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79-1702. Cancellation or refund of taxes by state board of tax appeals, when; cancellation and abatement of certain taxes on property of the state, municipalities or exempt institutions; property assessed in more than one county; powers of court. If any taxpayer, municipality or taxing district shall have a grievance described under the provisions of K.S.A. 79-1701 or 79-1701a, and amendments thereto, which is not remediable thereunder solely because not reported within the time prescribed therein, or which was remediable thereunder and reported to the proper official or officials within the time prescribed but which has not been remedied by such official or officials, such grievance may be presented to the state board of tax appeals and if it shall be satisfied from competent evidence produced that there is a real grievance, it may direct that the same be remedied either by canceling the tax, if uncollected, together with all penalties charged thereon, or if the tax has been paid, by ordering a refund of the amount found to have been unlawfully charged and collected and interest at the rate prescribed by K.S.A. 79-2968, and amendments thereto, minus two percentage points.

In all cases where the identical property owned by any taxpayer has been assessed for the current tax year in more than one county in the state, the board is hereby given authority to determine which county is entitled to the assessment of the property and to charge legal taxes thereon, and if the taxes have been paid in a county not entitled thereto, the board is hereby empowered to direct the authorities of the county which has so unlawfully collected the taxes to refund the same to the taxpayer with all penalties charged thereon.

No tax grievance shall be considered by the state board of tax appeals unless the same is filed within four years from the date the tax would have become a lien on real estate.

In all cases where an error results in an understatement of values or taxes as a result of the correction of the clerical errors listed in subsection (a), (c), (f) or (g) of K.S.A. 79-1701, and amendments thereto, the state board of tax appeals, if it shall be satisfied from competent evidence produced that there is an understatement as a result of a clerical error, may order an additional assessment or tax bill, or both, to be issued so that the proper value of the property in question is reflected, except that, in no such case shall the taxpayer be assessed interest or penalties on any tax which may be assessed. No increase shall be ordered to correct such error that extends back more than two years from the date of the most recent tax year. If such error applies to property which has been sold or otherwise transferred subsequent to the time the error was made, no such additional assessment or tax bill shall be issued.

Errors committed in the valuation and assessment process that are not specifically described in K.S.A. 79-1701, and amendments thereto, shall be remediable only under the provisions of K.S.A. 79-2005, and amendments thereto.

History: L. 1913, ch. 322, § 2; L. 1917, ch. 321, § 2; R.S. 1923, 79-1702; L. 1943, ch. 291, § 2; L. 1961, ch. 440, § 1; L. 1970, ch. 384, § 1; L. 1975, ch. 496, § 3; L. 1980, ch. 311, § 2; L. 1985, ch. 317, § 3; L. 1997, ch. 126, § 22; L. 1999, ch. 123, § 8; L. 2008, ch. 109, § 98; L. 2013, ch. 87, § 16; L. 2014, ch. 141, § 105; July 1.

Law Review and Bar Journal References:

Case in annotation No. 17 below discussed in 1956-57 surveys of Kansas law, Paul E. Wilson, 6 K.L.R. 140, 148 (1957); Leslie T. Tupy, 6 K.L.R. 251, 252, 253 (1957).

Cases in annotation No. 19 below discussed in 1959-61 survey of taxation law, Leslie T. Tupy, 10 K.L.R. 305, 311, 312 (1961).

Survey of law of taxation, Leslie T. Tupy, 12 K.L.R. 333, 342 (1963).

"Survey of Kansas Law: Taxation," 29 K.L.R. 571, 576 (1981).

"A Practitioner's Guide to the Mortgage Registration Fee Statutes," Julene L. Miller, 62 J.K.B.A. No. 5, 38, 39 (1993).

Attorney General's Opinions:

Late filing; failure or refusal to file; penalty; abatement of penalty. 81-42.

Mortgage registration; refunds. 87-68.

Property subject to taxation on federally recognized indian reservation. 91-39.

Assigning property to the wrong taxing district is not a mathematical miscomputation; additional assessments not authorized. 2007-22.

CASE ANNOTATIONS

1. Remedy hereunder cumulative; action may be maintained for invalidity. Railway Co. v. Greenwood County, 104 Kan. 818, 821, 180 P. 785.

2. Appeal to tax commission not exclusive remedy where tax invalid. Salthouse v. McPherson County, 115 Kan. 668, 670, 224 P. 70; Robinson v. Jones, 119 Kan. 609, 611, 240 P. 957; Atchison, T.& S.F. Rly. Co. v. Montgomery County Comm'rs, 121 Kan. 428, 430, 247 P. 442.

3. Remedies for correction of errors not exclusive where assessment void. Hodgins v. Shawnee County Comm'rs, 123 Kan. 246, 250, 255 P. 46.

4. Held suit may be had for recovery of illegal tax in addition to this section. Bank of Holyrood v. Kottmann, 132 Kan. 593, 595, 296 P. 357.

5. Means of questioning tax assessments considered. Atchison, T. & S.F. Rly. Co. v. Drainage Dist., 133 Kan. 586, 590, 1 P.2d 253.

6. Property listed in wrong school district; taxes recoverable. State, ex rel., v. Williams, 139 Kan. 599, 601, 611, 32 P.2d 481.

7. Commission authorized to order refund of illegal protested taxes. Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 624, 42 P.2d 936.

8. Cited in discussing statutory procedure for making tax valuation and levies. State, ex rel., v. Riley County Comm'rs, 142 Kan. 388, 392, 47 P.2d 449.

9. Escaped assessments are subject to review and equalization by tax commissions. Beacon Publishing Co. v. Burke, 143 Kan. 248, 255, 256, 53 P.2d 888; Allen v. Burke, 143 Kan. 257, 265, 266, 53 P.2d 894.

10. Question whether property is exempt from taxation is judicial one. State, ex rel., v. Davis, 144 Kan. 708, 710, 62 P.2d 893.

11. Remedy hereunder is additional to remedy under K.S.A. 79-2005; commission may order refund of illegal taxes; section not superseded by K.S.A. 10-1120; statutes and decisions on recovery of illegal taxes reviewed. Thompson v. Chautauqua County Comm'rs, 147 Kan. 151, 153, 154, 156, 75 P.2d 839.

12. Discussed in denying injunction to restrain collection on excessive assessment. Eureka B. & L. Ass'n v. Myers, 147 Kan. 609, 610, 612, 614, 616, 78 P.2d 68.

13. Remedy hereunder is cumulative not exclusive; remedy also under L. 1917, ch. 247, § 1. Sherwood Const. Co. v. Board of County Comm'rs, 167 Kan. 421, 423, 425, 207 P.2d 409.

14. Mandamus action proper where removal of property from tax rolls sought. A. T. & S. F. Hospital Ass'n v. State Commission of Revenue and Taxation, 173 Kan. 312, 313, 246 P.2d 299.

15. Remedy provided hereunder is cumulative, not exclusive. Board of County Comm'rs v. Allen, 175 Kan. 460, 462, 264 P.2d 916.

16. Section mentioned; method of valuing surface when minerals separated held illegal, arbitrary and discriminatory. Hitch Land & Cattle Co. v. Board of County Commissioners, 179 Kan. 357, 361, 364, 295 P.2d 640.

17. Remedy hereunder is cumulative, not exclusive; remedy also under L. 1917, ch. 247, § 1. Magnolia Petroleum Co. v. State Commission of Rev. & Taxation, 181 Kan. 84, 89, 309 P.2d 644.

18. Administrative questions determinable hereunder and mandamus not available; constitutionality of tax statute not determinable hereunder. Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 288, 293, 296, 327 P.2d 836.

19. No appeal to district court provided from orders made hereunder; remedies. City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 702, 703, 704, 360 P.2d 29; Union Pacific Railroad Co. v. Sloan, 188 Kan. 231, 232, 233, 361 P.2d 889.

20. Relief denied under this section by board; mandamus action not effective to obtain refund of severance tax. Panhandle Eastern Pipe Line Co. v. Fadely, 189 Kan. 283, 285, 369 P.2d 356.

21. Where state board of equalization approves assessment it is essential party to action to enjoin tax collection. Builders, Inc. v. Board of County Commissioners, 191 Kan. 379, 383, 381 P.2d 527.

22. Mentioned; late filing penalty imposed by K.S.A. 79-332 upheld. Walkemeyer v. Stevens County Oil & Gas Co., 205 Kan. 486, 493, 470 P.2d 730.

23. Mentioned in action involving judicial review of assessment of property of interstate pipeline company. Northern Natural Gas Co. v. Bender, 208 Kan. 135, 142, 490 P.2d 367.

24. No right of appeal from decision of board of tax appeals made hereunder to district court under either K.S.A. 60-2101(d) or 74-2426. In re Lakeview Gardens, Inc., 227 Kan. 161, 164, 165, 170, 605 P.2d 576.

25. Right of appeal to district court considered. In re K-Mart Corp., 232 Kan. 387, 390, 654 P.2d 470 (1982).

26. Appeals to district court from orders of the board of tax appeals in proceedings filed pursuant hereto governed by K.S.A. 74-2426. Lakeview Village, Inc. v. Board of Johnson County Comm'rs, 232 Kan. 711, 713, 715, 659 P.2d 187 (1983).

27. Statute discussed; jurisdiction of board of tax appeals to order refund. Wirt v. Esrey, 233 Kan. 300, 316, 317, 319, 662 P.2d 1238 (1983).

28. K.S.A. 74-2426, 79-213, 79-2005 provide administrative remedy for determining tax-exempt status of property before resort to courts. Tri-County Public Airport Authority v. Board of Morris County Comm'rs, 233 Kan. 960, 963, 967, 666 P.2d 698 (1983).

29. Alternative remedy to K.S.A. 79-2005 before BOTA. Misco Industries, Inc. v. Board of Sedgwick County Comm'rs, 235 Kan. 958, 967, 685 P.2d 866 (1984).

30. No remedy for taxing district's clerical error in taxpayer's favor undetected prior to tax notices unless property unassessed or escaped taxation. In re Order of Board of Tax Appeals, 236 Kan. 406, 413, 691 P.2d 394 (1984).

31. Discussed; legislative intent expressed where interest provided on certain refunds but omitted on others. In re Tax Protests of Midland Industries, Inc., 237 Kan. 867, 871, 703 P.2d 840 (1985).

32. Cited; statutory duty of county to correct errors listed in K.S.A. 79-1701a examined. In re application of U.S.D. No. 437 for Tax Relief, 243 Kan. 555, 556, 757 P.2d 314 (1988).

33. Statutory procedures regarding public utilities right to appeal assessment and valuation of property examined. Colorado Interstate Gas Co. v. Beshears, 18 Kan. App. 2d 814, 816, 817, 818, 819, 820, 860 P.2d 56 (1993).

34. BOTA has jurisdiction when taxpayer pays disputed taxes under protest. Board of Leavenworth County Comm'rs. v. McGraw Fertilizer Serv., Inc., 261 Kan. 901, 905, 933 P.2d 698 (1997).

35. County limited by two-year statute of limitations in collecting past due escaped personal property taxes. Board of Sedgwick County Comm'rs v. Dillon Stores, 25 Kan. App. 2d 342, 350, 962 P.2d 1120 (1998).

36. Tax grievance unsuccessful; In re Appeal of Topeka SMSA Ltd. Partnership, 260 Kan. 154, 917 P.2d 827 (1996) to be applied prospectively only; should have made timely appeal of PVD decision. In re Application of Kinnet, 26 Kan. App. 2d 250, 258, 984 P.2d 725 (1999).

37. BOTA has authority to find assessment of interest on taxes which were improperly billed entirely due to fault of county as a proper grievance and to provide relief. In re Application of TV Realty, 27 Kan. App. 2d 28, 997 P.2d 742 (2000).

38. Taxpayer may recover paid taxes for annexation that is later deemed a nullity under the tax grievance procedure. In re Tax Appeal of Dillon Real Estate Co., 43 Kan. App. 2d 581, 228 P.3d 1080 (2010).


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