Opinion
No. 75-098
Decided September 16, 1975. Rehearing denied September 30, 1975.
Review sought in district court of county commissioner's denial of petition for abatement and refund of taxes allegedly erroneously or illegally assessed. Trial court affirmed decision of county commissioners and petitioner appealed.
Affirmed
1. TAXATION — Presumption — Public Official — Discharge Duties — Applicable — Mailing of Tax Notice. There exists a rebuttable presumption that public officials properly discharge their statutory duties, and that presumption is applicable in regard to the mandatory mailing of notice of increased valuation to a taxpayer by a county assessor.
2. Office Custom — Mailing of Tax Notice — Evidence Supports Finding — Denial of Taxpayer's Petition — Not Arbitrary. Since there was evidence before the board of county commissioners that, within the county assessor's office, there was an office custom or practice in preparing and mailing the notices of increased valuation, and since the board specifically found that the notice of increased valuation was prepared and mailed to taxpayer who challenged that mailing, the denial of the taxpayer's petition for abatement and refund of taxes was supported by competent evidence and thus was not arbitrary or capricious.
Appeal from the District Court of the County of Arapahoe, Honorable M. O. Shivers, Jr., Judge.
Robert J. Flynn, for petitioner-appellant.
Ronald S. Loser, for respondent-appellee.
Canyon Crest Villas South (Canyon) appeals from a judgment of the district court upholding a decision of the Board of County Commissioners of Arapahoe County (Board) which denied Canyon's petition for abatement and refund of taxes erroneously or illegally assessed. We affirm.
Canyon filed a petition for abatement and refund of taxes for the year 1971. Its sole contention before the Board was that no notice of increased valuation was mailed by the Assessor before June 1, as required by § 39-5-121, C.R.S. 1973, and hence no increase could be imposed. The amount of increase in valuation was not questioned. The petition was denied by the Board, and the district court subsequently upheld the decision of the Board. Since over 19,000 notices of increased valuation were prepared and mailed by the Assessor's office, the Assessor and his deputy could not testify that they actually saw Canyon's notice being prepared or mailed; however, the district court found that the record established an office custom or practice regarding mailing of notices of the type involved sufficient to uphold the Board's finding that the Assessor's office had prepared and mailed Canyon's notice.
[1] The district court, in reviewing the Board's action, utilized a rebuttable presumption that public officials, including county assessors, properly discharge their statutory duties. Canyon accepts that such a presumption is firmly entrenched in Colorado. Town of Frisco v. Brower, 171 Colo. 441, 467 P.2d 801. Canyon, however, alleges the use of this presumption to be error in this case. Canyon argues that mandatory mailing of notice is a "jurisdictional fact," in that it conditions the power of the assessor to impose an increased valuation on the taxpayer and that a presumption of faithful discharge of official duties may not be used to supply a "jurisdictional fact." We do not rule the assessor's mailing of a notice to be a jurisdictional fact, but, assuming arguendo that it is, we find no merit in this contention.
Were we to accept Canyon's reasoning, the presumption of proper discharge of statutory duties by public officials would be seriously undermined. This presumption has been recognized in Colorado since 1894, People ex rel. Engley v. Martin, 19 Colo. 565, 36 P. 543, and the courts, applying it, have never drawn a distinction between duties which are "jurisdictional facts" and any other statutory duties. Town of Frisco v. Brower, supra, contains one example of the application of the presumption to what would be called a "jurisdictional fact" using Canyon's definition. We hold that the presumption was properly applied by the district court.
[2] Additionally, there was evidence before the Board of an office custom or practice in preparing and mailing the notices of increased valuation. This court has stated in National Motors, Inc. v. Newman, 29 Colo. App. 380, 484 P.2d 125:
"Under the better reasoned authorities the existence of a business custom or practice is sufficient to warrant a presumption that a particular letter was duly posted."
Although such presumption is rebuttable, the Board specifically found that the notice of increased valuation was prepared and mailed to Canyon. The standard to be used by a reviewing court in assessing whether the Board acted arbitrarily or capriciously is whether the decision is supported by any competent evidence. Board of County Commissioners v. Simmons, 177 Colo. 347, 494 P.2d 85. The Board's finding is supported by competent evidence, and thus the denial of Canyon's petition for abatement and refund of taxes was not arbitrary or capricious.
Judgment affirmed.
JUDGE COYTE and JUDGE BERMAN concur.