Opinion

Gary R. Nikolits, as Property Appraiser for Palm Beach County, Florida v. Sarah B. Neff a/k/a Susan B. Neff a/k/a Sally B. Neff

  • 184 So. 3d 538
  • 2015 Fla. App. LEXIS 18399
  • 2015 WL 8348320
Court
District Court of Appeal of Florida
Filed
Dec 9, 2015
Status
Published
Author
Gross
On the bench
Gross, Ciklin
Cited by
2 cases
Authority
More cited than 49.2%

The opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GARY R. NIKOLITS, as Property Appraiser for Palm Beach

County, Florida,

Petitioner,

v.

SARAH B. NEFF, a/k/a SUSAN B. NEFF, a/k/a SALLY B. NEFF,

Respondent.

No. 4D15-2423

[December 9, 2015]

Petition for writ of prohibition to the the Fifteenth Judicial Circuit, Palm

Beach County; Catherine M. Brunson, Judge; L.T. Case No. 50-

2013CA016015XXXXMB.

Jeffrey M. Clyman, West Palm Beach, for petitioner.

Jack J. Aiello of Gunster, Yoakley & Stewart, P.A., West Palm Beach,

for respondent.

Pamela Jo Bondi, Attorney General, and Carrol Y. Cherry Eaton,

Assistant Attorney General, Revenue Litigation Bureau, Tallahassee, for

Amicus Curiae, State of Florida Department of Revenue.

GROSS, J.

Gary R. Nikolits, as Property Appraiser of Palm Beach County, Florida,

petitions for a writ of prohibition to prevent the trial court from further

hearing respondent Sarah B. Neff’s declaratory judgment action. We agree

with the Property Appraiser that the circuit court lacks jurisdiction to

grant the relief requested because Neff’s action is, at its heart, an untimely

challenge to the 2012 assessment of her former homestead. Section

194.171(2), Florida Statutes (2012), is a jurisdictional statute of non-claim

that precludes any challenge or adjustment to the 2012 assessment at this

time. Accordingly, we grant the petition and direct that Neff’s action be

dismissed.1

1The Property Appraiser, and the Department of Revenue – which has filed an

amicus curiae brief in support of the petition, also argue that Neff lacks standing

The Save Our Homes (SOH) Amendment and Portability

This case involves the portability of a benefit under the Save Our Homes

(SOH) Amendment. Passed by the voters in 1992, the SOH Amendment

caps annual increases in the assessed value of a homestead to three

percent of the assessment for the prior year or the percent change in the

Consumer Price Index, whichever is lower. See Art. VII, § 4(d)(1), Fla.

Const.

In 2008, voters approved a separate constitutional amendment that

permits a homeowner to transfer the benefit accrued under the SOH

Amendment to a new homestead established within two years of

abandonment of the prior homestead. See Art. VII, § 4(d)(8), Fla. Const.

The 2008 portability amendment allows a homeowner to transfer some or

all of an SOH benefit to reduce the assessed value of a qualifying new

homestead. The SOH benefit is the difference between the market value

(known as just value) and assessed value (as capped by the SOH

amendment) of the former homestead as of January 1 of the year the

former homestead is abandoned. § 193.155(8), Fla. Stat. (2012).2 The

amount of the SOH benefit that can be transferred depends on the value

of the new homestead, but the benefit is capped at a maximum of

$500,000. See id. Importantly for this case, if the just value and assessed

value of the former homestead were the same when it was abandoned,

there is no SOH benefit that can be transferred.

In sum, the SOH benefit thus depends on the difference between the

just value and the assessed value in the year that the homeowner

abandons the former homestead. For calculating the portability benefit,

to challenge the 2012 assessment. See § 194.181(1)(a), Fla. Stat. (2012). Neff is

seeking to raise the just value on a property she no longer owns. We decline to

reach this issue as it is not necessary to do so, and lack of standing is not a basis

for granting a writ of prohibition. Godfrey v. Reliance Wholesale, Inc., 68 So. 3d

930, 931 (Fla. 3d DCA 2011).

2For example, if the former homestead had a $400,000 just value, but an

assessed value of only $300,000 due to the SOH cap, then the homeowner could

transfer the $100,000 SOH benefit to a new homestead established within two

years. If the new homestead had a $500,000 just value, the assessed value would

therefore be reduced by $100,000 to $400,000.

-2-

the amendment uses the former homestead’s just value as of January 1 of

the year in which the homestead is abandoned.3

Factual and Procedural Background

Neff owned a home (the “former homestead”) in Lost Tree Village in

North Palm Beach. On January 24, 2012, she sold her former homestead

for $5.1 million. For 2012, however, the just value and assessed value of

the former homestead were the same–$2,325,295.

In 2013, Neff applied for and obtained a homestead exemption for her

new home. She then filed a Transfer of Homestead Assessment Difference

application, seeking to transfer an SOH benefit to the new homestead. The

Property Appraiser advised Neff by letter that, although the application

was approved, there was zero portability value because the just value and

assessed value of the former homestead were the same in 2012.

Upon receiving Notice of Proposed Property Taxes for her new

homestead for 2013, she filed a declaratory judgment action in circuit

court, which sought review of the Property Appraiser’s determination that

she had no SOH benefit to transfer. She explained that she sold her former

homestead in 2012 for $5.1 million, but for the 2012 tax year, the Property

Appraiser assessed a just value of only $2,325,295. She claimed that she

did not receive a tax notice for her former homestead for 2012 and sought

a declaration that she was entitled to the maximum $500,000 portability

benefit toward the assessed value of her new homestead. With the benefit

of hindsight, Neff was taking a unique position for a taxpayer–that her

2012 just value was too low.

3The amendment provides:

If the just value of the new homestead is greater than or equal to

the just value of the prior homestead as of January 1 of the year in

which the prior homestead was abandoned, the assessed value of

the new homestead shall be the just value of the new homestead

minus an amount equal to the lesser of $500,000 or the difference

between the just value and the assessed value of the prior

homestead as of January 1 of the year in which the prior

homestead was abandoned. Thereafter, the homestead shall be

assessed as provided in this subsection.

Art. VII, § 4(d)(8)a.1, Fla. Const. (emphasis supplied); see also § 193.155(8)(a),

Fla. Stat. (2012).

-3-

The Property Appraiser moved to dismiss Neff’s action arguing, in

relevant part, that any challenge to the 2012 just value assessment of the

former homestead was time barred by section 194.171(2), Florida Statutes

(2012). The trial court denied the motion. After some discovery, the

Property Appraiser moved for summary judgment arguing, among other

things, that Neff’s action was time barred by section 194.171(2), and that

Neff lacked standing to challenge the 2012 assessment of her former

property. The trial court denied summary judgment, and this petition

followed.

Analysis

A writ of prohibition “may issue where a trial court exceeds its

jurisdiction by failing to dismiss a cause of action contesting a tax

assessment where the jurisdiction requirements of section 194.171 are not

met.” Markham v. Moriarty, 575 So. 2d 1307, 1308 (Fla. 4th DCA 1991).

The time for challenging a tax assessment is strictly proscribed by

statute:

(2) No action shall be brought to contest a tax assessment

after 60 days from the date the assessment being contested is

certified for collection under s. 193.122(2), or after 60 days

from the date a decision is rendered concerning such

assessment by the value adjustment board if a petition

contesting the assessment had not received final action by the

value adjustment board prior to extension of the roll under s.

197.323.

§ 194.171(2), Fla. Stat. (2012). Neff did not file an administrative challenge

to the 2012 assessment with the value adjustment board. The 2012

assessment was certified for collection on October 10, 2012. The 60-day

time for filing a circuit court action challenging an assessment, therefore,

expired on or about December 10, 2012. Neff filed her declaratory

judgment complaint on October 24, 2013. While this action was timely-

filed within 60 days of the 2013 assessment of her new homestead, it was

filed well outside the time for challenging the 2012 assessment.

Section 194.171(2) is a jurisdictional statute of non-claim. See §

194.171(6), Fla. Stat. (2012) (“The requirements of subsections (2), (3), and

(5) are jurisdictional. No court shall have jurisdiction in such cases until

after the requirements of both subsections (2) and (3) have been met.”).

-4-

The Florida Supreme Court has strictly construed this jurisdictional

statute. See Ward v. Brown, 894 So. 2d 811, 814 (Fla. 2004) (explaining

that this statute has been strictly construed and “compliance with its

provisions is mandatory regardless of the nature of the taxpayer’s claim”);

Markham v. Neptune Hollywood Beach Club, 527 So. 2d 814, 815 (Fla.

1988) (recognizing that this jurisdictional statute of non-claim bars

untimely challenges); see also Taylor v. City of Lake Worth, 964 So. 2d 243,

244 (Fla. 4th DCA 2007).

In addition, the statute providing for the transfer of an SOH benefit

expressly prohibits any retroactive adjustment of a prior assessment. §

193.155(8)(i)8., Fla. Stat. (2012) (“This subsection does not authorize the

consideration or adjustment of the just, assessed, or taxable value of the

previous homestead property.”).

Under the circumstances of this case, Neff’s challenge is actually to the

2012 assessment. The strict jurisdictional time limit of section 194.171(2)

cannot be circumvented by embedding a challenge to a prior year’s

assessment in the form of a challenge to the current year’s assessment.

Neff’s action relies on the $5.1 million actual sale price of the former

homestead in 2012 to suggest that the $2,325,295 just value assessed in

2012 was an undervaluation. As noted by the Property Appraiser, Neff

benefited from the lower valuation, as it resulted in lower taxes during the

time Neff owned the property.4 Neff’s action seeks to create an SOH benefit

after the fact where none existed at the time the former homestead was

abandoned. This is contrary to the purpose of the amendment allowing

portability of an SOH benefit and contrary to the strong public policy

reflected in section 194.171(2) requiring finality in tax assessments.

Although the circuit court generally has jurisdiction to consider a

declaratory judgment action under section 86.011, Florida Statutes, the

action in this case would necessarily involve an untimely and barred

challenge or adjustment to the 2012 assessment of the former homestead.

Accordingly, we conclude that the circuit court lacks jurisdiction as a

matter of law to grant the relief requested in Neff’s action. We grant the

petition for writ of prohibition and direct that Neff’s action be dismissed

for lack of jurisdiction.

4According to the Property Appraiser, in 2011, the just and assessed value of the

former homestead was $2,432,022. The assessed value was reduced further in

2012 when the just value dropped because the assessed value of a property can

never exceed the just value. Art. VII, § 4(d)(2), Fla, Const. Thus, there was no

SOH benefit accrued when the former homestead was sold.

-5-

CIKLIN, C.J., and MAY, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

-6-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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