WHAT EVERY LAWYER SHOULD KNOW ABOUT PROPERTY TAXES

A bi-monthly insider guide to the confusing world of property taxation from BRUSNIAK TURNER.

Providing insight and saving lawyers research time and their clients money since 1981

PROTEST YOUR PROPERTY TAXES
~ BUT DON'T SCREW IT UP ~

© John Brusniak 2024

“An ounce of prevention is worth more than a pound of cure.”

Thousands upon thousands of property tax protests are filed annually. Appraisal Review Boards (“ARBs”) have 60 days to resolve them. Dismissing as many as possible on technicalities speeds things up. I am a big advocate for protesting property tax valuations. But I hate seeing protests dismissed. Here is a check list for you, so you can avoid getting your protests bounced.

IT'S SUPPOSED TO BE SIMPLE
Let's start with the basics. The Tax Code states that a Notice of Protest is valid if it identifies:

1. the property owner;
2. the property; and
3. some “apparent dissatisfaction” with something an appraisal district has done.

THEN WHAT COULD POSSIBLY GO WRONG?
You're probably thinking, “This is easy!I've protested a zillion times. Nothing has ever one wrong.” And most of the time, protesting is easy.However, 40+ years of assisting taxpayers and other lawyers salvage protests tells me otherwise. It's made me acutely aware of the multitude of nitpicky, Mickey Mouse reasons ARBs use to deny taxpayers hearings on the merits.Usually, technical errors fly under the radar.They only pop up
when an appraisal district commits an error itself and rather than acknowledging their mistake, they scramble to find a reason to place the blame on you.

FILE IT IN WRITING (OR ONLINE) OR ELSE
Always file your Notice of Protest in writing! Really? How can anyone screw that up— let me tell you. It's easy. After receiving a Notice of Appraised Value, clients (or their lawyers or other designated agents) call the appraisal district and verbally negotiate on a value. They submit evidence by email. And then, suddenly, they're told that no correction can be made. WHAT – WHY? – It's because they were so sure they had a deal to fix the value that they never filed a written protest. They allowed the deadline to fatally pass by. Verbal complaints never count. But, here's something fairly new that might help: taxpayers, their agents, and their
lawyers can file Notices of Protest online everywhere.If you choose to file electronically, make sure you review the rules listed on the appraisal district's website meticulously and follow them to ensure your protests are accepted. Some appraisal districts knowingly limit what you can protest online.Be aware that if you have technical (nonvalue) grounds for protest, it may not be possible for you to file your protest online. You will need to file your protest in writing.

USE THE PRESCRIBED FORMS FOR PETE'S SAKE

If every appraisal district and every ARB conducted their protests in the same manner, we could skip this paragraph. But they don't. As long as you include the information I
talked about above, you can protest by letter.A letter containing those basic elements is legally sufficient, but that doesn't mean a bureaucrat might not think otherwise.And as you know, the cost to cure a mistake is not cheap.I recommend you use the official form promulgated by the Texas Comptroller (found here).  You can also use the forms. included with your Notice of Appraised Value or you can download a form directly from the appraisal district's website. Or you can fill out a Notice of Protest form online —just don't forget to hit “Submit.”

DETAILS MATTER
Despite numerous revisions to the Property Tax Code aimed at reducing the likelihood of an ARB dismissing your protest, ARBs still try to do so. They can't help themselves. One of the most common reasons given for dismissals is discrepancies between the actual owner of property, the appraisal district'slisting of the owner of property, and the name stated on a Notice of Protest. The current statutory iteration recognizes that “close enough” counts—most of the time.Real quandaries arise when an appraisal district has listed the name of an owner of property incorrectly in its records, and then refuses to recognize a protest as valid because the true owner's name doesn't match their records.(If we suspect this to be the case, we list both the incorrect and correct owner's name to try and avoid issues.) Make sure you adequately identify the property you are protesting.You can identify a
property by its street address, by recorded plat and map information, or by the account number provided by the appraisal district. Or by listing all three! If your property is divided into more than one account, make sure to list all of the account numbers. Be careful – some account numbers have as many as 15 characters. If you input one character wrong–well, the ARB will say “Thanks” for giving them an easy excuse to get rid of your case.

GROUNDS OF COMPLAINT
Even though the Property Tax Code only requires a taxpayer to state “apparent dissatisfaction” for a valid protest, this simple requirement has devolved into something rigid and unforgiving. The standard forms have boxes for you to check to indicate your complaints. Some ARBs may question whether you are entitled to present evidence or argument because your presentation may not precisely conform with the protest menu options you selected. This may also become problematic later if you want to appeal the ARB's decision to district court.Think expansively when deciding which boxes to check. It is better to check too many boxes than not enough.For most value complaints, at a minimum, you should check the boxes pertaining to excessive valuation and unequal valuation. (The wording for these grounds may vary from form to form.)

TWO THINGS NOT TO MISS
You have a couple of very important rights that don't appear on the promulgated Notice of Protest forms. These rights must be exercised in writing. While you are not required to request them at the time of filing, we find that it is best to do so then.

1. You have a unilateral right to discover all documents an appraisal
   district intends to use at your hearing. Appraisal districts are required to provide their written evidence to you at least 14 days prior to your hearing. If they fail to do so, you may object to the use of the evidence and
   have it excluded. Appraisal districts have no right to request discovery from you. I recommend you include a request on a separate page attached to your Notice of Protest (also list the property owner and property description on the separate page in case it gets separated from the Notice of Protest). Keep it simple. Something like this: “Pursuant to Section 41.461 of the Texas Property Tax Code, I request that the Appraisal District produce all evidence it intends to use at the Appraisal Review Board hearing for this property.”
2. You have a right to an informal settlement conference prior to your appraisal review board hearing. When presented with an opportunity to negotiate a settlement of a protest, take it. Once protests go to hearing, the process becomes adversarial. Keep your “spider senses” on alert during informal settlement conferences. Sometimes, appraisal district employees are disingenuous and use the informal settlement process as a means of obtaining discovery from you to use as evidence against you at the hearing.If you have not been granted an informal settlement conference before your hearing, object and demand your conference.Hearings cannot proceed unless a requested settlement conference has been held. You can exercise this right by writing something like this: “Pursuant to Section 41.445 of the Texas Property Tax Code, I request the Appraisal District to hold an informal conference with me prior to the Appraisal Review Board Hearing for this property

TYPES OF HEARING
You have four options as to the type of hearing you can have:
1. In person at the appraisal district;
2. by telephone conference call;
3. by videoconference; or
4. by affidavit.

Maybe it's just the old trial lawyer in me, but I prefer my hearings in person.I want the ARB members to be physically in front of me during my presentation and to look me in the eyes when they rule.Telephone and videoconferences work as well. Since Covid, these have become more popular.However, if you opt for a telephone or video hearing —you must file, prior to the hearing, an affidavit attesting to the trustfulness of any documents you want to present. Testimonial affidavits should be reserved for instances when you cannot appear in person, by telephone, or by videoconference. Or when you are confident your protest will be denied, or you plan on appealing regardless of the ARB's ruling. Or, when your client hasn't provided enough information, but you want to preserve their right to appeal.Most hearings on affidavits are lumped together and completed in one sitting.
Sometimes, taxpayers actually prevail on affidavits.One of the benefits of being a lawyer is that you know how to properly format a valid affidavit.ARBs have been known to dismiss protests due to technical deficiencies in affidavits.An affidavit form is available on the Comptroller's website and is accessible in the same manner as the other standard forms discussed above.

FILING DEADLINE
The default deadline for filing a Notice of Protest is May 15. If an appraisal district mails a Notice of Appraised Value after April 15, the deadline is extended to the 30thday after the notice was mailed.For this very reason, we tend to save all envelopes sent by an appraisal district as proof of their date of mailing. Notwithstanding what the law says, some appraisal districts like to make up their own deadlines.If they provide you with a deadline that gives you more time than what the statute requires, you can rely on that deadline.Problems arise when appraisal districts ignore the May 15 deadline and state a deadline that is earlier.If you file on or before May 15, you are within your legal rights.Sometimes you have no choice. For example, when a client has not reached out to you until after the appraisal district's arbitrary deadline has expired. Otherwise, I recommend you play the game their way. Can you fix it? Yes.But does your client want to spend the extra money going to court to prove that the appraisal district violated statutory deadlines? Probably not.

WRITTEN AUTHORIZATION OF REPRESENTATION
The Property Tax Code requiresalmost everyone who represents a taxpayer to possess a property tax consultant's license.Consultants are required to file written proof of their agency with the appraisal district by using specified forms found on the Comptroller's website.However, lawyers are not required to file agency forms.They are required to state their name and address (your letterhead should work fine if you are filing a protest by letter or if you are attaching a protest to a cover letter), the name of the client, and stating that you are a lawyer. (I usually include my state bar number.)The biggest problem we encounter if we decide to bypass filing an agency authorization
form arises because of inadequate appraisal district computer software. Computers tend to not understand the law and as a result can fail to direct required notifications to you. This, too, is fixable in court. But to save on unnecessary grief, we typically file the statutory agency forms. We do not, unless specifically requested by a client, ask for tax bills to be sent to us.We do ask for everything else.

AVOID REAL MISTAKES TAXPAYERS HAVE MADE
1. File your protest with the correct county's appraisal review board.
2. Confirm the most current mailing address of the appraisal review board.
3. Confirm you put enough postage on the envelope.
4. Review the protest to ensure it has been filled out completely.
5. Sign the Notice of Protest.
6. Complete the agency authorization form and check the agent authority box.
7. Make sure the agent authorization form is on file before your hearing.
8. Verify that the account numbers are active and not different from last year.
9. Review the entire protest one more time for accuracy.

HAPPY PROTESTING!

UP NEXT: How to Deal with Appraisal Review Boards.