[*] Associate, Hopping Green Sams & Smith, P.A., Tallahassee, Fla. B.S., Florida State University, 1992; J.D., Florida State University, 1995. Return to text.

[1] See FLA. CONST. art. VII, § 1(a). Return to text.

[2] See id. § 9; see also FLA. STAT. §§ 125.01(1)(r), (5)(c), 166.211(1), 190.011(13), 236.25, 373.503 (1997). Return to text.

[3] The percentage of total county revenue generated by ad valorem taxes is 29.5%. See FLA. JT. LEGIS. COMM. ON INTERGOVTL. REL., FEATURES OF FLORIDA'S LOCAL GOVERNMENT FINANCES 3-11 (Table 3.1) (1997) (available at Fla. Dep't of Revenue (DOR), Tallahassee, Fla.) (fiscal year 1994-95) [hereinafter LOCAL GOVERNMENT FINANCES REPORT]. For water management districts, ad valorem taxes make up 58.2% of total revenue. See id. For school districts, ad valorem taxes make up 43.1% of total revenues. See FLA. JT. ADVIS. COUNCIL ON INTERGOVTL. REL., LOCAL GOVERNMENT REVENUES IN FLORIDA: SUMMARY 21 (1996) (available at Fla. DOR, Tallahassee, Fla.) (fiscal year 1994-95) [hereinafter LOCAL GOVERNMENT REVENUE SUMMARY]. Ad valorem taxes also constitute a significant portion of the revenues of municipalities and special districts. See LOCAL GOVERNMENT FINANCES REPORT, supra, at 3-11 (Table 3.1) (listing 16.1% for municipalities and 15.3% for special districts); see also FLA. JT. ADVIS. COUNCIL ON INTERGOVTL. REL., AD VALOREM PARTIAL YEAR ASSESSMENTS: RELEVANT ISSUES AND INFORMATION 5-6, Fig. I-IV (1995) (available at Fla. DOR, Tallahassee, Fla.) (fiscal year 1992-93 data) [hereinafter PARTIAL YEAR ASSESSMENT REPORT]. Return to text.

[4] See FLA. LEGIS., 1996 FLORIDA TAX HANDBOOK 125 (1996) (available at Fla. Jt. Legis. Mgmt. Comm., Div. of Legis. Library Servs., Tallahassee, Fla.) [hereinafter 1996 FLORIDA TAX HANDBOOK]. This figure has grown significantly over the last 20 years. See id. Return to text.

[5] FLA. CONST. art. VII, § 4 (emphasis added). The aggregate taxable value of all property in Florida subject to ad valorem taxation was over $650 billion as of January 1, 1996. See LOCAL GOVERNMENT REVENUE SUMMARY, supra note 3, at 8 (Fig. A). Real property comprised just under $500 billion of this figure. See id. Return to text.

[6] See generally FLA. STAT. ch. 193, 195, 196 (1997); see also discussion infra Part II.A. Return to text.

[7] See generally FLA. STAT. ch. 194 (1997); see also discussion infra Part II.B.; Steve Pajcic et al., Truth or Consequences: Florida Opts for Truth in Millage in Response to the Proposition 13 Syndrome, 8 FLA. ST. U. L. REV. 593, 608, 618-21 (1980). Return to text.

[8] This standard can be traced to the Florida Supreme Court's decision in Folsom v. Bank of Greenwood, 97 Fla. 426, 430, 120 So. 317, 318 (1929); see also discussion infra Part II.C. Return to text.

[9] This issue is not unique to Florida. In 1982, the Texas Legislature reduced the burden that taxpayers must overcome when challenging the property appraiser's assessment to a preponderance of the evidence. See TEX. TAX CODE ANN. § 42.26 (West 1997); see also FLA. JT. ADVIS. COUNCIL ON INTERGOVTL. REL., COMPARISON OF AD VALOREM TAX SYSTEMS OF FLORIDA, CALIFORNIA, GEORGIA, ILLINOIS & TEXAS, 4 n.2 (1996) (available at Fla. DOR, Tallahassee, Fla.) (presented to Florida Ad Valorem Tax Task Force on Sept. 12, 1996) [hereinafter COMPARISON OF TAX SYSTEMS]. Prior to this legislative action, taxpayers in Texas were required to demonstrate that the assessment was "grossly excessive" or that it "shock[ed] a correct mind." COMPARISON OF TAX SYSTEMS, supra, at 5 (citing Hayes Consol. Indep. Sch. Dist. v. Valero Transmission Co., 645 S.W.2d 542, 547 n.1 (Tex. Ct. App. 1983)). Return to text.

[10] Repub., Casselberry. Return to text.

[11] Repub., Orange Park. Return to text.

[12] See Fla. HB 557 (1996); Fla. SB 740 (1996). Return to text.

[13] See Fla. HB 445 (1997); Fla. SB 134 (1997). Return to text.

[14] Act effective May 23, 1997, ch. 97-85, 1997 Fla. Laws 503, 504 (codified at FLA. STAT. § 194.301 (1997)).

15. The intent of Part II is to acquaint the reader with those issues that are relevant to the development of the 1997 "burden of proof" legislation. It is not the intent of this Part to provide a detailed or comprehensive discussion of Florida's ad valorem tax process. For a more comprehensive overview of ad valorem taxation in Florida, see generally 2 FLORIDA BAR, TAX SECTION, FLORIDA STATE AND LOCAL TAXES (1998) [hereinafter FLORIDA STATE AND LOCAL TAXES]. Return to text.

[16] As discussed in Part II, the property subject to ad valorem taxation is appraised, or valued, by the county property appraiser. Millage rates are determined and the taxes are levied by the various local taxing authorities within the county. There is, however, state oversight of this ad valorem tax process. See infra notes 23-24 and accompanying text. Return to text.

[17] The property appraiser is a "constitutional officer." FLA. CONST. art. VIII, § 1(d); see District Sch. Bd. v. Askew, 278 So. 2d 272, 276 (Fla. 1973). This fact limits the Legislature's ability to interfere with the exercise of the property appraiser's discretion. See id. at 277. But see infra notes 115-18 and accompanying text. Return to text.

[18] FLA. STAT. § 192.001(3) (1997). The property appraiser is not responsible for the collection of ad valorem taxes. That function is performed by the county tax collector. See id. § 192.001(4). Return to text.

[19] See FLA. STAT. §§ 193.085(1), .114(1) (1997); see also FLA. ADMIN. CODE ANN. r. 12D-1.002(1) (1997) (defining "assessment roll"). Return to text.

[20] "Taxable value" is defined as the assessed value less the amount of any exemptions applicable to the property. See FLA. STAT. § 192.001(16) (1997). Return to text.

[21] See id. § 193.085(1). Interestingly, the property appraiser is only required to ensure that all real property is included on the tax rolls. See id. This duty does not extend to tangible personal property because, unlike real property, the taxpayer has the obligation of filing an annual return listing his or her tangible personal property. See id. § 193.052(1)(a). There are significant penalties for the failure to file a return or for the filing of an erroneous return. See id. §§ 193.072-.073. As a general rule, the only required taxpayer filings related to real property are those that demonstrate entitlement to an exemption or classified use status. See, e.g., id. §§ 193.461(3)(a), 196.011(1)(a); see also FLA. ADMIN. CODE ANN. r. 12D-1.004, -7.001 (1997). Return to text.

[22] See FLA. STAT. § 193.114(1)(a)-(b) (1997); FLA. ADMIN. CODE ANN. r. 12D-8.007(1)(a)-(b) (1997). A separate roll must also be maintained for "centrally assessed property," such as railroad property. See id. at r. 12D-8.007(1)(c); FLA. STAT. § 193.085(4) (1997); FLA. ADMIN. CODE ANN. ch. 12D-2 (1997). DOR is charged with valuing railroad property and notifying each county of the taxable value of such property located within the county. See FLA. STAT. § 193.085(4) (1997). Return to text.

[23] See FLA. STAT. § 193.114(2)-(3) (1997); FLA. ADMIN. CODE ANN. ch. 12D-8 (1997). DOR has general supervision over the assessment and valuation of all property subject to ad valorem taxation. See FLA. STAT. § 195.002(1) (1997). Return to text.

[24] See FLA. STAT. § 193.1142(1) (1997). The purpose of DOR's review is to determine whether the rolls "meet all the appropriate requirements of law as to form and just value." Id. DOR may disapprove an assessment roll in whole or in part. See id. § 193.1142(2)(a). The assessment roll will be deemed approved if DOR does not disapprove the roll within 50 days after its receipt. See id. § 193.1142(3). If DOR issues notice of its disapproval of the rolls, or a part thereof, the TRIM Notice, see infra note 29, cannot be issued unless the taxing authority utilizes the interim assessment procedure in section 193.1145, Florida Statutes, pending a legal challenge to DOR's disapproval. See FLA. STAT. §§ 193.1142(4)(b), .1145(1) (1997). Only once since 1980 has DOR formally disapproved a county's assessment rolls. See Fla. Ad Valorem Tax Task Force, tape recordings of proceedings (July 25, 1996) (available at Fla. DOR, Tallahassee, Fla.) [hereinafter July Tapes]. Return to text.

[25] See generally FLA. STAT. § 200.065 (1997). Return to text.

[26] The millage rate is the measure of the tax rate for ad valorem tax purposes. Each mil represents a tax rate of .1%, or one one-thousandth of a dollar. See id. § 192.001(10). Stated another way, an ad valorem tax of one mil would generate $1 on each $1000 of taxable value. Return to text.

[27] See id. § 200.065(2)(a)1. Return to text.

[28] See id. § 200.065(2)(b). Return to text.

[29] TRIM is an acronym for "Truth in Millage." FLA. ADMIN. CODE ANN. r. 12D-17.002(2)(q) (1997). DOR prescribes the form of the TRIM Notice. See id. ch. 12D-17; see also FLA. STAT. § 200.069 (1997). The TRIM Notice informs the property owner of the potential increase in his ad valorem taxes that would result from the local government's proposed budget. See id. § 200.069(1), (2), (9); see also id. § 200.065(1) (describing the operation of the "rolled-back rate"). Return to text.

[30] See FLA. STAT. § 200.069 (1997). For a discussion of the background and operation of the TRIM process, see Pajcic et al., supra note 7, at 609-18. Return to text.

[31] See FLA. STAT. §§ 194.011, .036(1)(a) (1997). Return to text.

[32] See id. § 193.023(2) (requiring the property appraiser to physically inspect property every three years, or upon the request of the property owner). Return to text.

[33] See id. § 193.023(3). Return to text.

[34] INTERNATIONAL ASS'N OF ASSESSING OFFICERS, PROPERTY APPRAISAL AND ASSESSMENT ADMINISTRATION 303 (1990) (available at Fla. DOR, Tallahassee, Fla.) (excerpt presented to Florida Ad Valorem Tax Task Force on July 24, 1996). Return to text.

[35] See id. at 305-08. A "mass appraisal" system utilizes models and complex formulas to simulate supply and demand forces (and thus market value) within a particular jurisdiction. See id. at 310. These models can then be applied to individual parcels based upon the characteristics of the parcel. See id. at 310-11. Return to text.

[36] See id. at 309-10. This reappraisal should occur at least once every six years. See id. at 309. Return to text.

[37] See id. at 309-10. Return to text.

[38] FLA. STAT. § 193.023(2) (1997). Return to text.

[39] See FLA. CONST. art. VII, § 4. The phrase "just value" is a short-hand reference to the constitutional mandate that ad valorem taxes are to be based upon "a just valuation of all property" subject to ad valorem taxation. See FLA. ADMIN. CODE. ANN. r. 12D-1.002(2) (1997) (equating "just value" with "just valuation" and "market value"); Walter v. Schuler, 176 So. 2d 81, 85-86 (Fla. 1965) (finding "just valuation" legally synonymous with "fair market value," meaning that which a "purchaser willing but not obliged to buy[] would pay to one willing but not obliged to sell") (quoting Root v. Wood, 155 Fla. 613, 622, 21 So. 2d 133, 137-38 (Fla. 1945) (citations omitted)). This article uses the phrases "just value," "just valuation," and "market value" interchangeably. Return to text.

[40] FLA. STAT. 193.011 (1997). Return to text.

[41] See, e.g., Lanier v. Walt Disney World Co., 316 So. 2d 59, 62 (Fla. 4th DCA 1975). Return to text.

[42] See 12 THOMPSON ON REAL PROPERTY § 97.07(f)(1) (David A. Thomas ed., 1994) ("The cost approach assumes that no one would pay more for a building than what it would cost to build a new one."). Return to text.

[43] See id. The "income approach" is most commonly used in the valuation of commercial or industrial real property. Such property is typically valued on an income-per-square-foot basis. See, e.g., Mastroianni v. Barnett Banks, Inc., 664 So. 2d 284, 285 (Fla. 1st DCA 1995) (determining valuation of a high-rise office building). Return to text.

[44] See 12 THOMPSON ON REAL PROPERTY, supra note 42, § 97.07(f)(1) ("In the direct sales or market comparison approach, the appraiser assumes no one would pay more for a property than they would for an equally desirable one."). The "market approach" is commonly used for valuing residential real property because of the significant availability of comparative sales data. See id. Return to text.

[45] See, e.g., Walker v. Smathers, 507 So. 2d 1207, 1208 (Fla. 4th DCA 1987) (describing the permissible variation as a "reasonable range of values"). Return to text.

[46] See, e.g., Daniel v. Canterbury Towers, Inc., 462 So. 2d 497, 502 (Fla. 2d DCA 1984) ("It is because there are so many well recognized approaches and techniques for arriving at an appraisal decision that the property appraiser's decision may be overturned only if there is no reasonable hypothesis to support it."). Return to text.

[47] See FLORIDA DEPT. OF REV., CLASSIFIED USE REAL PROPERTY GUIDELINES, STANDARD ASSESSMENT PROCEDURES AND MEASURES OF VALUE, AGRICULTURAL GUIDELINES (1982) (incorporated by reference in FLA. ADMIN. CODE ANN. r. 12D-51.001 (1997)) (on file with Fla. DOR, Tallahassee, Fla.) [hereinafter AGRICULTURAL GUIDELINES]; see also 23 Fla. Admin. W. 3497, 3498 (July 18, 1997) (proposing to adopt Standard Measures of Value: Tangible Personal Property Appraisal Guidelines in FLA. ADMIN. CODE ANN. r. 12D-51.002) (copy of proposed guideline available at Fla. DOR, Tallahassee, Fla.). Return to text.

[48] See FLA. CONST. art VII, § 4(a)-(b); FLA. STAT. § 193.441 (1997); see also id. § 193.461(5) (listing various types of agricultural uses); AGRICULTURAL GUIDELINES, supra note 47. Return to text.

[49] In 1995, there were over 221,000 agricultural parcels in Florida. See FLA. DOR, AD VALOREM TAX TASK FORCE: AUGUST 27, 1996, MEETING DATA PRESENTATION 5 (1996) (on file at Fla. DOR, Tallahassee, Fla.) (presented to Florida Ad Valorem Tax Task Force on August 27, 1996) [hereinafter DOR DATA PRESENTATION]. The differential between the market value and taxable value of these parcels was over $27 billion, which resulted in a loss of potential ad valorem tax revenue of $595 million. See 1996 FLORIDA TAX HANDBOOK, supra note 4, at 129 (fiscal year 1995-96 data). Return to text.

[50] See, e.g., FLA. ADMIN. CODE ANN. r. 12D-7.006 to -7.014 (homestead property), -7.015 (property used for educational purposes), - 7.016 (government-owned property) (1997); see generally FLA. STAT. ch. 196 (1997). Return to text.

[51] See DOR DATA PRESENTATION, supra note 49, at 5. For tax year 1995, homestead parcels accounted for approximately 43% of all of the parcels subject to ad valorem taxation. See id. (accounting for over 3.3 million parcels). Only the first $25,000 of the assessed value of homestead property is exempt from ad valorem taxation. See FLA. CONST. art. VII, § 6(d); FLA. STAT. § 196.031(3)(d)-(e) (1997). Other types of property, such as that owned by governmental entities or religious institutions, are immune or fully exempt from ad valorem taxation. See FLA. CONST. art. VII, § 3(a); FLA. STAT. §§ 196.012(1), .192, .196, .199 (1997). Return to text.

[52] FLA. CONST. art. VII, § 4(c); see also PARTIAL YEAR ASSESSMENT REPORT, note 3, at 31. Return to text.

[53] See FLA. CONST. art. VII, § 4(c)(1)(A). The increase in the assessment may not exceed 3% of the assessment for the prior year or the percent change in the Consumer Price Index, whichever is lower. See id. § 4(c)(1); see also FLA. STAT. § 193.155 (1997) (implementing legislation). Return to text.

[54] See 1996 FLORIDA TAX HANDBOOK, supra note 4, at 129. Return to text.

[55] See FLA. STAT. § 194.011(2) (1997). Return to text.

[56] See id. Return to text.

[57] See id. Return to text.

[58] The VAB is composed of five members: three members of the board of county commissioners and two members of the local school board. See id. § 194.015. Return to text.

[59] Neither the "informal conference" nor the VAB process is a prerequisite to filing an action challenging the assessment in circuit court. See id. §§ 194.011(2), .034(1)(b). If the taxpayer does not seek review of the assessment by the VAB, the challenge must be filed in circuit court within 60 days after the assessment is certified for collection. See id. § 194.171(2). Return to text.

[60] Filing occurs upon receipt of the petition by the VAB. See 81-43 Fla. Op. Att'y Gen. 130, 131 (1981); cf. FLA. STAT. § 192.047(1) (1997) (stating that the application for exemption is deemed filed on the date of mailing). Return to text.

[61] See FLA. STAT. § 194.011(3)(d) (1997). The VAB, for good cause shown, may consider late-filed petitions if consideration would not "be prejudicial to [the VAB's] functions in the taxing process." FLA. ADMIN. CODE ANN. r. 12D-10.003(8) (1997). It was suggested to the Task force that the 25-day filing period be expanded so that the property appraiser would be given more time to resolve the taxpayer's concerns outside of the "formal" VAB process. See Fla. Ad Valorem Tax Task Force, tape recordings of proceedings (Aug. 27, 1996) (available at Fla. DOR, Tallahassee, Fla.) (comments of Ron Schultz, Citrus County Property Appraiser) [hereinafter August Tapes]. Return to text.

[62] See FLA. STAT. § 194.013(3) (1997). The filing fee may not exceed $15. See id. § 194.013(1). The fee is refundable to the taxpayer if he prevails before the VAB. See id. § 194.013(4). A bill introduced in the 1997 Regular Session would have increased the maximum allowable filing fee to $30. See Fla. SB 1556 (1997) (sponsored by Senator William Turner, Dem., Miami Shores). The bill was never heard by a committee and was ultimately withdrawn from consideration. See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF SENATE BILLS at 126, SB 1556. Return to text.

[63] See FLA. STAT. § 194.032(1)(a) (1997). Return to text.

[64] See id. § 194.035(1); FLA. ADMIN. CODE ANN. r. 12D-10.002 (1997). Each special master must be either an attorney knowledgeable in the area of ad valorem taxation or a professional real estate appraiser with no less than five years of experience. See FLA. STAT. § 194.035(1) (1997); see also 81-37 Fla. Op. Att'y Gen. 5 (1981) (discussing the necessary qualifications for real estate appraisers). Return to text.

[65] See FLA. ADMIN. CODE ANN. r. 12D-10.003 (1997); see also FLA. STAT. § 194.034 (1997). Return to text.

[66] See FLA. STAT. § 194.034(1)(a) (1997). Return to text.

[67] See id. Return to text.

[68] See id. Return to text.

[69] See id. § 194.034(2); FLA. ADMIN. CODE ANN. r. 12D-10.003(5) (1997). Return to text.

[70] See FLA. STAT. § 194.171(1) (1997). Venue for suits involving railroad property assessments is in Leon County. See id. § 193.085(4)(e). The complaint must be filed in circuit court within 60 days after the final certification of the assessment rolls. See id. § 194.171(2). Return to text.

[71] See id. § 194.036(2). Return to text.

[72] See id. § 194.036(1)(b). The property appraiser may only "appeal" if the variance from his assessment falls within the following range:

Assessment:Variance:
less than $50,000 15% $50,001 - 500,000 10% $500,001 - 1 million 7.5% greater than $1 million 5% See id. The property appraiser may also file suit against the VAB if he alleges (and DOR concurs) that the VAB's decisions consistently and continuously violate the intent of the law or administrative rules. See id. § 194.036(2)(c). Return to text.

[73] See id. § 194.036(3). The party initiating the "appeal" is designated "plaintiff," and the other party, the party that prevailed before the VAB, is designated "defendant." See id. § 194.181(1)-(2). Where the property appraiser initiates the proceeding, his burden is to demonstrate the correctness of his assessment. See Bystrom v. Equitable Life Assurance Soc'y of the U.S., 416 So. 2d 1133, 1146 (Fla. 3d DCA 1982) (Pearson, J., concurring in part). This burden can be satisfied by demonstrating the assessment was made "in substantial compliance with Section 193.011." Id. If the taxpayer initiates the action, his burden is to disprove "every reasonable hypothesis of a lawful assessment." See discussion infra Part II.C. Return to text.

[74] 416 So. 2d 1133 (Fla. 3d DCA 1982); see also FLORIDA STATE AND LOCAL TAXES, supra note 15, § 8.03 at 356-62. Return to text.

[75] See Bystrom, 416 So. 2d at 1146 (Pearson, J., concurring). Judge Pearson's concurring opinion, joined by Judge Hubbart, is actually the majority opinion with respect to the portion of the decision relating to the taxpayer's burden of proof in an "appeal" of the VAB's decision. See id. at 1145. Return to text.

[76] Id. at 1147. This principle does not apply, however, where both the taxpayer and the property appraiser appeal the VAB's decision. See id. Return to text.

[77] See id. Return to text.

[78] Judge Nesbitt suggested that the proceeding in circuit court was to review the VAB's valuation. See id. at 1143. The remainder of the panel disagreed and noted that Judge Nesbitt's view "would change the nature of the Circuit Court proceedings from de novo to classic certiorari." Id. at 1146 n.15 (Pearson, J., concurring). Return to text.

[79] Id. If, however, the county property appraiser's assessment was not entitled to a presumption of correctness because the property appraiser failed to consider each criterion in section 193.011, Florida Statutes, the taxpayer would only be required to overcome the VAB's determination by a "preponderance of the evidence." Id. at 1145. This was the case in Bystrom. See id. Return to text.

[80] See FLA. STAT. § 194.171(3) (1997). Payment of the tax owed prior to bringing an action in circuit court is not an admission that the tax was due and does not prejudice the taxpayer's right to challenge the tax or to seek a refund. See id. § 194.171(4). This provision, along with the interest and penalties that are assessed against the taxpayer if the challenge is unsuccessful, encourages full payment of the assessed tax. See id. § 194.192(2). Return to text.

[81] See id. § 194.171(5). Return to text.

[82] See id. § 191.171(6). Return to text.

[83] Interestingly, this standard is "codified" in DOR's rules governing the VAB. See FLA. ADMIN. CODE ANN. r. 12D-10.003(3) (1997) (citing Homer v. Dadeland Shopping Center, Inc., 229 So. 2d 834 (Fla. 1969)); see also infra notes 311-15 and accompanying text (discussing proposed amendments to FLA. ADMIN. CODE ANN. r. 12D-10.003(3)). Return to text.

[84] See Folsom v. Bank of Greenwood, 97 Fla. 426, 429-30, 120 So. 317, 318 (1929). At the outset, it is important to recognize that courts are generally reluctant to involve themselves in ad valorem tax matters. As one commentator noted:

This reluctance stems from two policy considerations. First, revenues required to fund essential governmental services require stability. Courts have always lived in fear that their intervention in the process would upset the stability of this essential revenue raising mechanism and cause turmoil in the provision of essential governmental services. Thus the courts have always felt that, barring peculiar circumstances, they should not be called upon to mediate between taxpayers and tax users. Secondly, the courts recognize the technical nature of the determination of the tax and all of its components (value, assessment, equalization factors, levy rates, etc.). They are also mindful of the elaborate administrative systems established by most legislatures to give taxpayers notice of these components and an opportunity to be heard by technically proficient administrative bodies before these components are finalized. Courts have felt that technically competent tax administrators are always better equipped to mediate disputes than are courts which probably are not technically proficient in the area and do not possess the resources to become proficient.
GREGORY J. LAFAKIS, BURDENS OF PROOF AND PRESUMPTIONS, 4-5 (1995) (available at Fla. DOR, Tallahassee, Fla.) (provided to the Florida Ad Valorem Tax Task Force at its meeting on November 13, 1996). Return to text.

[85] 97 Fla. 426, 120 So. 317 (1929). Return to text.

[86] See id. at 429, 120 So. at 318. These items are intangible personal property and are no longer subject to ad valorem taxation on the local level. See FLA. CONST. art. VII, §§ 1(a), 2. Currently, DOR administers the tax on intangible personal property. See FLA. STAT. ch. 199 (1997). Return to text.

[87] See Folsom, 97 Fla. at 429, 120 So. at 318. Return to text.

[88] See id. at 432, 120 So. at 319. Return to text.

[89] Id. at 429-30, 120 So. at 318. The court previously referred to this presumption of correctness in City of Tampa v. Palmer, 89 Fla. 514, 105 So. 115 (1925), stating that "[t]he good faith of tax officers and the validity of their official actions are presumed, and when assailed the burden of proof is upon the complaining party." Id. at 520, 105 So. at 117 (emphasis added) (citing Camp Phosphate Co. v. Allen, 77 Fla. 341, 353, 81 So. 503, 507 (1919)). Return to text.

[90] Folsom, 97 Fla. 430, 120 So. at 318 (emphasis added). In support of this standard, the court cited a number of United States and Florida Supreme Court decisions, including German-American Lumber Co. v. Barbee, 59 Fla. 493, 52 So. 292 (1910). In that case, the court described the appropriate standard in cases where a taxpayer is challenging the validity of an assessment as follows:

The law contemplates that a wide discretion be accorded to the tax assessor in the valuation of property for the purposes of taxation. In the absence of a clear and positive showing of fraud or of an illegal act or of an abuse of discretion rendering an assessment authorized by law so arbitrary and discriminating as to amount to a fraud upon a taxpayer or to a denial of the equal protection of the laws, the courts will not in general control the discretion of the tax assessor in making valuations for taxing purposes.
Id. at 498-99, 52 So. at 294. Return to text.

[91] Some courts have couched the standard in slightly different terms. See, e.g., Blake v. Xerox Corp., 447 So. 2d 1348, 1350 (Fla. 1984) (stating that the issue is "whether the appraiser . . . could conceivably and reasonably have arrived at the appraisal value being challenged"); Walker v. Trump, 549 So. 2d 1098, 1104 (Fla. 4th DCA 1989) (holding that a taxpayer must demonstrate that there is "no reasonable basis whatsoever" for the challenged assessment). Return to text.

[92] See, e.g., Blake, 447 So. 2d at 1351 (valuation of tangible personal property); Powell v. Kelly, 223 So. 2d 305, 307 (Fla. 1969) (valuation of timberland property); Davis v. St. Joe Paper Co., 652 So. 2d 907, 908-09 (Fla. 1st DCA), rev. denied, 661 So. 2d 825 (Fla. 1995) (denying classified status); St. Petersburg Kennel Club, Inc. v. Smith, 662 So. 2d 1270, 1271 (Fla. 2d DCA 1995) (denying classified status). It does not appear that the "every reasonable hypothesis" standard, as such, has been applied in cases where the taxpayer challenges the denial of an exemption. In this regard, courts appear more willing to second-guess the property appraiser's determination with respect to exemptions. See, e.g., Robbins v. Florida Conference Assoc. of Seventh Day Adventists, 641 So. 2d 893, 894 (Fla. 3d DCA 1994) (reversing the property appraiser's determination that a vacant lot owned by a church was not entitled to religious exemption). However, the taxpayer has the burden to prove his entitlement to the exemption. See, e.g., Jar Corp. v. Culbertson, 246 So. 2d 144, 145 (Fla. 3d DCA 1971). Return to text.

[93] 664 So. 2d 284 (Fla. 1st DCA 1995). Arguably, this decision triggered the subsequent legislative actions that resulted in the repeal of the "any reasonable hypothesis" standard. Senator Horne, one of the primary sponsors of the 1997 legislation that accomplished this goal, is from the Jacksonville area, and the unsuccessful taxpayer/plaintiff in Mastroianni was Barnett Bank, a Jacksonville-based corporation. Return to text.

[94] See id. at 285. Return to text.

[95] See id. The VAB affirmed the county property appraiser's assessment for 1992, but reduced the assessment for 1993 to $60 million. See id. Barnett appealed the former decision and the property appraiser appealed the latter. See id. The cases were consolidated for trial and the appeal. See id. Return to text.

[96] See id. at 286. Return to text.

[97] See id. at 287. Return to text.

[98] See id. at 287-88. Return to text.

[99] Id. at 288. Return to text.

[100] Id. The county property appraiser considered, but rejected, the market value and cost approach to valuation of the property. See id. at 285. Instead, the appraiser relied upon the income approach. See id. at 286. Return to text.

[101] See id. at 286-87. Return to text.

[102] See id. at 286. The 80% rate reflected the average occupancy rate for downtown Jacksonville office buildings. See id. at 288. Return to text.

[103] Id. at 288 (citations omitted and emphasis added); accord Florida East Coast Ry. Co. v. Department of Rev., 620 So. 2d 1051, 1060-61 (Fla. 1st DCA 1983) (upholding the property appraiser's valuation which considered, but did not use, actual income figures). But see Bystrom v. Hotelerama Assoc. Ltd., 431 So. 2d 176, 177 (Fla. 3d DCA 1983) (finding that it was error not to consider actual income figures). Return to text.

[104] 447 So. 2d 1348 (Fla. 1984). Return to text.

[105] Id. at 1350-51. The property appraiser relied upon the list-price-less-depreciation method for valuing Xerox's property in Dade County. See id. at 1350. Xerox argued that the property should be valued based upon the income capitalization method. See id. The trial court determined that the method used by the appraiser was "better," but the district court reached the opposite conclusion. See id. Return to text.

[106] Id. at 1351. Return to text.

[107] See Adolph Koeppel & Saul R. Fenchel, Challenging Ad Valorem Real Property Assessments in Florida, FLA. B.J., Oct. 1983, at 540, 542 n.14. Return to text.

[108] See COMPARISON OF TAX SYSTEMS, supra note 9, at 4 n.2. Return to text.

[109] See id. at 5-6, Table 2. Return to text.

[110] Ninety-three members were listed as co-sponsors of House Bill 557, and 32 members co-sponsored Senate Bill 740. See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1996 REGULAR SESSION, HISTORY OF HOUSE BILLS at 266, HB 557; id. HISTORY OF SENATE BILLS at 83, SB 740. Return to text.

[111] House Bill 557 was heard by the House Judiciary Committee during the second week of the session. See id., HISTORY OF HOUSE BILLS at 266, HB 557. Senate Bill 740 was heard by the Senate Judiciary Committee during the first week of the session. See id., HISTORY OF SENATE BILLS at 83, SB 740. Return to text.

[112] Fla. HB 557 (1996); Fla. SB 740 (1996) (emphasis added). Return to text.

[113] See Fla. H.R. Comm. on Judiciary, HB 557 (1996) Staff Analysis 1, 4-5 (final June 3, 1996) (on file with comm.) [hereinafter HB 557 Staff Analysis]. This argument is apparently based upon the assumption that more taxpayers would prevail in challenges to the property appraiser's assessment of their property under this lower standard. To prevail, however, the taxpayer must demonstrate that the assessment is in excess of "just value." See id. at 5. Therefore, a necessary assumption of the opponents' argument regarding the fiscal impact of the bill is that the property of many taxpayers is currently assessed in excess of "just value." See id. In this regard, the comments of Justice Terrell in City of Tampa v. Palmer, 89 Fla. 514, 105 So. 115 (1925), seem particularly applicable: "I am convinced that a very large proportion of our taxpayers are burdened with [excessive assessments], . . . but [they] must be shown to have been made under circumstances amounting to fraud, before equity can relieve against them." Id. at 536, 105 So. at 122 (Terrell, J., concurring). Return to text.

[114] The Speaker of the House determined that House Bill 557 implicated the mandate provisions of article VII, section 18 of the Florida Constitution. See HB 557 Staff Analysis, supra note 113, at 5-6; see also Fla. S. Comm. on Ways and Means, CS for SB 740 (1996) Staff Analysis 4-5 (Apr. 25, 1996) (on file with comm.). Specifically, the bill would reduce the authority of local governments to raise revenues. See Fla. HB 557 Staff Analysis, supra note 113, at 4-6. As a result, the bill must be passed by two-thirds of the membership of both houses of the Legislature. See FLA. CONST. art. VII, § 18(b). As discussed below, the Legislature approved House Bill 557 by the necessary vote. See infra notes 124-25 and accompanying text. Return to text.

[115] See HB 557 Staff Analysis, supra note 113, at 2, 6. Return to text.

[116] See id. at 6. Return to text.

[117] See id. at 2; see also THOMAS W. LOGUE, THE PROPERTY APPRAISER'S PRESUMPTION OF CORRECTNESS: ANSWERS TO COMMON QUESTIONS 3-5 (available at Fla. DOR, Tallahassee, Fla.) (presented to Florida Ad Valorem Tax Task Force on Oct. 24, 1996). Return to text.

[118] For example, in Daniel v. Canterbury Towers, Inc., 462 So. 2d 497 (Fla. 2d DCA 1984), the court opined: "The reason for the 'no reasonable hypothesis' doctrine with respect to the judicial review of property appraiser decisions, is that there are numerous, and sometimes conflicting, appraisal theories or techniques for establishing an opinion as to real estate value." Id. at 502. Accord Powell v. Kelly, 223 So. 2d 305, 309 (Fla. 1969) ("The appraisal of real estate is an art, not a science."); Schleman v. Connecticut Gen. Life Ins. Co., 151 Fla. 96, 104-05, 9 So. 2d 197, 200 (1942). But see Straughn v. Tuck, 354 So. 2d 368, 371 (Fla. 1977) ("Tax assessors are constitutional officers and as such their actions are clothed with the presumption of correctness."). Return to text.

[119] See generally 16 C.J.S. Constitutional Law § 129 (1984) ("The Legislature may also regulate the burden of proof, and the extent thereof required.") (citations omitted); 10 FLA. JUR. 2D Constitutional Law §§ 183-84 (1979 & Supp. 1997) (discussing the boundaries of legislative infringement on judicial powers); see also CHARLES EHRHARDT, FLORIDA EVIDENCE § 303.1 (1997) (distinguishing the procedural "bubble bursting" presumption from those presumptions based upon public policy). The presumption of correctness afforded to the property appraiser's assessment is based upon public policy considerations, see infra notes 303-07 and accompanying text, and, therefore, is not a "bubble bursting" presumption. As such, the presumption, and the related burden of proof, are not exclusively procedural in nature. In this regard, Professor Ehrhardt noted:

The burden of persuasion that must be met to disprove the presumed fact is defined by the applicable substantive law and is not the same for all section 90.304 presumptions. For example, a presumption may require a preponderance of the evidence or clear and convincing evidence to disprove the presumed fact. Another presumption may require proof of fraud to overcome the burden. Usually, the stronger the social policy underlying the presumption, the greater quantum of proof required to overcome the presumption.
EHRHARDT, supra, § 304.1 (footnotes omitted) (emphasis added). Return to text.

[120] See Fla. CS for SB 740, § 1 (1996). Return to text.

[121] See id. Return to text.

[122] Id. § 3. The committee substitute also required OPPAGA to study the fiscal impacts of the reduction in the burden of proof and report its findings to the Legislature prior to the 1999 Session. See id. § 2. It was expected that the OPPAGA report would be used by the Legislature to determine whether to extend the applicability of the "preponderance of the evidence" burden of proof beyond 1999. Return to text.

[123] See Fla. H.R. Comm. on Fin. & Tax'n, Amendment 1 to Fla. HB 557 (1996) (on file with comm.) (proposed FLA. STAT. ' 194.171) (Starks amendment). The amendment to House Bill 557 did not include the OPPAGA study of the fiscal impacts of the lower burden of proof. See id. An amendment that would have created a study commission in lieu of any reductions to the burden of proof was defeated in the House Finance and Tax Committee. See H.R. Comm. on Fin & Tax'n, Amendment 2 to HB 557 (1996) (on file with comm.) (proposed FLA. STAT. ' 194.171) (Geller amendment). The study commission would have served from July 1, 1996, through June 30, 1998, and was directed to "study the current procedure for challenging ad valorem assessments and determine whether changes are necessary." Id. Return to text.

[124] See FLA. H.R. JOUR. 1574-75 (Reg. Sess. 1996). Return to text.

[125] See FLA. S. JOUR. 838-39, 906 (Reg. Sess. 1996); see also FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1996 REGULAR SESSION, HISTORY OF HOUSE BILLS at 266, HB 557. Return to text.

[126] See Exec. Office of the Gov., Office of Legis. Aff., Legislative Bill Analysis, HB 557, 2-3 (May 22, 1996) (on file with Exec. Office of the Gov., Office of Legis. Aff.) (listing opponents of House Bill 557); see also Letter from Bruce Host, Chairman, Leon County Board of County Commissioners to The Honorable Lawton Chiles, Governor of Florida (May 15, 1996) (available at Exec. Office of the Governor, Office of Legis. Aff.) ("We urge you to reject HB 557 . . . ."); Letter from Jim Naugle, Mayor, City of Ft. Lauderdale, to The Honorable Lawton Chiles, Governor of Florida (May 20, 1996) (available at Exec. Office of the Gov., Office of Legis. Aff.) ("We respectfully request that you VETO [House Bill 557]."). Return to text.

[127] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1996 REGULAR SESSION, HISTORY OF HOUSE BILLS at 266, HB 557. Return to text.

[128] Veto of Fla. HB 557 (1996) (letter from Gov. Chiles to Sec'y of State Sandra B. Mortham, May 31, 1996) (on file with Sec. of State, The Capital, Tallahassee, Fla.) [hereinafter Veto Message]. Return to text.

[129] Id. at 1. The Governor noted that estimates of the fiscal impacts to local governments of House Bill 557 ranged from $70 million to over $480 million. See id. at 2; see also HB 557 Staff Analysis, supra note 113, at 1, 4-5 (estimating an annual negative fiscal impact to local governments of $69.5 to $160.3 million). Return to text.

[130] Veto Message, supra note 128, at 2 (emphasis added). Return to text.

[131] See Fla. Exec. Order No. 96-172 (May 31, 1996). Return to text.

[132] Id. § 2. Return to text.

[133] See id. Return to text.

[134] Compare id. § 2(a)-(f), with Fla. HB 557, §§ 2-3 (1996) (enrolled version). Return to text.

[135] See Fla. Exec. Order No. 96-172, § 2(d) (May 31, 1996). However, as discussed in Part III.A.1., the burden of proof issue became the focus of the Task Force. Return to text.

[136] See Press Release from the Executive Office of the Gov., Gov. Lawton Chiles (June 21, 1996) (announcing appointments to the Florida Ad Valorem Task Force) (on file with author) [hereinafter Press Release]. Return to text.

[137] Dem., Auburndale. Return to text.

[138] Dem., Miami Shores. Return to text.

[139] See Press Release, supra note 136, at 2. Return to text.

[140] See id. at 1. Return to text.

[141] See FLA. AD VALOREM TAX TASK FORCE, REPORT TO THE GOVERNOR AND THE LEGISLATURE 2, 13 (March 1997) (available at Fla. DOR, Tallahassee, Fla.) (summarizing the Task Force's July 25, 1996, meeting) [hereinafter TASK FORCE REPORT]. Return to text.

[142] See id. at 13-14 (summarizing comments of Senator Jim Horne). Return to text.

[143] See id. at 15. Return to text.

[144] See id. at 16-17 (summarizing the Task Force's August 27, 1996, meeting). Return to text.

[145] See LOCAL GOVERNMENT REVENUE SUMMARY, supra note 3. Return to text.

[146] See DOR DATA PRESENTATION, supra note 49. Return to text.

[147] See FLA. CONST. art. VII, § 9(b). Return to text.

[148] See id. The total millage rates of the water management districts are capped at:

Rate:District:

.05 mils Northwest Florida Water Management District

.075 mils Suwannee River Water Management District

.6 mils St. Johns River Water Management District

1.0 mils Southwest Florida Water management District

.80 mils South Florida Water Management District

See FLA. STAT. § 373.503(3)(a) (1997). Return to text.

[149] See August Tapes, supra note 61 (comments of Marsha Hosack, ACIR); see also FLORIDA JT. ADVIS. COUNCIL ON INTERGOVTL. REL., LOCAL GOVERNMENT REVENUES IN FLORIDA: FOLLOW- UP INFORMATION Fig. 1 (1996) (available at Fla. DOR, Tallahassee, Fla.) (presented at Sept. 12, 1996, meeting of the Florida Ad Valorem Tax Task Force) [hereinafter LOCAL GOVERNMENT REVENUES FOLLOW- UP]. Return to text.

[150] See August Tapes, supra note 61 (comments of Marsha Hosack, ACIR). Return to text.

[151] See id.; LOCAL GOVERNMENT REVENUES FOLLOW- UP, supra note 149, at Table 3. Return to text.

[152] See August Tapes, supra note 61 (comments of Marsha Hosack, ACIR). Return to text.

[153] FLA. STAT. § 120.52(17) (1997) (defining "small county" as a county with a population less than 75,000). Return to text.

[154] See LOCAL GOVERNMENT REVENUES FOLLOW- UP, supra note 149, at Fig. 1. Of the listed counties, only Alachua and Pasco have populations in excess of 75,000. See id. Return to text.

[155] See DOR DATA PRESENTATION, supra note 49, at 1-8. Return to text.

[156] See id. at 1. This amounts to almost $469 billion of taxable value statewide. See id. (1995 data). On a parcel basis, improved residential real property accounted for almost 67% of the real property. See id. at 5 (43% homestead and 23.7% non-homestead). Commercial and industrial real property made up only 2.7% of the parcels, but represented 21% of the taxable value of all property subject to ad valorem taxation. See id. at 2, 3 (1995 data). These figures were consistent with the 1994 data. See id. at 4, 6. Return to text.

[157] See id. Return to text.

[158] See id. at 2. In 1994, real property made up 87.6% of the taxable value of all property subject to ad valorem taxation. See id. Tangible personal property accounted for 12.2%, and centrally assessed property made up the remaining .1%. See id. Return to text.

[159] See id. at 9-10. The data also contained the number and percentage of petitions for exemptions that were filed and granted. See id. In this regard, the VABs granted 48.8% of the exemption petitions filed in 1995 (excluding Dade County) and 50.2% of the exemption petitions filed in 1994. See id. Return to text.

[160] See id. at 9. The 1995 data does not include petitions filed in Dade County. As of the date the DOR data was presented to the Task Force, the 1995 Dade County VAB proceedings were still underway. See id. In 1994, nearly 31,000 valuation petitions were filed in Dade County alone, and taxpayers prevailed in 42.9% of those cases. See id. at 10. Therefore, the 29.7% "success" rate likely underestimates the actual figure for 1995 once Dade County is factored in. Return to text.

[161] See id. Return to text.

[162] See id. at 9-10. The 1995 figure does not include data from Dade County because its VAB proceedings had not been completed as of the Task Force's August meeting. See supra note 159. In 1994, Dade County accounted for almost $33.5 million of the estimated fiscal impact of the reduction in value by the VAB. See DOR DATA PRESENTATION, supra note 49, at 10. If a similar reduction occurred in Dade County in 1995, the total negative fiscal impact in 1995 would have been approximately $52.5 million. See id. Return to text.

[163] See DOR DATA PRESENTATION, supra note 49, at 9-10. Of those counties, only Lafayette, Taylor, and Union counties had no valuation petitions filed with their VAB in either 1994 or 1995. See id. Return to text.

[164] See August Tapes, supra note 61 (comments of Stan Beck). Task Force member Senator William Turner agreed that the issue of under-valuation should be addressed by the Task Force. See id. (comments of Sen. William Turner). However, this issue never received any serious consideration by the Task Force. Any under-valuation of the county's assessment rolls should be caught by DOR in its review of the rolls pursuant to Rule 12D-8, Florida Administrative Code. DOR requires a level of assessment—fair market value to assessed value—of at least 85% for roll approval. See July Tapes, supra note 24 (comments of Steve Keller). DOR reported that the statewide average is 97.6%. See id. Whether this 85% standard satisfies the "just valuation" requirements of the Florida Constitution is beyond the scope of this Article. Compare 1996 FLORIDA TAX HANDBOOK, supra note 4, at 134 (suggesting that the elimination of subsections (1) and (8) of section 193.011, Florida Statutes, would essentially require 100% assessments), with DOR, PRESENTATION TO THE GOVERNOR'S TASK FORCE ON AD VALOREM TAX - DECEMBER 17, 1996 - JACKSONVILLE, FLORIDA 8-12 (1996) (on file with Fla. DOR, Tallahassee, Fla.) (discussing the basis of the 85% standard) [hereinafter DOR DECEMBER PRESENTATION]. Return to text.

[165] On this issue, DOR staff conceded that these percentages may overstate the taxpayers' "success rate" in overcoming the "every reasonable hypothesis" standard because some of the cases in which the VAB granted the petition resulted from a stipulation by the property appraiser that an adjustment should be made. See August Tapes, supra note 61 (comments of Lance Larson). But see DOR DATA PRESENTATION, supra note 49, at 12-13 (listing value reductions by property appraiser). The property appraisers suggested that "success" should be defined as a circumstance where the taxpayer obtained a reduction in his assessment, whether that reduction was the result of a VAB decision (stipulated or unstipulated) or a "counter change" after the informal conference with the property appraiser. See August Tapes, supra note 61. Under this definition of "success," the 29.7% and 39.1% rates may understate the taxpayer's "success rate" in contesting the assessment of his property. Return to text.

[166] See TASK FORCE REPORT, supra note 141, at 16-17 (summarizing the Task Force's August 27, 1996, meeting). Return to text.

[167] See id.; see also August Tapes, supra note 61 (comments of Ron Schultz, Citrus County Property Appraiser). Return to text.

[168] See August Tapes, supra note 61. Return to text.

[169] See id. Return to text.

[170] See Memorandum from Brian H. Bibeau and T. Kent Wetherell, II, attorneys with Hopping Green Sams & Smith, P.A., to file 3 (Aug. 28, 1996) (on file with author) (summarizing the Task Force's August 27, 1996, meeting) [hereinafter Hopping Green Memorandum]. Return to text.

[171] See id. Return to text.

[172] Bradford County Prop. Appraiser. See Press Release, supra note 136, at 1. Return to text.

[173] See Hopping Green Memorandum, supra note 170, at 3. Return to text.

[174] See TASK FORCE REPORT, supra note 141, at 18-19 (summarizing the Task Force's September 12, 1996, meeting). Return to text.

[175] LCIR was formerly known as the Advisory Council on Intergovernmental Relations (ACIR). The 1996 Legislature reorganized the committee and changed its name. See Act effective Nov. 5, 1996, ch. 96-311, §§ 1, 9, 1996 Fla. Laws 1403, 1413 (repealing FLA. STAT. §§ 163.701 -.708 (1995) and creating FLA. STAT. § 11.70 (Supp. 1996)). Return to text.

[176] See FLA. DOR, ANALYSIS OF VALUE ADJUSTMENT BOARDS AND SPECIAL MASTERS: 1994 ASSESSMENTS (1996) (on file with Fla. DOR, Tallahassee, Fla.) [hereinafter VAB/SPECIAL MASTER REPORT]. Return to text.

[177] See id. at 3. The counties that utilized special masters are primarily the larger counties. See id. at 2-3. For example, Broward County employed 44 special masters, and Dade County employed 29 special masters. These counties generally have the greatest number of petitions filed with their VABs. See DOR DATA PRESENTATION, supra note 49, at 9-10. Therefore, a vast majority of the petitions filed statewide are currently most likely heard by a special master. See VAB/SPECIAL MASTER REPORT, supra note 176; see also DOR DATA PRESENTATION, supra note 49, at 9-10. Return to text.

[178] See VAB/SPECIAL MASTER REPORT, supra note 176, at 2-3. Return to text.

[179] See id. Return to text.

[180] See id. Return to text.

[181] The counties were Dade (4.31%), Glades (2.46%), Broward (1.57%), Palm Beach (1.35%), Duval (1.15%), and Hillsborough (1.06%). See id. Return to text.

[182] See TASK FORCE REPORT, supra note 141, at 19 (summarizing the Task Force's September 12, 1996, meeting). For a discussion of this standard, see supra Part II.C. Return to text.

[183] 447 So. 2d 1348 (Fla. 1984). Return to text.

[184] 77 Fla. 341, 81 So. 503 (1919). Return to text.

[185] 176 So. 2d 81 (Fla. 1965). Return to text.

[186] 549 So. 2d 1098 (Fla. 4th DCA 1989). Return to text.

[187] 664 So. 2d 284 (Fla. 1st DCA 1995). Return to text.

[188] 665 So. 2d 1071 (Fla. 5th DCA 1995). This case was cited as an example in which the taxpayer overcame the "every reasonable hypothesis" burden of proof. See Fla. Ad Valorem Tax Task Force, tape recordings of proceedings (Sept. 12, 1996) (available at Fla. DOR, Tallahassee, Fla.); see also TASK FORCE REPORT, supra note 141, at 19 (listing cases discussed at the Task Force's September 12, 1996, meeting). However, the case does not stand for that proposition; the property appraiser's presumption of correctness was lost in this case because he failed to consider each criterion in section 193.011, Florida Statutes (1991). See Havill, 665 So. 2d at 1076-77, 1079. Return to text.

[189] See TASK FORCE REPORT, supra note 141, at 19 (summarizing the Task Force's September 12, 1996, meeting). The Task Force also heard a presentation by Florida State University College of Law Professor Charles Ehrhardt regarding the various burdens of proof in Florida law. See id. Professor Ehrhardt also commented on the "hybrid" nature of the "de novo appeal" to circuit court. See id.; see also supra notes 74-79 and accompanying text. Return to text.

[190] See TASK FORCE REPORT, supra note 141, at 18 (summarizing the Task Force's September 12, 1996, meeting). Return to text.

[191] See id. Return to text.

[192] See id. at 19. Return to text.

[193] See discussion infra Part III.A.1.d. Return to text.

[194] See discussion infra Part III.A.1.d. The computer software issue relates to the proper measure of value to be given to computer programs and other software for ad valorem tax purposes. Legislation was introduced in the 1996 Regular Session to define "computer software" for purposes of ad valorem taxation to include only the value of the uninstalled medium on which the software is stored, for example disk or tape. See Fla. SB 2226 (1996) (proposed FLA. STAT. § 192.001(19)); Fla. HB 2273 (1996) (same). The increased value to the computer system resulting from the installation or operation of the software is not to be included in the software's value for ad valorem tax purposes. See Fla. SB 2226 (1996); Fla. HB 2273 (1996). The Task Force never addressed the computer software issue. The Legislature approved a bill during the 1997 Regular Session that was identical to those considered in 1996. See Act effective June 1, 1997, ch. 97-294, § 1, 1997 Fla. Laws 5333, 5334 (codified at FLA. STAT. § 192.001(19) (1997)). Return to text.

[195] See TASK FORCE REPORT, supra note 141, at 20-21 (summarizing the Task Force's October 24, 1996, meeting). Perhaps the most interesting information brought to the attention of the Task Force during the course of its deliberations was presented at the October meeting. Excerpts from the Dade County real property tax rolls were provided to the Task Force to demonstrate the range of assessments contained therein. More interesting than the range of assessments (from $24,000 to $7.3 million) were the identities of the property owners. Included in the excerpts were Madonna (assessed value $2.1 million), Sylvester Stallone (assessed value $7.3 million), Miami Heat Coach Pat Riley (assessed value $4.8 million), and Leona Helmsley (assessed value $4.6 million). See DADE COUNTY, EXCERPT OF 1996 REAL PROPERTY TAX ROLLS (1996) (available at Fla. DOR, Tallahassee, Fla.) (presented to the Florida Ad Valorem Tax Task Force on Oct. 24, 1996). Return to text.

[196] See TASK FORCE REPORT, supra note 141, at 20 (summarizing the comments of Dr. David Morris at the Task Force's October 24, 1996, meeting). Return to text.

[197] See id. at 21 (summarizing comments of Steve Schultz, attorney for Dade County's VAB). Return to text.

[198] See id. at 20-21. One speaker noted that the "every reasonable hypothesis standard" is tantamount to a fraud standard. See id. at 21 (summarizing comments of Jeff Manling); see also German-American Lumber Co. v. Barbee, 59 Fla. 493, 498, 52 So. 292, 294 (1910) (suggesting that fraud must be demonstrated to overturn the property appraiser's assessment). Return to text.

[199] See FLORIDA DOR, RESULTS OF LITIGATION SURVEYS 1994-1995 (on file with Fla. DOR, Tallahassee, Fla.) (presented to the Florida Ad Valorem Tax Task Force on October 24, 1996). Return to text.

[200] See id. For example, 28 of the 36 cases filed in Pinellas County in 1994 were settled. See id. at 7. Return to text.

[201] One case was in Palm Beach County, the other in Seminole County. See id. at 7, 8. In the Palm Beach County case, the property appraiser and the VAB determined the taxable value of the property to be $304,920. See id. at 7. The court reduced this value to $150,000. See id. In the Seminole County case, the property appraiser and the VAB determined the taxable value of the property to be $1,000,000. See id. at 8. The court reduced this value to $363,200. See id. The 1995 data do not identify any case in which the property appraiser prevailed in the circuit court; however, the data are relatively incomplete. See id. at 10-16. Return to text.

[202] It is interesting to note that the taxpayer's "success" rate is lower in circuit court than it is before the VAB. See supra notes 159-61 and accompanying text (describing taxpayers' "success rate" before the VAB). This difference is not surprising, however, since one would expect the courts to be more deferential to the challenged assessment (even in the absence of the "every reasonable hypothesis" standard), especially where the assessment has already been "upheld" by the VAB. Return to text.

[203] Assistant Dade County Att'y. Return to text.

[204] See THOMAS W. LOGUE, ALTERNATIVE PROPOSAL TO CHANGING THE PRESUMPTION OF CORRECTNESS TO PREPONDERANCE OF THE EVIDENCE 1 (1996) (available at Fla. DOR, Tallahassee, Fla.) (presented at the Florida Ad Valorem Tax Task Force meeting on October 24, 1996) [hereinafter LOGUE PROPOSAL]. Return to text.

[205] Id. at 1-2. This standard would replace the "every reasonable hypothesis" standard, which, according to Mr. Logue, is "confusing and contentious." Id. at 2. To this end, the proposal did not lower the existing standard, it merely renamed it. See GAYLORD A. WOOD, JR. & B. JORDAN STUART, THE PRESUMPTION OF CORRECTNESS IN PROPERTY TAX LITIGATION 4 (1995) (available at Fla. DOR, Tallahassee, Fla.) (presented at the Florida Ad Valorem Tax Task Force meeting on October 24, 1996); Letter from Steven A. Schultz, attorney, to Steve Pajcic, Chair of the Florida Ad Valorem Tax Task Force 2-3 (Nov. 4, 1996) (available at Fla. DOR, Tallahassee, Fla.) (summarizing Mr. Schultz' presentation to the Task Force on October 24, 1996) [hereinafter Schultz Letter]. Return to text.

[206] See supra Part II.A.1; see also Schultz Letter, supra note 205, at 2 ("Reasonable men may differ regarding the valuation of property, but ordinarily there is an acceptable 'range of values' within which most appraisals will fall."). Return to text.

[207] See LOGUE PROPOSAL, supra note 204, at 1-2. Return to text.

[208] See id. at 2. Return to text.

[209] Id. (emphasis added). Return to text.

[210] See id. ("The use of knowledgeable special masters ensures a process that is more professional and efficient."); see also supra notes 170-73 and accompanying text. Return to text.

[211] See LOGUE PROPOSAL, supra note 204, at 2-3 (proposing modifications to the percentages in FLA. STAT. § 194.036(1)(b) (Supp. 1996)). Return to text.

[212] See id. at 3 (proposing a requirement that taxpayers file all supporting documents within 45 days of filing a petition with the VAB to avoid "trial by ambush" before the VAB). Return to text.

[213] See TASK FORCE REPORT, supra note 141 (summarizing the Task Force's October 24, 1996, meeting). Return to text.

[214] See discussion supra Part III.A.1.e. Return to text.

[215] See TASK FORCE REPORT, supra note 141 at 22-23 (summarizing the Task Force's November 21, 1996, meeting). Return to text.

[216] FLA. STAT. § 192.042 (1997). Return to text.

[217] See TASK FORCE REPORT, supra note 141, at 22 (summarizing the comments of Larry Levy, who represents PAAF, at the Task Force's November 21, 1996, meeting); see also Letter from Larry E. Levy to Representative Bo Johnson, Speaker of the House of Representatives 2-3 (Mar. 19, 1993) (available at Fla. DOR, Tallahassee, Fla.) (provided to the Florida Ad Valorem Tax Task Force at its meeting on November 12, 1996) [hereinafter 1993 Levy Letter]. Return to text.

[218] See TASK FORCE REPORT, supra note 141, at 22 (summarizing comments of Dick Drennen and Janet Bowman at Task Force's November 21, 1996, meeting). Return to text.

[219] See PARTIAL YEAR ASSESSMENT REPORT, supra note 3, at 5. Return to text.

[220] See FLA. STAT. § 192.042 (1997). Return to text.

[221] An improvement is deemed "substantially complete[]" if "the improvement or some self-sufficient unit within it can be used for the purpose for which it was constructed." FLA. STAT. § 192.042(1) (1997). In the context of real property, improvements are not generally considered "substantially complete" until a certificate of occupancy is issued. See, e.g., Markam v. Yankee Clipper Hotel, Inc., 427 So. 2d 383, 385 (Fla. 4th DCA 1983) (affirming the finding that the building was not substantially complete where evidence included the fact that the certificate of occupancy was not issued until after January 1); John Henry Jones, Inc. v. Lanier, 376 So. 2d 450, 451 (Fla. 5th DCA 1979) (reasoning that whether the building was eligible to receive a certificate of occupancy on January 1 is evidence of substantial completion). Return to text.

[222] See PARTIAL YEAR ASSESSMENT REPORT, supra note 3, at 5. Return to text.

[223] See, e.g., The Partial Year Solution, MIAMI HERALD, Feb. 3, 1997, at A12; Getting a Free Ride, JACKSONVILLE TIMES-UNION, Feb 8, 1997, at A16. One source estimates that partial-year taxation could yield as much as $197 million in revenue. See 1996 FLORIDA TAX HANDBOOK, supra note 4; see also PARTIAL YEAR ASSESSMENT REPORT, supra note 3, at Table 1 (estimating potential county, school district, and municipal revenue for partial-year taxation at approximately $80 million). Return to text.

[224] See, e.g., Dina Nelson, State Tax Law Costing Counties Millions, PALM BCH. POST, Feb. 9, 1997, at B1; Craig Sikes, Valuable Property, ORLANDO SENT., Apr. 10, 1997, at A22; see also LOCAL GOVERNMENT FINANCES REPORT, supra note 3, at 5-13. Return to text.

[225] See Fla. HB 1693 (1995) (died in committee); Fla. HB 809 (1996) (died in committee); Fla. SB 402 (1996) (died on calendar); Fla. HJR 1449 (1997) (proposing an amendment to FLA. CONST. art. VII, § 2) (carried over to 1998 session); Fla. SJR 1236 (1997) (proposing an amendment to FLA. CONST. art. VII, § 4) (died in committee). Return to text.

[226] See PARTIAL YEAR ASSESSMENT REPORT, supra note 3, at 5. Return to text.

[227] See, e.g., Fla. SB 402, §§ 3, 6 (1996). Return to text.

[228] See, e.g., 1993 Levy Letter, supra note 217, at 4 ("A partial-year assessment roll simply is not administratively feasible."); see also PARTIAL YEAR ASSESSMENT REPORT, supra note 3, at 40-43 (discussing administrative costs from instituting partial year assessment). Return to text.

[229] The average aggregate millage rate imposed on property within Florida is 22.26 mils. See LOCAL GOVERNMENT FINANCES REPORT, supra note 3, at A-2-A-3. This rate reflects the millage imposed by each taxing authority with jurisdiction over a parcel, excluding the applicable municipality. See id. Return to text.

[230] The taxes are computed by multiplying the taxable value by the millage rate and by the ratio that reflects the number of months that the improvements were completed during 1997—$100,000 x (.001 x 20) x 6/12 = $1000. Return to text.

[231] See, e.g., Fla. HB 809 (1996) (providing for partial year assessment). Return to text.

[232] See 1993 Levy Letter, supra note 217, at 3; Memorandum from Larry E. Levy, General Counsel, Property Appraiser's Association of Florida, to The Honorable Marjorie Turnbull, The Honorable Stephen B. Feren, & The Honorable Ken Pruitt, Members of the Florida Legislature 1, 3 (Mar. 25, 1996) (available at Fla. DOR, Tallahassee, Fla.) (arguing that the proposed 1996 partial-year taxation legislation unconstitutionally distinguished between real and personal property) [hereinafter 1996 Levy Memorandum]. Return to text.

[233] See Interlachen Lakes Estates, Inc. v. Snyder, 304 So. 2d 433, 435 (Fla. 1974). But see Colding v. Herzog, 467 So. 2d 980, 983 (Fla. 1985) (suggesting that the Legislature could classify or exclude certain property from ad valorem taxation where the costs associated with collection of the tax would exceed the revenue generated). Return to text.

[234] See PARTIAL YEAR ASSESSMENT REPORT, supra note 3, at 27-29; 1996 Levy Memorandum, supra note 232, at 2-3. Return to text.

[235] See FLA. CONST. art. VII, ' 4(c); see also supra notes 52-54 and accompanying text. Return to text.

[236] See PARTIAL YEAR ASSESSMENT REPORT, supra note 3, at 31-32. Return to text.

[237] FLA. STAT. ' 192.042 (1997). Return to text.

[238] Id. Return to text.

[239] See Act effective June 12, 1961, ch. 61-240, § 1, 1961 Fla. Laws 422, 423 (codified at FLA. STAT. § 193.11(4) (1961)). The current language in section 192.042, Florida Statutes (1997), was added in 1970. See Act effective January 1, 1971, ch. 70-243, § 4, 1970 Fla. Laws 709, 712; see also 1993 Levy Letter, supra note 217, at 2; 1996 Levy Memorandum, supra note 232, at 2. Return to text.

[240] See FLA. STAT. § 192.001(11)(d) (1997) (defining "construction work in process"); see also 1993 Levy Letter, supra note 217, at 2; 1996 Levy Memorandum, supra note 232, at 2. Return to text.

[241] See TASK FORCE REPORT, supra note 141, at 22 (summarizing comments of Larry Levy at the Task Force's November 21, 1996, meeting). Return to text.

[242] See 1993 Levy Letter, supra note 217, at 2; 1996 Levy Memorandum, supra note 232, at 2. But see PARTIAL YEAR ASSESSMENT REPORT, supra note 3, at 20-21 (suggesting that a percentage of completion assessment would contravene the constitutional requirement that property be assessed at "just value," not a percentage thereof). Return to text.

[243] See PARTIAL YEAR ASSESSMENT REPORT, supra note 3, at 20. Return to text.

[244] See TASK FORCE REPORT, supra note 141, at 23 (summarizing the Task Force's November 21, 1996, meeting). Return to text.

[245] See id. at 22. Return to text.

[246] Attorney, Steel Hector & Davis, Tallahassee, Fla. Ms. Weber previously served as General Counsel of DOR. Return to text.

[247] TASK FORCE REPORT, supra note 141, at 23 (summarizing the Task Force's November 21, 1996, meeting). Return to text.

[248] Chief of Staff, Exec. Office of the Gov. Return to text.

[249] See TASK FORCE REPORT, supra note 141, at 23 (summarizing the Task Force's November 21, 1996, meeting). Ms. Shelley proposed the following revisions to House Bill 557 as vetoed by the Governor:

In any administrative or judicial action in which a taxpayer challenges an ad valorem tax assessment, the denial of an exemption, or the denial of classified status, the property appraiser's assessment or determination shall be presumed correct if the property appraiser has complied with the requirements of law and followed recognized professional standards of appraisal practice shall be upheld unless the taxpayer proves by clear and convincing evidence that the value is not within the reasonable range of value. The taxpayer shall have the burden of overcoming the presumption by a preponderance of the evidence, but shall not have the burden of presenting proof which excludes every reasonable hypothesis of a legal assessment.
LINDA LOOMIS SHELLEY, ALTERNATIVE LANGUAGE FOR HB 557 (available at Fla. DOR, Tallahassee, Fla.) (strike-through and underscore in original) (presented at the Florida Ad Valorem Tax Task Force meeting on November 12, 1996) [hereinafter SHELLEY PROPOSAL]. Return to text.

[250] VICKI WEBER, CURRENT CONDITIONS AND PRINCIPLES GUIDING REVISION OF ASSESSMENT CHALLENGE PROCESS 2 (1996) (available at Fla. DOR, Tallahassee, Fla.) (presented at the Florida Ad Valorem Tax Task Force meeting on November 12, 1996) [hereinafter WEBER PROPOSAL I]. In both proposals, the appraiser's determination as to matters involving questions of law, such as entitlement to an exemption or classified use status, would not be entitled to a presumption of correctness. See id.; accord SHELLEY PROPOSAL, supra note 249 (stricken language); see also discussion infra Part IV.A. Return to text.

[251] See SHELLEY PROPOSAL, supra note 249; WEBER PROPOSAL I, supra note 250, at 2 ("principle" no. 5). Return to text.

[252] See WEBER PROPOSAL I, supra note 250, at 2 ("principle" nos. 4, 5). Return to text.

[253] See SHELLEY PROPOSAL, supra note 249, at 1 ("[T]he property appraiser's assessment . . . shall be upheld unless the taxpayer proves by clear and convincing evidence that the value is not within the reasonable range of value."). The Shelley Proposal limited the applicability of this lower burden of proof to valuation cases. See id. Return to text.

[254] Cf. WEBER PROPOSAL I, supra note 250, at 3 ("Care should be taken to ensure that any revisions to the assessment appeals process do not render it too costly and burdensome a process for both taxpayers and government."); SHELLEY PROPOSAL, supra note 249, at 1 (noting that a potential refinement to her proposal is "[a]uthorization for the VAB or court to prescribe a new value given sufficient evidence in the record"). Return to text.

[255] See TASK FORCE REPORT, supra note 141, at 24-25 (summarizing the Task Force's December 17, 1996, meeting). Return to text.

[256] See id. This proposal, discussed briefly at the November meeting, would authorize local governments to impose a fee on developers as a condition for the receipt of a certificate of occupancy for new construction. See id. at 25 (summarizing the comments of Ken Wilkinson at the Task Force's November 21, 1996, meeting); PARTIAL YEAR ASSESSMENT REPORT, supra note 3, at 17-18. This fee is similar to the traditional "impact fee" and, therefore, must be based upon the cost of providing public services to the property for the remainder of the tax year; in other words, the property's proportionate share of the cost of these public services. In this regard, the "proprietary fee" is distinguishable from partial-year taxation in that the fee is not tied to the value of the improvements. See DOR DECEMBER PRESENTATION, supra note 164, at 7. Local government representatives on the Task Force supported the concept of the "proprietary fee" but objected to the need for any enabling legislation; instead, they argued that the "home rule" authority of local governments currently authorize such fees. See Fla. Ad Valorem Tax Task Force, tape recordings of proceedings (Dec. 17, 1996) (available at Fla. DOR, Tallahassee, Fla.) [hereinafter December Tapes]. In fact, Lee County currently imposes "proprietary fees." See id.; DOR DECEMBER PRESENTATION, supra note 164, at 6. Return to text.

[257] See DOR DECEMBER PRESENTATION, supra note 164, at 7. Return to text.

[258] See id. Return to text.

[259] See id. Return to text.

[260] See id. Return to text.

[261] Id. The report noted that improvements started after January 1 but completed within 12 months (before December 31 of the same year) would still avoid taxation for the period that the improvements were completed during that year. See id. Return to text.

[262] See December Tapes, supra note 256. Return to text.

[263] See id. Return to text.

[264] See id. Return to text.

[265] This figure is computed as follows: $100,000 x 30% x (.001 x 20) = $600. Return to text.

[266] County Commissioner, Alachua County. Return to text.

[267] See TASK FORCE REPORT, supra note 141, at 24 (summarizing the Task Force's December 17, 1996, meeting). Return to text.

[268] See id. Return to text.

[269] See id. at 3. The partial-year taxation issue received no significant legislative attention during the 1997 Regular Session. Joint resolutions were introduced to amend the Florida Constitution to authorize taxation of improvements to real property on a partial-year basis. See Fla. HJR 1449 (1997) (proposing an amendment to FLA. CONST. art VII, § 2); Fla. SJR 1236 (1997) (proposing an amendment to FLA. CONST. art VII, § 4). In the Senate, the joint resolution was considered by only one of its three committees of reference. See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF SENATE BILLS at 108, SJR 1236. In the House, the joint resolution was never referred to committee. See id., HISTORY OF HOUSE BILLS at 293, HJR 1449. The partial year taxation issue was debated in various forums after the 1997 Regular Session. A conceptual proposal to authorize partial-year taxation is before the Constitution Revision Commission. See COMMISSIONER ANTHONY, PROPOSAL NO. 51, CRC 2-77A-pr (visited Nov. 13, 1997) (proposing a revision to article VII, section 4 of the Florida Constitution). The Funding Committee of the Governor's Commission on Education recommended that local school districts be authorized "to impose property taxes on a partial-year basis." COMMISSION ON EDUC., EXEC. OFFICE OF THE GOV., UNMET EDUCATION FACILITIES NEEDS: REPORT OF THE FUNDING COMMITTEE 4 (1997) (Recommendation 2C). Return to text.

[270] See TASK FORCE REPORT, supra note 141, at 3. The 1996 Legislature established the Commission on Local Government II to review the constitutional and statutory provisions relating to the "creation, organization, structure, powers, duties, financing, and service delivery capacity of local governments." Act effective May 29, 1996, ch. 96-266, § 1(1), 1996 Fla. Laws 1041, 1042 (emphasis added). The Commission was to provide its recommendations to the Governor and Legislature prior to the 1997 and 1998 Regular Sessions. See id. § 1(3). Return to text.

[271] See TASK FORCE REPORT, supra note 141, at 24 (summarizing the Task Force's December 17, 1996, meeting). Jacksonville Mayor John Delaney spoke to the Task Force regarding the burden of proof issue. See id. Mayor Delaney suggested that a reduction in the burden of proof would not benefit the average Florida property owner. See id. Instead, he suggested that such a reduction would primarily benefit big business. See December Tapes, supra note 256. Return to text.

[272] See December Tapes, supra note 256. Return to text.

[273] The Task Force considered defining this range as a percentage of variation between the property appraiser's assessment and the value urged by the taxpayer. See id. Under this proposal, the VAB or the court would uphold the property appraiser's assessment unless the taxpayer demonstrated that the assessment was more than a specified percentage, for example, 10% greater than the taxpayer's valuation of the property. See id. Return to text.

[274] See id. Return to text.

[275] See TASK FORCE REPORT, supra note 141, at 2 (listing seven Task Force members as present at this meeting). Return to text.

[276] See id. Return to text.

[277] See THOMAS W. LOGUE, COMPROMISE PROPOSAL—STEP DOWN THE STANDARD 2 (1997) (available at Fla. DOR, Tallahassee, Fla.) (presented at the February 20, 1997, meeting) [hereinafter LOGUE PROPOSAL II]. This range was defined as follows:

"Reasonable range of values," shall mean the permissible variation in estimates of fair market value that result[s] when professionals, with expertise in appraising and assessing property, exercise professional judgment without material error in applying legal, appraising, and assessing principles to determine fair market value. The reasonable range of values will differ from case to case and from property to property . . . . Under no circumstances does the "reasonable range of values" include values that exceed just value.
Id. at 1. Return to text.

[278] See id. at 1. A similar proposal was offered by Task Force member Bill Suber. Return to text.

[279] See VICKI WEBER, REVISED WORKING PROPOSAL (1997) (available at Fla. DOR, Tallahassee, Fla.) (presented at the February 20, 1997 "drafting committee" meeting) [hereinafter WEBER PROPOSAL II]. Under this proposal, the property appraiser's presumption of correctness is lost if the taxpayer proves that

(a) the property appraiser's assessment is not based on reasonable appraisal practices applicable to the type of property at issue, or (b) the property appraiser's assessment is based on appraisal practices which are different from the appraisal practices generally applied by the property appraiser to similar property within the county.
Id. (emphasis added). Unless the presumption is lost, the taxpayer has the burden of overcoming the presumption with clear and convincing evidence "which proves that the appraiser's assessment is incorrect." Id. A similar proposal was offered by Task Force member Elliot Messer. See ELLIOT MESSER, ALTERNATIVE LANGUAGE IN HB 557 (1997) (available at Fla. DOR, Tallahassee, Fla.) (presented at the February 20, 1997 "drafting committee" meeting). The Messer Proposal retained the preponderance of the evidence standard to overcome the property appraiser's assessment; however, the proposal would have added the following language: "If the Court finds upon clear and convincing evidence that the contested assessment is in excess of just value, the taxpayer shall be entitled to judicial relief, including an ordered reduction in the just value." Id. Return to text.

[280] See WEBER PROPOSAL II, supra note 279, at 1-2; LOGUE PROPOSAL II, supra note 277, at 2. Return to text.

[281] See TASK FORCE REPORT, supra note 141, at 26. Return to text.

[282] Compare id. at 27 with WEBER PROPOSAL II, supra note 279. Return to text.

[283] A proposal discussed by the Task Force would have included an effective date as follows: "This act shall take effect upon becoming a law, and shall apply to actions pending as of the effective date of this act in which unnecessary final judgment has not been entered." FLORIDA AD VALOREM TAX TASK FORCE, PROPOSED REVISIONS TO HB 445 (available at Fla. DOR, Tallahassee, Fla.) (presented at the February 21, 1997 Florida Ad Valorem Tax Task Force meeting). Return to text.

[284] The Task Force recommended that the new standard apply to challenges arising out of the 1997 tax rolls. See TASK FORCE REPORT, supra note 141, at 2-3. Return to text.

[285] Id. Return to text.

[286] See discussion infra Part IV. Return to text.

[287] See Fla. HB 445 (1997); Fla. SB 134 (1997). The bills again had significant bi-partisan support. Ninety members were listed as co-sponsors of House Bill 445, and twenty-two members were listed as co-sponsors of Senate Bill 134. See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF HOUSE BILLS at 217, HB 445; id., HISTORY OF SENATE BILLS at 35, SB 134. Return to text.

[288] House Bill 445 was prefiled on February 6, 1997. See id., HISTORY OF HOUSE BILLS at 217, HB 445. Senate Bill 134 was prefiled on January 3, 1997. See id., HISTORY OF SENATE BILLS at 35, SB 134. Return to text.

[289] Prior to the session, the House Finance and Tax Committee held a special workshop on House Bill 445 in Orlando. See id., HISTORY OF HOUSE BILLS at 217, HB 445. The Task Force did not hold a meeting in the Orlando area, and the purpose of holding the workshop in that area was to solicit additional public comment on the burden of proof issue. See TASK FORCE REPORT, supra note 141, at 10-11 (listing locations of Task Force meetings). At the workshop, House Bill 445, as well as the Task Force's recommendation, were discussed. Return to text.

[290] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF HOUSE BILLS at 217, HB 445. The amendment adopted by the Committee on Community Affairs substituted the language in the original bill with the Task Force's "compromise" language. See Fla. H.R. Comm. on Comm'y Aff., Amendment 1 to HB 445 (1997) (on file with comm.). Return to text.

[291] See Fla. S. Comm. on Judiciary, SB 134 (1997) Vote Record (Mar. 6, 1997) (on file with comm.); see also FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF SENATE BILLS at 35, SB 134. Return to text.

[292] Compare CS for SB 134 (1997) and Fla. H.R. Comm. on Comm'y Aff., Amendment 1 to HB 445 (1997), with TASK FORCE REPORT, supra note 141, at 2-3. Return to text.

[293] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF HOUSE BILLS, at 217, HB 445. Return to text.

[294] See id. Once a bill is reported out of all of its committees of reference, it must be ranked by the "council" with substantive jurisdiction over the first committee of reference before the bill may be heard on the House Floor. See FLA. H.R. RULES 45, 46(a), 135 (1996-98). The ranking of bills by "councils" is one of the changes to the legislative process implemented by House Speaker Daniel Webster (Repub., Orlando) and the Republican majority in the House. The bill's ranking determines the order of its consideration on the House Floor. See id. FLA. HOUSE RULES 128, 134 (1996-98). House Bill 445 was ranked as the first bill on the Government Responsibility Council Calendar of March 27, 1997. See FLA. H.R. JOUR. 374 (Reg. Sess. 1997). Return to text.

[295] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF HOUSE BILLS, at 217, HB 445. Prior to approving the bill, the House adopted a substitute amendment to the amendment adopted in the Committee on Community Affairs. The substitute amendment, offered by Representative Starks, relocated the proposed language from section 194.171(7), Florida Statutes, to a newly created Part III of chapter 194, Florida Statutes. See FLA. H.R. JOUR. 350 (Reg. Sess. Apr. 1, 1997) (creating FLA. STAT. § 194.301). This relocation was necessary because section 194.171, Florida Statutes, relates only to circuit court tax-challenge cases, while the proposed change to the burden of proof is intended to apply in cases before the VAB as well as those in circuit court. The substitute amendment made no substantive changes to the Task Force's "compromise" language. Return to text.

[296] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF HOUSE BILLS at 217, HB 445. Return to text.

[297] See id., HISTORY OF SENATE BILLS, at 35, CS for SB 134. The committee approved the bill by a vote of 27 to 0. See Fla. S. Comm. on Ways and Means, CS for SB 134 (1997) Vote Record (Apr. 23, 1997) (on file with comm.). Return to text.

[298] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF HOUSE BILLS at 217, HB 445. The bill was approved by a vote of 40 to 0. See FLA. S. JOUR. 698 (Reg. Sess. 1997). Return to text.

[299] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 HISTORY OF HOUSE BILLS at 217, HB 445. Return to text.

[300] See Act effective May 23, 1997, ch. 97-85, § 2, 1997 Fla. Laws 503, 504. Section 2 of the act provided that the new standards in section 194.301, Florida Statutes, applied to assessments included in the 1997 tax rolls. See id. Return to text.

[301] Executive Office of the Gov., Office of Legis. Aff., Legislative Bill Analysis, HB 445, 3 (Apr. 30, 1997) (on file with Exec. Office of the Gov., Office of Legis Aff.). Return to text.

[302] Conclusive, or non-rebuttable, presumptions are not valid in Florida. See Straughn v. K & K Land Mgmt., Inc., 326 So. 2d 421, 424 (Fla. 1979); EHRHARDT, supra note 119, § 302.1. Return to text.

[303] See FLA. STAT. § 90.302 (1997); see also EHRHARDT, supra note 119, § 301.1. Return to text.

[304] Cf. FLA. STAT. § 90.303 (1997). Return to text.

[305] See, e.g., City of Tampa v. Palmer, 89 Fla. 514, 520, 105 So. 115, 117 (1925) ("The good faith of tax officers and the validity of their official actions are presumed . . . ."); German-American Lumber Co. v. Barbee, 59 Fla. 493, 498, 52 So. 292, 294 (1910) ("The law contemplates that a wide discretion be accorded to the tax assessor in the valuation of property for the purposes of taxation."); accord Blake v. Xerox, 447 So. 2d 1348, 1350 (Fla. 1984); see also EHRHARDT, supra note 119, § 304.1 n.10. Return to text.

[306] See Bystrom v. Equitable Life Assurance Soc'y of the U.S., 416 So. 2d 1133, 1141 (Fla. 3d DCA 1982). Return to text.

[307] See id. at 1141; FLA. STAT. §§ 90.302(2), .304 (1997); see also EHRHARDT, supra note 119, §§ 302.2, 304.1. Return to text.

[308] Fla. HB 557 § 1 (1996) (enrolled version); compare id. with FLA. STAT. § 194.301 (1997). Return to text.

[309] See WEBER PROPOSAL I, supra note 250, at 2. This distinction is also supported by the fact that the policy underlying the rule of judicial restraint applied in the context of valuation cases is not implicated in non-valuation cases. See supra note 84. Return to text.

[310] This is not to say that such cases are "easier." Instead, they require little or no appraisal expertise. In fact, these cases generally turn on the legal interpretation given to the statutory provision granting the exemption or classified status. See, e.g., St. Petersburg Kennel Club v. Smith, 662 So. 2d 1270, 1272 (Fla. 2d DCA 1995) (determining whether "greyhound dogs" are "livestock" for purposes of qualifying for the agricultural classification); Sebring Airport Auth. v. McIntyre, 642 So. 2d 1072, 1073-74 (Fla. 1994) (determining whether a race track is a "public purpose" for purposes of qualifying for the government property exemption). Return to text.

[311] See Fla. Admin. W. 4879, 4879-80 (Sept. 12, 1997). Return to text.

[312] Id. at 4880 (strike through and underline original). Return to text.

[313] See supra text accompanying notes 308-10. Return to text.

[314] See Letter from Victoria L. Weber to Steve Keller, DOR Assistant General Counsel, (Aug. 13, 1997) (available at DOR, Tallahassee, Fla.). Ms. Weber commented that:

I believe that the Task Force consciously altered the 1997 legislation to render the presumption/burden language applicable only to valuation issues wherein the argument can be made that the appraiser is exercising professional judgment in an arena that has been recognized by the courts as "an art, not a science."
Id. at 1; see also Memorandum from Benjamin K. Phipps, Attorney, to Sharon Gallops, DOR Tax Law Specialist (Aug. 1, 1997) (available at DOR, Tallahassee, Fla.). Mr. Phipps commented that "property appraisers are presumed correct in their assessments (determinations) of value. There is no presumption of correctness attached to the granting or denying of either exemptions or classifications." Id. at 1. Return to text.

[315] See 23 Fla. Admin. W. 6635, 6635 (Dec. 5, 1997) ("In response to timely written comments received, the Department of Revenue has determined that the proposed rule amendments require further review."). Return to text.

[316] FLA. STAT. § 194.301 (1997). Return to text.

[317] See Valencia Center, Inc. v. Bystrom, 543 So. 2d 214, 216 (Fla. 1989); Blake v. Xerox Corp., 447 So. 2d 1348, 1350 (Fla. 1984); Mastroianni v. Barnett Banks, Inc., 664 So. 2d 284, 288 (Fla. 1st DCA 1995) (citing Schultz v. TM Florida-Ohio Realty Partnership, 577 So. 2d 573 (Fla. 1991)). Return to text.

[318] FLA. STAT. § 194.301 (1997) (emphasis added). Return to text.

[319] See WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 943 (1983). Return to text.

[320] Cf. Lanier v. Walt Disney World Co., 316 So. 2d 59, 62 (Fla. 4th DCA 1975) (noting that the property appraiser is not required to give each criterion equal weight "PROVIDED EACH FACTOR IS FIRST CAREFULLY CONSIDERED") (capitalization original and emphasis added). Return to text.

[321] See FLA. STAT. § 194.301 (1997). Because of the reference only to intra-county discrimination, see id., this basis likely will not apply to challenges to the assessment of railroad property since such property is centrally assessed by DOR rather than the county property appraiser. See id. § 193.085(4) (1997); FLA. ADMIN. CODE ANN. ch. 12D-2 (1997). However, railroad property valuations are subject to other protections under federal laws. See 49 U.S.C. § 11501 (1994). Return to text.

[322] See FLA. STAT. § 194.301 (1997). This is not to say that the taxpayer could not successfully raise an equal protection-like challenge without proving that the assessment is in excess of "just value." See Southern Bell Tel. & Tel. Co. v. County of Dade, 275 So. 2d 4, 10 (Fla. 1973). For a critical discussion of the Southern Bell decision, see FLORIDA STATE AND LOCAL TAXES, supra note 15, at 406-15. Return to text.

[323] 77 Fla. 341, 81 So. 503 (1919). Return to text.

[324] See id. at 349, 81 So. at 506; see also Southern Bell, 275 So. 2d at 10. Return to text.

[325] See Southern Bell, 275 So. 2d at 10. In this regard, the level of valuation—i.e., 10%, 50%, or 100% of just value—was immaterial. See id.; see also FLORIDA STATE AND LOCAL TAXES, supra note 15, § 8.05(2), at 368-71. Return to text.

[326] FLA. STAT. § 194.301 (1997). Return to text.

[327] The Florida Supreme Court receded from the Camp Phosphate holding in the 1940s. See Cosen Inv. Co. v. Overstreet, 154 Fla. 416, 416, 17 So. 2d 788, 788 (1944); Schleman v. Connecticut Gen. Life Ins. Co., 151 Fla. 96, 105, 9 So. 2d 197, 200 (1942). Since then, the taxpayer has been required to demonstrate that his assessment exceeds fair market value, notwithstanding the valuation of other properties. See generally FLORIDA STATE AND LOCAL TAXES, supra note 15, § 8.05(2), at 372-76. But see Southern Bell, 275 So. 2d at 10 (applying the Camp Phosphate decision). Return to text.

[328] See FLA. STAT. § 194.301 (1997); Folsom v. Bank of Greenwood, 97 Fla. 426, 429-30, 120 So. 317, 319 (1925). Return to text.

[329] See FLA. STAT. § 194.301 (1997). Return to text.

[330] Section 194.304, Florida Statutes, reflects a dramatic policy shift for the disposition of tax challenge cases because under the procedure established in that law, those cases will likely focus on the methodology used by the property appraiser in arriving at the assessment. But see Bystrom v. Whitman, 488 So. 2d 520, 521 (Fla. 1986) (noting that the core issue in tax challenge cases is the amount of the assessment). If the taxpayer's appraiser is able to convince the VAB or court that his methodology more accurately reflects a "just valuation" of the subject property than that utilized by the property appraiser, the property owner should prevail. Return to text.

[331] See FLA. STAT. § 194.301 (1997). Return to text.

[332] See id. Return to text.

[333] See BLACK'S LAW DICTIONARY 1182 (6th ed. 1990) (defining "preponderance of the evidence"). Return to text.

[334] See id. at 251. The "clear and convincing" standard will be met where the truth of the facts asserted is highly probable. See id. Return to text.

[335] Compare FLA. STAT. § 194.301 (1997), with Fla. HB 557, § 1 (1996) (enrolled version). Return to text.

[336] See FLA. STAT. § 194.301 (1997). If, however, the issue is whether the property appraiser correctly valued the property subject to the exemption or classified status, the provisions of new section 194.301, Florida Statutes, should apply. Nothing in the Task Force's debate nor the legislative history of House Bill 445 suggests an intent to preclude the use of the new standards in circumstances where the taxpayer's challenge relates to the appraiser's valuation of classified or exempt property. See Powell v. Kelly, 223 So. 2d 205, 306 (Fla. 1969) (discussing the valuation of classified use property). Return to text.

[337] FLA. STAT. § 194.301 (1997). The general rule applicable in non-valuation cases, including those involving a denial of classified status, is that exemptions from taxation must be strictly construed against the taxpayer. See, e.g., United States Gypsum Co. v. Green, 110 So. 2d 409, 413 (Fla. 1959) ("While doubtful language in taxing statutes should be resolved in favor of the taxpayer, the reverse is applicable in the construction of exceptions and exemptions from taxation."); Jar Corp. v. Culberston, 246 So. 2d 144, 145 (Fla. 3d DCA 1971) ("[I]n order for a taxpayer to receive a benefit different in kind from other taxpayers it is necessary for him to strictly comply with all conditions which would be necessary to entitle him to the special treatment.") (emphasis added); see also St. Petersburg Kennel Club v. Smith, 662 So. 2d 1270, 1271 (Fla. 2d DCA 1995) (denying an agricultural classification). Return to text.

[338] FLA. STAT. § 194.301 (1997). Return to text.

[339] Id. Return to text.

[340] See id. Return to text.

[341] See FLORIDA STATE AND LOCAL TAXES, supra note 15, § 7.10, at 320f-g ("In the context of whether a court can determine a lawful assessment by striking the illegal portion without a statute expressly stating so, the current statutes would likely be construed as providing such authority, although the courts have not directly addressed the question."); see also Simpson v. Merrill, 234 So. 2d 350, 352 (Fla. 1970); Cassady v. McKinney, 343 So. 2d 955, 957 (Fla. 2d DCA 1977); Palm Springs Dev. Corp. v. Dade County, 229 So. 2d 629, 633 (Fla. 3d DCA 1969). But see Walker v. Trump, 549 So. 2d 1098, 1104 (Fla. 4th DCA 1989). Return to text.

[342] See FLA. ADMIN. CODE ANN. r. 12D-10.003(5)(b) (1997). But see id. r. 12D-10.003(1) ("The board has no power to fix the original valuation of property for ad valorem tax purposes . . . .") (emphasis added). Return to text.

[343] It has been noted that:

[A court] has no power to apportion the tax or to make a new assessment, or to direct another to be made by the proper officers of the State. These officers, and the manner in which they shall exercise their functions, are wholly beyond the power of the court when so acting. The levy of taxes is not a judicial function. Its exercise . . . is exclusively legislative.
A court of equity is, therefore, hampered in the exercise of its jurisdiction by the necessity of enjoining the tax complained of, in whole or in part, without any power of doing complete justice by making, or causing to be made, a new assessment on any principle it may decide to be the right one. State Railroad Tax Cases, 92 U.S. 575, 614-15 (1875). Florida courts, for the most part, have ignored this prohibition. See, e.g., Folsom v. Bank of Greenwood, 97 Fla. 426, 431-32, 120 So. 317, 319 (1925) (holding that the court should enjoin the collection of that portion of an assessment found to be excessive but allow the collection of the portion that reflects what the court finds to be a proper valuation). But see Cassady v. McKinney, 343 So. 2d 955, 957 (Fla. 2d DCA 1977) (reversing a trial court adjustment of appraisal); see also FLA. ADMIN. CODE ANN. r. 12D-10.003(1) (1997). Return to text.

[344] Cf. FLA. STAT. § 196.01 (1967) (expressly authorizing the court to set aside all or any part of the assessment). This language was repealed in 1969. See Act effective June 25, 1969, ch. 69-140, § 6, 1969 Fla. Laws 668, 672. It has been suggested that current section 194.171(1), Florida Statutes, provides broader jurisdiction than section 196.01, Florida Statutes (1967). See FLORIDA STATE AND LOCAL TAXES, supra note 15, § 7.10, at 320f. Return to text.

[345] It is important to note that the language authorizing the VAB or the court to establish the assessment is permissive, not mandatory. See FLA. STAT. § 194.301 (1997). Return to text.

[346] The requirement in section 194.301, Florida Statutes, that there be sufficient evidence in the record upon which the VAB or court can determine "just value" is consistent with the following passage from Cassady:

In fixing tax assessments the trial court is required to have competent substantial evidence in the record as to the manner, extent or degree such factors bear upon the valuation. If there is competent evidence before the trial court in this regard it certainly is free to accept that [assessment] which is most believable or compromise between two extremes as it deems the facts and circumstances warrant. It may thereupon make the necessary calculations or adjustments. Otherwise there could not be a ready resolution of a tax assessment where the tax assessor consistently fails or declines to consider such requirements. In the absence of such evidence the trial court cannot substitute its own independent judgment, no matter how enlightened or realistic.
Cassady, 343 So. 2d at 957. Return to text.

[347] In developing the language that would become section 194.301, Florida Statues, the Task Force recognized that requiring the VAB or the court to remand the matter to the property appraiser "can be a cumbersome and time-consuming process." LOGUE PROPOSAL, supra note 204, at 2. Return to text.

[348] See FLORIDA STATE AND LOCAL TAXES, supra note 15, § 7.10 at 320h-i ("Procedurally, the potential for unwarranted delay is a fundamental difficulty with the concept of remand to the property appraiser from both the [VAB] and circuit court."). Return to text.