lStates shall submit its comments thereon to Conte; within 80 days atter such comments are received by the Congress, the Commission shall submit its final proposal to Congress;the final proposal shall take effect within 60 days if not disapproved by either the Senate or the House of Representatives.If the proposed regulations are disapproved the Commission is directed to resubmit the revsed proposed regula- tions to the Congress within 60 days so that the Congress can again `consider and disapprove such proposed rule. Aormrrvro Dzsciarnraron Tax Taan -t Baa. Teassrorrancne Parr Senate bill The Senate bill amended Part 1 of the Interstate Commerce Act by adding a new section 27 declaring certain taxation activities to be an unreasonable and unjust discrimination against,and an undue burden on,interstate commerce. • The Senate bill made it unlawful for any State, political division, ! or entity acting on behalf of the State or subdivision to commit any of the following acts: (1) the assessment of transportation property at a value which bears a higher ratio to the true market 'value of such • transportation property than the ratio which the assessed value of all ether commercial and industrial property bears to the true market .. • 'value of such property in the same assessment jurisdiction; (2) the levy or collection of the tax on an assessment unlawful pursuant to (1) ; (3) the levy or collection of an ad valorem property tax on transportation property at a rate higher than that ventrally applica- ble to commercial and industrial property in the same assessment n t. FE2E•NC-Ert. =r. — ---- —.r -- ..z _ _. • 168 . _jurisdiction; and (4) the imposition of any other tax which results is the discriminatory treatment of any common or contract carrier sub- ject to the Interstate Commerce Act. • • The Senate bill gave the District Courts of the'United States juries • diction to grant mandatory or prohibitive injunctive relief, interim equitable relief, and declaratory judgments as may be necessary to remedy any acts in violation of this section. The jurisdiction provided for by this section was not made exclusive of the jurisdiction whichany Federal or State court may have, and, in order for relief to be granted under the section, the transportation property must be assessed at a ratio of at)east 5 percent above that applied to all other commercial and industrial property.The burden of proof with respect . to determination of assessed value and true market value was to be • determined by State law,and where the ratios could not be established to the satisfaction of the court through a sales assessment ratio study, the court was directed to hold certain assessments unlawful • The Senate bill made this section inapplicable to any State which, 1: an the date of enactment, had in effect a constitutional provision for the reasonable classification of property for State purposes. House amendment - • Part I of the Interstate Commerce Act was amended to include a sew section milling unlawful ad valorem State or State subdivision • taxation activities. Such prohibited tax practices included (1) over. valuation; (2) collection of an unlawful tax; (3) collection of any ad valorem property tax at a higher tax rate than the tax rate gener- ally applicable to commercial and industrial property in the taxing district; or (4) the imposition of a discriminator, "in-lieu tax". The Rouse amendment outlined methods by which true market value could be established and gave the courts guidelines for deter- • m.ination of whether a tax was unlawful. A new remedy was established for nil carriers who wished to chal- lenge discriminatory taxes by permitting an action in Federal district court The provisions of this section were not to become effective until 3 • years after the date of this bill's enactment Transfer taxes and recording fees exempted ConRail from transfer taxes both at conveyance,February 26, 1976,and upon any subsequent supplementary transaction authorized by law. ConRail and any other • party to a transaction will pay filing fees. Further, this section exempted ConRail from transfer taxes at the time of the conveyance of properties from the bankruptcy to ConRail and upon any subsequent transaction authorized by the Railroad Be vitalizntion and Regulatory Reform Act of 1975. • ConRail and any other party to a transaction will have to pay transactionthe Sling fees for such transfer. • Conference substitute The conference substitute follows the Senate bill except that the COn• • ferns deleted the provision making this section inapplicable to !ray State which had, on the date of enactment., a constitutional provisi°' for the reasonable classification of property for State purposes era limited the provision to taxation of railroad property. • • • } 28 ATTACHMENT "A" tte Cong-s.. o-1 ie rs,,,Peensaission practice before the Commission proposed pursuant to subsection a) of this section, together with such recommendations as it c • ap(e) Within 30 days after the receipt of comments • pursuant • to subsection (6) of t section,the Commission shall onsider such comments and shall submit to ! Congress a final eposol setting • forth the rules of practice before the Commassi with respect to matters involving common carriers by railroad. S h rules of practice shall take effect at the end of the first period 60 calendar days of - continuous session of the Congress after t ale of submission of such final proposal, unless either the Se a or the House of Repre- sentatives adopts a resolution during period stating that it does . not approve such final proposal.If no olution is adopted as provided in the preceding sentence, the Com ' sion shall adopt such proposed rules of practice.For purposes of ' subsection,continuity of session of the Congress is broken oral y an adjournment sine die, and the days on which either House • t in melon because of an adjournment of more than 3 days to a y certain are excluded from the compute- Awn of the 60-day perio . (II) If either the S or the House of Representatives passes a resolution of disc .al under subsection (c) of section,the Com- mission shall dev op a revised proposal setting forth the rules of prat- tine before the ommission pursuant to this section. Within 60 days after the of such disapp oval,each such revised proposal shall be srbnitted o the Congress by the Commission for review pursuant to each sub ction (c). , . (s) he Commission shall periodically, but not leas than once every i ,review the rules of practice ted pursuant to subsection (c) • • Plollf fln DletrllVA►ISOs7 Viz rstarrtwr OP rlatrlPOPTlr/op - • iloftlrr &c.306.Part I of the Interstate Commerce Act (49 U.S.C.I a seg.), as amended by this det,is further amended by inserting therein anew section t8,as follows: "See.28. I) Notwithstanding the provisions of section t08(b),any action descrsZed in this subsee tson is declared to constitute an wea- . bonable and unjust discrimination against, and an undue burden on, interstate commerce.It is unlawful for a State,a political subdivision 1 of a State, or a governmental entity or person acting on behalf of such State or subdivision to commit any of the following prohibited acts: "(a) The assunnent (but only to the extent of any portion lased on excessive values as hereinafter described),for purposes -'of s r,vp.,,ty tat levied by any taxing district, of transportation property at a value which tsars a higher ratio to the hue martxt - • maw of such transportation property than the ratio which the ascendvalue of all other commercial and industrial property in She same assessment jurisdiction bears to the hue market save • of all such other commercial and industrial property. "(b) The levy or collection of any tax on an assessment which it unlawful under subdivision (a). - - • 27 • (e) The levy or collection of any ad valorem in vesrly tax on transportation property at a tax rate higher than the tat rats generally applicable to corn nerrial and industrial property in the earns assessment jurisdiction. "(d) The imposition of any other tax which results in disturb*- . • •- na�arttory treatment of a common carrier by goad subject to this *(2) Notwithstanding any provision of section MI of title U, Nested States Code, or of the constitution or laws of any State the district courts of the United State than have risdiction, without • regard to amount in controversy or citizenship of parties,to grant such mandatory or prohibitive injunctive relief, interim equitable relief, and declaratory judgments as may be necessary to prevent, • restrain,or terminate any acts in violation of this section,accept that— "(a) such jurisdiction shall not be exclusive of the jurisdiction which any Federal or State court may have in the absence of this • subsection; "(b) the provision,o f this section shall not become ef/edits until !years after the date of enactment of this section; • (e) no relief may be granted under this section unless the ratio of assessed value to true market value,with respect to transporta- - .. tson property,exceeds by at least 5 per centum the ratio of attested j talus to true market value, with respect to all other commercial and industrial r,',linty in the same assessment jurisdiction; - • "(d) the of proof with respect to the determination of as- • • sassed value and true market value shall be the declared by the ' applioable State law;and (e) in the event that the ratio of the assessed valise of all other eom erereial and industrial property in the assessment jurisdiction to the true market value elands other commercial and incites- . • trial property cannot be established through the random-sampling . method nown as a sales assessment ratio study (conducted en ac- eordance with statistical principles applicable to such studies) to the satisfaction of the court hearing the complaint that trarspor- tation perty has been or is being assessed or fated in oontraven- - tion o the provisions of this section, then the court shall hold un- lawir an assessment of suck transportation propert at a value • .whack bears a higher ratio to the true market value o suck trans- - ebostation property than the assessed value of all of property " i+►the assessment jurisdiction in which 4 included suck taxing die- '• mct and subject to a property tax levy bean to the true market • value of on suck other p,,, ,ty, and the collection of any ad va- lorn property tax on such transportation rer,n-iy at a taz rate • lighter than the tea rate generally applicable to taxable property ' fn►the'laxin district. • "(a)As usedn this section,the term— (a) assessment' means valuation for purposse of a property tar levied by any taxing district• (b) 'assessment jurisdiction'moors a geogrc Meal area,such ss a State or a county. city, township, or special purpose district within such Stott which is a unit for purpose*of determining the assessed value of property for ad valorem taxation (c) 'corn ere;al and industrial property'or'all other commer- cud and vdustr;a.l property'mean„ all property,real or personal, 1 a ` ► 28 other than transportation rnps,ty and land used primasay for agricultural purposes or primarily for the purpose of growing • timber, which is devoted to a commercial or industrial use and • • which.u subject to a property tax levy;end as (d) aary in porta property'ulatiorw means transportation R ' , Commission, which it owned tYrier � which u visaed ' the ras_ro subject to this part or fiorl^. road Passenger Corpora. • Sec. 307. Paragraph (3) of section t0 of the Interstate Com • het (49 D.S.C.g0(8)) se amended to read as ollotoe: s`(3) (a) The Commission shall, not later than June 30, I ,, issue regulations and procedures presorsZing a unit rev accounting and reporting system for all O1� cost revenue I• ,.• accounting subject to this pan. Such re common carriers rien 'become I effective not later than January I, and pore prom become �'u? vary I, rni, Before nom gating with�h �caviews other procedures, the Commisseso n shall ' Government, agencies and depart of the Federal re en l publi of earrien ship , and their em- .., eu and the a public. (b) In order to aseupe that the most east and avenue I . data can be obtained with respect to light den rations,• factor: relevant in establish Y aims,main line op and other regulatory areas of car i and reasonable rates, identify and define P°^'►"• Y, the Con to each ich f vet of r'&operations r following they pertain to ja«t - a(i) operating and - •`]is) direct cost amountsfo dtete'nuwni amounts; oasts for materials, labor, overhead components and variable expenses and the assig of such costs to variousas ff o , services, or activities ncluding maintenance-of-way, main- tenance (lac tive and ear ran p�j'(train, ( n surd son, and tutorial )'t ainistrative expenses: services), and general and a •(sic) indirect cos accounts for determining ioint, oonetent costs including method for ss rug he cost o/ ea�aZ�the services, or ;ugru"e' F"eh oats various Junetsoru, • • 9e) The emote : g shall be in am nee wi th stem) established pursuant accounting c to this paragraph uniformly pl• d to all common generally carriers by railroad o nulled principleshi , part,and all ports shall include and disclosure considered ap propri- ate under g rallraisin or accounting g principles or the requirements .1 s of Seeuritiee and Exchange Comununon. Theo o the extenth notwithstanding any other provision of this Inca ' e, possible, devise the system of accounts to be cost nonduplicative,and compatible with the present and desired ono trial and responsibility accounting requirements of the carriers, an to give due consideration to appropriate economic prdsieipks. The . • -! 610 511 FEDERAL SUPPLEMENT GENER. kir were invited to submit facts and legal argu- Accordingly,•for the reasons set forth c Tavation o 39: menu, this was done quite informally by above, plaintiff's motion to restore the case -- private rail cars le way of letter correspondence. N.Y.U. was to the active calendar is granted, and the - p- ,which then make at not offered a formal opportunity to present motion to shift the burden of proof b ' y with railroad for tr live witnesses and/or evidence to the N.Y.U. is denied. .-`- 'mil transportation prop HEW/Education investigators. The fact SO ORDERED. li ,,, of statute barring st that various HEW/Education officials at- • -rail transportation pry tended various depositions is of little conse- tr- ;a.,ng a higher ratio to quence. These officials merely attended w than ratio of assessed v these depositions as part of their investiga- 0 6 seiweisitsntra not& and industrial lion; they did not officiate at them or act shcr. being hauled by r. as hearing examiners in any way. • %ate rail cars are "user Third,the HEW/Education officials were providing transportatior not impartial arbiters—they were investiga- tor of the Interstate t - tors. Indeed, the regulations indicate that Sion. and thus state w these officials were potential adversaries of GENERAL AMERICAN TRANSPORTA• _ from assessing private N.Y.U., since the regulations grant the in- TION CORPORATION et al. C1 .ng assessment r vestigating agency the right to initiate fur- v. • - ncrcial and industrial p ther proceedings if the agency determines LOUISIANA TAX COMMISSION et al Revised Interstate Corn that the recipient has not complied with the • — C.A §§ 11503. 115031a)( - ,An and, having made that determination, Civ. A. No. 80-807-A. See publication 1.1.'i c annot resolve the matter informally. See for other Judicial c' 45 C.F.B. § 80.8 (1979); 34 C.F.R. § 100.6 United States District Court, .a,; definitions. • (1960). Consequently, we find that these . tr M. D. Louisiana. proceedings were not adjudicators in na- Apr 9, 1961. Victor A. Sachse, Ill, • ture and thus cannot have the effect ofd' Jr., Breazeale, Sachse • shifting the burden of proof. Rouge. La., for plaintif Unless N.Y.U.establishes that the reports Owners of private nil can brought an Carmack M. Blackmc are unreliable, the HEW/Education find- action complaining that the ad valorem as . Chief, Civil Division, B. ings and recommendations will be admissi- sessment of the cars by the Louisiana Tax NI State of Louisiana. ble at trial and will be entitled to considers- Commission was in violation of law. The ble weight. See generally Chandler v. District Court.,John V. Parker,Chief Judge, JOHN V. PARKER, Roudebush, 425 U.S. 840, 863 n.39, 96 S.Ct. held that the private rail cars leased by Plaintiffs in this actio 1949, 1961 n.39, 48 L.Ed2d 416 (1976); user-shippers, which then make arrange-• ad valorem assessment United States v. School District of Fern- ments directly with railroad for transports-- the Louisiana Tax Corn dale, Michigan, 577 F.d 1339, 1354-55 (6th lion, were "rail transportation property. . ton 306 of the Railroa Cir. 1976); 4 Weinstein's Evidence within meaning of statute prohibiting rate •. A. Regulatory Reform Ac I803(8)[03) (1979). Exactly how much action to assess "rail transportation proper- ed by the Revised I: weight it will be accorded is impossible to ty" at a value having a higher ratio to true Act, 49 U.S.C. § 1150'i quantify at this time. Jane Doe maintains market value than the ratio of assessed on for hearing on pia' that the HEW/Education investigation was value of other commercial and industrial • preliminary injunction extremely thorough and warrants more properties in that when being hauled by dered the trial of the at than "great deference" or "gnat weight." nil carriers, the private can are "used by" - be advanced and col N.Y.U. responds that the investigation was a ran carrier providing transportation sub- _ hearing of the applka inept, and biased, and should be afforded ject to jurisdiction of the Interstate Corry Fed.R.Civ.P. Accordin little weight. Both parties raise issues of merce Commission, and thus state would be t. Federal district court credibility, which will have to be addressed• prohibited from assessing the private rap uon concurrent with at trial. Thus,we will defer our decision as cars at a ratio exceeding the assessment courts of the United Sta to bow much weight we will accord to the ratio for other commercial and industrial t.. least one federal court HEW/Education findings and recommends- relief under Section Ile property in the state. �, abstention should be art torts until all of the evidence regarding this • t courts should first be f matter has been heard. Judgment for plaintiffs. • t i . i - ^- -.7t ra .ate,4,4- -n s-bt� l..• Ety"C ti sb• y 7,7 ' ..} s 71.c-7.4_'.---74._ F,•E -IC_ r ,L _�3 W� P�.y .-,T - �t'v ' > _'s "t .' J • i �0.j. l.,-. s mss- � q�7 S = � ] -.e'er ,,... t -rZ �.Y •S.- ,:et sue" c-e-ii - . s•-� - _ "`-s7`� ie___ .0._,„-a: -- -efi Fw iR1- `? r �'r ..ea..L_ s7e s `tr -7-21,�--: _ tv •w -� • [ -T-.sue �• rs GENERAL AM. TRANSP. CORP. v- LA. TAX COM'N 171 ll Cite sail I Ste (OMI) 611 l " I ;�a « fore the Court for final action upon the ( 1 111 = e f f Citation 392 Po I i iE:.4 rte_. _--- private rail can leased by user ship merits. • ' 1 i 1 II ftt I i• ` '__-t:4- z-,,which then make arrangements direct- Section 11503(bX1) of Title 49, U.S.C., ( 1 ! !t �'; '` with railroad for transportation, were t ' +. ;4 ' e 1,._ • •; specificalh declares that state action to as- I i (tilt: •i s ' •r it tra;tsportation property" within provi- seas "rail transportation property" at a val- i - ,{. . -!_,,,..-- Lai of statute barring state action to assess tee having a higher ratio to true market i • i 1 i r 7-37.-, , *nil transportation property" at a value value than the ratio of assessed value of ' s =-.. i.; :ring a higher ratio to true market value t j 1)f # other commercial and industrial property, 1 • ej:_a ;1,47-';',- trsn ratio of assessed value of other corn- s pt v -fir . unreasonably burdens interstate commerce. !nerds! and industrial property, in that ' 1 'e e{ t '.3- Notwithstanding the provisions of the Anti- ► r when being hauled by rail carriers, the pri- • • t t- - injunction Statute, 28 U.S.C. § 1341, 49 ; , I li '•:.;..,_ `_•,:y me rail cars are "used by" a ran carrier - q ?sodding transportation subject to jurisdic- U.S.C. § 11503(c) confers jurisdiction upon y ,� �s - :ion of the Interstate Commerce Commis- federal district courts 1 to grant injunctive t' �°-' -_i -, relief to the owners of "rail transportation '— aor,, and thus state would be prohibited Po � � � lid-. '_tit from assessing private rail cars at a ratio property" when the ratio of assessed value ; ; It{9: ' _:-. exceeding assessment ratio for other corn- to true market value exceeds by at least 5 ;: i t ' nercialaml iadust rialw operiy n She state. percent the ratio of assessed value to true c_3 Revised Interstate Commerce Act, 49 U.S. market value of other commercial and in- r t : F F ` s Y_ L.A. §§ 11503, 11503(a)(3), (bx1), (c). dustrial property. r s , - See publication Words and Phrases i i r '-� . .-_ for other judicial constructions and This Court has previously considered „ ' : Att. definjtions. these federal statutory provisions as they ;1 : :1 s z tIff'':, relate to Louisiana's ad valorem assessment - ,., t ;t` j procedures. In Louisville et Nashville Rail- • -•1 + i[-t Vidor A. Sachse, III, Claude F. Reynaud, :• ?; t i if. i Jr., Breazeale, Sachse & Wilson, Baton road Company v. Louisiana Tax Commis- _ ! I lion,498 F.Supp. 418 (M.D.La.1980), several i s i ' (- Rouge, La., for plaintiffs. • : ' J- = interstate railroad companies complained ,--t Cannack M. Blackmon, Asst. Atty. Gen., that • their rail transportation property was Chief, Civil Division, Baton Rouge, La., for being assessed by Louisiana at a greater y N • . : ' '_• State of Louisiana. ratio than other commercial and industrial `i JOHN V. PARKER, Chief Judge. • property in the state. There, it was stipu- lib .,:ig 4 • rated that the property involved was "rail t j Plaintiffs in this action complain that the transportation property" within the mean- t' i • - ad valorem assessment of their rail can by ing of Section 11503, and the Court perms- J Ti' T fr the Louisiana Tax Commission violates Sec- nently enjoined the Louisiana Tax Commis• - lion 306 of the Railroad Revitalization and _ion from assessing that property at a rate ' 1 Regulatory Reform Act 01'1976, asamend- t. greater than that applied to other commer- ed by the Revised Interstate Commerce vial and industrial property. �`, :� Act, 49 U.S.C. § 11503. The matter came = on for hearing on plaintiffs' motion for a This action presents a variant of the same :; • . -a :- c„ - Preliminary injunction, and the Court or- theme. Plaintiffs Isere are not railroad I t tit i dered the trial of the action on the merits to companies operating railroads. Each owns , ;,1: ! s t :t be advanced and consolidated with the private•rail can, predominantly specialty i ; • Ile, I hearing of the application. Rule 65(aX2), cars such as tank cars, refrigerated cars, ! ' •1 - :Z ` Fed.R.Civ.P. Accordingly,the matter is be- hopper cars, et cetera.I. Federal district coons are granted jurisdic- consider the issues. See Missouri Pacific Rail. .:•• I _' : +•-- Lion "Concurrent with other jurisdiction of road Co. v.Tax Division of the Arkansas Public t'l • Courts of the United States and the States" At Service Commission.504 F.Supp.907(ED.Ark. t r : -1' - — least one federal court has declined injunctive 1980). Here the doctrine of abstention has not i I :_I ' relief under Section 11503, upon a finding that been raised by the parties,and the Court there• abstention should be applied and that the state fore has not considered it. • ! _ coups should first be`ranted an opportunity to ' ! ! _ 11 _: - I!I-8 - r. z .g.... CHURCH 612 511 FEDERAL SUPPLEMENT x'4.1. e_pjeet to the jurisdiction The evidence establishes that private car 1974, as amended, these cars are subject t• - . ; Cyr ct to ^"65Sion P companies own the large majority of all assessment by the Louisiana Tax Corns +to.!- ; cars fall within the definiti specialty rail cars operated over the nation's sion at a ratio of 25 percent of fair market s1-" eafl n property" uncle• rail carrier system. The railroads find it value. Under that section of the Louisia s �' and Louisiana is uncle! more economical to avoid the capital invest- Constitution, other commercial and Indio. '.t . _ Y,wr, at a ratio e mint of such cars,and the private car corn- trial property except land, is assessed at a 'r ratio for other c exceedini ce erci; panies also act as a supplement to freight ratio of 15 percent of fair market values t property ti it Louisiana. can owned by the railroads. The estab- Thus, if the rail can involved are "rig lished procedure is that plaintiffs lease al- transportAtion property," plaintiffs have I. I For the foregoing reasc most all of their cars to user-shippers, not satisfied the 5 percent threshold differential y_, i judgment in favor of plait : defendants permanently the railroads. The user-shippers then make in assessment ratios required by 49 USC •`c- s sesi�,m asng the privet, directly with the railroads § 11503(c) and they are entitled to injuno- .% from as ess at a ratio t, for transportation of the products which tive relief. - .r.- j ratio of fair market value they load into the cars under published In- The rail can owned by plaintiffs tee iir, area to a mther ken value testate Commerce Commission tariffs. A ed in the Official Railway Equipment Reg ens ss Counsel for ; small number of plaintiffs' nil cars, less ister which is published as a tariff under' a proper C n than 5 percent,are covered under leasing or Interstate Commerce Commission jurisdie.:r:- approval a formal to judgment form u pooling agreements directly with the rail- lion. Rates, rules and regulations, regard- . n ant prior to submission t roads. The Louisiana Tax Commission con- ing private ear movements are specified nodes that those private rail cars which an therein and revised from time to time, all .y. 1 covered by such leasing or pooling arrange- under Interstate Commerce Commission R Amnia fall within the definition of "rail pervision. 49 U.S.C. § 11122. Of course -'~ ; v tariure:ms transportation property." the tariffs are paid to the rail car carries j The situation presented to the Court is by the user-shippers, not plaintiffs. The ! that, unlike the situation in Louisville & user-shippers pay the tariffs specified to the t Nashville Railroad Company v. Louisiana railroads and the railroads pay plaintiffs for :r•: i Tax Commission, supra, the railroads nei- each rail movement of a loaded private car :A, ICHURCH OF GOD ther own nor lease these specialty an and at rates specified by tariffs published with -'= I TEXAS REGION) et plaintiffs neither own nor operate railroads. the Interstate Commerce Commission - v. The Tax Commission disputes that the rail Moreover, the terms of the lease agree- -.1";::. AMARILLO 1TIDEPEI` ears owned by plaintiffs fall within the menu entered into between plaintiffs redDISTRICT et al., definition of "rail transportation property." the user-shippers of the private can ne Section 115O3(aX3) provides that "nil subject to regulation by the 'Commission Civ. A. No. CA transportation property" means property as 49 U.S.C. § 11122(ax2). United States Di defined by the Interstate Commerce Com- Pursuant to its authority under 49 USC' N. D. Te mission "owned or used by a rail carrier § 11503(aX3), the Interstate Commerce' Amarillo Di providing transportation subject to the jur- Commission has defined"rail transportation April 9, l i- ndiction of the Commission." The Louisi- property" as "all property and other setaarea Tax Commission argues that since the irrespective of ownership,that comprise the.` cars owned by plaintiffs are leased to user- entire operating unit devoted to rail tram- 3LMembers of athurc shippers which tender them to the railroads, portation service." 49 C.F.R. 4 1201110(331- seeking to enjoin enforce they are not "used by" rail carriers, but on The evidence establishes that private nap - ,1r.. i tract's absence policy wt the e>Dntnry that they are "used bY" the can are a long-standing and integral partOw i 1 of excused absence for i user-shippers. Thus, the state authorities of rail operations and that their use and two days each school ye argue that these can are not"rail transpor-• movement is, in fact, regulated by the In- motion for summary jue ration property" within the meaning of the testate Commerce Commission. when a: Court, Man' Lou Robs Statute. ing hauled by rail carriers, plaintiffs' pti- policy of school district, Under Louisiana law, plaintiffs' rail cars rate an an clearly a part of the "entire = ber of excused absence are classified as "public service properties." operating unit devoted to rail tranporu- ":7 days to two days eac LSA—R.S. 47:1851(M). Under Section 18 of lion service" and, as such, they are "use ' ? which provided that stun Article VII of the Louisiana Constitution of by" a rail carrier providing transportation a i ra- re- _� ._to.-,z�- _ - --0-.:- . • ar- ty�t-t r1c�"-:�i"' : / ;--„.z. iir F -j ..rte j'� 1 i I I tii :',1 _ x� • _- .. A.MARIIIA SCH. 613 ; ' 1 _YY `-INDEP. ;CHURCH OF GOD, ETC. . . y s,-.att. = pteYflI F5u4i•atJ (1Mi1 • 1 f ',` _ abject to the jurisdiction of the Interstate for days for which they had unexcused ab- ; �. • C - -._, violated free exercise of religious I j{ f fall rs a Commission.definition offfa' private sences, I � I: i I,w-- cn o within rp the deunder nSectionl 1503, chns- urch whichefs of trequ red abstinence from sentiffs, who were members c- I (t i t,,{ ₹ '-s and 1.4ouin props prohibited holy days. I =? v r w� and Louisiana is from assessing sitar activity on seven annual I l+ ;, } {'-y_ Motion granted. them at a ratio exceeding the assessment ; , g } i _�4 , ratio for other commercial and industrial i, • se . ,_,'- property in Louisiana ' . : i ;j ` JS � . For the foregoing reasons, there will be 1. Constitutional Law owed • i I I, ,,.- s judgment in favor of plaintiffs and against Free exercise clause proscribe not only i t s: . permanently enjoining them overt discrimination but also practices that ; :; : t�if t n - from ses pe )' ' [[t : _ic -s` from assessing the private rail cars owned are fair in form,but discriminatory in oper- • i e. ......^.;__ . by plaintiffs at a ratio which exceeds the ation; thus, if purpose or effect of a law is . - I ratio of fair market value applied in Louisi- to impede observance of one or all religions , i ei ens to other commercial and industrial or is to discriminate between religions, that i jj� .`_ 1 :.- properties. Counsel for plaintiffs will pre- law is unconstitutionally invalid even ; 1 s y-�_ _ -- ;:. } rr # , pare a formal judgment and submit it for though burden may be characterized as be- .'� .is• a _- ypproval as to form by counsel for defend- ing only indirect. U.S.C.A.Const. Amends. ' `-; : t . ."1 1-:..:;...- _ ,i0ts g� submission to She Court 1. 14. - . r) A 3 �;a c-; s _,r-.. ' '�. Constitutional �w JAM 1 : . , j fe f �__ a.. Under two-part balancing test for de- ,,_- . j • . _ti.+,,• ..i o er.wens•5I. terrnining whether particular governmental i r ; ` ; action unduly burdens an individual's free I _ ' .. ' •1!.� • w f. exercise of religion, a court must first de- ; '4 '"2: tide whether regulation or law at issue bur- dens free exercise of religion and, secondly, '' • v lP -4 CHURCH OF GOD (RORLDWIDE, restriction on freexercise religion staust + i ;;9 TEXAS REGION) et al Plaintiffs, be balanced against importance :,1 : s '"a.' -7 v. interest in the regulation or law; even if ', - t i state's interest appears to be of greater AMARILLO INDEPENDENT SCHOOL magnitude,regulation or law will be invalid r< j DISTRICT et al. Defendants. magnitude, state's interest can be achieved by a less ;'(i 4> # I 4', . - ay. A. No. CA 2-8045. • restrictive alternative mans. U.S.C.A. : .-a Cont. Amends. 1, 14. . i;'" .;i =2 ,._ United States District Court, -- N. D. Texas, S. Constitutional Law �M • - i i a Amarillo Division. Plaintiffs' belief, which was based on a •.i1 +� April 9, 1981. - literal interpretation of a biblical injunction : yi .i e ,and which required them to refrain from , isecular activities on holy days and days of : ' __ Members of church brought action convocation, was "religious" for First seeking to enjoin enforcement of school dis- Amendment purposes. U.S.C.A-Coat. • ''1'. t _ fAmend. 1. I PI r trice's absence policy which limited number , I. ' : 4 of excused absences for religious holidays to ` Cgrudtvltiona] Law es•M 1.►;�' u _ two days each school year. Upon plaintiffs' I i•1 ? ie motion for summary judgment,the District Schools x162 "r of Court, Mary Lou Robinson, J., held that Policy of school district, which limited I ' .e of school district,which limited num- number of excused absences for religious t _ 1 4- i policy bee of excused absences for religious hob- holidays to two days each school year zeros ; I I i s - ' and days to two days each school year and which provided that students be given i t rr which provided that students be given zeros fur days for which they had unexcused sb s - 1 4 f 1 , r 4 ` • . .4:8r • ni, . • . �, _ _ _• _. •_ ._ ..., _ _i. a an equal In, aqua, uu• p........... .... ��-._... der PL-772 Congress attempted to give dian fee lands under Section 2. However, I Oezibility to the acquisition process of nr refusal to consent precludes application of f�� Indian lands, but gave full protection to the Section 3 tax exemption to such Ian. Indian lands. In the words of one kgisla- d Each party shall bear its own costs I ' w,Section 2•sas deemed"a sensible provi- incurred in this action. fin„ •,{ rv. ' Ii 1 131 It istrue that there is more than a w i i are presumption that public officials such , {,ts ,,tusmu , I re the county commissioners have per- j I I '� brined their duties in compliance with the ;i . ' MILIn fact, there must be clear evidence • i• tithe contrary, before the Court may find ;if ' that they have acted unlawfully. United r•? lutes v. Chemical Foundation, 272 U.S. 1, 4 i. 14,17 S.Ct. 1,6, 71 L.Ed. 131 (1926); Bard TRAILER TRAIN COMPANY, a corpora- lion and Railbox Company, a j j t it Trade of Kansas City v. Milligan,90 F.2d corporation, Plaintiffs, • I{' VS (9th Cir.), cert. denied, 302 U.S. 710, 58• Ii )II 1 Ut- 10, 82 L.Ed. 549 (1937). The Court v. t ';i js • (olds that the revocation of consent, once STATE BOARD OF EQUALIZATION, t 'i- ", e given as to specific acquisitions and the Defendant. ` It: I' '• r. 1 i•._ retroactive taxation of such acquisitions to ;,i I.:; le in derogation of P1 _r•772. However, the No. C-80-4399 SW. ,. ., • Court does not find the refusal to consent United States District Court, ' since 1972 to acquisition of non-Indian fee N. D. California. .'_.Isai in Ferry.County and refusal to consent ' ! since 1975 to such acquisition in Okanagan April 3, 1981. 'i County to be unreasonable. Hence, it i ORDERED, ADJUDGED AND DE- t CREED that Motions of the Plaintiffs and Taxpayers brought action alleging that Defendants for Summary Judgment are defendant State Board of Equalization vio- v . ` panted in part as follows: lated the Railroad Revitalization and Regu- 1. All lands acquired by the United latory, Reform Act by discriminatory prop- Statw in trust for the Tribes and individual arty tax treatment of taxpayers' rail prop a !( ' Indians with blanket or individual consent. . of Defendants, although later revoked, are erty and sought preliminary injunction to , C c enjoin the Board from collating additional r san•taxable, and all tax assessments taxes The District Court, Spencer Wil• - y ; a r against such lands are null and void. Title hams, J., held that California State Board I II ; ', I quieted in all such lands. of Equalization s more than doubling tax 2. The consent provision in Section 2 of rate on rail ears, in response to passage of ' 2 Pi.-772 applies only to those lands held in Proposition 13, impermissibly conflicted ) lee by non-Indians prior to the action of the with section of Railroad Revitalization and • : United States in acquiring such land in Regulatory Reform Act of 1976, which pro- filist for the Tribes and individual Indians. hibited taxation of rail transportation prop- I i Any post-acquisition tax assessment of arty at rate higher than rate generally ap- trust lands which prior to Section 2 acquisi- pliable to commercial and industrial prop lion by the United Seta were fee lands arty in the same assessment jurisdiction. ' . held by Indians is null and void. Title is f.1 quieted in all such lands. Order entered. I. j wt •a y { ��[ • -• lid, _ s yam "sF _ 554 111 FEDERAL SUPPLEMENT 1. States seem Gary A. Larson, Calvin J. Abe, Deputy As matter of federal supremacy,power Attys. Gen., San Francisco,Cal.,for defend. of state to discriminate against rail trans- ant. portation property for purpose of applying tax rates was preempted by passage of the 4-R Act. Railroad Revitalization and Reg- OPINION AND ORDER GRANTING alatory Reform Act of 1976, 5 806, 49 PLAINTIFF'S MOTION FOR PRE. U.S.C. (1976 Ed.) ; 26c. LIMINARY INJUNCTION 1 2. Evidence SIB ' In action challenging action taken by SPENCER WILLIAMS, District Judge. State Board of Equalisation by which it INTRODUCTION informed taxpayer that tax rate on their The court originally issued its order in rail cam would be doubled,court would take this case March 10, 1981. -That order is judicial notice of fact that prime interest hereby amended to clarify the court's opin- • • rate exceeded 12% interest which would be ion. paid by state if plaintiffs were able to ob tin a refund. This action involves a challenge to action t 2 Taxation e.892 taken by defendant State Board of Equsli- The California State Board of Equali- ation (the "Board") by which it informed ation's more than doubling tax rate on rail plaintiffs Trailer Train Company("Trailer") an, in response to passage of Proposition and Railbox,Company ("Railbox") that the 18, impermissibly conflicted with section of tax rate on their rail can for 1978 would be the Railroad Revitalization and Regulatory more than doubled. Plaintiffs contend de- s Reform Act of 1976, which prohibited taxa- fendant violated section 806 of the Railroad Lion of rail transportation property at rate Revitalisation and Regulatory Reform Act t• higher than rate generally applicable to of 1976 (the 4—R Act) by discriminator • commercial and industrial property in same property tax treatment of plaintiffs' rail { assessment jurisdiction. Railroad Finnish- property. Accordingly, plaintiffs sought a ` ation and Regulatory Reform Act of 1976, preliminary injunction to enjoin the Board 4• 806,49 U.S.C. (1976 Ed.) { 86c. from collecting the additional taxes. L Taxation x498 r.:-•.. In light of fact that state could not This ease recently came before the court have anticipated tax revenue nor have uti• on plaintiffs motion for a preliminary in- - lied windfall in planning its budget, it junction. The question presented was . r would be difficult to perceive any signifi- whether imposition of the additional tax ire rant hardships for defendant if injunction impermissibly conflicts with federal law • `'= were granted and in light of strong federal prohibiting the taxation of rail transports- fir' interest in eliminating discriminatory state Non property at a rate higher than the rate " taxation of transportation property, injunc- generally applicable to mmmereia! and in- lion would issue against California State dustrial property in the ame assessment ` Board of Equalization's more than doubling jurisdiction. tax rate on nil tan is response to passage After careful consideration of the briefs !iA ; mentsthe ,affidavits and o m , �CaI.Const•Art. 13A,45 1 et seq.,2. 0° concluded that this issue must be ......iOanswered in the aromative and orally granted the motion. The following consti- yI Weyman I. Lundquist, Patricia L totes a brief statement of the court's rea- Shanlu,Noel M.Lawrence,Helier,Ehrman, sons for so ruling, and its written order I White&McAuliffe,San Francisco, Cal.,for thereon 5 plaintiffs Trailer Train Co.and Railbox Co. I jt ,— �,�.�."air _ s anti ri • �'+'+ _- yam' iW-! ""^y'• 3' ~"�. i•3 ` y1F f • i * f ₹ • `.�-.• _ S.4- �,fq a�?1` cR � ".`S4. y - ' TRAILER TRAIN CO. v. STATE BD. OF EQUALIZATION 555 O es alt►Sapp tin pea) v'v, J. Abe, Deputy _ FACTUAL BACKGROUND' the contemplation of the minds of the vot- eco,Cal,fa'defend- On June 6, 1978, California voters ap- eA• proved Proposition 18 (now Article XIIIA More importantly,the Lonergan court ex- - of the California Constitution). Section 1 plained that article XIII, section 12 of the )ER GRANTING of Article XIIIA limited the ad valorem tax California Constitution provided that taxes 'ION FOR PRE- rate applicable to real property. The Board levied on property not secured by real a- JUNCTION determined at the time that the Proposition late were based on the tax rate applied to 18 tax rate limitation must be applied not secured property in the preceding tax year. dS, District Judge only to real property but to personal prop- The court held that Proposition 13 did not erty as well on the basis of California Con- irnpliedly repeal section 12, and therefore . elution Article XIII, Section 2 which re- the unsecured roll's rate has already been bayed its order in quires that personal property not be taxed set for 1978-79 and could not be reduced by M81. That order is at a rate higher than real property in the referring to the lower rates established by ify the court's opin- mine taxing jurisdiction. The Proposition the newly passed proposition. 13 tax rate limitation took effect for the Since private railroad cars are by statute tax year beginning July 1, 1978. taxed at the prior year's avenge rate of t Section ml On July 81, 1978, acting pursuant to the general property taxation in the State, the teensy.,broth. provisions of the Private Railroad Car Tax Board concluded that Lonergan required f which it informed taws and Proposition 18, the Board valued that the 1977-78 average rate of general Company('Trailer") all railroad can owned or used by plaintiffs, property taxation be applied to plaintiffs' ;"Railbox") that the Trailer and Railbox as of the lien date, property for the 1978-79 tax year rather re for 1978 would be March 1, 1978. The Board determined the than the tax rate as limited by Proposition *intiffs contend de- full cash value of Trailer Train ears and 18. Thus, in September, 1980, the Board 1806 of the Railroad Railbox cars to be $87,732,440 and $18,916,- imposed a tax on the 1978-79 as erments r ulatory Reform Act 652 respectively. The Board determined of plaintiffs' property at the rate of 10.68 - ) by diseiminatory the assessed value of Trailer Train cars and dollars per hundred dollars of assessed val- • t of plaintiffs' rail Railbox ears to be $21,933,110 and $4,723,- oe, lees the amount of the tax previously plaintiffs sought a 163 respectively. Plaintiffs' railroad can paid at the rate of 4.85 dollars per hundred to enjoin the Board were initially given the benefit of the tax dollars of armed value. This resulted in a itiosal taxes. rate limitation for the 1978-79 tax year. tax increase of $1278,700.31 on Trailer Thus a tax at the rate of$4.85 per hundred Train property and 527521020 on Railbox me before the court dollar' of assessed value was levied on the property for the 1978-79 tax year. or a preliminary in- 1978-79 messed values of plaintiffs' prop- ion presented was arty. LEGAL STANDARDS the additional tax This situation remained unchanged until Plaintiffs in this action for injunctive re- ; with federal law . the California Supreme Court ruled in Au- lief contend defendants have violated see- n of rail traarporta- • gust, 1980 in Board of Supervisors of San lion 806 of the Railroad Revitalization and higher than the rate Diego v. Lonergan, 27 Cal.3d 855, 167 Cal. Regulatory Reform Act of 1976 (the 4-R commadal and in- Rptr. 88),616 P2d 802(1980)that property Art s),by discriminatory property tax treat- he same amassment en the 1978-79 unsecured tax roll is to be merits of plaintiffs'rail transportation prop- taxed at the 1977-78 secured rate rather arty. Section 806(1)(c)provide that a state oration of the briefs than at the new Proposition 18 rates. The may not levy or Sleet "any ad valorem meet the pleatliap, California court tenoned that taxes on the property tax on transportation property at unsecured roll for 1978 wee due and pay- a tax rate higher than the tax rate general- Meter in the record, applicable to aommercial and industrial st this imue fort be able March r vas of the which was prior to June ne ly rt juridic- ?native and refer approval of Proposition in property is the mfr gsrsrment jurisdic- ereliy 1176, and therefore could not have been in tion." the following anti- 1 of the ewes tea- - I. Many of the teen set forth in this section of Z. CaLlteu.&Tea Ode, 11201 m seq. sd its written order the opinion are taken from the document tett- sled "Stipulation al Facts" suhadtted to the S. 49 US.C.4 use. court prior to the hearing on the motion for pelind ry`)uoetion. • • 11. • t:4 556 511 FEDERAL SUPPLEMENT t TRAILER TR. Section 306(2Xe)further provides that"in to true market value, with res '� t the event that the ratio of the assessed transportation property, ex Pect to section 32 the 4a exceeds saby e1 = p that when the comparable a value of all other commercial and industrial least 5 per centum the ratio of asySSed ;�,•. •t for industrial and commerc property in the assessment jurisdiction to value to true market value, with raped - : Dot available' the tax rate the true market value [of such property] to all other commercial and industrial �- I property must be compare( cannot be established . . ." the court shall property in the same assessment jurisdin bold unlawful "the collection of any ad va- tion." _ rate generally applicable to ...a.,;* f ty in the taxing district.° lorem property tax on such transportation The Board argues that the 4—R Act's five--.1i, ! lets, therefore, the tax rat property at a tax rate higher than the tax percent jurisdictional requirement has ee('tt. property must be compared rate generally applicable to taxable proper- been met. This court disagrees. It is clear a. are tax rate for all proper ty in the taxing district." that Congress only intended the five Qe[. '} Finally, sectioncent limitation to be a threshold ,1� The average rate for v 306(2) expressly autho- 1eQui+F +ti. taxation for the 1978-79 tat rises federal district courts "to grant such merit in assessment ratio discrim;natioa eases! To require a showing dollars per hundred dollars mandatory or prohibitive injunctive relief, of a five '. Ye, This rate, as previous!; percent discriminatory ratio in a tax rate interim equitable relief, and declaratory substantially lower than t else, however, would frustrate the purpose judgments as may be necessary to prevent, of section 806. The minimum • ._• + plaintiffs' rail transports restrain, or terminate any acts in violation ��c The result is a discriminato of this section." rate was included in section 806 because -�" Congress was not concerned with insignifr .:4:1... transportation property whi lA'�LYSIS cant variations that might develop in state101"� assessment practices.° Plainly, differences ace-:▪ - The Board alsotoniendst} The facts in this case make it fairly obvi- of much less than five percent in rate taus- 'a:** does not apply to the tax ass ous that the Board taxed the plaintiffs'-rail could still result in substantial discrimina- -"�*'' .' because it was allegedly as transportation property at a rate that is tion against a particular classification of :::, ':' the effective date of the higher than that generally applicable to property. 806(2xb) states that "the pr taxable property in the taxing district. By The instant case is illustrative of•the fad'- ' section shall not become of its October 10, 1980 letter, the Board at- that a disparity in comparable tax rates an -tt- = fears after the date of ens - tempted to levy a tax on plaintiffs' proper- present more than an insignificant varia- section." The 4-R Act was ty at the rate of 10.68 dollars per hundred lion. To establish the degree of disparity in roan 5, 1976 and thereby be dollars of assessed value while it appears this case, it first must be determined the on February 5, 1979. that the general property tax rate for the rates which are being compared. Defend•.,. The Board argues that its . 1978-79 tax year was 4.70 per hundred dol- ant would have the court compare the rate- 10,1980 action was not asses Lars of assessed value. Therefore, if section applied to plaintiffs' rail transportation: but rather merely was "am 806 applies to this case, the California prop- property with the rate applicable to all otb: . _ ,d 1979 assessment. While der erty tax on rail transportation property is er personal property in the state. Rowever,, merit is creative, it cannot -in conflict with the mandates of this federal it is entirely inappropriate to compare this case for several reasons statute. plaintiffs' property with a hypothetical tax First, and most significan The Board first es that section 806 rate on personal property. First, tax rata% were set onlj for the secured and unaxurad� ►each extends not only to a(this ease because the rolls, each of which contains both personal : discriminatory taxes but to does not apply to • statute expressly limits itself to discrimina- and real property' Second, plaintiff; as well. Assuming argtren< tion exceeding five percent. Section property is not taxed on either the sensed `amendment" theory !Piss at 806(2x() provides: or unsecured rolls, but rather is assessed.it tartly clear that the defends "(c) no relief may be granted under this and taxed by the State Board of Equalise-. 7. Beginning in the 1971-79 ta" section unless the ratio of assessed value tion. _ i ceased to publish the ratios c 4. The assessment ratio of 25 to true market value for Cal percent is the t.. The facts reveal that the unsecured roU ce - tee because with the adoption of same. of course. for all property on either the tains only 67 percent personal property while Ira assessments Sr California are secured or unsecured roll and all panes con- the secured roll is eompnsed of almost 40 per- . upon true market value • cede that no discrimination exists with respect cent personal property. to this ratio. t To restrict companion sole! '^ the unsecured roll would vio: 5. Lotdnille & Nashville Railroad v. Louisiana ^^ merit because it appears that Stare Tax Ccenmussion, 496 F.Supp. 416 (M.D. a able to only nine percent of a 1x.1980). , -▪- tY to the state. Additionally,i J • • ill 17.---. ✓ TRAILER TRAIN CO. v. STATE BD. OF EQUALIZATION557 - I .t OW as ill F.Supp. pep I j - ' 2 e of the 4—R Act provides to collect this discriminatory tax well afteruon ) s-; ; - then the comparable assessment ratio the effective date of the federal statute. - = ',Mistrial and commercial property is Second, defendant's theory that it . li:.t ° ` - ,railable? the tax rate on the subject "amended.,the prior assessment and did not te. i, '- 'fly must be compared with the tax levy a new tax against plaintiffs' property 1 -k - :F_= centrally applicable to taxable proper- defies common sense and ignores the legis- 1 - .F `ic• _- taxing districts la the present lative u of the delayed effective date • I i the purpose Y - . therefore, the tax rate on plaintiffs' of the act. ! e. ,Rt must be compared with the aver. An examination of the slative histo -__-€:!,:..-4`;---w-::....- y rate for all property in the state- of section 306 reveals that the Congression-n- s 6 ' e average rate for general property al purpose of delaying the effective date of ,II1F j x'f' -'-. ;an for the 1978-79 tax Year was 1.70 70 the statute for a period of three years was - ?; `- s per hundred dollars of assessed val- to afford states the tune to eliminate ►n i 1 s S I t '-'ti iii a.t This rate, as previously mentioned, is disparities that existed in their taxing qa- ; � I -_3 -..= antially lower than that applied to tern with respect to transportation proper- :t [ ?v=�+_ ,tiffs' rail transportation property. V! It is incongruous that a state tax •• ti " ti result is a discriminatory tax rate for decision in 1980 to levy and collect addition- I .-J ..v._} r ti Fportation property which must be en- al taxes theretofore uncollected could not 'ff be held to violate a federal statute passed in 1 / - ,e Board also contends that the 4—R Act 1976 which delayed its effective date only s; E _ not apply to the tax assessment herein to permit time for corrective state mess- s.•:- It t r ." 1 ` • _ " use it was allegedly assessed prior to urea. Clearly, the October 10, 1980 letter . .i? ..1 ie; of festive 'ate 'of the act Section represents a new tax decision which violat- R ..,_ r i ,-t . a e _ IC0 gates that ba Freer °f ibis Aid the federal statute at that time. C 4 p in r i• s rot ehall not become effective until 3 e' -- f i��t 1 Finally, .. ' :? -; r" s after the date of enactment of this [ as a matter of federal sa- wn." The'1—R Act was passed on Feb- premacy's the power of the state to dis- �- ► _ ,•5,1976 and thereby became effective criminate against rail transportation prop i i _# 'ebruary� 5, 1979. erty for purpose of applying tax rates was . ._ . „ r he Board argues that its actions October preempted by the passage of the 4—R Act in : . . -• 1980 action was rot assessing a new tax, 1976. } , rather merely was "amending" a pre- In passing section 906, Congress evi- .# rt r- 1 assessment. While defendant's argu dented its intent to regulate the area of ♦ ..S it is creative, it cannot be adopted in discriminatory taxation of transportation `' • 'fects. rise for several reasons. property. It is well established that when Y 'vat, and most significant, section 306's Congress acts in such a way as to manifest •. .i. it. i.. - -- :h extends not only to the assessment of its purpose to exercise its constitutional au- A .i 3 ► -' - rimiaaato taxes but to their collection thority, the regulatory power of the state !' -it 444, . -r-- - well. Assuming arguendo, defendant's rates to exist." :se! ti _ � - nendment" theory was accepted, it is en- For example, in Erie Railroad v. New 'i ,. t 0 lr et dy clear that the defendant still sought :Ai York,233 U.S.U S.671,681,8d S.Ct 756,759,SB s s Beginning in the 1978-79 tax year,the Board arty were taxed locally it would be entered on :, .setx'- 1 a - eased to publish the ratios of aa$ssed value the secured roll. - ' '+ _ e.true market value for California counties, . 1 `• " 4-' - - cause with the adoption of Proposition 13, 9. See State of Tennessee v. Louisville & Nash- ,•.� '' till {� • ssesstnenu in California am no longer based Wile Railroad Co.,478 F.Supp. 199,209 (M.D. a ;:.; • $ pon true market value. Tenn.I979). ' I:. l ' X e{'. -7. if - To mann mmparsson solely to the rate for • . 1 I. 1` ' - • t _ • 19. See U.S.Const.,Art.h, cI. 2. 1-;'1 .. • he utrlaleulrld roll would violate this require- 1` I � -, rent because 0 appear that this roll 4 apple: 11. Ray v. AtLnnc Richfield • , Co..{35 U.S. 151, , - - ;> '?...(_,. ' able to oNy trine ptrteut of all taxable Roper- 157. 98 S.Ct. 988. 9W, 55 LEd2d 179 (1978). 1. a h - 5 m the sure. Atlbtimaly,H plainti}fs'Prof- t 1 r 1 t }+ • : i ` F: c_; 1 •• 1 ' jt' - - - .. ' ,--- .-. • 78-7 558 511 FEDERAL SUPPLEMENT "Ir. PEOPLE Ltd. 1149 (1913), the Court applied the case" there exist other strong argume 4rcoring'.r, IT IS H preemption doctrine and struck down state why this injunction should issue. •- abet pia nt:rfs' Motion legislation attempting to regulate the hours Irmnc;.oc is ttanted. of service of railroad telegraph operators [2,3] As previously mentioned, tbc engaged in interstate commerce. The plaintiffs have an extremely strong IT IS FL'RThER OR • Court held that Congress had earlier acted ment on the merits. It additionally app tiffs' remaining mone in such a way as to manifest its purpose to that the plaintiffs would suffer irrepatapla as:ms for relief are dire exercise its constitutional authority over harm if the injunction is not granted "dice. . pr. .F _ this - this activity, and therefore the regulatory suant to plaintiffs' request, court ft .1.. power of the states was preempted. Id. at willing to take judicial notice of the feet ' 661,34 S.Ct. at 759. As in the present ease, that the prime interest rate far exceeds the ILo !.t,k,su the Erie Railroad Court held that the pre- twelve percent interest which would be paid :; emption doctrine applied from the time of by the state if plaintiffs were able to obtaa al- the passage of the act notwithstanding the a refund. While defendant is correct that `:' fact that its effective date was still in the injunctions are usually inappropriate ; =t future. cases where the loss may be measured by In the present case, the federal statute money damages,"a monetary award in thb PEOPLE of the STA7 occupies the field regulating taxation of case would be inherently inadequate be- s: ea eel. Russell SM transportation property. The state cannot cause the defendant would not be required. '-' t. overturn this strong Congressionalpolicy by to fully respond in damages in the event - �� is plaintiffs are successful on the menu." Richard ELROD, the passage of Proposition 13 or ita subse — No. 8906 quent interpretation in Lonergan. There- In light of the fact that the State of • fore,-the federal statute requires the de- California could not have anticipated thi United States Di • Indent to-educe the assessment ratio for tax revenue nor have utilized the windfall :_ N. D. Illinois railroad property to that generally applied in planning its budget, it is difficult to t April 3, 1 ,• to other property during the same tax year. perceive any significant hardships for the e Section 306, by its own terms, authorizes defendant if the injunction is granted r t a federal court to issue injunctions t re- Moreover, the strong federal interest m ':- i J p _- Person who was the vent the enforcement of taxes which dis- eliminating discriminatory state taxation of transportationproperty evidenced b 4,- vent wan-ant sought ha criminate against rail transportation prop- p° by _ District Court, Shadur, erty. In this case,the injunction must issue passage of the 4—R Act further compels chi person not in the state i • court's conclusion. . a as it is clear that a federal statute has been alleged crime cannot be violated. Moreover, the plaintiffs have -s S justice, and (2) person w} demonstrated a likelihood of success on the CONCLUSION the warrant proved bey merits and irreparable harm. • 1 doubt that he was not [4] The plaintiffs have demonstrated to •, - 1 state on the date of the i It is now fairly well-established that the satisfaction of this court that it should, 1 when an injunction is sought to prevent the exercise its remedial powers granted under:. - 1 Petition granted. violation of a federal statute which specifi- section 306 by enjoining the taxation of caul cally provides for injunctive relief, the nor- transportation property at a rate higher-: trial requirements for equitable relief need than that generally applicable to other tax-. - I. Extradition and Detail: not be satisfied." However, while this able property in the taxing district. Such a la- Extradition under boa court need not inquire into the traditional remedy is necessary to effectuate the Coo-: nois statutes is appropri grounds for equitable relief in a section 806 gressional policy under the 4—R Act. " person, is a fugitive from state. 18 U.S.C.A. § 3182, 12. United States v. City and County of San 14. Ser. e. g., A. L. K. Corporation v, Columbia .s. § 19. Francisco, 310 U.S. 16, 30-31, 60 S.Ct. 749, Pictures, Inc.,440 F2d 761 (2d Cr. 1971). S 756-757, 84 LEd. 1050 (1940). Lathan V. , 'R 2. Extradition and Detain Volpe, 455 F2d 1111, 1116-17 (9th Cir. 1971), 15. See Teamsters Freight Local t•. Southern *- Sierra Club v. Coleman, 405 FSupp. 53, 54 Forwarding Co.,424 F.Supp. 11, 13 a13(MD. a A person who is not it (D.D.C.1975). . Tenn.1976). r time of the alleged crime • U. Tennessee V.Louisville&Nashville Railroad .; r ! tive from justice, at least Co..478 FSupp. 199, 210 (M.D.7enn.1979). quiring physical presence. Si r.S.pp-li : e _ _ _ __ _ _ _- v >✓•1. -s--- _ - __ __ �_ _ _-T �...- _ _-- -- - .^ r. K$ r•?_,� -<4•�.4 r�� _ . �: "e�' c •'- a-_- - t .: G'! - r ..+a� . w 1 ;Ice-VA-4-7T a - PEOPLE OF STATE OF ILL, EX REL SMITH v. ELROD 559 i p .-II'S-- ca..n i rs+w.sss Will) a c4 1 s: . =.s.-__- Accordingly, IT IS HEREBY ORDERED i Extradition and Detainers emu I]r,• _, - •_.t plaintiffs' Motion for a Preliminary When an extradition proceeding is • Pi7t1;r i- !tunction is granted• challenged on the ground that the person t- IT IS FURTHER ORDERED that plain- being sought was not in the state at the ; :-41.-a II `- -: -ifs' remaining monetary and pendent time of the alleged crime, the government's • ' '- ^a. 1. ; -a-.. r aims for relief are dismissed without prej- submission of valid extradition papers con- !:f f tf'l 1 _ . :_ stitutes a prima fade case; that shifts the ' a4'-e.' (S. -'# rdicc. burden to the wanted person to prove be- -♦ _1 %r,"ks4•� 1 far: yond a reionaDle doubt that he was not in i; t = * the state at the time of the alleged crime; .b,I a e 4 u..u.stesnn. if the extradition papers state a specific '4.44 1! •-t:-..---7•. i date on which the crime was committed,the !j2•I'f _ - :• J� - person sought need only prove that he was i I s 11 .,y = . not in the state on that specific date. !t iI !�__s'? 1 -='�_ 4. Habeas Corpus 485.8(1) ;=1" ` - _ _• ;� '74.11..•• F PEOPLE of the STATE OF ILLINOIS, Finding of state trial judge that evi- ( ?i ' as eel Russell SMITH, Relator, dence demonstrated that the wanted person I ; If was in the state of Illinois from some time �4 - si fl v. prior to the date of the commission of the ! r ,, Richard ELROD, Respondent- crime in Tennessee until well after the date i i I ! -a _,No. 8006J86. of the alleged crime was sufficient to grant . ita jI --• petition for writ of habeas corpus. F a- 3 • United States District Court, 5- Extradition and Detainers • a39 € Z. r "t - N. D. Illinois, E. D. t: 1? . .. If person being sought by another state .. as �q Y • ,c:I , April 3, 1981. demonstrates that he was not in that state ; 'iJ ; *1f: at the time mentioned in the extradition 5 a 3• '' • - s . - . . papers, state may then produce evidence to - • 4• _ Person who was the subject of extradi• show that the crime was not committed on s . .i-_- tion warrant sought habeas corpus. The the specific date -mentioned in the extradi- lie ' r District Court, Shadur, J., held that: (1) tion papers. Ili .s s 4 s I�_ ≥ person not in the state at the time of the . 'I= alleged rime cannot be a fugitive from 6 Habeas Corpus X90 1:,f ••e j Factual determinations by any state I. Lis. , justice,and (2) person who is the subject of court, including a state appellate • court , i I s the warrant proved beyond a reasonableF doubt that he was not in the requesting making a factual determination •based on ill l :1 review of the lower court's record, must be i• state on the date of the.offense. {'46 . I "-r1 • deferred to by federal courts in habeas con- 1 'si Petition granted. • pus ptviceedings. 26 U.S.CA. ; �51(dx8). t I -- 7. Habeas Corpus x85.8(1) I Ni: It!h. , Y 1. Extradition and Detainers cas30 Testimony by coemployee that the per- , i ( F r t.v'� ;, , son being sought was a full-time employee ; F . s ; to Extradition under both federal and Ills• ! .;; leis statutes is appropriate only when a from a date prior to the date of the offense r o until a time well after that date, evidence ! I -,• 't'- person is a furtive from justice in another state. 18 U.S.C-A. 5 8182; I1I.S.H.A.ch.60, of payer made out to the wanted person j . -.'.- 4 19 for work done during the week in which the - I �' -#t offense was committed, the testimony by s • Extradition and Detainers ow30 brother of the wanted person that he re- ! : I f A person who is not in the state at the ceived a telephone call from that person , :'� time of the alleged crime cannot be a fur- from Chicago two days prior to the offense, ' • , : 1 # tine from justice, at least as to crime re- and testimony of cousin and of common-law . { -• i• gulling physical presence. wife of the wanted person being sought s ; e 511 ro rs. _i. '; I - t5-DPT )RM PRESCRIBED BY THE PROPERTY TAX ADM' CRATIOR FORM 920 1/66-I/]9 rETITION FOR ABATEMENT OR REFUND ..r TAXES—HoEc, EL co .DENVER 3,920 Petitioners: Use this side only. Texas Car-pus...Christi J(Jelan8U, March 18 19 82 To The Honorable Board of County Commissioners of Weld County. Gentlemen: The petition of Centra1..P.ower...and._,.i.ght Company Address Attn: ' Tax Accounting, P.O. Box 2121 Corpus Christi, Texas 78403 DESCRIPTION OF PROPERTY Railroad Rolling Stock - SEE ATTACHED LETTER respectfully shows that the taxes assessed against your petitioner for the years A. D. 19...8.1., 19 , 19 , are erroneous or illegal for the following reasons, viz: (Give full particulars as to wherein the error or illegality lies) To the extent paid (or not abated) and in excess of the appropriate amount due, the tax levied is in violation of federal statutes applicable to local assessments of property taxes and the Colorado Constitution. (SEE ATTACHED LETTER) 19...81. 19 19 Value Tax Value Tax Value Tax Orig. $39,700 $2,785.82 Abate. 19.,70Q 1 ,382.40 Bal. 20,000 1 ,403.42 Thatit.hechas paid...$.1.,.392.t91 of said taxes. Wherefore your pet- itioner prays that the taxes, as aforesaid erroneously or illegally assessed, may be abated or re- funded in the sum of $..1.,382..40.... I declare, under penalty of perjury in the second degree that this petition, together with any accompanying exhibits or statements, has been examined by me and to the best of my knowledge, information and belief is true, correct and complete. CERTIFIED MAIL /IP 327 028 606 CENTRAL POWER AND LIGHT COMPANY Petitioner ByaregAgen o D Richard H. Bremer Vice President and Controller Address P.O. Box 2121 Corpus Christi, Texas 76-463 cc: Robert F. Wilson, Esq. Pendleton & Sabian, P.C. 1660 Lincoln Street, Suite 1700 �j_�.,or, r 41117/4 •• •CO4O e.Y:4 ,1\ DEPARTMENT OF LOCAL AFFAIRS 'tea 1$ DIVISION OF PROPERTY TAXATION IA AU , 623 STATE CENTENNIAL BUILDING 1114®SI - \\� 1313 SHERMAN STREET ®�®S < DENVER, COLORADO 80203 W/ RICHARD D.LAMM 303 839-2371 MEMBER GovernorInternational Association of A in Officers MARY ANNE MAURER Property Tea Admm4balor June 4, 1982 Central Power and Light Co. Tax Accounting P.O. Box 2121 Corpus Christi, TX 78403 Re: Abatement Petition+Weld.County, Colorado Legal Description: Railroad Rolling Stock DPT 11 622001 Dear Sirs: Please be advised that the above petition in the amount of $1 ,382.40 has been disapproved because the assessment is not erroneous or illegal. Colorado statutes provide for the application for an abatement or refund of taxes for prior years if the valuation is erroneous or illegal. Colorado Supreme Court cases define an erroneous valuation as that which is incapable of adjustment. If the valuation can be adjusted it is considered to be an overvaluation. Overvaluation is not the basis for an abatement because the value could have been adjusted by protesting to the Property Tax Administrator by July 1 , 1981 before the tax bill was mailed the following January. The Property Tax Administrator must mail to all Public Utility property owners the current year's value by June 1 of each year. Notification is also mailed to county assessors. Any assessor, board of county commissioners or company may file a protest with the Administrator by the first day of July. Hearings are conducted by the Administrator beginning on the second Monday of July, and decision rendered by August 1. Any decision of the Administrator can be appealed to the Board of Assessment Appeals within 30 days. Because you did not protest your value by July 1 , 1981 , you waived your remedies regarding the 1981 assessment. page -2- You have the right to appeal my decision. You may file an appeal with the Board of Assessment Appeals within thirty (30) days of June 4, 1982 which is the date of my disapproval. Appeal forms and instructions may be obtained from: Board of Assessment Appeals Department of Local Affairs 1313 Sherman Street - Room 420 Denver, Colorado 80203 Telephone X1303-866-5880 If we can answer any questions you might have, please feel free to contact my office. Very truly yours, DIVISION OF PROPERTY TAXATION (1:11--N-e:-.1211stan-cAL---a Mary Anne7Maurer Property Tax Administrator MAM/ft cc: County assessor County clerk Hello