concurring specially.
Sherri M. Thomas wishes to appeal to the Oconee County Board of Equalization a decision by the Oconee County Board of Tax Assessors that she had breached a conservation use covenant, thereby triggering the assessment of a mandatory tax penalty on her real property.1 The Board of Tax Assessors, however, has refused to forward the necessary papers to the Board of Equalization to initiate an appeal, contending that no such appeal right exists in this circumstance. This contention is erroneous.
OCGA § 48-5-311 (e) (1) (A) provides, in relevant part: “Any resident or nonresident taxpayer may appeal from an assessment by the county board of tax assessors to the county board of equalization ... as to matters of taxability, uniformity of assessment, and value, and, for residents, as to denials of homestead exemptions.” In addition, the denial of an application for special valuation resulting from the voluntary imposition of a conservation use covenant may be appealed to the Board of Equalization. OCGA § 48-5-7.4 (j) (1). See also Department of Revenue Reg. 560-11-6-.08 (1). Furthermore, in *426accordance with Department of Revenue Reg. 560-11-6-.08 (4), a taxpayer may appeal the Board of Tax Assessors’
initial determination or subsequent change of the qualifying use of the property, the soil classification of any part or all of the qualified property [subject to a covenant], the valuation of any qualified improvements, the assessment ratio utilized with regard to the qualified property; as well as with regard to any alleged errors that may have been made by the assessors in the application of the tables and standards of value prescribed by the Commissioner.
Based on these provisions, a determination by the Board of Tax Assessors that a conservation use covenant has been breached due to a perceived change in the use of the underlying property constitutes a matter that may be appealed to the Board of Equalization.2 Under OCGA§ 48-5-311, the Board of Tax Assessors’ declaration of breach and assessment of a mandatory penalty raises the issue of the extent of the taxability of the property as non-qualifying property, triggering an appeal from an assessment. In addition, under OCGA§ 48-5-7.4 (j) (1), a taxpayer may appeal the denial of an application to receive special valuation to the Board of Equalization, and, as the imposition of a breach is, in and of itself, a decision finding that the property in question cannot receive special valuation, this statutory provision also supports a finding that the determination of breach and the assessment of a penalty may be appealed to the Board of Equalization. Finally, according to Department of Revenue Reg. 560-11-6-.08 (4), a taxpayer may appeal most changes imposed by the Board of Tax Assessors upon property subject to a conservation use covenant, including “the qualifying use of the property.” If the Board of Tax Assessors’ decision to change the qualifying use of a given piece of property is an appealable decision, it stands to reason that the decision to change a qualifying use to a non-qualifying use would also be appealable. That is exactly the change imposed by a declaration of breach. Therefore, I believe that both Georgia statutory authority and Department of Revenue regulations support a finding that a *427determination by the Board of Tax Assessors that a conservation use covenant has been breached may be appealed to the Board of Equalization.
Decided September 24, 2007. Hall, Booth, Smith & Slover, Michael C. Pruett, for appellant. Robert J. Huff, for appellee.Although the majority opinion reaches the same conclusion, it states: “this is not an appeal from a declaration of breach, but from an assessment imposing an additional tax in the form of a penalty.” I do not believe that this distinction is warranted or necessary. Thomas is not merely appealing the amount of the penalty in question.3 To the contrary, she is appealing the ability of the Board of Tax Assessors to impose any penalty at all under her circumstances. To make this challenge, she must necessarily appeal the declaration that her conservation use covenant had been breached, as “a penalty shall be imposed” if such a breach occurs. OCGA § 48-5-7.4 (1). Put simply, Thomas’ appeal is from both the declaration of breach and the concomitant assessment of the mandatory penalty. As discussed above, this appeal may be made to the Board of Equalization.
This result is not altered by the Board of Tax Assessors’ contention that Thomas’ only remedy is to seek a refund for “taxes or fees which are ... erroneously or illegally assessed and collected.” OCGA § 48-2-35 (a). In this case, Thomas’ challenge is not merely about the imposition of a tax or fee, but it is, instead, about an alteration of the taxability of her property and the assessment of a related penalty based on a breach of her conservation use covenant. As such, the remedy most appropriate to this matter is the appeals process set forth in OCGA§ 48-5-311, not the refund process of OCGA§ 48-2-35.
For all of these reasons, I specially concur in the opinion of the majority. I am authorized to state that Justice Carley and Justice Hines join in this special concurrence.
OCGA § 48-5-7.4 Q states:
A penalty shall be imposed under this subsection if during the period of the covenant entered into by a taxpayer the covenant is breached. The penalty shall be applicable to the entire tract which is the subject of the covenant and shall be twice the difference between the total amount of tax paid pursuant to current use assessment under this Code section and the total amount of taxes which would otherwise have been due under this chapter for each completed or partially completed year of the covenant period.
Department of Revenue Reg. 560-11-6-.04 (8) provides:
In the event that the new owner fails to apply during the period provided..., such failure may be taken by the board of tax assessors as further evidence the covenant has been breached due to the owner’s lack of qualification or intent not to continuously devote the property to an applicable bona fide qualifying use and the board of tax assessors shall be authorized to declare the covenant in breach and assess a penalty.
If Thomas conceded that a breach had, in fact, occurred, she might attempt to appeal only the assessment of the penalty if she believed that it had been improperly calculated.