Tax Type
Local Taxes
Property Tax
Description
Failure to Report Conveyance; Land Use Ordinance
Topic
Basis of Tax
Local Power to Tax
Local Taxes Discussion
Property Subject to Tax
Date Issued
10-08-1985
[Opinion - Virginia Attorney General: 1985 at 305]
REQUEST BY: Honorable Robert H. Burns Commissioner of the Revenue for Tazewell County
OPINION BY: Mary Sue Terry, Attorney General
OPINION:
You ask whether a commissioner of the revenue may remove an entire 150-acre tract from participation in a county use value assessment and taxation program adopted under Art. 4 of Ch. 32, Title 58.1 of the Code of Virginia, § 58.1-3229 et seq.,1 following the failure of the landowner to report the conveyance and change in use of a 0.601-acre portion of the tract within the 60-day period allowed for such reports by the local land use ordinance.
Section 58.1-3241 provides, in pertinent part, as follows:
"Separation or split-off of lots, pieces or parcels of land from the real estate which is being valued, assessed and taxed under an ordinance adopted pursuant to this article, either by conveyance or other action of the owner of such real estate, shall subject the real estate so separated to liability for the roll-back taxes applicable thereto, but shall not impair the right of each subdivided parcel of such real estate to qualify for such valuation, assessment and taxation in any and all future years, provided it meets the minimum acreage requirements and such other conditions of this article as may be applicable. Such separation or split-off of lots shall not impair the right of the remaining real estate to continuance of such valuation, assessment and taxation without liability for roll-back taxes, provided it meets the minimum acreage requirements and other applicable conditions of this article." (Emphasis added.)
The conveyance in question results in a 149.399-acre parcel and a split-off lot of 0.601 acre. The 0.601-acre tract does not meet the minimum acreage requirements of § 58.1-3233,2 and, therefore, it does not qualify for future participation in the land use assessment program, regardless of whether or when the change is reported to you. The split-off lot also is subject to roll-back taxes for which the grantor, in this case, is liable. See 1982-1983 Report of the Attorney General at 545; 1979-1980 Report of the Attorney General at 339. Failure of the grantor to report the split-off in accordance with § 58.1-3237(C) will not prevent the imposition of roll-back taxes, penalties and interest. See § 58.1-3238.
The remaining 149.399-acre tract meets minimum acreage requirements and has experienced no change in use. The emphasized language in the quoted provisions of § 58.1-3241 makes it clear that the split-off of the 0.601-acre parcel does not, in and of itself, cause the 149.399-acre tract to lose its eligibility for valuation, assessment and taxation under the land use ordinance with no liability for roll-back taxes. Thus, the 149.399-acre tract would remain eligible for land use taxation during the year in which the split-off took place, assuming that this tract also meets other applicable conditions for continued eligibility. One such condition is that "[a]n application shall be submitted whenever the use or acreage of such land previously approved changes." §58.1-3234. (Emphasis added.) The land use statutes do not fix a time for submission of an application "whenever" use or acreage changes, separate from the normal application times provided in § 58.1-3234. Failure to submit such an application would have no effect, therefore, upon the eligibility of the 149.399-acre tract for continued land use taxation in the year in which the split-off occurred.
Eligibility for future years would be governed by compliance with the provisions of the ordinance enacted within the terms of § 58.1-3234, in order to reenroll the 149.399-acre tract. Pursuant to § 58.1-3234, an application for reenrollment must be submitted:
"1. At least sixty days preceding the tax year for which such taxation is sought; or
(2) In any year in which a general reassessment is being made the property owner may submit such application until thirty days have elapsed after his notice of increase in assessment is mailed in accordance with § 58.1-3330, or sixty days preceding the tax year, whichever is later; or
(3) In any locality which has adopted a fiscal tax year under Chapter 30 of this Subtitle III, but continues to assess as of January 1, such application must be submitted for any year at least sixty days preceding the effective date of the assessment for such year."
In § 2(a) of the Tazewell County ordinance, the county adopted the times specified in former § 58-769.8, which has been reenacted as § 58.1-3234, for submitting the application. Thus, if the county assessment date is January 1, the taxpayer has until November 23 to submit an application for reenrollment in the land use assessment program.
The requirement for reporting changes in use or acreage within sixty days of the change is only relevant for purposes of the 0.601-acre lot's roll-back tax liability under §§ 58.1-3237 and 58.1-3241. Failure to report a change of use of the 0.601-acre lot within sixty days of that change does not affect a determination of future participation in the land use assessment program for the 149.399-acre tract, so long as other conditions are met. Failure to report a change in use within sixty days of the change does subject the taxpayer to penalties and interest on the roll-back tax as may be provided by ordinance. See § 58.1-3238. §7(a) of the Tazewell County ordinance provides for such penalties and interest.
Based on the foregoing, it is my opinion that the 0.601-acre tract should be removed from future participation in the land use program because it fails to meet minimum acreage requirements, and roll-back taxes should be assessed. With respect to the remaining 149.399-acre tract, if the taxpayer submits an application showing the change in acreage within the applicable time specified in § 58.1-3234, and no other change in acreage or use occurs, then you should allow that tract to remain in the land use assessment program not only as to the year in which the split-off occurred but for future years in which eligibility is maintained.
1 Section 58.1-3231 authorizes any county, city or town which has adopted a land use plan to adopt an ordinance to provide for use value assessment, in accord with Art. 4, of real estate classified in § 58.1-3230, which establishes and defines classifications of real estate devoted to "agricultural use," " horticultural use," "forest use," and "open-space use."
2 Section 58.1-3233 provides that prior to the assessment of any parcel of real estate under any ordinance adopted pursuant to Art. 4, the local assessing officer must determine, inter alia, "that real estate devoted to (i) agricultural or horticultural use consists of a minimum of 5 acres, (ii) forest use consists of a minimum of 20 acres and (iii) open-space use consists of a minimum of 5 acres."
3 See §§ 58.1-8 and 58.1-9 for due dates which fall on a Saturday, Sunday or legal holiday, and filing returns by mail.
Attorney General's Opinion