TDH
Jonathan Moseley, Esquire
26175 Ticonderoga Road
South Riding, Virginia 20152 Karen Stapleton, Esquire
Assistant County Attorney
1 Harrison Street, S.E, Fifth Floor
Leesburg, Virginia 20177 Dear Counsel:
Plaintiffs seek a refund for excess real estate taxes paid for 1999 and refiling fees paid in connection with certain parcels which it seeks to be taxed on the basis of use rather than fair market value. It is asserted that the appropriate revalidation forms for the tax parcel in question were submitted to the Department of Financial Services in sufficient time to qualify to the use assessment. Furthermore, plaintiff contends that the submission of revalidation forms was not a prerequisite to use value assessment of 18 of the 36 parcels assessed because such parcels lay within Agricultural and Forestal Districts.
It is the public policy of this Commonwealth that while all assessments of real estate and tangible personal property are to be made at fair market value, the General Assembly may define and clarify real estate devoted to agricultural, horticultural, forest or open space uses and authorize local governments to permit the deferral of, or relief from, portions of taxes otherwise payable if not so classified. VA Const. art. X § 2. Pursuant to the authority granted it by the Constitution, the General Assembly has recognized use value assessments generally (§§ 58.1-3229) and as specifically applied to Agricultural and Forestal Districts (§ 15.2-4300) and Conservation Easements (§§10.1-1009).
Loudoun County has enacted an ordinance addressing the assessment and taxation of real estate pursuant to the authority delegated to it by the General Assembly (Loudoun County, VA., Ordinances, ch. 848, § 58.1-3231). Consistent with the administrative procedures set forth in the Code of Virginia, the County ordinance requires that property participating in the use assessment be revalidated annually in forms prepared by the County.
Revalidation forms for the plaintiff's parcels were due for the tax year 1999, on November 2, 1998. An additional grace period was provided for late filing with a penalty.
The evidence demonstrates that the forms were prepared and given to Marion Bohley, and employee of Ticonderoga Farms, Inc. and SWPP Development Co. for delivery to the office of the Assessor. Ms. Bohley delivered the forms to someone in the office. She took no receipt nor can she identify, by name, the person to whom the forms were delivered. The forms could not be found in the office of Financial Services despite a diligent search. Plaintiff's evidence falls far short of demonstrating, even by a preponderance of the evidence, that the forms reached anyone other than an unknown person. It would be sheer speculation to assume they reached the appropriate tax authority. Thus, they have failed in effort to show the forms were filed. Negligence of the employee for failing to properly identify the recipient cannot be charged to the taxing authority.
Plaintiffs also contend that even if the Court should find that the forms were not timely filed, as to those parcels in the Agricultural and Forestal District, no revalidation forms were required to be filed. A determination of this issue is a matter of statutory interpretation. In deciding this issue, the Court is guided by the general principle that the wording of statutes should be given their plain meaning and that Attorney General Opinions made be given persuasive authority.
The Attorney General has opined, inter alia, that land under an open space easement need not be the subject of an application or revalidation. In so doing he has noted,
[b]y its plain language, § 10.0-1011, now requires lands permanently used as open space-wide conservation or open-space easements meeting the requirements of
§ 58.1-3230 to be assessed and taxed in the same way as lands that are being so used temporarily under a local use value assessment program. As a result, property under such an easement may be assessed and taxed for its value as open space without any application by its owner and possibly without the owner's knowledge. 7 Op. Att'y Gen. VA. (1993).
While there are differences between the provisions relating to permanent open space easements and parcels accepted into Agricultural and Forestal District, not the least of which is the permanency of the easement, the interpretation of the Attorney General would apply to both.
Pursuant to Va. Code Ann. § 15.2-4312,
A. Land lying within a district and used in agricultural or forestal production shall automatically qualify for an agricultural or forestal use-value assessment pursuant to Article 4 (
§ 58.1-3229 et seq.) of Chapter 32 of Title 58.1, if the requirements for such assessment contained therein are satisfied. Any ordinance adopted pursuant to
§ 15.2-4303 shall extend such use-value assessment and taxation to eligible real property within such district whether or not a local ordinance pursuant to
§ 58.1-3231 has been adopted.
The requirements for inclusion as set forth in Va. Code Ann. § 58.1-3233. The procedures to be followed, including revalidation, are contained in Va. Code Ann. § 58.1-3234. No mention of compliance with such procedural requirements as a predicate of use-value treatment is provided for in Va. Code Ann. § 15.2-4312. To the contrary, as noted earlier, qualification is "automatic." Unlike permanent open space easements, upon termination of a district or withdrawal or removal of land from a district, land that is no longer part of the district shall be subject to the roll-back taxes provided for in Va. Code Ann. § 58.1-3237. Va. Code Ann. § 15.2-4314.
Thus, as a parcel in such a district automatically becomes subject to this use tax, so too, when reviewed, it is subject to roll back taxes.
Accordingly, the Court will find that the plaintiff are entitled to a refund of the excess taxes paid on the 18 parcels in the Agricultural and Forestal District, but not as to the remaining 12 parcels. Moreover, they shall be entitled to any fees paid in connection with the filing and the application as to those parcels.
Mr. Moseley may draw an order consistent with this opinion to which counsel may note their exceptions.
Very truly yours,
TDH