2009 WI App 18
court of appeals of
published opinion
Case No.: |
2008AP1221 |
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Complete Title of Case: |
†Petition for Review Filed ††Petition for Cross-Review Filed |
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Trailwood Ventures, LLC and ††Plaintiffs-Appellants, v. †Defendant-Respondent. |
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Opinion Filed: |
December 2, 2008 |
Submitted on Briefs: |
November 11, 2008 |
Oral Argument: |
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JUDGES: |
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Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of Gerald M. O’Brien and Brian G. Formella of |
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Respondent |
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ATTORNEYS: |
On behalf of the defendant-respondent, the cause was
submitted on the brief of Shane J. VanderWaal of Pietz, VanderWaal, Stacker & Rottier, S.C., |
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2009 WI App 18
COURT OF APPEALS DECISION DATED AND FILED December 2, 2008 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Trailwood Ventures, LLC and
Plaintiffs-Appellants, v.
Defendant-Respondent. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1
¶2 Trailwood and
¶3 Pursuant to Wis. Stat.
§ 74.37,[1]
Trailwood and
¶4 There are three ways to obtain relief from a tax assessment following a board of review’s determination. The property owner may bring an action for certiorari review in the circuit court, pursuant to Wis. Stat. § 70.47(13). The owner could also submit a complaint to the Department of Revenue, asking it to revalue the property. Wis. Stat. § 70.85(1). This valuation is also subject to certiorari review. Wis. Stat. § 70.85(4). Finally, after paying the tax, the property owner may bring a Wis. Stat. § 74.37 claim against the taxation district or county.
¶5 Under Wis. Stat. § 74.37(2)(a), a claim “for an excessive assessment may be filed against the taxation district, or the county that has a county assessor system, which collected the tax.”[2] If the taxation district denies the claim, the taxpayer may bring an action in the circuit court for the amount of the claim that was not allowed. Wis. Stat. § 74.37(3)(d). In other words, the taxpayer may seek a refund of the alleged overpayment. Once the taxpayer files the action,
if the court determines that a reassessment of the property upon which the taxes were paid is necessary, the court, before entering judgment, shall continue the action to permit reassessment of the property. If, based on the reassessment, the court determines that the amount of taxes paid by the plaintiff is not excessive, judgment shall be entered for the defendant. If, based on the reassessment, the court determines that the amount of taxes paid by the plaintiff is excessive, judgment shall be entered for the plaintiff for the amount of the excessive taxes paid.
Wis. Stat. § 74.39(1).
¶6 An action under Wis.
Stat. § 74.37 is a new trial, not a certiorari action, so we
therefore review the circuit court’s determination, not the assessor’s or the
board of review’s. See Nankin v. Village of Shorewood, 2001 WI 92, ¶¶24-25, 245
¶7 At a Wis. Stat. § 74.37
trial, the court is not confined to the record made before the board of review
and new evidence may be presented. Nankin,
245
¶8 Wisconsin Stat. § 74.39 permits the court to order reassessment of the property if it is deemed necessary. If reassessment is necessary, the court holds open the judgment. If the reassessment shows the taxes paid were excessive, a refund is awarded to the taxpayer.[3] If the taxes paid were not excessive, judgment is entered for the defendant. Implicit in the statutory permission to order reassessment is the notion that sometimes, reassessment will not be necessary given the record before the court.
¶9 It appears that here, the court determined reassessment was
unnecessary. It stated that Trailwood
and
¶10 The trial court correctly noted that it is not required to defer to the board of review, and we recognize the presumption of validity afforded to the Village’s assessor. However, we cannot read Wis. Stat. §§ 74.37 and 74.39 to permit the court to impose a greater tax burden than the one the taxpayers challenge.[5]
¶11 First, Wis. Stat. § 74.37(1)
defines a claim or action for an excessive assessment as a claim or action “by
an aggrieved person to recover that amount of general property tax imposed
because the assessment of property was excessive.” This statute does not provide a mechanism for
a taxation district to challenge an assessment it deems too low. Indeed, the legislative history of
§ 74.37 indicates the legislature intended the section to greatly expand
remedies available to the taxpayer. See Nankin, 245
¶12 Second, nothing in Wis. Stat. § 74.39 indicates the court may raise the tax burden. If the court orders reassessment, it can either find the taxes paid were excessive or not excessive; it cannot find the taxes to be deficient. In theory, though, a reassessment could show that both the assessor and the board of review undervalued property, but the legislature did not provide a remedy for this possibility. Instead, the statute permits a refund to the taxpayer or upholds the status quo. It therefore stands to reason that even if reassessment is unnecessary, the only possible results for an action commenced under Wis. Stat. § 74.37 are a refund to the taxpayer for overpayment, or a judgment for the taxing authority if there is no overpayment. Deficiency judgments are not permitted.
¶13 Indeed, the threshold for initiating an action under Wis. Stat. § 74.37 requires the taxpayer to have actually paid the tax that was due and owing, even though the taxpayer thought it excessive. Wis. Stat. § 74.37(4)(b). As such, the taxation district has already, by accepting payment, agreed that the tax value collected is the maximum value it seeks.[6] Thus, when a taxpayer brings a § 74.37 action to recover excessive taxes, the least favorable outcome for the taxpayer, and the best possible outcome for the taxation authority, is for the court to conclude there were no excessive taxes. The court cannot impose a greater tax burden than the one the taxation authority already agreed to when it accepted the taxpayer’s payment.
¶14 Accordingly, we reverse and remand. The court should determine whether, based on the record, reassessment is necessary. If the court determines reassessment is needed, it shall follow Wis. Stat. § 74.39(1).[7]
By the Court.—Judgment and order reversed and cause remanded with directions. No costs awarded on appeal.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Wisconsin Stat. § 74.37(2)(b)
details necessary components of a claim, such as the fact that the claim be in
writing. There is no allegation that
Trailwood and
[3] Interest may also be added to the award. See Wis. Stat. § 74.35(4).
[4] The court stated that it lacked “sufficient facts to determine whether this was a rationally based determination or whether a dartboard was employed; therefore, the Board of Review assessments will not be considered by this Court.”
[5] Despite
asserting that Trailwood and
[6] Kronenwetter argues it did not have to specifically counterclaim for more money, because it affirmatively alleged both the board of review’s and the assessor’s property values. We need not reach this issue.
[7] We
need not reach appellants’ additional arguments. See
Gross
v. Hoffman, 227