A Proposal to Address the Improper and Unreasonable Fees Imposed by California Counties on Taxpayers When Exercising Their Rights to Appeal Assessed Property Taxes

• Publication year: 2016
• Author: By Christina K. Harper & Colin W. Fraser

A Proposal to Address the Improper and Unreasonable Fees Imposed by California Counties on Taxpayers When Exercising Their Rights to Appeal Assessed Property Taxes1

By Christina K. Harper² & Colin W. Fraser^{3 4}

EXECUTIVE SUMMARY

California taxpayers face an ever-increasing array of fees in order to assert their rights to appeal property tax assessments. The fees vary from county to county, but the most widespread, expensive, and unreasonable fees currently imposed are fees for filing assessment appeal applications ("filing fees"), fees to receive a hearing before the local assessment appeal board ("hearing fees"), and fees to obtain written findings of fact explaining the board's decision in a case ("findings of fact fees"). These fees are imposed without authority, against clear legislative intent, and contrary to protections enshrined within the California Constitution. It is time for the Legislature or the State Board of Equalization to address this as an issue of fundamental fairness and establish uniform statutes and rules governing these fees.

DISCUSSION

I. INTRODUCTION

In California, there are two statewide taxing authorities, the California Franchise & Taxation Board and the State Board of Equalization ("BOE"). The BOE, an elected body of five voting members, is the authority for property tax matters.

Created in 1879 by a constitutional amendment, the BOE ensures that county property tax assessment practices are equal and uniform throughout California.⁶ The BOE has the power to promulgate property tax regulations (or "rules") and to interpret, clarify, and implement the Legislature's statutory provisions relating to property tax.⁷

California's Constitution also created local boards to "equalize the values of all property on the local assessment roll by adjusting individual assessments."⁸ California Revenue and Taxation Code sections 1601 through 1615 generally govern how local boards must administer taxpayer requests to reduce property tax assessments including providing taxpayers with assessment hearings.

Many California counties now improperly or excessively charge fees at various stages in these taxpayer appeals. This article focuses on three separate fees charged by counties, as explained below.

The first fee that an applicant is likely to encounter is a "filing fee." By California regulation, the application for a changed assessment must be provided "free of charge."⁹ Many counties interpret this mandate to mean they must provide the application form to taxpayers free of charge, but can charge for filing the application. County filing fees are generally $30 to $50 per application, but can be as high as $1,000. (See, Appendix A for 2016 rates.) More than half of California's counties (32 to be exact) charge these fees. We urge the Legislature to clarify by statute that both the application form and the filing of the application form are free of charge to taxpayers. Alternatively, we invite the BOE to clarify its regulation to state that the application is free to obtain and to file.

The second fee that applicants encounter is a "hearing fee." Counties charge this fee simply for the right to be heard by the county board. No statute appears to govern this type of fee, and charging such a fee may violate the constitutional right to due process and Proposition 62. We will invite the Legislature or the BOE to determine whether the fee is proper, and to address the inconsistency among counties.

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The third fee that applicants often encounter is a "findings of fact fee." Counties charge this fee in advance of the hearing for the county board's preparation of a written opinion describing the rationale for its decision. We invite the Legislature or the BOE to address the dramatic inconsistency among counties in fees imposed to issue findings by establishing a $200.00 maximum for such fees.

II. IMPROPER COUNTY-IMPOSED "FILING FEES" FOR APPLICATIONS FOR CHANGED PROPERTY TAX ASSESSMENTS

More than half of the counties in California currently charge "filing fees" for submitting applications for reassessment. These typically cost taxpayers from $30 to $50 per application. The most expensive filing fee is required in Santa Barbara County, where a $1,000 fee applies to a parcel with an assessed value over $30 million. Appendix A includes a table of the current filing fees charged by each county.

The "filing fees" raise three key concerns. First, counties do not have authority to impose filing fees. Second, the assessment appeal process has historically been free to all applicants, which is why counties must provide assessment appeal applications "free of charge" under BOE regulations. Third, the fees are not uniform, varying from zero to over a thousand dollars in some cases.

It is time for the Legislature or the BOE to step in and establish a uniform statute or rules governing fees for filing assessment appeal applications, as we discuss more fully below.

A. Counties do not have authority to impose filing fees

Although 32 counties in California now require a filing or "processing" fee for assessment appeal applications, these counties do not appear to have the authority to impose such fees. The Revenue and Taxation Code provisions governing reassessment applications do not specifically authorize filing fees. As further discussed below in Part III.A., the fact the Legislature specifically authorized other fees in the appeals process (e.g., findings fees), suggests it did not intend counties to charge for processing applications. By charging these fees, counties exceed their rulemaking authority under the California Constitution, as we discuss in the context of hearing fees in Part III.B.

B. Filing fees are counter to the intent of BOE rules

California Revenue and Taxation Code sections 1601 through 1615 provide the statutory authority for the functioning of local appeals boards in property tax reassessments. Section 1603(a) provides that:

A reduction in an assessment on the local roll shall not be made unless the party affected or his or her agent makes and files with the county board a verified, written application showing the facts claimed to require the reduction and the applicant's opinion of the full value of the property. The form of the application shall be prescribed by the State Board of Equalization.

(Emphasis added.)

California Code of Regulations, title 18, sections 301 through 326 ("Property Tax Rules") interpret, clarify, and implement these statutory sections. Property Tax Rule 305(c) specifically provides for some fees, but does not authorize filing fees:

(c) Form and Contents. The county shall provide, free of charge, forms on which applications are to be made.
[...]

(2) The form shall also include:

(A) A notice that a list of property transfers within the county, that have occurred within the preceding two-year period, is open to inspection at the assessor's office to the applicant upon payment of a fee not to exceed ten dollars ($10). This requirement shall not apply to counties with a population under 50,000 as determined by the 1970 decennial census.
(B) A notice that written findings of fact will be prepared by the board upon request if the applicable fee is paid. An appropriate place for the applicant to make the request shall be provided.
(Emphasis added.)

Many counties currently interpret the BOE's "free of charge" mandate in Rule 305(c) to mean the counties must provide the application form to taxpayers free of charge, but are still permitted to charge for the filing of the application. This is a clever parsing of words, but the counties' interpretation seems to fly in the face of the intent of the BOE's rule. The BOE's "free of charge" language is consistent with the nearly 100 years in California during which there were no fees associated with taxpayer challenges to property taxes.

Had the BOE intended to permit counties to charge taxpayers for filing fees, the BOE would have said so in its regulation. Property Tax Rule 305(c) requires that counties provide "free of charge" application forms. In contrast, this same rule expressly addresses the fees counties may charge if a taxpayer elects to inspect the assessor's records or requests written findings of fact from the local appeals board. The absence of a similar provision permitting filing fees indicates the BOE did not intend to allow filing fees.

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The BOE itself has questioned whether such fees are authorized. The BOE completed a project in 2003 to revise the Assessment Appeals Manual to include language advising counties that they should not charge deposits, filing fees, or hearing fees of taxpayers seeking a hearing before an appeals board.¹⁰ In the face of strong push-back, the proposed language was ultimately deleted from the manual, but the BOE determined that fees for appeals boards, and related local rules of notice and procedure, would be studied as a separate issue.¹¹

The rising tide of new filing fees that began in the early 2000's may be turning around. Recognizing that filing fees are an unfair method of raising revenue from taxpayers, Santa Clara County recently repealed the $40 fee it had imposed for filing property tax appeals.¹² The board of supervisors repealed the fee on November 3, 2015 at the urging of Supervisor (and former State Senator) Joe Simitian, County Assessor Larry Stone, and County Executive Jeff Smith. Supervisor Simitian said that repealing the fee was "a fundamental issue of fairness" and that "[c]harging a member of the public a $40 fee for the right to appeal, and then keeping the fee even after we acknowledge our error - there's just no way to justify that."¹³

Proponents of filing fees maintain that they are based on the actual costs for the county to process an application and that the additional action of refunding fees to taxpayers who succeed on their claim costs even more than the fees themselves. However, as with every other tax, the cost of administration is built into the revenue stream.

C....