Horn v. Bernalillo County Valuation Protests Board , 95 N.M. 38 ( 1980 )

OPINION

WOOD, Chief Judge.

The owners of the shopping center had no objection to the county assessor’s valuation of the improvements; their protest was to the assessor’s valuation of the land. We do not reach the question of whether testimony of the value of vacant land is competent evidence as to the value of land on which there are improvements. Another issue, which is dispositive, is whether the County Valuation Protests Board had authority to reject an agreement of the assessor concerning the land value. We hold the Board does not have such authority. Statutory references are to N.M.S.A. 1978.

Section 7-36-2 gives the assessor the responsibility and the authority for valuation of the shopping center. See § 7-38-5. The assessor’s valuation is to be in accordance with the Property Tax Code and regulations of the property tax division of the Taxation and Revenue Department. Sections 7-36-16(A) and 7-35-2(A).

The protest of the land valuation was pursuant to § 7-38-24. This protest was to be heard by the County Valuation Protests Board; the Board’s authority was to “hear and decide protests from persons protesting valuations of property ... made by county assessors and protested under Section 7-38-24 NMSA 1978.” Section 7-38-25(D).

Section 7-38-24(D) states:

The assessor may provide for an informal conference after setting a hearing on the protest but before the date of the hearing.

Such a conference was held in this case; at that conference, the property owners and the assessor agreed upon a land valuation lower than the assessor’s original valuation.

The assessor is required to comply with regulations of the property tax division. Sections 7-35-3 and 7-35-6. The regulation involved in this case reads:

P.T.D. REGULATION 31.24(D):1 — INFORMAL CONFERENCES—

After a protest has been set for hearing, if a taxpayer requests or has requested an informal conference, the assessor may schedule and hold such a conference before the date of the hearing. If an informal conference has not been requested by the taxpayer and the assessor believes an informal conference prior to hearing would be useful, he may schedule such a conference and require the presence of the taxpayer.

Informal conferences may be held at the assessor’s office or elsewhere as circumstances require. If, at an informal conference a pending protest is fully resolved with no reduction in the valuation shown on the protesting taxpayer’s notice of valuation, the protesting taxpayer must sign a written document, which may be provided by the assessor, stating that the taxpayer withdraws his protest, and the valuation protests board should be notified immediately so that the board may vacate the hearing.... If the protest is resolved with the assessor agreeing that the taxpayer’s notice of valuation is incorrect, then this settlement must be implemented by presenting to the county valuation protests board a proposed order agreed to in writing by both the assessor and the protesting taxpayer and presenting to' the board an explanation of the settlement.

Our concern is with the last sentence of the regulation.

The protest was resolved by the assessor agreeing that the notice of valuation of the land was incorrect.

The protest having been resolved, the settlement was to be implemented. How? By presenting a proposed order to the County Valuation Protests Board and presenting an explanation of the settlement to the Board. This implementation provides a record of, and the reasons for, the settlement.

A representative of the assessor undertook to comply with the provisions for implementing the settlement. An oral explanation was made to the Board as to the settlement and the reasons for the settlement, but the Board afforded no opportunity for presentation of a written order.

At the close of the oral presentation, the chairman of the Board announced “we aren’t going to go along with it”, that the Board was refusing the stipulation. The chairman stated an evidentiary hearing on the protest would be held and using the stipulation “is useless though because that doesn’t mean a thing.” A conclusion of law adopted by the Board after the protest hearing was that the stipulation placed an “unreasonably low” valuation on the land on the basis of comparable sales approach.

The Board rejected the stipulation before it heard any evidence. The Board bolstered its rejection by a conclusion concerning the merits of the stipulation on the basis of evidence at a protest hearing which did not involve the stipulation, the chairman having ruled, in advance of taking evidence, that the stipulation had no meaning. We do not consider the due process questions arising from this procedure because the Board had no authority to reject the stipulation.

The assessor values the property; the assessor did so by an agreement that resolved the protest. The Board’s authority is to hear and decide protests. There was no protest to be heard; the protest had been resolved by the assessor’s agreement to the lower land valuation. Once the stipulation was reached, the only function of the Board, under the regulation, was to hear the explanation of the settlement and enter the order “agreed to in writing by both the assessor and the protesting taxpayer”.

Neither the regulation nor § 7-38-25 authorize the Board to reject the assessor's agreement as to value. This does not mean that there is no check on stipulations by the assessor. The assessor is supervised by the property tax division, § 7-35-3, and may be suspended for failure to comply with the Property Tax Code or regulations or directions of the property tax division. Section 7-35-6.

The order of the Bernalillo County Valuation Protests Board, which refused to change the valuation of the land, is reversed. The cause is remanded with instructions to the property owners and assessor to present the written order reflecting their stipulation to the Board, and with instructions to the Board to enter the agreed upon order and issue directions in conformity therewith.

IT IS SO ORDERED.

LOPEZ, J., concurring. SUTIN, J., specially concurring.