By Tom Yamachika, Interim President
(Released on 3/23/14)
Once in a while people fight with taxing agencies about their taxes. After all, legislatures, rather than tax agencies, write the laws, and the agencies might not always be right. If you want to take the agency on, however, you need to know to put in your request in time.
Filing an appeal in time isn’t as easy as it sounds. Most appeal statutes give the taxpayer 30 days to appeal. But the time starts when the agency mails the assessment notice, and if the taxpayer actually receives the notice a few days later the 30 days is now down to 27 or so. The taxpayer then has to figure out whether to do the appeal himself or herself (not something I would recommend) and if not, what kind of professional help to get and who is going to be their champion in the arena.
Sometimes, when trying to figure out the last possible day to appeal, we find that the last day in the appeal period falls on a Saturday, Sunday, or a holiday. Obviously, the government office will not be open to take the appeal on the last day, so is it sufficient if the appeal is filed on the next day the office is open? Don’t count on it.
Why not, you ask? Most of us are familiar with the “weekend rule” for taxes. If a tax form or return is due on a weekend or holiday, the form is not late if it is filed on the next business day. The State and the counties have all adopted this rule for tax forms. The question is whether this also applies to appeals.
For most appeals in the judiciary system, the computation of time is governed by Rule 26(a) of the Hawaii Rules of Appellate Procedure, which does adopt the weekend rule. But these rules don’t apply to tax appeals.
There is a decision of the Intermediate Court of Appeals called Marzec v. City and County of Honolulu. In a footnote in that case the court said that the weekend rule does apply to real property tax appeals.
If that wasn’t enough, I found a brochure with an official City & County seal on it called “Real Property Assessment Appeals.” The revision date on the brochure was April 2011, and the C&C was still passing out this brochure in September 2013. A footnote on the last page of that brochure said that although the deadline for appeals is January 15, if that date “falls on a Saturday, Sunday, or legal holiday, the deadline shall extend to the close of the next business day.” Looks like the weekend rule applies.
Now let’s look at an actual case. A small business gets zapped for multiple years of real property tax. The appeal is due on the 30th day after the mail date, which is a Sunday. An appeal to the Board of Review is filed on Monday.
Wham! C&C immediately moves to dismiss. Too late, they say. What about the Intermediate Court’s decision? Not an official published decision, they say. And what about the official brochure? Oops, they say. Obviously a mistake. We’ll print new ones. Board rules in favor of the C&C and the taxpayer is tossed out on her ear.
This case sends a powerful message about the tyranny of government. If we are to keep the faith of the taxpaying public we can’t just toss around the public like dirt. Whatever happened to the rule of law? Whatever happened to respect for the judiciary? Whatever happened to the principle that if an agency publishes guidance that it expects the public to follow, it also needs to be following that guidance itself?
Come on, folks. Let’s be consistent and clear to our public. Let’s tell our taxpayers that the wheels of justice can take the weekend off and our taxpayers still can be given their day in court.
Tom Yamachika is the Interim President of the Tax Foundation of Hawaii. Mr. Yamachika’s commentary is printed each week in the Maui News, West Hawaii Today, Garden Isle News, and the HawaiiReporter.com.