The opinion
IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Property Tax
O STATE 25TH, LLC, )
)
Plaintiff, ) TC-MD 170266G
)
v. )
)
BENTON COUNTY ASSESSOR, )
)
Defendant. ) FINAL DECISION1
On the taxpayer’s summary judgment motion, the court considers whether ORS 311.205
permits a county assessor to add value to a property tax account that was mistakenly placed on
the tax roll with an adjacent property’s lower value.2 Plaintiff (O State) appealed from the
addition of value and tax by Defendant (the assessor) to property identified as account number
095533 (the subject) for the 2016–17 tax year.
I. STATEMENT OF FACTS
The relevant facts are not in dispute. The subject was a four-unit student housing
complex. (Stip Facts, ¶ 5.) Construction of the subject and an adjacent property was carried out
simultaneously and was newly completed before the assessment date for 2016–17, the tax year at
issue. (Id., ¶¶ 3, 7.) The adjacent property was quite similar to the subject except that the
adjacent property had only three units. (Id., ¶¶ 5–6; Ex J at 1–2.)
“On or about March 2017 [the] assessor discovered a mistake and switch in identity of
characteristics of the two properties * * *.” (Stip Facts, ¶ 4.) The subject was mistakenly carried
on the tax roll as having three units. (Id., ¶ 5.) The adjacent property was mistakenly carried on
1
This Final Decision incorporates without change the court’s Decision, entered March 8, 2018. The court
did not receive a statement of costs and disbursements within 14 days after its Decision was entered. See Tax Court
Rule–Magistrate Division (TCR–MD) 16 C(1).
2
The court’s references to the Oregon Revised Statutes (ORS) are to 2015.
FINAL DECISION TC-MD 170266G 1
the tax roll as having four units. (Id., ¶ 6.) Upon discovering the mistake, the assessor stipulated
to the reduction of the adjacent property’s 2016–17 real market value from $1,749,604 to
$1,230,000 by the Benton County Board of Property Tax Appeals (BOPTA). (Id., ¶ 9.) The
original improvements real market value placed on the adjacent property’s account was
$1,475,176. (Def’s Ex C at 1.)
On April 17, 2017, the assessor visited the subject. (Ptf’s Mot Summ J at 4; Ptf’s Ex 14;
Def’s Response at 4.) Two days later, the assessor sent O State a clerical error notice. (Stip
Facts, ¶ 10.) That notice stated the assessor’s intent to increase the subject’s 2016–17 real
market value from $1,240,198 to $1,749,605 and provided the following explanation: “New
multi family unit was valued incorrectly.” (Ptf’s Ex 1.) The notice indicated that the subject’s
land value would not be increased and that its improvements value would be increased from
$1,004,968 to $1,514,375. (Id.) In addition, the subject’s assessed value was to be increased.
(Id.) A subsequent letter from the assessor, dated May 9, 2017, confirmed that additional value
had been added to the subject as stated in the clerical error notice. (Ptf’s Ex 2.)
O State asks that the court order the assessor to remove all additional values and taxes
imposed on the subject under the clerical error statute. The assessor opposes O State’s summary
judgment motion.
II. ANALYSIS
The issue before the court is whether the error on the assessment and tax roll was
correctable under ORS 311.205(1). On a motion for summary judgment, the court will grant
relief where “there is no genuine issue as to any material fact and * * * the moving party is
entitled to prevail as a matter of law.” TCR 47 C.3
3
Tax Court Rules (TCR)
FINAL DECISION TC-MD 170266G 2
A county official’s authority to change the assessment and tax roll is limited after the roll
has been certified by the assessor to the tax collector. ORS 311.205(1) permits the correction of
clerical errors as well as other errors not involving “valuation judgment.” Authority to correct
errors in valuation judgment is restricted. Such an error may be corrected only during the
pendency of an appeal to this court, and then only if the correction reduces the tax owed on the
account. ORS 311.205(1)(b)(A).
Correcting an error in valuation judgment “requires that the officer exercise judgment to
determine the value, formulate an opinion as to value, or inquire into the state of mind of the
appraiser.” OAR 150-311-0150(1).4 Errors in valuation judgment include not only mistakes
about physical features—such as “[t]hinking that a house has a basement when it does not”—but
also mathematical and calculational errors. Id. Some mathematical and calculational errors are
not merely “clerical” because they are intermediate steps in reaching a value opinion for which
the appraiser may have compensated at another stage of the analysis: “The figures may be wrong
but the assessor’s judgment of the parcel’s value may be right.” Id. For the same reason, in
cases of doubt any error is considered an error in valuation judgment:
“If it is unclear whether an error or an omission on the roll is a clerical
error or an error in valuation judgment, the error or omission on the roll shall be
considered an error or omission in valuation judgment. For example, an error in
acreage or square footage in the appraiser field notes or a failure to value or list a
component upon physical reappraisal may not be corrected because the error may
not necessarily have resulted in an error of real market value as finally determined
and carried to the assessment and tax roll.”
OAR 150-311-0150(2).
Here, the subject was valued as a three-unit building when in fact it had four units. On its
face, this case resembles the situation where an appraiser thinks a house has a basement when it
4
Oregon Administrative Rules (OAR)
FINAL DECISION TC-MD 170266G 3
does not: the valuation was based on a mistake about the property’s physical features. If the
appraiser made the mistake, this would be clear error in appraiser judgment and ORS 311.205(1)
would not permit the assessor to increase the subject’s value on the tax roll.
The assessor argues that the error at issue is instead a clerical error. “Clerical errors are
those procedural or recording errors which do not require the use of judgment or subjective
decision making for their correction.” OAR 150-311-0140(1). There are three statutory
conditions a clerical error must satisfy, only one of which is disputed here: a clerical error is an
error on the roll “[f]or which the information necessary to make the correction is contained in the
records.” 5 ORS 311.205(1)(a)(A)(iii). Thus, a clerical error is “apparent from assessor office
records without speculation or conjecture, assumption or presumption, and * * * is correctable
without the use of appraisal judgment or the necessity to view the property.” OAR 150-311-
0140(1). An error is not correctable as a clerical error if “[t]here is no way to determine from
looking at the records that an error even exists.” Seifert v. Dept. of Rev., 14 OTR 401, 403
(1998).
The placement of the value of improvements on the wrong account may be a clerical
error. The assessor relies on the following example from OAR 150-311-0140.
“Example 1: ‘A’ owns a parcel of land with a house on it. ‘A’ divides the
land and sells part to ‘B,’ but retains that part of the land with the house. The
assessor places the value of the house on ‘B’s’ land. The value of the house was
5
ORS 311.205(1)(a)(A) describes a clerical error:
“A Clerical error is an error on the roll:
(i)(I) That arises from an error in the ad valorem tax records of the assessor, or the records of
the Department of Revenue for property assessed under ORS 306.126; or
(II) That is a failure to correctly reflect the ad valorem tax records of the assessor, or the
records of the department for property assessed under ORS 306.126;
(ii) That, had it been discovered by the assessor or the department prior to the certification of
the assessment and tax roll of the year of assessment, would have been corrected as a matter of
course; and
(iii) For which the information necessary to make the correction is contained in the records.
FINAL DECISION TC-MD 170266G 4
placed upon the wrong tax lot. It was not, in the words of 311.207 ‘from any
cause been omitted, in whole or in part, from assessment and taxation on the
current assessment and tax rolls …’ It’s on the roll but on the wrong account.
Thus, the property was never actually omitted from the roll but clerically placed
on the wrong parcel of land.
“This comes within the definition of clerical error because it can be
corrected solely from the records of the assessor as these records reflect the
correct situation which, if discovered by the assessor before certification of the
assessment and tax roll, would have been corrected as a matter or course and is
correctable without the use of appraisal judgment or the necessity to view the
property.”
In the above example, the assessor’s records “reflect the correct situation.” The example does
not provide the specific record that reflects the house’s correct tax; perhaps it is the deed by
which “A” transferred the land.
The present case would resemble the example from the rule if the value of the subject’s
improvements had simply been placed on the adjacent property’s tax account. In that case, there
could be a factual question as to whether the assessor’s records reflected the “correct situation”
and whether the assessor’s visit to the subject was of “necessity.” 6 If the improvement value
was on the wrong account but it was not possible to determine which was the right account from
the records alone, a clerical error correction could not be made because the records would not
contain all the “information necessary to make the correction.” See ORS 311.205(1)(a)(A)(iii).
As matters stand, the value of the subject’s improvements was not placed on the adjacent
property; rather, the characteristics of the subject’s improvements were used to value the
adjacent property and vice versa. This is not a case of a scrivener placing the improvements
value intended for the subject on the adjacent property. The improvements value originally
certified by the assessor for the adjacent property was $1,475,176. The improvements value now
6
“Could be” a factual question because O State challenges whether the allegations in the assessor’s brief
suffice to create a genuine issue of material fact. The court need not decide the point.
FINAL DECISION TC-MD 170266G 5
placed on the roll for the subject property is $1,514,375. The numbers do not match. Nothing in
the record before the court indicates that the latter number was present in the assessor’s records
before the correction was made. The conclusion to be drawn is that the assessor made a
valuation judgment that a four-unit complex was worth $39,199 more on the subject’s land than
it was on the adjacent property’s land.7
The assessor notes in its brief that because the subject is new construction, its maximum
assessed value “will be misstated and incorrect for the economic life of the property’s
improvements” unless the court upholds its correction. The assessor therefore finds itself in the
position of taxpayers who discover errors in their tax assessments too late to appeal them. Such
errors are regrettable. However, the legislature has given a timeframe in which the various
interested parties must act to ensure the rolls are correct. The assessor’s error was one in
valuation judgment, and ORS 311.230(1) does not provide authority for its correction.
III. CONCLUSION
The undisputed facts show that the improvements value placed on the subject’s account
was not found in the assessor’s records and was the result of valuation judgment. Now,
therefore,
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7
The assessor places weight on the fact that the subject’s total real market value after correction
approximately equaled the adjacent property’s total real market value before correction. Given the differing land
values found by the assessor for the two parcels, the correspondence of the two total values is not evidence that the
subject’s corrected improvements value could be found anywhere in the records.
FINAL DECISION TC-MD 170266G 6
IT IS THE DECISION OF THIS COURT that Plaintiff’s Motion for Summary Judgment
is granted.
Dated this day of March, 2018.
POUL F. LUNDGREN
MAGISTRATE
If you want to appeal this Final Decision, file a complaint in the Regular
Division of the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR
97301-2563; or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR.
Your complaint must be submitted within 60 days after the date of the Final
Decision or this Final Decision cannot be changed. TCR-MD 19 B.
This document was signed by Magistrate Poul F. Lundgren and entered on
March 27, 2018.
FINAL DECISION TC-MD 170266G 7