Mid America Agri Prods. v. Perkins Cty. Bd. of Equal. , 312 Neb. 341 ( 2022 )


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    09/30/2022 09:07 AM CDT
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
    Cite as 
    312 Neb. 341
    Mid America Agri Products/Wheatland
    Industries LLC, appellant, v.
    Perkins County Board of
    Equalization, appellee.
    ___ N.W.2d ___
    Filed August 26, 2022.   No. S-21-944.
    1. Taxation: Judgments: Appeal and Error. Appellate courts review
    decisions rendered by the Tax Equalization and Review Commission for
    errors appearing on the record.
    2. Judgments: Appeal and Error. When reviewing a judgment for errors
    appearing on the record, an appellate court’s inquiry is whether the deci-
    sion conforms to the law, is supported by competent evidence, and is
    neither arbitrary, capricious, nor unreasonable.
    3. Taxation: Appeal and Error. Questions of law arising during appellate
    review of the Tax Equalization and Review Commission’s decisions are
    reviewed de novo on the record.
    4. Statutes. Statutory interpretation presents a question of law.
    5. Administrative Law: Statutes. Agency regulations properly adopted
    and filed with the Secretary of State of Nebraska have the effect of
    statutory law.
    6. Taxation: Property: Valuation: Statutes: Time: Dismissal and
    Nonsuit. When a protest of property valuation is not timely filed on or
    before June 30 as required under 
    Neb. Rev. Stat. § 77-1502
    (1) (Reissue
    2018), the county board of equalization lacks statutory authority to
    review and decide the merits of the protest, and it does not have statu-
    tory authority to do anything other than dismiss the protest.
    7. Courts: Words and Phrases. A court generally does not read the use of
    the terms “must” and “shall” as permissive rather than mandatory.
    8. Taxation: Property: Valuation: Time: Appeal and Error. When a
    county board of equalization lacks authority to review and decide a
    protest of property valuation on the merits because the protest was not
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
    Cite as 
    312 Neb. 341
    timely filed, the Tax Equalization and Review Commission likewise
    lacks authority to review the merits of the protest.
    Appeal from the Tax Equalization and Review Commission.
    Affirmed.
    Frederick D. Stehlik and Zachary W. Lutz-Priefert, of Gross,
    Welch, Marks & Clare, P.C., L.L.O., for appellant.
    Timothy L. Moll, of Rembolt Ludtke, L.L.P., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    The Perkins County Board of Equalization (the Board) dis-
    missed the 2021 property valuation protest of Mid America
    Agri Products/Wheatland Industries LLC (Wheatland) because
    it was not timely filed. The Tax Equalization and Review
    Commission (TERC) affirmed the dismissal. Wheatland
    appeals. Wheatland argues that the statutory deadline for
    filing a protest may be waived by a board of equalization
    and that the Board waived the deadline in this case because
    it allegedly accepted the protest and heard argument on the
    merits of the protest. We affirm TERC’s order which affirmed
    the dismissal.
    STATEMENT OF FACTS
    Wheatland owns a parcel of real estate in Perkins County.
    The Perkins County assessor changed the valuation of the
    property for the 2018 tax year and again for the 2019 tax year,
    and each of these years the assessor sent Wheatland a notice
    of valuation change. Wheatland filed timely protests to the
    valuations for both 2018 and 2019. The valuation for the 2019
    tax year was $13,385,246.
    For the 2020 tax year, the assessor did not change the valu-
    ation of the property and therefore did not send Wheatland a
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
    Cite as 
    312 Neb. 341
    notice of valuation change. However, Wheatland filed a timely
    protest to the 2020 valuation. The Board denied Wheatland’s
    protests for the 2018, 2019, and 2020 tax years. Wheatland
    appealed the denials to TERC, and those appeals were still
    pending at the time of the dismissal of the 2021 protest at
    issue in this appeal.
    For the 2021 tax year, the assessor again maintained the
    valuation of Wheatland’s property from 2019 and 2020. The
    assessor therefore did not send a notice of valuation change.
    On July 1, 2021, Wheatland’s attorney hand delivered a prop-
    erty valuation protest form to the Perkins County clerk. The
    clerk received the protest on that date, but on July 2, the clerk
    sent a letter to Wheatland informing it that it had missed the
    June 30 deadline to file a protest and that therefore, the protest
    would not be heard by the Board. The Board maintains that
    the 2021 protest was automatically dismissed by operation
    of law.
    Notwithstanding the clerk’s letter, Wheatland’s attorney
    attended the July 19, 2021, meeting of the Board. Wheatland
    asserts that despite claiming that its protest was not timely,
    the Board discussed Wheatland’s protest of the 2021 valua-
    tion at the July 19 meeting. To the contrary, the Board asserts
    that it did not discuss the 2021 valuation, but, instead, that
    it discussed a TERC hearing that had been held on July
    12 concerning Wheatland’s appeals of the 2018, 2019, and
    2020 valuations.
    Wheatland appealed to TERC and claimed that the asses-
    sor’s failure to give notice prevented Wheatland from timely
    filing its protest. TERC thereafter entered an order to show
    cause and notice of hearing in which it ordered that a “hear-
    ing must be held to determine whether [TERC] has jurisdic-
    tion over this matter.” TERC set a hearing date and stated
    that the hearing would only address the jurisdictional issue
    and that a separate hearing on the valuation of the property
    would be scheduled at a later date if TERC determined it
    had jurisdiction.
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
    Cite as 
    312 Neb. 341
    After the hearing, TERC filed an “Order for Dismissal” on
    October 27, 2021. TERC began its analysis by citing 
    Neb. Rev. Stat. § 77-5013
    (1) (Reissue 2018), which provides the
    requirements for TERC to obtain exclusive jurisdiction over an
    appeal. TERC further stated it could not “acquire jurisdiction
    over an issue if the body from which the appeal is taken had no
    jurisdiction of the subject matter.”
    Turning to the timeliness of Wheatland’s protest, TERC
    rejected Wheatland’s contention to the effect that it could not
    timely file its protest because the assessor failed to provide
    notice of the 2021 valuation. TERC stated that the assessor
    was not required to send Wheatland a notice for the tax year
    2021 because the assessed valuation of Wheatland’s property
    was not changed from the prior year. See 
    Neb. Rev. Stat. § 77-1315
    (2) (Reissue 2018).
    TERC stated that a statutory remedy existed to challenge a
    property’s assessment, and it cited 
    Neb. Rev. Stat. § 77-1502
    (1)
    (Reissue 2018), which provides that “[p]rotests regarding real
    property shall be signed and filed . . . on or before June 30.”
    TERC also noted 350 Neb. Admin. Code, ch. 10, § 003.03A
    (2014), which provides in part that “[i]f the protest is not
    timely filed, it will automatically be dismissed.”
    In its order, TERC stated that Wheatland did not file its
    protest on or before June 30, 2021, and that Wheatland did
    not dispute that its filing on July 1 was late. TERC noted that
    Wheatland nevertheless argued that the Board “waived any
    issues concerning the timeliness of the protest by ‘accepting’
    the protest.” Wheatland asserted that the Board accepted the
    protest when the clerk received the protest that its attorney had
    hand delivered on July 1 and told the attorney the date that
    the Board would hold a hearing on protests. Wheatland also
    asserted that the Board discussed Wheatland’s protest at the
    July 19 hearing. TERC noted in its order that witnesses dis-
    agreed as to whether Wheatland’s protest of the 2021 valuation
    was discussed at the Board’s hearing and that two members
    of the Board attested they had discussed Wheatland’s appeals
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    312 Nebraska Reports
    MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
    Cite as 
    312 Neb. 341
    of the 2018, 2019, and 2020 valuations but had not discussed
    the 2021 valuation. TERC stated that a preponderance of the
    evidence did not support a finding that the Board had con-
    sidered Wheatland’s protest of the 2021 valuation. But TERC
    determined that whether or not the Board had considered the
    protest, TERC consistently applied the rule that subject matter
    jurisdiction may not be created by waiver, estoppel, consent,
    or conduct of the parties. TERC further stated that equitable
    estoppel was not normally applied in administrative proceed-
    ings, that TERC did not have equitable power, and that even if
    it had equitable power, the statutes regarding protests provided
    an adequate remedy at law.
    In its order, TERC concluded that the Board correctly dis-
    missed Wheatland’s protest because the protest was not timely
    filed. TERC cited Village at North Platte v. Lincoln Cty. Bd. of
    Equal., 
    292 Neb. 533
    , 
    873 N.W.2d 201
     (2016), for the proposi-
    tion that when a statute requires a county board of equalization
    to dismiss a protest, the county board does not have authority
    to do anything except dismiss the protest. TERC further stated
    that “[w]hen a county board correctly dismisses a protest
    because it lacked statutory authority to hear the protest on the
    merits, [TERC] should decline to reach the merits of the appeal
    and affirm the dismissal of the county board.” TERC therefore
    affirmed the Board’s dismissal of the protest and dismissed
    Wheatland’s appeal with prejudice.
    Wheatland appeals TERC’s order.
    ASSIGNMENT OF ERROR
    Wheatland claims, restated, that TERC erred when it
    affirmed the Board’s dismissal of Wheatland’s protest because
    the 2021 protest had not been timely filed.
    STANDARDS OF REVIEW
    [1,2] Appellate courts review decisions rendered by TERC
    for errors appearing on the record. Betty L. Green Living Trust
    v. Morrill Cty. Bd. of Equal., 
    299 Neb. 933
    , 
    911 N.W.2d 551
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    MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
    Cite as 
    312 Neb. 341
    (2018). When reviewing a judgment for errors appearing on
    the record, an appellate court’s inquiry is whether the decision
    conforms to the law, is supported by competent evidence, and
    is neither arbitrary, capricious, nor unreasonable. 
    Id.
    [3,4] Questions of law arising during appellate review of
    TERC’s decisions are reviewed de novo on the record. 
    Id.
    Statutory interpretation presents a question of law. County of
    Webster v. Nebraska Tax Equal. & Rev. Comm., 
    296 Neb. 751
    ,
    
    896 N.W.2d 887
     (2017).
    ANALYSIS
    Wheatland claims that TERC erred when it affirmed the
    Board’s dismissal of Wheatland’s protest because the filing
    of the protest was late. Wheatland argues that its filing of the
    protest on July 1, 2021, did not deprive the Board of authority
    to consider the protest because the June 30 deadline set forth
    in § 77-1502(1) is merely “an administrative timeline which
    an administrative agency has the ability to waive.” Brief for
    appellant at 9. Wheatland further argues that the Board waived
    the June 30 requirement, because it accepted the protest and
    heard argument on the protest, and that therefore, TERC had
    jurisdiction to review the valuation on its merits. We disagree
    with Wheatland’s contention that the June 30 requirement may
    be waived, and we conclude that because the Board did not
    err when it dismissed the protest, TERC did not err when it
    affirmed the dismissal.
    In its order, TERC relied largely on Village at North Platte
    v. Lincoln Cty. Bd. of Equal., 
    292 Neb. 533
    , 
    873 N.W.2d 201
    (2016). In Village at North Platte, the taxpayer filed a protest
    that did not meet a requirement of § 77-1502(2) because it
    did not include “a statement of the reason or reasons why the
    requested change [in valuation] should be made.” We noted
    that § 77-1502(2) provided that if a protest failed to “contain
    or have attached the statement of the reason or reasons for the
    protest . . . the protest shall be dismissed by the county board
    of equalization.” We determined in Village at North Platte
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    312 Nebraska Reports
    MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
    Cite as 
    312 Neb. 341
    that because the taxpayer failed to include a statement of
    reason or reasons, the board in that case “did not have [statu-
    tory] authority to do anything other than dismiss the protest.”
    292 Neb. at 540, 873 N.W.2d at 206. We further reasoned in
    Village at North Platte that because the board “lacked author-
    ity to hear the taxpayer’s . . . protest on the merits of the
    valuation, TERC likewise lacked authority to do so.” 292 Neb.
    at 541, 873 N.W.2d at 207. We concluded that the board in
    Village at North Platte “lacked statutory authority to take any
    other action” than to dismiss the protest and that therefore,
    TERC “correctly declined to reach the merits of the appeal
    regarding the property’s value.” 292 Neb. at 542, 873 N.W.2d
    at 208.
    [5] In the present case, Wheatland failed to meet the require-
    ment in § 77-1502(1) that a protest “regarding real property
    shall be signed and filed . . . on or before June 30.” Unlike
    § 77-1502(2) with regard to the required statement of reason or
    reasons at issue in Village at North Platte, § 77-1502(1) does
    not specifically state that a protest that fails to meet the June
    30 filing requirement must be dismissed by the county board of
    equalization. However, as TERC noted in its order, the applica-
    ble regulation, § 003.03A, provides in part that “[i]f the protest
    is not timely filed, it will automatically be dismissed.” Agency
    regulations properly adopted and filed with the Secretary of
    State of Nebraska have the effect of statutory law. Ash Grove
    Cement Co. v. Nebraska Dept. of Rev., 
    306 Neb. 947
    , 
    947 N.W.2d 731
     (2020).
    [6] We determine that our reasoning in Village at North
    Platte regarding the statutory requirements in § 77-1502
    logically applies to the statutory requirement that a protest
    must be filed on or before June 30. Section 77-1502 pro-
    vides the statutory authority for a county board of equaliza-
    tion to review and decide protests, and the requirements of
    the statute must be met in order for a board to exercise that
    authority. Section 77-1502 requires that a protest must be
    filed on or before June 30 in order for a board to exercise the
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
    Cite as 
    312 Neb. 341
    authority. Furthermore, the applicable regulation, § 003.03A,
    specifically provides that a protest that is not timely filed will
    “automatically be dismissed.” Therefore, when a protest of
    property valuation is not timely filed on or before June 30,
    the county board of equalization lacks statutory authority to
    review and decide the merits of the protest, and it does not
    have statutory authority to do anything other than dismiss
    the protest.
    Wheatland argues in this case that the Board could, and did,
    waive the June 30 requirement when it allegedly accepted the
    protest and heard argument on the protest. We note that TERC
    stated that the preponderance of the evidence did not support
    Wheatland’s assertion that the Board heard argument on the
    protest; instead, two Board members attested that the Board
    discussed Wheatland’s appeals to TERC of prior years’ valua-
    tions but did not discuss the protest of the 2021 valuation. With
    regard to Wheatland’s assertion that the Board accepted the
    protest, we note that after receiving the protest from Wheatland
    on July 1, the clerk sent a letter the next day stating that the
    protest was late and would not be heard.
    [7] TERC found that the Board did not “waive” the filing
    deadline, and such filing is supported by the record. However,
    whether or not the Board attempted to waive the June 30
    requirement in this case, the Board did not have authority to
    do so. Wheatland argues that “shall” as used in § 77-1502(1)
    indicates merely a directory, rather than a mandatory, require-
    ment and that as such, the requirement may be waived. We
    disagree. We have stated that we generally do not read the use
    of the terms “must” and “shall” as permissive rather than man-
    datory. See, Williams v. Williams, 
    311 Neb. 772
    , 
    975 N.W.2d 523
     (2022); Karo v. NAU Country Ins. Co., 
    297 Neb. 798
    , 
    901 N.W.2d 689
     (2017). The requirement in § 77-1502(1) that the
    protest “shall” be filed on or before June 30 is mandatory,
    and timely filing is required in order to give the Board statu-
    tory authority to consider a protest. The mandatory nature of
    this requirement is bolstered by the regulation, § 003.03A,
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    MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
    Cite as 
    312 Neb. 341
    requiring that if the protest is not timely filed, the protest is
    automatically dismissed.
    [8] Because the Board was required to dismiss the pro-
    test, we determine that it was proper for TERC to affirm
    the Board’s dismissal of Wheatland’s protest. Similar to our
    reasoning in Village at North Platte v. Lincoln Cty. Bd. of
    Equal., 
    292 Neb. 533
    , 
    873 N.W.2d 201
     (2016), we conclude
    that when a county board of equalization lacks authority to
    review and decide a protest of property valuation on the mer-
    its because the protest was not timely filed, TERC likewise
    lacks authority to review the merits of the protest. Because a
    county board of equalization lacks statutory authority to take
    any other action than to dismiss a protest that is not timely
    filed, TERC, as it did in this case, should decline to reach the
    merits of the appeal of a proper dismissal and instead should
    affirm the dismissal.
    Although we read TERC’s order as affirming the Board’s
    dismissal of the protest, there is language in TERC’s order
    referring to “jurisdiction” and stating that the appeal must be
    dismissed for lack of jurisdiction. We noted similar references
    to jurisdiction in Village at North Platte; we recognized that
    TERC’s jurisdiction over an appeal is derived from § 77-5013,
    which we described as providing that
    TERC obtains exclusive jurisdiction over an appeal when:
    (1) TERC has the power or authority to hear the appeal;
    (2) the appeal is timely filed; (3) the filing fee, if applica-
    ble, is timely received and thereafter paid; and (4) a copy
    of the decision, order, determination, or action appealed
    from, . . . is timely filed.
    292 Neb. at 540, 873 N.W.2d at 206-07. We further observed
    in Village at North Platte that § 77-5013(1) provides that
    “‘[o]nly the requirements of this subsection shall be deemed
    jurisdictional’” and that TERC “has the power and duty to hear
    and determine appeals of any decision of any county board of
    equalization” so long as jurisdictional requirements are met.
    292 Neb. at 540, 873 N.W.2d at 207. See, similarly, Karo v.
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    MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
    Cite as 
    312 Neb. 341
    NAU Country Ins. Co., 
    297 Neb. at 810
    , 901 N.W.2d at 697,
    698 (noting distinction between “jurisdictional” and “‘claim-
    processing rules’”).
    In Village at North Platte, we acknowledged the proposi-
    tion that if the court from which an appeal was taken lacked
    jurisdiction, then the appellate court acquires no jurisdiction,
    and we determined that a “comparable rule” was applicable
    with regard to appeals to TERC from decisions of boards of
    equalization. 292 Neb. at 541, 873 N.W.2d at 207. We stated
    that when a board of equalization lacks authority to hear a
    protest on the merits, TERC likewise lacks authority to do
    so. In the present case, although it made references to “juris-
    diction,” TERC properly recognized that because the Board
    lacked statutory authority to review Wheatland’s protest on
    the merits, TERC also lacked authority to review the merits
    of the protest. TERC therefore properly affirmed the Board’s
    dismissal of the protest.
    CONCLUSION
    The Board properly dismissed Wheatland’s protest of the
    2021 property valuation because the protest was filed after the
    statutory June 30 deadline, and we therefore affirm TERC’s
    order which affirmed the Board’s dismissal of Wheatland’s
    2021 protest.
    Affirmed.