No. 34276 - In re: Tax Assessment Against Purple Turtle, LLC, et al., v. Gooden

Benjamin, Chief Justice, concurring:

            I agree with the majority per curiam opinion of the Court and its resolution of this matter based upon the methodology established by statute and solidified by Rawl Sales and Processing Co. v. County Comm'n., 191 W.Va. 127, 443 S.E.2d 595 (1994) and In re Stonestreet, 147 W.Va. 719, 131 S.E.2d 52 (1963). I write separately, however, to again underscore my disagreement with the continuing disparity which currently exists regarding the proof burdens of the State and of its citizens in property tax assessment cases in West Virginia. (See footnote 1) Absent reliance on some vague statist doctrine of a superceding governmental entitlement to the fruits of one's labors, there is no compelling or even rational basis to permit the State a lesser burden of proof in the taking of a citizen's property (in the form of tax payments) than there is for the citizen in keeping his or her property. The resolution of this matter turning not on proof burdens, but rather on procedural methodology, I concur in the majority opinion.

---

Footnote: 1       Pursuant to this Court's decision in In re Tax Assessment of Foster Foundation's Woodlands Retirement, 223 W.Va. 14, 672 S.E.2d 150 (2008), the State need only meet a preponderancy burden of proof in tax assessment cases, whereas a citizen seeking to keep his property (in the form of tax payments) must meet a higher clear and convincing burden of proof. Foster Foundation's Woodlands, at Syl. Pt. 5. As set forth in my dissenting opinion therein, I believe such a disparity is constitutionally impermissible. In re Tax Assessment of Foster Foundation's Woodlands Retirement, supra (J. Benjamin, dissenting).