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A bill to be entitled

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An act relating to property appraisal; amending s.

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193.011, F.S.; revising factors used to determine the just

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valuation of property; creating s. 193.018, F.S.;

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authorizing owners of certain property to enter into deed-

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restriction agreements with counties for certain purposes;

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requiring the property appraiser to consider such

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agreements in determining just value; providing for the

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recapture of taxes and imposing interest under certain

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circumstances; amending s. 194.011, F.S.; providing for

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admissibility of certain evidence at hearings of the value

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adjustment board under certain circumstances; amending s.

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194.034, F.S.; establishing the exclusive authority of the

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Department of Revenue to adopt rules governing the conduct

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of hearings before value adjustment boards; amending s.

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194.181, F.S.; revising criteria for plaintiffs to a tax

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suit; prohibiting property appraisers from challenging the

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constitutionality of laws; creating s. 194.182, F.S.;

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providing criteria for the admissibility of evidence in

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tax cases; amending s. 194.192, F.S.; requiring a court to

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enter judgment for taxpayers for tax overpayments and

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interest under certain circumstances; requiring a court to

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assess and award reasonable attorney's fees against

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property appraisers and to taxpayers under certain

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circumstances; amending s. 194.301, F.S.; revising the

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burden of proof in challenges to the property appraiser's

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assessment of just value; deleting the presumption of

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correctness and placing a burden of proof on the

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appraiser; placing a burden of proof on the property

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appraiser in certain actions challenging a value

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adjustment board's assessment of just value; specifying

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the burden of proof for property appraisers in actions

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challenging denial of an exemption or assessment

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classification; providing legislative intent that the

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taxpayer does not have the burden of proving that the

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property appraiser's assessment is unsupported; amending

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s. 195.087, F.S.; excluding certain amounts from a

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property appraiser's budget; amending s. 196.161, F.S.;

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requiring a property appraiser to record a notice of tax

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lien against certain homestead property improperly

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receiving a homestead exemption for a certain period;

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prohibiting assessing persons taxes, penalties, and

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interest for receiving a homestead exemption to which they

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are entitled but improperly granted through a clerical

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error or omission of the property appraiser; providing for

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retroactive application; amending s. 192.0105, F.S.;

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conforming a cross-reference; requesting the Taxation and

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Budget Reform Commission to study property tax proceedings

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and property tax disputes and to make recommendations to

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the Legislature; providing effective dates.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Effective upon this act becoming a law and

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applicable to assessments beginning January 1, 2009, section

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193.011, Florida Statutes, is amended to read:

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     193.011 Factors to consider in deriving Just valuation of

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property.--In arriving at the just valuation of property as

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required under s. 4, Art. VII of the State Constitution, the

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property appraiser shall take into consideration the following

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factors:

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     (1) The present cash value of the property, which is the

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amount a willing purchaser would pay a willing seller, exclusive

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of reasonable fees and costs of purchase and conditions precedent

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to the sale which require zoning changes and permits, in cash or

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the immediate equivalent thereof in a transaction carried out at

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arm's length;

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     (2)  The highest and best use to which the property can be

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expected to be put in the immediate future and the present use of

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the property, taking into consideration the legally permissible

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use of the property, including any applicable judicial

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limitation, local or state land use regulation, or historic

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preservation ordinance; any zoning changes and permits necessary

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to achieve the highest and best use;, and considering any

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moratorium imposed by executive order, law, ordinance,

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regulation, resolution, or proclamation adopted by any

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governmental body or agency or the Governor if when the

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moratorium or judicial limitation prohibits or restricts the

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development or improvement of the property as otherwise

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authorized by applicable law. The applicable governmental body or

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agency or the Governor shall notify the property appraiser in

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writing of any executive order, ordinance, regulation,

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resolution, or proclamation it adopts imposing any such

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limitation, regulation, or moratorium.;

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     (3) The location of the said property.;

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     (4) The quantity or size of the said property.;

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     (5) The cost of the said property, and the present

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replacement value of the property, and any improvements to the

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property taking into account the external physical deterioration

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and functional obsolescence of the property. thereon;

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     (6) The condition of the said property.;

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     (7) The income from the said property.; and

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     (8) The net proceeds from of the sale of the property, as

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received by the seller, after deduction of all of the usual and

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reasonable fees and costs of the sale, including the costs and

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expenses of financing, and allowance for unconventional or

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atypical terms of financing arrangements. If When the net

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proceeds of the sale of the any property are used utilized,

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directly or indirectly, to determine the in the determination of

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just valuation of realty of the sold parcel or any other parcel

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being considered under the provisions of this section, the

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property appraiser, for the purposes of such determination, shall

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exclude any portion of the such net proceeds attributable to

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payments for household furnishings or other items of personal

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property.

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     Section 2.  Section 193.018, Florida Statutes, is created to

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read:

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     193.018 Valuation of deed-restricted property.--

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     (1) The owner of any residential rental property, multiunit

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commercial rental property, property used as a marina, waterfront

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property used exclusively for commercial fishing purposes, or

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property rented for mobile home use may enter into a

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deed-restriction agreement with the county to maintain the

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property at its current use for a period of at least 5 years.

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     (2) The property appraiser shall consider the

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deed-restriction agreement in determining the just value of the

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property.

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     (3) If, prior to the expiration of the deed-restriction

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agreement, the property is used for purposes other than those set

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forth in the agreement, the deed-restriction agreement shall be

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terminated and the property owner shall pay to the county an

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amount equal to any additional taxes that would have been

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assessed in prior years had the agreement not been in effect,

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plus interest at the rate of 12 percent per year on the amount of

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additional taxes owed.

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     Section 3.  Effective upon this act becoming a law and

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applicable to petitions filed on or after January 1, 2009,

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paragraph (c) is added to subsection (4) of section 194.011,

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Florida Statutes, to read:

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     194.011  Assessment notice; objections to assessments.--

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     (4)

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     (c) Any evidence to be presented at the hearing pursuant to

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this subsection shall be admissible and shall be considered by

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the value adjustment board or special magistrate regardless of

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whether such evidence was previously produced at the request of

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the petitioner or the property appraiser.

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     Section 4.  Subsection (1) of section 194.034, Florida

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Statutes, is amended to read:

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     194.034  Hearing procedures; rules.--

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     (1)(a) Petitioners before the value adjustment board may be

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represented by an attorney or agent and present testimony and

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other evidence. The property appraiser or his or her authorized

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representatives may be represented by an attorney in defending

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the property appraiser's assessment or opposing an exemption and

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may present testimony and other evidence. The property appraiser,

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each petitioner, and all witnesses shall be required, upon the

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request of either party, to testify under oath as administered by

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the chairperson of the board. Hearings shall be conducted in the

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manner prescribed by rules of the department, which rules shall

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include the right of cross-examination of any witness.

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     (a)(b) This section does not Nothing herein shall preclude

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an aggrieved taxpayer from contesting his or her assessment under

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part II of this chapter in the manner provided by s. 194.171,

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whether or not he or she has initiated an action pursuant to this

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part s. 194.011.

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     (b)(c) The Department of Revenue has the exclusive

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authority to adopt rules governing the conduct of hearings before

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the board and all related matters arising under this part. Such

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rules may account for differences between counties that use the

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services of a special magistrate and counties that do not. The

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rules must shall provide that no evidence shall be considered by

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the board only except when presented during the time scheduled

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for the petitioner's hearing or at a time when the petitioner has

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been given reasonable notice; that a verbatim record of the

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proceedings shall be made; that, and proof of any documentary

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evidence presented shall be preserved and made available to the

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Department of Revenue, if requested; and that further judicial

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proceedings shall be as provided in s. 194.036.

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     (c)(d) A Notwithstanding the provisions of this subsection,

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no petitioner may not present for consideration and, nor may a

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board or special magistrate may not accept for consideration,

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testimony or other evidentiary materials that were requested of

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the petitioner in writing by the property appraiser of which the

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petitioner had knowledge and denied to the property appraiser.

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     (d)(e) Chapter 120 does not apply to hearings of the value

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adjustment board.

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     (e)(f) An assessment may not be contested until a return

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required by s. 193.052 has been filed.

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     Section 5.  Effective upon this act becoming a law and

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applicable to actions pending or filed on or after January 1,

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2009, subsection (1) of section 194.181, Florida Statutes, is

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amended, and subsection (7) is added to that section, to read:

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     194.181  Parties to a tax suit.--

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     (1)  The plaintiff in any tax suit shall be:

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     (a)  The taxpayer or other person contesting the assessment

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of any tax that, the payment of which he or she is responsible

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for payment under law a statute or a person who is responsible

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for the entire tax payment pursuant to a contract; and has the

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written consent of the property owner, or

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     (b) The condominium association, cooperative association,

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or homeowners' association, as defined in s. 723.075, which

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operates the units subject to the assessment; or

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     (c)(b) The property appraiser pursuant to s. 194.036.

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     (7) A property appraiser, in his or her official capacity,

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may not challenge the constitutionality of any law as a plaintiff

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or defendant in any action, whether in an affirmative or

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defensive posture.

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     Section 6.  Effective upon this act becoming a law and

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applicable to actions filed on or after January 1, 2009, section

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194.182, Florida Statutes, is created to read:

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     194.182 Admissibility of evidence in tax suits.--The

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admissibility of evidence in all actions contesting a tax

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assessment shall be governed by the Florida Rules of Evidence,

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and a failure to have previously produced evidence at the request

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of the property appraiser prior to a judicial proceeding does not

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provide grounds for denying the admissibility of that evidence.

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     Section 7.  Effective upon this act becoming a law and

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applicable to actions filed on or after January 1, 2009, section

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194.192, Florida Statutes, is amended to read:

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     194.192 Costs; interest on unpaid or overpaid taxes;

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penalty; attorneys fees.--

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     (1)  In any suit involving the assessment or collection of

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any tax, the court shall assess all costs.

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     (2)  If the court finds that the amount of tax owed by the

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taxpayer is greater than the amount the taxpayer has in good

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faith admitted and paid, it shall enter judgment against the

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taxpayer for the deficiency and for interest on the deficiency at

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the rate of 12 percent per year from the date the tax became

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delinquent.

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     (3) If the court it finds that the amount of tax which the

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taxpayer has admitted to be owing is grossly disproportionate to

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the amount of tax found to be due and that the taxpayer's

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admission was not made in good faith, the court shall also assess

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a penalty at the rate of 10 percent of the deficiency per year

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from the date the tax became delinquent.

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     (4) If the court finds that the amount of tax owed by the

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taxpayer is less than the amount of tax paid, it shall enter

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judgment against the property appraiser for the amount of the

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difference and for interest on the amount of the difference at

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the rate of 12 percent per year from the date of payment.

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     (5) If the final assessment determined by the court is

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lower than the value assessed by the property appraiser by more

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than 10 percent, the court shall award reasonable attorney's fees

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to the taxpayer.

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     Section 8.  Section 194.301, Florida Statutes, is amended to

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read:

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     194.301 Burden of proof in assessment challenges

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Presumption of correctness.--

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     (1) In an any administrative or judicial action in which a

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taxpayer challenges an ad valorem tax assessment of just value,

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the property appraiser has the burden of proving that his or her

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assessment complies with s. 193.011 and professionally accepted

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appraisal practices, including mass appraisal if appropriate, in

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which case the appraiser's assessment shall be presumed correct.

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If the appraiser meets that burden, the taxpayer has the burden

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of proving by a preponderance of the evidence that the assessment

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is in excess of just value, or that the This presumption of

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correctness is lost if the taxpayer shows by a preponderance of

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the evidence that either the property appraiser has failed to

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consider properly the criteria in s. 193.011 or if the property

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appraiser's assessment is arbitrarily based on appraisal

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practices that which are different from the appraisal practices

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generally applied by the property appraiser to comparable

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property within the same class and within the same county. If the

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presumption of correctness is lost, the taxpayer shall have the

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burden of proving by a preponderance of the evidence that the

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appraiser's assessment is in excess of just value. If the

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presumption of correctness is retained, the taxpayer shall have

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the burden of proving by clear and convincing evidence that the

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appraiser's assessment is in excess of just value. In no case

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shall the taxpayer have the burden of proving that the property

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appraiser's assessment is not supported by any reasonable

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hypothesis of a legal assessment.

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     (2) In a judicial action in which the property appraiser

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challenges the value adjustment board's assessment of just value,

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the property appraiser has the burden of proving by a

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preponderance of the evidence that the board's assessment is less

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than just value. If the property appraiser's assessment is

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determined to be erroneous, the value adjustment board or the

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court may can establish the assessment if there is exists

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competent, substantial evidence in the record, which cumulatively

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meets the requirements of s. 193.011 and professionally accepted

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appraisal practices. If the record lacks competent, substantial

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evidence meeting the just value criteria of s. 193.011, the

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matter shall be remanded to the property appraiser with

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appropriate directions from the value adjustment board or the

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court.

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     (3) In an administrative or judicial action in which a

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denial of an exemption or assessment classification is

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challenged, the property appraiser has the burden of proving that

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his or her denial complies with the applicable laws governing

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such exemption or assessment classification.

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     Section 9. It is the express intent of the Legislature that

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the taxpayer not have the burden of proving that the property

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appraiser's assessment is not supported by any reasonable

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hypothesis of a legal assessment and that court holdings setting

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out such a standard were expressly rejected by the adoption of

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chapter 97-85, Laws of Florida. It is the further intent of the

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Legislature that court opinions published since 1997 citing the

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"every reasonable hypothesis standard" are expressly rejected to

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the extent they are cited as interpretative of legislative

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intent.

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     Section 10.  Subsection (1) of section 195.087, Florida

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Statutes, is amended to read:

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     195.087  Property appraisers and tax collectors to submit

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budgets to Department of Revenue.--

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     (1)(a) On or before June 1 of each year, every property

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appraiser, regardless of the form of county government, shall

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submit to the Department of Revenue a budget request for the

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operation of the property appraiser's office for the ensuing

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fiscal year beginning October 1. The budget may not include any

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amount to be used by the property appraiser's office to challenge

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a law of this state.

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     (a) The property appraiser shall submit a his or her budget

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request in the manner and form required by the department. A copy

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of such budget shall be furnished at the same time to the board

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of county commissioners. The department shall, upon proper notice

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to the county commission and property appraiser, review the

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budget request and may amend or change the budget request as it

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deems necessary, in order to ensure that the budget is be neither

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inadequate nor excessive. On or before July 15, the department

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shall notify the property appraiser and the board of county

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commissioners of its tentative budget amendments and changes.

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Prior to August 15, the property appraiser and the board of

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county commissioners may submit additional information or

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testimony to the department respecting the budget request. On or

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before August 15, the department shall make its final budget

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amendments or changes to the budget and shall provide notice

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thereof to the property appraiser and board of county

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commissioners.

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     (b)  The Governor and Cabinet, sitting as the Administration

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Commission, may hear appeals from the final action of the

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department upon a written request being filed by the property

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appraiser or the presiding officer of the county commission no

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later than 15 days after the conclusion of the hearing held

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pursuant to s. 200.065(2)(d). The Administration Commission may

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amend the budget if it finds that any aspect of the budget is

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unreasonable in light of the workload of the office of the

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property appraiser in the county under review. The budget request

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as approved by the department and as amended by the commission

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shall become the operating budget of the property appraiser for

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the ensuing fiscal year beginning October 1, except that the

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budget so approved may subsequently be amended under the same

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procedure. After final approval, the property appraiser may not

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shall make no transfer of funds between accounts without the

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written approval of the department. However, all moneys received

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by property appraisers in complying with chapter 119 shall be

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accounted for in the same manner as provided for in s. 218.36,

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for moneys received as county fees and commissions, and any such

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moneys may be used and expended in the same manner and to the

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same extent as funds budgeted for the office without requiring a

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and no budget amendment shall be required.

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     Section 11.  Effective upon this act becoming a law and

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operating retroactively to January 1, 1998, paragraph (b) of

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subsection (1) of section 196.161, Florida Statutes, is amended

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to read:

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     196.161  Homestead exemptions; lien imposed on property of

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person claiming exemption although not a permanent resident.--

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     (1)

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     (b) In addition, if upon determination by the property

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appraiser determines that for any year or years within the prior

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10 years a person who was not entitled to a homestead exemption

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was granted a homestead exemption from ad valorem taxes, it shall

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be the duty of the property appraiser making such determination

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shall to serve upon the owner a notice of intent to record in the

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public records of the county a notice of tax lien against any

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property owned by that person in the county, and such property

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shall be identified in the notice of tax lien. Such property that

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which is situated in this state is shall be subject to the taxes

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exempted thereby, plus a penalty of 50 percent of the unpaid

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taxes for each year and 15 percent interest per annum. Before any

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such lien may be filed, the owner so notified must be given 30

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days to pay the taxes, penalties, and interest. However, if a

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homestead exemption is improperly granted as a result of a

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clerical mistake or an omission by the property appraiser, the

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person improperly receiving the exemption shall not be assessed

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penalty and interest. If a person is otherwise entitled to a

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homestead exemption but the homestead exemption is improperly

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granted through a clerical mistake or an omission by the property

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appraiser, the person receiving the homestead exemption shall not

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be assessed back taxes, penalties, or interest on such property

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as provided in this paragraph. Before any such lien may be filed,

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the owner so notified must be given 30 days to pay the taxes,

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penalties, and interest.

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     Section 12.  Paragraph (f) of subsection (2) of section

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192.0105, Florida Statutes, is amended to read:

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     192.0105  Taxpayer rights.--There is created a Florida

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Taxpayer's Bill of Rights for property taxes and assessments to

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guarantee that the rights, privacy, and property of the taxpayers

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of this state are adequately safeguarded and protected during tax

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levy, assessment, collection, and enforcement processes

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administered under the revenue laws of this state. The Taxpayer's

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Bill of Rights compiles, in one document, brief but comprehensive

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statements that summarize the rights and obligations of the

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property appraisers, tax collectors, clerks of the court, local

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governing boards, the Department of Revenue, and taxpayers.

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Additional rights afforded to payors of taxes and assessments

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imposed under the revenue laws of this state are provided in s.

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213.015. The rights afforded taxpayers to assure that their

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privacy and property are safeguarded and protected during tax

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levy, assessment, and collection are available only insofar as

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they are implemented in other parts of the Florida Statutes or

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rules of the Department of Revenue. The rights so guaranteed to

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state taxpayers in the Florida Statutes and the departmental

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rules include:

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     (2)  THE RIGHT TO DUE PROCESS.--

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     (f)  The right, in value adjustment board proceedings, to

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have all evidence presented and considered at a public hearing at

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the scheduled time, to be represented by an attorney or agent, to

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have witnesses sworn and cross-examined, and to examine property

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appraisers or evaluators employed by the board who present

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testimony (see ss. 194.034(1) 194.034(1)(a) and (c) and (4), and

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194.035(2)).

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     Section 13. The Legislature requests that the Taxation and

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Budget Reform Commission conduct a study of the independence of

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special magistrates in property tax proceedings and alternative

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methods for resolving property tax disputes and make

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recommendations for legislation regarding such issues to the

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President of the Senate and the Speaker of the House of

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Representatives on or before January 1, 2009.

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     Section 14.  Except as otherwise expressly provided in this

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act and except for this section, which shall take effect upon

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becoming a law, this act shall take effect July 1, 2008.