Nebraska Supreme Court: Board of Equalization Does Not Have Authority to Waive a Statutory Filing Deadline

Mid America Agricultural Products v. Perkins County Board Of Equalization, 312 Neb. 341 (2022).

Nebraska law requires any person challenging a property’s assessment to file a protest with the county Board of Equalization on or before June 30.  Neb. Rev. Stats. § 77-1502(1).[1]  The Nebraska Administrative Code provides that if the taxpayer does not timely file the protest, the Board of Equalization must dismiss the protest.[2]  Here, the Nebraska Supreme Court confirmed that the Administrative Code means what it says, and thus a Board of Equalization has no jurisdiction to accept or consider an untimely protest.

Mid America Agricultural Products/Wheatland Industries LLC (“Wheatland”) owns land in Perkins County.  For the 2021 tax year, the Perkins County Assessor (the “Assessor”) maintained the 2020 valuation for Wheatland’s property.  Because the Assessor maintained the property’s valuation, it did not send Wheatland a notice of valuation change.

On July 1, 2021, Wheatland’s attorney hand delivered a property valuation protest form to the Perkins County Clerk.  The Clerk received the protest.  On July 2, 2021, the Clerk informed Wheatland that it had missed the June 30 deadline to file a protest and therefore, the Perkins County Board of Equalization (the “Board”) would not hear the protest.

Wheatland appealed to the Tax Equalization and Review Commission (“TERC”).  Wheatland claimed the Assessor’s failure to give notice prevented Wheatland from timely filing its protest.  Wheatland also claimed that because the Clerk accepted the protest, the Board waived any jurisdictional issue regarding the timeliness of the protest.

TERC first considered whether it had jurisdiction to hear the appeal.  TERC determined it did not have jurisdiction over the matter under section 77-5013(1) because Wheatland did not timely file the protest.  TERC next determined that, because the Board originally did not have jurisdiction to hear the protest, TERC could not acquire jurisdiction to hear the appeal.

TERC next considered Wheatland’s claims that its untimely filing should not prevent it from protesting because the untimeliness was not its fault.  TERC held that the Nebraska Administrative Code required the Board to dismiss the protest because Wheatland filed the protest a day late.  TERC held that when the law requires a county Board of Equalization to dismiss a protest, the county Board of Equalization does not have authority to do anything else.  Therefore, TERC affirmed the Board’s dismissal of the protest and dismissed Wheatland’s appeal with prejudice.

Wheatland appealed TERC’s decision.  The Nebraska Supreme Court affirmed.  The Court agreed with TERC that the Board did not have the statutory authority to hear Wheatland’s untimely protest.  The Court stated, “… when a board of equalization lacks authority to hear a protest on the merits, TERC likewise lacks authority to do so.”  The Court held that because the Board did not err when it dismissed the protest, TERC did not err when it affirmed the Board’s dismissal.

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[1] All references are to Nebraska Revised Statutes.

[2] 350 Neb. Admin. Code. ch. 10, § 003.03A (2014).