February 28, 1980

Mr. Rodney C. Lefholz 
Deputy State's Attorney 
Pennington County 
Suite 233 
300 Kansas City Street 
Rapid City, South Dakota 57701

Official Opinion No. 80-11

Township Property Tax Equalization Program

Dear Mr. Lefholz:

You have requested an official opinion from this office in regard to the  following factual situation:

FACTS: 

The Pennington County Office of Equalization started a township equalization program designed to work with the township boards in organized townships and the temporary committees in the unorganized townships in Pennington County in an attempt to equalize assessments.  The individuals involved in these assessments became concerned with that portion of the Supreme Court decision Hot Springs, etc. v. Fall River Landowners, 262 N.W.2d 33 (1978) which at page 37 reads: 

Reviewing the stipulated evidence it appears to us that the county assessor did in fact apply all of the formula factors in arriving at his valuation of agricultural lands in Fall River County with one possible exception.  The stipulation notes that he did not take into consideration the location of the land as being near to or farther from market, which presumably would have some reflection on factor (4), 'the character of the area of place in which said property is located; * * *.'  However, there is no evidence that this was prejudicial to any of the parties.  Since the record further discloses that various taxpayers were called in and helped classify their own land with regard to 'productivity, etc,' appellants  cannot say that factor (4) was not taken into consideration.

The individuals involved in this equalization program contend that if they help the Director of Equalization in the township equalization program, they may be jeopardizing their rights if they at a later time attempt a suit involving the values applied by the Director of Equalization.  In other words, they feel that if they help this process they would be making the county 'suit- proof' because of the wording in the above described case.

Based upon the above facts you have asked the following question:

QUESTION: 

Would a person assisting in the equalization effort jeopardize their position upon appeal from the valuation of the property set by the Director of Equalization if they assisted in the taxation process?

A fair and complete reading of the above case indicates that the matter referred to in the last portion of the above quote does not reflect the basic consideration of the court in its decision but was rather more in the nature of dicta.  The question before the court was whether or not agricultural land should be assessed at a value based only on capitalization of net return, excluding all sales systems.  The appellants had argued that the assessor had not only used market value but also had agreed, and stipulated, that he had not  taken into consideration the location of the land as being nearest to or farthest from the market, which presumably would have some reflection on factor 4 of SDCL 10-6-33.1, 'The character of the area of the place in which that property is located.'

It was with respect to this factor 4 that the court said that the taxpayers had not been prejudiced since they assisted in the classification of their own land with regard to 'productivity, etc.'  The court concluded 'Appellants cannot say that factor 4 was not taken into consideration.'

It is the duty of the assessor and not the individuals in the county to place valuation on the property which is subject to tax, §  10-3-15.  Since none of the taxpayers or the boards of equalization themselves (except as they sit as a board) do anything other than possibly make recommendations to the director, their assistance, in my opinion, should have no adverse effect with respect to their ability to bring a grievance before a proper tribunal, either a board of equalization or the circuit court under the provisions of SDCL 10-11.  The statutory requirements for taking an appeal are contained in §  10-11-17 and relate to being aggrieved by anything in the assessment roll.  Clearly, since the individual cannot be held to have fixed the value of the property, as that is only done by the assessor, there should be no restriction upon attempting to obtain legal redress even though they participated in a portion of the valuation process.

The answer to your question, therefore, appears to me to be no. I do understand, however, the concern of the people you refer to.  I do see how they might interpret the one paragraph of this decision in a manner such as you describe.  It is my view, however, that when taken as a whole, this case does not stand for the proposition that taxpayers who involve themselves in the equalization program will prejudice their rights and options to challenge the valuations arrived at by the Director for their properties.

Respectfully submitted,

Mark V. Meierhenry
Attorney General