Tax Type
Local Taxes
Property Tax
Description
Elderly or Handicapped Exemption; Failure to File Timely Application
Topic
Exemptions
Local Power to Tax
Local Taxes Discussion
Property Subject to Tax
Date Issued
04-29-1987
[Opinion - Virginia Attorney General: 1987 at 300]
REQUEST BY: Honorable W. O. Conley, Jr. Commissioner of the Revenue for the City of Bristol
OPINION BY: Mary Sue Terry, Attorney General
OPINION:
You ask whether a city council may authorize the tax exemption for the elderly and handicapped to a person who did not file a timely application for such exemption. You also inquire what steps must be followed to determine the amount of the tax credit if city council has such authority.
I. Applicable Statutes
Section 58.1-3210 et seq. of the Code of Virginia authorizes localities to provide, by ordinance, subject to specified restrictions and conditions, for the exemption or deferral of taxation of real estate owned and occupied by certain elderly and handicapped persons. Pursuant to § 58.1-3213, such persons may apply for the exemption by filing annually an affidavit or certification setting forth the names of related persons occupying the real estate and the net worth of those persons specified in § 58.1-3211. § 58.1-3213(D) further provides that "such affidavit or certification shall be filed after January 1 of each year, but before April 1, or such later date as may be fixed by ordinance. Such ordinance may include a procedure for late filing by first-time applicants or for hardship cases." You note that May 1, 1985 was the filing deadline date fixed by your local ordinance for the applicant in question.1
II. Word "Shall" Generally Indicates Procedures Intended to Be Mandatory
Use of the word "shall" in a statute generally indicates that its procedures are intended to be mandatory, rather than permissive or directive. See Reports of the Attorney General: 1985-1986 at 119, 120; 1977-1978 at 64. Since the exemptions provided pursuant to § 58.1-3210 et seq. must be construed strictly,2 the deadlines in § 58.1-3213(D), likewise, must be applied strictly.3
III. City Council Has No Independent Authority to Grant Tax Exemption
Virginia follows the Dillon Rule of strict construction concerning the powers of local governing bodies, limiting such powers to those conferred expressly by law or by necessary implication from such conferred powers. County Board v. Brown, 229 Va. 341, 344, 329 S.E.2d 468, 470 (1985); 1984-1985 Report of the Attorney General at 99. § 58.1-3213(D) makes a timely application a prerequisite for the exemption provided to the elderly and handicapped. Cf. 1982-1983 Report of the Attorney General at 509, 510, and 525, 526. I am unaware of any provision of law which would permit the city council to authorize a tax exemption based upon an application filed outside the statutorily prescribed periods. See id. at 525, 526. A city council, therefore, lacks the authority to grant the tax exemption in question once the deadline set forth in the statute or ordinance has passed.
IV. Conclusion: Property Remains Taxable When Application for Exemption Filed Late
Based on the above, it is my opinion that the city council may not grant a tax exemption for the elderly and handicapped to an applicant who did not file a timely application, absent the adoption of late-filing procedures in an ordinance pursuant to § 58.1-3213(D) and compliance with those procedures in an appropriate case. Since I have reached this conclusion regarding your first question, a response to your second question is unnecessary.
1 I assume that late filing procedures have not been incorporated in your local ordinance or that they are not applicable to the facts of this Opinion.
2 See Reports of the Attorney General: 1984-1985 at 335; 1982-1983 at 579, 580.
3 But see 1984-1985 Report of the Attorney General at 259, 260 (the word "shall," although generally understood as imperative or mandatory, may be read as directory where an overly rigid application of a deadline may produce a strained nonsensical result).
Attorney General's Opinion