HomeMy WebLinkAbout660099.tiffSTATE OF COLORADO
COLORADO TAX COMMISSION
STATE OFFICE BUILDING
DENVER, COLORADO
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August 17, 1966
CIRCULAR NO, 5, Series of 1966
To All County Assessors
Boards of County Commissioners
The Attorney General, in a recent opinion, has ruled:
1. The assessor is required to send notices of increase in valuation,
for both real and personal property, prior to June 1 of the tax year.
2. Failure to send the notice of increase in valuation prior to
June 1 of the tax year affords the taxpayer legal grounds to petition for
an abatement or refund of taxes to the extent of the increase.
A copy of the opinion is attached.
COLORADO TAX COMMISSION
Commission
Commissioner
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Duke W. Dunbar
Attorney General
Colorado Tax Commission
State Office Building
Denver, Colorado 80203
THE STATE OF COLORADO
DEPARTMENT OF LAW
Office of the Attorney General
DENVER, COLORADO 80203
May 6, 1966
Frank E. Hickey
Deputy Attorney General
Gentlemen:
This is in response to your recent letter wherein you ask our opinion respecting
certain sections of Chapter 137 CRS 1963 as amended by Chapter 94 of the 1964 Session
Laws. Specifically your questions are as follows:
1. Are the provisions of Section 137-5-21 as so amended mandatory or
merely directory?
2. Does the failure of the assessor to mail the notice prescribed by Section
137-5-21 within the time therein stated render the assessment erroneous or illegal
to such an extent that the increase of the tax in question could be rebated or refunded?
CONCLUSIONS: 1. They are mandatory.
2. Yes.
ANALYSES: 1. Said Section 137-5-21 CRS 1963 as amended provides as
follows:
"( 1) No later than the first day of June in each year, the assessor
shall mail to each person whose taxable personal property has been valued
at an amount greater than that returned by him in his personal property
schedule, and to each person whose land or improvements has been valued
at an amount greater than the same was valued in the previous year, a
notice setting forth the amount of such increase in valuation. (emphasis
supplied)
"(2) The notice of increase in valuation shall separately specify the
amount of increase arising solely from any redetermination of actual value
pursuant to the provisions of section 137-1-3(4), and the amount of increase
resulting from other circumstances."
In Swift v. Smith, 119 Colo. 126, it was held that the presumption is that the
word "shall" when used in the statutes is mandatory. This is also the weight of
authority outside of the State of Colorado. In 82 C. J. S. page 877 it is said:
"As a general rule the word 'may, I when used in a statute, is
permissive only, and operates to confer discretion, * '* *. On the
Colorado Tax Commission
-2- May 6, 1966
other hand, the word 'shall' is ordinarily imperative, operating to impose
a duty which may be enforced. "
The definition of the word "shall" in Black's Law Dictionary is to the same effect
and many cases are there cited in support of the definition.
In further support of this interpretation of the word "shall, " as used in said
Section 137-5-21, we call attention to Section 137-5-22 CRS 1963 and to Sections
137-8-2 and 137-8-4 CRS 1963 as amended by said Chapter 94 of the Session Laws
of 1964, which provide for the hearing of objections of the taxpayer to the assess-
ments made by the assessor, and to the hearing of appeals from the decisions of the
assessor by the county board of equalization, and which provide limited times within
which the objections of the taxpayer may be presented and may be heard. Thus, if
the notice under said Section 137-5-21 is not mailed at all one of the notices provided
by the statute would not have been given to the taxpayer, and if the notice is not
mailed on the first day of June, or prior thereto, the time for the presentation of the
objections of the taxpayer to the increase is cut below that provided by the statute to
the detriment of the taxpayer.
In Tarabino Real Estate Company v. Sandoval, County Assessor, Seaman,
et al., as the Colorado Tax Commission, Interveners, 115 Colo. 336, 340, the
Court said:
"If the time limitations of the meetings' of the county board
of equalization, as particularly specified by the statute, are mandatory,
the attempted action by the board on the valuations of the properties
of protestant was taken too late, and its attempted action was a nullity.
If those statutory provisions are merely directory, then the action of
the board was valid. In some jurisdictions similar provisions have
been held directory. (Citing cases) In other jurisdictions such pro-
visions have been construed as mandatory. (Citing cases) We said in
Tallon v. Vindicator Co., 59 Colo. 316, 149 Pac. 108, 'Whether statutes
involving the constructive steps incident to taxation are mandatory or
directory depends upon whether or not the directions given the officers
are for the benefit of the taxpayer, to give him notice and an opportunity
for a hearing, or for any other purpose important to him. * *'"
2. Section 137- 1-13 CRS 1963 as so amended provides as follows::
"No abatement or refund of taxes erroneously or illegally
levied shall be made by the board of county commissioners unless a
hearing be had thereon, at which hearing the assessor shall have
the opportunity to be present. Whenever any abatement or refund shall
be recommended by the board of county commissioners, an application
therefore, reciting the amount of such abatement or refund and the
grounds upon which it should be allowed, shall be submitted to the com-
mission. No abatement or refund of taxes shall be made except upon
approval of the commission, endorsed upon the application. "
Colorado TaxCommission
-3- May 6, 1966
This would indicate that the board of county commissioners has the power to abate
or refund taxes erroneously or illegally levied when the provisions of this section
are complied with.
Therefore, the question arises as to whether the failure of the assessor to
mail the notice required by Section 137-5-21(1) prior to the first day of June renders
the increase in the amount of the taxes resulting from the increase in assessed
valuation erroneous or illegal. Under earlier statutes, which provided that the tax-
payer should list his taxable property setting a value upon the personal property
but not upon his real estate, it was held in Gale v. Staler, 47 Colo. 72, and Goldsmith
v. Standard Chemical Company, 77 Colo. 1, that the failure of the assessor to mail
the notice of increase within the time specified rendered the taxes on such increase
in value of the personal property illegal and erroneous. However, in Fairlamb v.
Bowie, 101 Colo. 135, which involved an increase of the taxpayer's valuation not
only of his persor*alproperty but also of his real estate, it was pointed out by the
court that the taxpayer's valuation of his real estate was merely gratuitous and
without legal significance and while he was required to set forth his estimate of the
value of his personal property as a means of the determination thereof, only the
assessor, and not the taxpayer, estimates the value of the real estate. Therefore,
if the assessor placed a higher valuation upon the real estate than specified by
the taxpayer, the assessor was not increasing its valuation for tax purposes over that
set by the taxpayer since the value of the real estate was by law to be set by the
assessor, and not the taxpayer, so that disregard of the taxpayer's valuation by the
assessor did not amount to a change in valuation.
The present statute, Section 137-5-21(1) CRS 1963, provides for the mailing
of the notice not only to each person whose taxable personal property has been valued
at an amount greater than that returned by him, but also provides for the mailing
thereof to each person whose land or improvements has been valued at an amount
greater than the same was valued in the previous year. Since the same requirement
is now made in both instances and our Supreme Court has held under the former
statute, which required that it be mailed when an increase in valuation was made by
the assessor, that failure to mail it within the time required would render the taxes
on such increase erroneous and illegal, it is our opinion that the same rule would
apply if the notice was not mailed within the required time where the land or improve-
ments has been valued at an amount greater than the same was valued in the previous
year.
DWD:FEH:T
Very truly yours,
SiDuke W. Dunbar
DUKE W. DUNBAR
Attorney General
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