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By Joseph D. Germany

Taxpayers are not always satisfied with the value fixed on their property by a board of equalization (“BOE”).The first step for the unhappy taxpayer is to object to the valuation.[1] If the BOE overrules the objection and enters a final assessment, then the taxpayer may appeal from the BOE’s ruling to the circuit court of the county where the property is located.[2] The procedure for taking such an appeal is set out in Ala. Code § 40-3-25 (1975). That statute, consisting of an uninviting wall of text, has given rise to a number of disputes in recent years.[3]

The procedure itself appears straightforward. On the date that the BOE enters its final tax assessment, a 30-day period begins to run. During that 30-day period, the taxpayer must satisfy a number of statutory requirements to perfect an appeal. The requirements of the statute are also seemingly clearcut: filing notice, filing a cost bond, paying the assessed taxes (or executing a supersedeas bond), and, if so desired, making a written demand for a jury trial. However, many of these requirements have been held to be jurisdictional rather than procedural, and the deadlines to meet the statute’s requirements have proven to be murkier than they first appear.

The purpose of this article is twofold: first, to lay out the requirements under § 40-3-25 for taking an appeal from a BOE ruling on the valuation of a property and, second, to address which of those requirements are jurisdictional.

The Jurisdictional-Procedural Distinction

The distinction between jurisdictional and procedural requirements is vital.

First, whether a requirement is jurisdictional impacts the available forms of judicial review. Questions of subject-matter jurisdiction are a proper basis to petition for a writ of mandamus.[4]

Second, if a requirement that an appealing taxpayer has failed to satisfy is jurisdictional, then the court is forced to dismiss the appeal.

However, an appealing taxpayer may be able to cure a procedural defect.[5]

In part, the jurisdictional nature of certain requirements under § 40-3-25 stems from the special nature of tax appeals. The right to appeal in a tax proceeding “is a right conferred by statute, and must be exercised in the mode and within the time prescribed by the statute.”[6] As will be discussed, this means that some requirements that would not be jurisdictional under the Alabama Rules of Appellate Procedure are jurisdictional for appeals taken under § 40-3-25. It also means that arguments drawing from other areas of appellate practice may be less than persuasive, at least as they relate to whether one of § 40-3-25’s requirements is jurisdictional.[7] All of this is to say that timely compliance with § 40-3-25’s requirements is crucial to avoid dismissal for want of subject-matter jurisdiction.

Filing Notice

The first step for perfecting an appeal under § 40-3-25 is to file a notice of appeal within 30 days of the BOE’s final assessment. Notice must be filed in two places – with the secretary of the BOE and with the clerk of the circuit court. The Alabama Supreme Court held in Ex parte Shelby County Board of Equalization that filing notice with the secretary of the BOE was a jurisdictional requirement.[8] Consequently, failing to timely file notice with the secretary means that the appealing taxpayer has failed to invoke the circuit court’s jurisdiction, and the appeal will be dismissed as a result. No holding has been made regarding the requirement to timely file notice with the clerk of the circuit court; however, the reasoning of Ex parte Shelby County Board of Equalization suggests that failure to comply with any of the requirements in § 40-3-25 prevents the circuit court from gaining jurisdiction.[9] As a result, it seems likely that the requirement to file notice with the clerk within 30 days would be jurisdictional as well.

However, there is at least one source of respite for the appealing taxpayer. The Alabama Supreme Court has held that “[t]he mailbox rule applies to the filing of a notice of appeal with the [secretary of the BOE] under § 40-3-25.”[10] The mailbox rule, as it applies to an appeal of a BOE ruling, is laid out in § 40-1-45. For the purpose of satisfying § 40-3-25’s requirement of filing notice with the secretary of the BOE, the mailbox rule requires only that the appealing taxpayer mail the notice to the BOE secretary within 30 days of the BOE’s final assessment.[11] Even if the notice is received by the BOE secretary outside that period, it will be considered timely so long as it would have been timely on the postmarked date.[12]

Whether the mailbox rule also applies to filing a notice of appeal with the clerk of the circuit court is less clear. The final subsection of § 40-1-45 provides situations in which the mailbox rule does not apply.[13] That subsection specifically provides that the mailbox rule does not apply to “[t]he filing of a document in … any court.”[14] This language suggests that the mailbox rule does not apply to § 40-3-25’s requirement of filing notice with the clerk of the circuit court. Given this exception, appealing taxpayers should not rely upon the mailbox rule in making last-minute filings with the circuit-court clerk. Although the mailbox rule applies to filing notice with the BOE secretary, the exception for court filings means that a filing with the circuit court clerk may be untimely if it is received after the deadline, regardless of the postmarked date.

Filing a Cost Bond

Under the second requirement in § 40-3-25, an appealing taxpayer must file bond, conditioned to pay all costs, with the clerk of the circuit court. The cost bond must be filed within the 30-day period outlined in the statute. The Alabama Supreme Court has held that this cost-bond requirement is jurisdictional,[15] although there is a line of dissents contesting that interpretation.[16] As a result, an appealing taxpayer who fails to timely file a cost bond risks having the appeal dismissed for failing to invoke the circuit court’s subject-matter jurisdiction.

The jurisdictional status of the cost-bond requirement under § 40-3-25 differs from the jurisdictional status of a cost bond under the Alabama rules of appellate procedure. Under those rules, a failure to file a cost bond on appeal at the same time as the notice of appeal is not a jurisdictional defect.[17] Appealing taxpayers should remain mindful of this distinction.

Paying the Taxes or Executing a Supersedeas Bond

Finally, a taxpayer appealing from a BOE property-valuation ruling must pay the assessed taxes before they become delinquent.[18] Alternatively, the appealing taxpayer may file a supersedeas bond when taking the appeal.[19] As a practical matter, this requirement does not necessarily mean that the taxes must be paid within the same 30-day window applicable to the requirements of filing notice or filing the cost bond. If the date of delinquency arrives more than 30 days after the date of the BOE’s final assessment, then a payment made outside of that 30-day window, but before the taxes become delinquent, will still be considered timely.[20]

There is still an open question as to whether failing to pay the taxes before they become delinquent is a jurisdictional defect. Several justices of the Alabama Supreme Court have suggested that it is, stating that “§ 40-3-25 requires a taxpayer who has not executed a supersedeas bond to pay the assessed taxes before they become delinquent in order to perfect an appeal and invoke a trial court’s jurisdiction.”[21] However, that statement has little precedential value, if any.[22]

It is unclear whether a court would find this to be a jurisdictional requirement.

There is caselaw suggesting that all requirements of § 40-3-25 are jurisdictional.[23] This interpretation is consistent with the fact that tax appeals are creatures of statute and is also in line with precedent holding § 40-3-25’s other requirements to be jurisdictional.

However, making jurisdiction contingent upon the payment of taxes creates some oddities. Justice Mendheim, in his special writing in Ex parte Mobile County Board of Equalization, stated that the dismissal of a taxpayer’s appeal due to a failure to timely pay assessed taxes is “procedurally mandated, but … does not implicate the circuit court’s subject-matter jurisdiction.”[24] That conclusion was partially based on the fact that the holding in the main opinion could result in a circuit court’s having subject-matter jurisdiction at filing but losing it when the taxes became delinquent. This is somewhat different than how we typically think of subject-matter jurisdiction.

Regardless, the safest route is either to pay the taxes before the date of delinquency or to execute a supersedeas bond at the time of taking the appeal.

Jury Demand

The right to demand a jury trial is unique to property-tax disputes – generally there is no right to a jury in a tax case.[25] Either the taxpayer or the BOE may demand a trial by jury on appeal from the BOE ruling.[26] The party seeking a jury trial must file a written demand with the clerk of the circuit court within 10 days after the appeal is taken.[27] There is no caselaw specifically analyzing this provision in § 40-3-25, so it is unclear whether the same principles governing the filing of notice would also apply to the filing of a demand for a jury trial. As with § 40-3-25’s other requirements, timeliness is everything. A party seeking a jury trial should make sure to deliver its demand to the clerk within 10 days and should not rely on the mailbox rule to ensure timeliness.

Conclusion

Appealing a final property-valuation ruling from a BOE requires that the taxpayer take three steps within statutorily defined periods. Those steps are: 1) filing a notice of appeal with the BOE secretary and the clerk of the circuit court; 2) filing a cost bond; and 3) either paying the taxes due or executing a supersedeas bond. If the appealing taxpayer desires a jury trial, they must make that demand within 10 days of taking the appeal. An appealing taxpayer should be mindful of which requirements are jurisdictional and be sure to satisfy them in a timely manner to avoid dismissal.

Endnotes

[1] Ala. Code § 40-3-24 (1975).

[2] Id.

[3] See Ash Assocs., LLC v. Jefferson Cnty. Bd. of Equalization, [Ms. SC-2022-0491, Sept. 30, 2022] ___ So. 3d ___, 2022 WL 4588780 (Ala. 2022) Ex parte Mobile Cnty. Bd. of Equalization, [Ms. SC-1210058, July 8, 2022] ___ So. 3d ___, 2022 WL 2610228 (Ala. 2022); Ex parte Kennemer, 280 So. 3d 367 (Ala. 2018); Target Corp. v. Jefferson Cnty. Bd. of Equalization, 197 So. 3d 1006 (Ala. Civ. App. 2015); Lumpkin v. State, 171 So. 3d 599 (Ala. 2014); Ex parte Shelby Cnty. Bd. of Equalization, 159 So. 3d 1 (Ala. 2014).

[4] Mobile Cnty. Bd. of Equalization, 2022 WL 2610228 at *3.

[5] Rogers v. Hansen, 187 So. 3d 1108, 1111 (Ala. 2015).

[6] State v. Mills, 175 Ala. 549, 543, 57 So. 481, 481 (1912).

[7] Lumpkin, 171 So. 3d at 604.

[8] Shelby Cnty. Bd. of Equalization, 159 So. 3d at 4.

[9] Id.; see also State v. Crenshaw, 249 So. 2d 617 (1970).

[10] Kennemer, 280 So. 3d at 371.

[11] § 40-1-45, Ala. Code 1975.

[12] Kennemer, 280 So. 3d at 371.

[13] § 40-1-45(d).

[14] Id.

[15] Lumpkin, 171 So. 3d at 604.

[16] Ash Associates, 2022 WL 4588780 at *1 (Sellers, J., dissenting); Lumpkin, 171 So. 3d at 609 (Moore, C.J., dissenting).

[17] Rule 7, Ala. R. App. P.

[18] § 40-3-25, Ala. Code 1975.

[19] Id.

[20] Ex parte Crenshaw, 287 Ala. 139, 143, 249 So. 2d 622, 624 (Ala. 1971).

[21] Mobile Cnty. Bd. of Equalization, 2022 WL 2610228 at *4 (per Stewart, J., with one justice concurring).

[22] Ex parte Discount Foods, Inc., 789 So. 2d 842, 845 (Ala. 2001).

[23] Shelby Cnty. Bd. of Equalization, 159 So. 3d at 4.

[24] Mobile Cnty. Bd. of Equalization, 2022 WL 2610228 at *11 (Mendheim, J., concurring in the result).

[25] See Rush v. Department of Revenue of State of Alabama, 416 So. 2d 1023, 1024 (Ala. Civ. App. 1982) (citing State v. Overby, 265 Ala. 39, 89 So. 2d 525 (1956)).

[26] § 40-3-25.

[27] Id.

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