AGO Opinion 98041
Filing Fees for Appeals to the Tax Equalization and Review Commission Under Neb. Rev. Stat. § 77-5013 (1996).
DATE: September 21, 1998
SUBJECT: Filing Fees for Appeals to the Tax Equalization and Review Commission Under Neb. Rev. Stat. § 77-5013 (1996).
REQUESTED BY: Mark Reynolds, Chairman Tax Equalization and Review Commission
WRITTEN BY: Don Stenberg, Attorney General
L. Jay Bartel, Assistant Attorney General
You have requested our opinion concerning the interpretation
of the statutory provision governing filing fees paid by persons
filing appeals with the Tax Equalization and Review Commission
["Commission" of "TERC"]. Neb. Rev. Stat. § 77-5013 (1996)
provides that "[t]he person filing an appeal with the commission
shall pay a filing fee of twenty-five dollars." Your specific
question concerns the construction of § 77-5013 in cases involving
appeals to the Commission by taxpayers from actions of county
boards of equalization denying protests under Neb. Rev. Stat. § 77-
1504 (Supp. 1997) involving multiple, contiguous parcels of
property which share common characteristics. The Commission has
interpreted these statutes to mean that, when a taxpayer files an
appeal concerning multiple, contiguous parcels of property which
share common characteristics, the taxpayer is deemed to have filed
a single appeal, and that only one filing fee is to be collected.
This interpretation is incorporated in a regulation adopted by the
Commission providing for the payment of a single filing fee for
appeals involving multiple, contiguous parcels. Your question is
whether the Commission has properly construed the filing fee
requirement in such circumstances.
"In construing a statute, a court must determine and give
effect to the purpose and intent of the Legislature as ascertained
from the entire language of the statute considered in its plain,
ordinary, and popular sense." Piska v. Nebraska Dept. of Social
Services, 252 Neb. 589, 594, 567 N.W.2d 544, 547 (1997). "Although
construction of a statute by a department charged with enforcing it
is not controlling, considerable weight will be given to such
construction, particularly when the Legislature has failed to take
any action to change such interpretation." Metropolitan Utilities
Dist. v. Balka, 252 Neb. 172, 176, 560 N.W.2d 795, 799 (1997).
Accord McCaul v. American Savings Co., 213 Neb. 841, 331 N.W.2d 795
(1983). "Generally, rules and regulations of an administrative
agency governing proceedings before it, duly adopted and within the
authority of the agency, are as binding as if they were statutes
enacted by the legislature." Douglas County Welfare Administration
v. Parks, 204 Neb. 570, 572, 284 N.W.2d 10, 11 (1979). Accord
Nucor Steel v. Leuenberger, 233 Neb. 863, 866, 448 N.W.2d 909, 911
(1989) ("Agency regulations, properly adopted and filed with the
Secretary of State, have the effect of statutory law.").
Section 77-5013 provides only that a "person filing an appeal
with the commission shall pay a filing fee of twenty-five dollars."
The statute does not specifically address the appropriate fee to be
assessed in situation involving appeals by taxpayers from actions
by county boarda of equalization involving multiple, contiguous
parcels of property sharing common characteristics. Thus, in that
context, the statute is ambiguous, and susceptible of construction.
As noted, the Commission has adopted a regulation (442 NAC
5.002.05) dealing with this situation, which provides, in pertinent
If the party bringing the appeal is the owner of several
parcels, the party may request that only one filing fee
be paid for all parcels. Such a request may be granted
under the following circumstances:
002.05A All issues must be identical for all parcels.
002.05B All parcels must be contiguous if agricultural land
is the subject of the appeal.
002.05C All parcels must be located in the same market
area, neighborhood, or other defined homogeneous
area if residential property is the subject is the
subject of the appeal.
002.05D All parcels must be of the same class (either
Agricultural or Residential.)
002.05E All parcels must be of the same subclass. If
residential, the parcels must be, for example, all
residential single family parcels, residential
multiple family parcels, etc. If agricultural, all
parcels must be, for example, grass, dry cropland,
or irrigated cropland. If the parcels are
irrigated cropland, then all parcels must have the
same method of water delivery, for example, pivot,
gravity, tow line.
In light of the statute's ambiguity regarding the filing fee
to be paid on appeals to the Commission involving multiple,
contiguous parcels, we believe that the Commission's
interpretation, as reflected in its regulation, is a reasonable and
proper construction of the application of § 77-5013 in such cases.
The Commission's interpretation is entitled to weight, and, having
been properly adopted, has the effect of statutory law.
Accordingly, it is our opinion that the Commission's interpretation
and application of § 77-5013 to permit only a single filing fee on
an appeal involving action of a county board of equalization
involving multiple, contiguous parcels involving common
characteristics, is appropriate.
Very truly yours,
L. Jay Bartel
Assistant Attorney General