672 S.E.2d 150
Benjamin, J., dissenting:
This case presents, among other issues, what the proper burden of proof should
be for a taxpayer who challenges an assessor's tax assessment. More specifically, we have
prior decisions of this Court which are inconsistent and conflicting with respect to whether
the taxpayer must meet a “preponderancy of the evidence” burden, or whether the taxpayer
must meet the more difficult “clear and convincing” burden of proof in order to prevail. I
applaud my colleagues for resolving this conflict, but respectfully dissent to Syllabus Points
5 and 6 of the majority opinion to the extent that the taxpayer is required to meet a “clear and
convincing” burden of proof when challenging assessments. I believe the proper burden of
proof should be a “preponderancy of evidence” as it is in other valuation-type disputes within
our judicial system.
As correctly noted by the majority opinion, the West Virginia Legislature has
not established what should be the proper burden of proof for a case such as this involving
a taxpayer's challenge to a tax assessment. That is unfortunate because it requires this Court
to do so.
The majority opinion lists our prior cases which have touched on the burden
of proof issue. While I appreciate that a decision in favor of one standard or the other is
needed to resolve the issue of inconsistency in our prior decisions, I am unpersuaded by the
majority's rationale for its adoption of the “clear and convincing” standard. In essence, the
only rationale in the majority opinion which appears to be advanced to charge a citizen
taxpayer with a higher burden is that there is a presumption that valuations of property for
purposes of taxation are presumed to be correct. Op., ___. See Western Pocahontas Props.
v. County Comm'n of Wetzel Co., 189 W.Va. 322, 431 S.E.2d 661 (1993). I fail to see why
such a presumption compels a burden of proof on a taxpayer which is onerous and which is
much more difficult to meet than that which applies to the State.
In reviewing other jurisdictions, I observe that the same inconsistency which
was heretofore present in our jurisprudence is present among the other states. Nevertheless,
a pattern emerges that state legislatures are more likely than courts to use the preponderancy
burden. See Arizona Rev. Stat. Ann. § 42-1255 (2004); Aileen H. Char Life Interest v.
Maricopa County, 93 P.3d 486, 491 (Ariz. 2004); Cal. Rev. & Tax. Code §§ 51.5(e), 110(b),
5170; Paine v. State Board of Equalization, 137 Cal. App.3d 438, 442, 187 Cal. Rptr. 47, 49
(Cal.Ct.App. 1982); Florida Statues, § 194.301; Smith v. Royal & Sons, Ltd, 801 So.2d 255,
257-8 (Fla. Ct. App. 2001) (per curiam); Idaho Session Law 63-511 (1985); Iowa Code §
429.2 (2006); Post Week Cable, Inc. v. Board of Review of Woodbury County, 497 N.W.2d
810, 813 (Iowa 1993); Kansas S.A.2003 Supp 79-2005(I); Saline County Board of
Commissioners v. Jensen, 88 P.2d 242, 244-45 (Kan. Ct. App. 2004); In re Colorado
Interstate Gas Co., 79 P.3d 770 (Kan. 2003); Ky. Rev. Stat. Ann. § 13B.090 (1996); U Hall
Real Estate Co. v. County of Dakota, 2008 WL 650290 (Minn. Tax. Ct. March 7, 2008);
Southern Minnesota Beet Sugar Coop v. County of Renville, 737 N.W.2d 545 (Minn. 2007);
In re Walsh (New Hampshire Board of Tax and Land Appeals), 934 A.2d 528, 532 (N.H.
2007); Porter v. Town of Sanbornton, 840 A.2d 778, 783 (N.H. 2003); Okla. Stat. tit. 68 §
221 (2002); Estate of Sieber v. Oklahoma Tax Comm'r., 41 P.3d 1038, 1041-42 (Okla. Civ.
App. 2001); O.R.S. §305.427 (Oregon 2005); R.I. Gen. Laws §8-8-28 (1984); Tex. [Tax]
Code Ann. §§41.43 and 42.43 (2007); Mills v. Board of County Commissioners of Burleigh
County, 305 N.W.2d 832, 833-34 (N.D. 1981); Board of Assessment Appeals v. Sampson,
105 P.3d 198, 204 (Colo. 2005); OCGA § 48-5-41 (Ga.); Lamad Ministries, Inc. v.
Dougherty County Bd. of Tax Assessors, 602 S.E.2d 845, 849 (Ga. Ct. App. 2004); Miss.
Code § 27-77-7(4) (2006); Utah Code Ann. § 59-1-604 (1992); and West Creek Associates,
LLC v. County of Goochland, 665 S.E.2d 834, 842-43 (Va. 2008). States which use a “clear
and convincing” or more stringent standard seem generally to do so by court decision. See
City of Pinson v. Utilities Board of Oneonta, 986 So.2d 367, 370 (Ala. 2007); Arkansas
Beverage Co. v. Heath, 521 S.W.2d 835, 836-37 (Ark. 1975); Leonard v. Comm'r of Revenue
Services, 823 A.2d 1184 (Conn. 2003); Leader Treks, Inc. V. Dept. of Revenue, 895 N.E.2d
683 (Ill. Ct. App. 2008); Gannet Company, Inc. v. State Tax Assessor, ___ A.2d ___, WL
4911798 (Me., Nov. 18, 2008); Brenner v. Banner County Board of Equalization, 753
N.E.2d 802, 813 (Neb. 2008); SER Board of Equalization v. Barta, 188 P.3d 1092, 1097-98
(Nev. 2008); Edmondson Mgmt. Serv. Inc. v. Woods, 603 S.W.2d 716, 717 (Tenn. 1980); and
Washington Beef, Inc. v. County of Yakima, 177 P.3d 162, 167 (Wash. App. Ct. 2008).
It may be observed that burdens of proof lack general uniformity, even within
states. Indeed, it is not unusual for a given state to have a lesser burden for one issue, such
as assessments, and a more stringent burden for another issue, such as exemptions. See
generally McDonnell Douglas Corp. v. Franchise Tax Board, 446 P.2d 313, 316 (Cal. 1968);
Lamad Ministies, at 849; North Alamo Water Supply Corp. v. Willacy County Appraisal
District, 804 S.W.2d 894, 899 (Tex. 1991). Here, we have a taxpayer simply challenging an
assessment. Such a challenge is governed mainly by expert opinions. Absent a compelling
reason to hold the taxpayer citizen to a stiffer burden than the State, I believe that the proper
burden , consistent with expert disputes in civil cases, is that the taxpayer must prove his or
her case by a “preponderancy of the evidence.” To the extent that policy considerations may
dictate more stringent burdens in tax matters, I believe that is a matter which should be left
to the Legislature. Absent such legislative action, there should be no disparity in burdens
between the State and its citizens in matters such as this.
Accordingly, I respectfully dissent.