Tax Type
Local Taxes
Property Tax
Description
Land Use Taxation
Topic
Local Taxes Discussion
Property Subject to Tax
Date Issued
02-07-1990
[Opinion - Virginia Attorney General: 1990 at 245]
REQUEST BY: Mr. Joseph Rigo Commissioner of the Revenue for York County P.O. Box 90 Yorktown, Virginia 23690
OPINION BY: Mary Sue Terry, Attorney General
OPINION:
You ask several questions arising from the subdivision of a parcel of land into five smaller parcels. The original parcel qualified for land-use taxation.1
I. Facts
The original parcel of land owned by A had been assessed since 1958 as 50.49 acres, measured by metes and bounds in the original conveyance. You state that the parcel had been in land-use taxation since the enactment of this program in York County. In 1978, A deeded a portion of his parcel to his son, B. In this conveyance, A thought he was transferring a ten-acre parcel to B. A survey later measured B's parcel at 22.79 acres, however, and not ten acres. When B recorded this plat of survey in 1983, your office corrected B's assessment in the land book to be 22.79 acres, rather than ten acres. A's remaining parcel was not surveyed, and no plat has been recorded on the remainder. A's real estate assessment has not changed.
In 1987, A deeded 15.04 surveyed acres from the original parcel of land to another son, C. A then assumed his unsurveyed remainder parcel consisted of 25.45 acres, as assessed by your office. A deeded the residual property in three parcels to his daughters D, E and F. When those parcels were surveyed, however, they totaled only 13.57 acres, not 25.45, with no land remaining, and each individual parcel was less than five acres.
Based on these facts, you ask whether (1) A's unsurveyed remainder parcel should have been reduced on the land book by the additional 12.79 acres added to B's parcel; (2) roll-back taxes are precipitated by A's transfer of the parcels to D, E and F; and (3) A, upon his written application, is entitled to a refund pursuant to § 58.1-3990 of the Code of Virginia for taxes paid on acreage previously conveyed.
II. Applicable Statutes
Section 58.1-3281 requires the commissioner of the revenue to ascertain all the real estate and the person to whom it is chargeable with taxes on January 1 of each year. § 58.1-3313 requires the commissioner of the revenue to correct mistakes made in land book entries.
Section 58.1-3241 requires that individual lots split off from qualifying parcels shall meet the minimum acreage requirement to qualify for land-use taxation or be subject to roll-back taxes. § 58.1-3241(A) provides:
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 [Article 4, Chapter 32 of Title 58.1], 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 . . . .
No subdivision of property which results in parcels which meet the minimum acreage requirements of this article, and which the owner attests is for one or more of the purposes set forth in § 58.1-3230, shall be subject to the provisions of this subsection.
Section 58.1-3233 details the duties of a commissioner of revenue in the assessment of real estate for land-use taxation. The minimum five-acre requirement is described in § 58.1-3233(2).
Section 58.1-3990 authorizes local governing bodies by ordinance to provide for refunds of local taxes erroneously paid and provides, in part:
If such ordinance be passed, and the commissioner of the revenue is satisfied that he has erroneously assessed any applicant with any local taxes, he shall certify to the tax-collecting officer the amount erroneously assessed . . . .
* * *
No refund shall be made in any case when application therefore was made more than three years after the last day of the tax year for which such taxes were assessed . . . .
III. Remainder of A's Unsurveyed Parcel Should Be Reduced by Additional Acreage Added to B's Parcel
You first ask whether A's unsurveyed remainder parcel should have been reduced on the land book by the additional 12.79 acres shown to be part of B's parcel by the survey and the plat recorded in 1983. § 58.1-3281 requires a commissioner of the revenue to determine ownership of real estate on January 1 of each year.
In this instance, A's original parcel had been assessed since 1958 on 50.49 acres. The survey of the parcel A conveyed to son B in 1978 showed the new parcel to include 22.79 acres rather than the approximately ten acres deeded by metes and bounds. Prior Opinions of this Office conclude that a commissioner of the revenue should correct acreage figures shown in the land book upon receiving information that the existing land book figures are incorrect. See Att'y Gen. Ann. Rep.: 1985-1986 at 298; 1982-1983 at 105; 1972-1973 at 85.
The best information available in the facts you present demonstrates that 22.79 acres was conveyed from the original tract of 50.49 acres. It is my opinion that § 58.1-3313 requires a commissioner of the revenue to correct acreage figures shown in the land book to reflect the best information available. It is further my opinion, therefore, that A's unsurveyed remainder parcel should have been reduced on the land book by the additional 12.79 acres shown to be part of B's parcel by the plat recorded in 1983.
IV. Individual Lots Must Meet Acreage Requirement for Eligibility for Land-Use Taxation
You next ask whether A's conveyance of the three residual parcels to children D, E and F subjects these parcels to liability for roll-back taxes.
Each individual lot or parcel separated from a parcel that has been assessed under land-use taxation must satisfy the minimum acreage requirements of § 58.1-3233 to avoid subjecting the separated lot or parcel to liability for roll-back taxes. See § 58.1-3241(A). Prior Opinions of this Office consistently conclude that the separation of lots that do not meet the minimum acreage requirements triggers the application of roll-back taxes. Att'y Gen. Ann. Rep.: 1986-1987 at 306; 1985-1986 at 305; 1982-1983 at 545; 1979-1980 at 339.
In the facts you present, none of the three parcels conveyed by A to children D, E and F contains the required five acres. It is my opinion, therefore, that A's conveyance of the three residual parcels to D, E and F subjects each of these three parcels to liability for roll-back taxes.
V. Taxpayer May Apply for Refund of Taxes Erroneously Paid Due to Error in Number of Acres Assessed
Your final question is whether A, upon his written application, is entitled to a refund pursuant to § 58.1-3990 for taxes paid on acreage previously conveyed. I assume that the jurisdiction you serve has enacted an ordinance pursuant to § 58.1-3990 to provide for refunds of local taxes erroneously paid. Taxes assessed against, and paid by, A on acreage previously conveyed would constitute an erroneous assessment and payment. It is my opinion, therefore, that upon application of A, refunds would be due him for taxes paid on that acreage, subject to the applicable three-year statute of limitations on such refunds.
VI. Summary
To summarize, it is my opinion in the facts you present that:
1. A's unsurveyed remainder parcel should be reduced in the land book by the additional acreage added to B's parcel by survey;
2. Roll-back taxes are due on the parcels transferred to D, E and F because the individual lots do not meet the minimum acreage requirement for land-use taxation; and
3. A is entitled to a refund for the applicable three-year limitation period under an ordinance passed pursuant to § 58.1-3990 for taxes erroneously assessed and paid on acreage previously conveyed.
1 Virginia's statutes concerning "Special Assessment for Land Preservation" are detailed in Va. Code Ann. §§ 58.1-3229 to 58.1-3244.
Attorney General's Opinion