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If you want a tax appeal, beware the weekend

March 23, 2014 - 12:05am

Once in a while people fight with taxing agencies about their taxes. After all, legislatures, rather than tax agencies, write the laws, and the agencies might not always be right. If you want to take the agency on, however, you need to put your request in on time.

Filing a timely appeal isn’t as easy as it sounds. Most statutes give the taxpayer 30 days to appeal. But the time starts when the agency mails the assessment notice. If the taxpayer receives the notice a few days later, the 30 days is now down to 27 or so. The taxpayer then has to decide if he wants to make the appeal himself. If not, he must figure out what kind of professional help he needs and determine who will be his champion in the arena.

Sometimes, when trying to figure out the last possible day to appeal, we find that the last day in the appeal period falls on a Saturday, Sunday or a holiday. Obviously, the government office will not be open to take the appeal on the last day, so is it sufficient if the appeal is filed on the next day the office is open? Don’t count on it.

Most of us are familiar with the “weekend rule” for taxes. If a tax form or return is due on a weekend or holiday, the form is not late if it is filed on the next business day. The state and the counties have all adopted this rule for tax forms. The question is whether this also applies to appeals.

For most appeals in the judiciary system, the computation of time is governed by Rule 26(a) of the Hawaii Rules of Appellate Procedure, which does adopt the weekend rule. But these rules don’t apply to tax appeals.

There is a decision of the Intermediate Court of Appeals called Marzac v. City and County of Honolulu. In a footnote in that case the court said that the weekend rule does apply to real property tax appeals.

If that wasn’t enough, I found a brochure with an official City and County of Honolulu seal on it called “Real Property Assessment Appeals.” The revision date on the brochure was April 2011, and it was still being distributed in September 2013. A footnote on the last page of the brochure said that although the deadline for appeals is January 15, if that date “falls on a Saturday, Sunday or legal holiday, the deadline shall extend to the close of the next business day.” Looks like the weekend rule applies.

In an actual case, though, a small business got zapped for multiple years of real property tax. The appeal was due on the 30th day after the mail date, which is a Sunday. An appeal to the Board of Review is filed on Monday.

The City and County of Honolulu immediately moved to dismiss. Too late, they said. What about the Intermediate Court’s decision? Not an official published decision, they said. And what about the official brochure? Oops, they said. Obviously a mistake. Board ruled in favor of the City and County of Honolulu and the taxpayer was tossed out on her ear.

This case sends a powerful message about the tyranny of government. If we are to keep the faith of the taxpaying public we can’t just toss them around like dirt. Whatever happened to the rule of law? Whatever happened to respect for the judiciary? Whatever happened to the principle that if an agency publishes guidance that it expects the public to follow, it needs to follow that guidance?

Let’s be consistent and clear to our public. Let’s tell our taxpayers that the wheels of justice can take the weekend off and our taxpayers still can be given their day in court.

Tom Yamachika is interim president of the Tax Foundation of Hawaii.