Moe v. Pratt, Sheriff

The question before us for decision is whether the real property here involved was assessable and taxable for the fiscal year of 1943-1944. We start with the legislative mandate that all real property within the state, except as otherwise provided by law, is subject to assessment and taxation. § 110-101, O.C.L.A., as amended by § 1, chapter 440, Oregon Laws 1941.

Insofar as pertinent here, § 110-829, O.C.L.A., as amended by § 27, chapter 440, Oregon Laws 1941, is as follows:

"* * * Taxes on real property shall be a lien thereon from and including the first day of July of the year in which they are levied until paid and, except as otherwise specifically provided by law, such lien shall not be voided or impaired. Real property subject to taxation on July 1 shall remain taxable and taxes levied thereon for the ensuing fiscal year shall become due and payable, notwithstanding any subsequent transfer of said property to an exempt ownership or use; conversely, real property exempt from taxation on July 1 shall remain exempt for the ensuing fiscal year, notwithstanding any transfer within such year to a taxable ownership or use."

Section 110-702, O.C.L.A., as amended by § 21, chapter 440, Oregon Laws 1941, provides as follows: "The county court or board of county commissioners for each county in the state shall, in July of each year, levy a tax upon all taxable property in the county * * * for the current fiscal year." By § 110-703, as amended by § 22, chapter 440, Oregon Laws 1941, the county *Page 333 court or board of county commissioners is directed to levy, in July of each year, "all taxes which by law it is required to levy".

According to the provisions quoted from § 110-829, all real property subject to taxation on July 1 is taxable for the ensuing fiscal year. The property involved in this litigation was sold by Multnomah county on June 23 to the plaintiff. It thereupon was, and ever since has been, subject to taxation. Construing together the foregoing sections, it at once becomes apparent that the legislature intended that the board of county commissioners of Multnomah county should levy a tax against this property for the fiscal year of 1943-1944.

No levy is valid unless means are provided for the assessment of the property. The plaintiff admits that this real property was subject to taxation on July 1, 1943, but argues that only such real property which was subject to taxation on January 1, 1943, was assessable for the fiscal year of 1943-1944. In support of this contention, he relies on § 110-335, O.C.L.A., as amended by § 4 of chapter 440, Oregon Laws 1941, which, insofar as material here, reads as follows:

"The assessor shall procure for the county a blank assessment roll, and forthwith proceed each year to assess the value of all taxable property within the county, except such as by law is to be otherwise assessed. Said assessor shall enter in such assessment roll a full and complete assessment of such taxable property, including a definite description of the real property owned by each person therein named, on January 1 of said year, at the hour of 1 o'clock a.m."

Under the provisions last above quoted, the assessor is required to "assess the value of all taxable property *Page 334 within the county, except such as by law is to be otherwise assessed." There is nothing contained in the portion of the section just quoted which limits the assessor, in making his assessment, to property which is taxable on January 1 at 1 o'clock a.m., but the assessment which he makes is of that date.

Major changes in our tax laws were made by the 1941 session of the legislature. These amendments have been incorporated in chapter 440, Oregon Laws 1941. The fiscal year was changed from the calendar year to July 1, to and including June 30, of the following year.

The following provisions of § 110-101, O.C.L.A., were not included in that section as amended in 1941: (§ 1, chap. 440, Oregon Laws 1941.)

"* * * Property shall be assessed and taxed each year with respect to its status at the hour of 1 o'clock a.m. on March 1, which shall be the `tax day' of such year. Unless otherwise provided by law, any property subject to assessment for taxes on such tax day of any year shall remain taxable and taxes levied thereon in or of such year shall become due and payable, notwithstanding any subsequent transfer of said property to an exempt ownership or use; conversely, any property exempt from assessment for taxation on the tax day shall remain exempt for the year, notwithstanding any subsequent transfer within the year to an ownership or use which otherwise would render it taxable."

The 1941 amendments do not specifically designate any date as the "tax day". They do, however, provide that the status of real property on July 1 is determinative of the question whether or not it is taxable for the ensuing fiscal year; and that taxes on real property shall be a lien thereon from and including the first day of July. § 110-829, supra. The date as of which the *Page 335 assessment is made is changed from March 1 to January 1. § 110-335, supra. It therefore appears from these amendments that the legislature intended to change the "tax day" from March 1 to July 1.

Section 110-829, supra, provides that real property "subject to taxation on July 1 shall remain taxable and taxes levied thereon for the ensuing fiscal year shall become due and payable," etc. Plaintiff asserts that the phrase "ensuing fiscal year" as there used applies only to real property which is taxable on the previous January 1, and, inasmuch as the property here involved did not become subject to taxation until June 23, 1943, it was therefore not taxable for the fiscal year of 1943-1944.

According to the plaintiff's construction of the 1941 tax law amendments, if real property was publicly owned on January 1, 1943, at 1 o'clock a.m., and was later on the same day, or at any time prior to July 1 of that year, transferred to private ownership, such property could not legally be assessed and taxed for the 1943-1944 fiscal year, and that the first time it could be assessed and taxed would be for the fiscal year beginning July 1, 1944; conversely, if real property was in private ownership on January 1, 1943, at 1 o'clock a.m., and was conveyed to a tax-exempt ownership later the same day, or at any time prior to July 1 of that year, the purchaser would have to pay the taxes thereon for the fiscal year of 1943-1944. This construction, in my opinion, is contrary to the letter and spirit of the 1941 amendments. Real property, which is subject to taxation on July 1, is taxable for the fiscal year beginning on that date, which is referred to in the act as the ensuing fiscal year. *Page 336

Section 110-821, O.C.L.A., provides the method to be pursued in assessing real property that is subject to taxation, which has been omitted from the assessment roll, after the return of the assessment roll by the board of equalization to the county assessor. The board of equalization of each county is required to convene on the second Monday in May of each year to "correct all errors in valuation, description or qualities of lands, lots or other property assessed by" the assessor. § 110-401, O.C.L.A., as amended by § 8, chapter 440, Oregon Laws 1941. The property here involved was not acquired by the plaintiff until after the time fixed for the meeting of the board of equalization in 1943. Therefore, this property could not have been included in the assessment roll as presented by the assessor to the board. After the return of the assessment roll to the county assessor, this property should have been assessed for the fiscal year of 1943-1944, as provided in § 110-821, supra.

Section 110-829, O.C.L.A., as amended by § 27, chapter 440, Oregon Laws 1941, was further amended in 1945 by the addition thereto of the following: (Chap. 357, Oregon Laws 1945.)

"Transfer of real property from a tax exempt to a taxable ownership or use at any time between January 1 and June 30, both inclusive, of any year shall constitute notice to the transferee, owner or person in control of such property that it will be subject to taxation for the fiscal year next ensuing and it shall be the duty of such transferee, owner or person in control forthwith to advise the county assessor of any such transfer. Where the assessor shall not have been advised of any such transfer in time for him or the county board of equalization to enter the property in the current assessment roll, *Page 337 as provided by law, it shall be the duty of the officer having subsequent possession and control of such roll, whether as assessment or tax roll, to make therein the proper entries of assessment and taxation of such property for such fiscal year. All assessments and tax charges so made and entered shall be as of omitted property and subject to the provisions of section 110-821, O.C.L.A. All assessments and tax charges heretofore entered in the assessment roll or the tax roll of any year, covering real property so transferred from a tax exempt to a taxable ownership or use, hereby are declared to have been made regularly and lawfully."

This amendment is merely a clarification of § 27, chapter 440,supra. It does not give to the assessor or sheriff any additional powers. It does not purport to amend § 110-829,supra, which provides, among other things, that "real property exempt from taxation on July 1 shall remain exempt for the ensuing fiscal year, notwithstanding any transfer within such year to a taxable ownership or use", nor § 110-335, supra, relating to the duties of the assessor in making his assessment.

I am therefore of the opinion that the demurrer to the complaint should have been sustained and the suit dismissed.