Property taxes are high all over the state. For a landowner in Custer County, they border on the criminal.

The landowner, Don Cain, got so mad about his soaring property taxes that he fought it all way to the Nebraska Supreme Court, and won.

Still, even though he won the case, he has had to go back to court again and again, and still hasn’t received relief.

The case of Cain vs. the Custer County Board of Equalization, underway for the better part of six years, was eventually decided by the state’s highest court, which unanimously ruled twice that the Custer County assessor and the Nebraska Tax Equalization Commission were in error in setting the taxable property valuation for Cain’s pasture land.

Although the initial wrongdoing occurred in 2012, he still hasn’t received his money back from the officials that overtaxed him.

Cain said he is caught in a maddening merry-go-round of reference and deference.

The county assessor set the wrong valuation, deferring to guidelines set by the state property tax administrator. The county commissioners, meeting as the board of equalization, referred him to the state legislature.

When he contacted his senator, Matt Williams of Gothenburg, Williams said it was in the courts and therefore, out of the legislature’s hands.

He talked to the state property tax administrator, who deferred to the county assessor’s decision.

He filed an appeal with TERC, which took years, and still, TERC made the wrong determinations.

Only the courts have offered justice, Cain said, and that too has been a long hard road to travel.

Cain, 59, a practicing veterinarian who owns about 1,000 acres of irrigated grass near Broken Bow, won’t be satisfied until he gets his tax money back, if then.

 

Shocking increase

Cain’s anger started smoldering in 2012, when he was told that the taxable value of his 1,000 acres of pastureland had skyrocketed, jumping an incredible 250% in just one year.

The reason, Custer County Assessor Connie Braithwaite told him, was that six years earlier he installed center pivots on the hilly, sandy pastureland and started irrigating the grass below.

For the first five years the pivots operated, the assessor valued it as irrigated grassland. Cain had no real issue with that, other than the common belief that property taxes are too high.

But in 2012, Braithwaite jumped the land up another class — to irrigated cropland — citing a state guideline.

Cain wasn’t properly notified of the new classification, court records show, so by the time he knew about it, the deadline had passed to protest the valuation of the county board of equalization. After consulting an attorney, he decided to appeal the valuation directly to the state’s Tax Equalization and Review Commission (TERC).

By then, Cain had invited real estate appraisers, county commissioners and the county assessor herself out to look at his property, located a mile or so outside of Broken Bow.

He said the assessor was the only one who didn’t come to look. She said her hands were tied and there was nothing she could do – she was only following rules set out by the Nebraska Department of Revenue.

 

Appeal

The pasture is on a vein of Valentine sand that is rare in that area. It is the same soil that covers the vast, unwieldy sandhills in most of northwestern Nebraska.

Cain said there are canyons, blowouts and steep hills on the land. Some of the hills have a 50 degree slope. He said he couldn’t grow crops on it if he wanted to.

After pulling facts and figures together, Cain filed his appeal with the state tax equalization and review commission, who listened and considered, and after months of delay, finally ruled.

The decision was split, 1-1.

TERC has three commissioners, so decisions will be determined by a clear majority. However, one commissioner was absent and the rules allow hearings to be held if a quorum is present. Two commissioners comprise a quorum.

In the decision, one commissioner agreed with Cain and the other did not, and because there was no majority, TERC left the valuation that was set by the county assessor to stand.

Cain had to carry his fight on to court.

At the time, public outcries were prevalent about high property taxes. A legislative body had declared that property taxes were the No. 1 issue in the state.

Cain appealed to the Nebraska Court of Appeals, and perhaps responding to the outcries, the state Supreme Court exercised its prerogative to lift the case directly to its docket.

And finally, in 2015, the high court ruled. The decision was unanimous in Cain’s favor.

In the ruling, the justices said TERC erred in several ways. It imposed too great of a burden of proof on the property owner. One of the justices said TERC should have voided the assessment because Cain was not properly notified in the first place. The court also said when TERC ruled on the situation, the 1-1 vote should have voided the assessed valuation, not upheld it.

Therefore, the Supreme Court sent (remanded) the case back to TERC and ordered it to reach a new decision based on the preponderance of evidence.

But still, the wheels of justice crawled. It took another 18 months before the tax review commissioners voted again.

They did not consider new evidence. They did not allow Cain to testify or file a brief. They talked to no other witnesses. They simply reviewed the evidence that was already presented, according to court records.

“They basically sat on it,” Cain said.

And, for the second time, the TERC ruling went against Cain.

Although he was running lower on funds and patience, he endured.

He had to appeal again to the Nebraska Supreme Court, a process that took another year.

This time, he was even more successful than the first time. Again, the justices ruled in his favor. And the court also took an unusual step. They determined the actual valuation of the property themselves – reducing it to 38% of the value that was set by the county assessor.

And again, the court blasted TERC for disregarding the testimony of a qualified real estate appraiser and of Cain himself.

The high court ruling also said the Custer County Assessor’s hands were not tied in the first place. They said she was supposed to use state classifications and definitions as guidelines, but instead she used them as commands.

The ruling also said Braithwaite did not consider the range of factors she should have considered.

It is clearly wrong, the ruling said, to arrive at an assessment that exceeds the actual value of the property.

The court said TERC erred in several ways:

  • Failing to conduct a hearing following remand.
  • Failing to give Appellant a hearing.
  • Not supporting its decision by competent, sufficient, or substantial evidence.
  • Issuing a decision that did not conform to the remand directions.
  • Issuing a decision that did not conform to the law.

 

Still unsettled

With a Supreme Court ruling in his favor, Cain has yet to receive his over-taxed money back from the county.

Due to another bureaucratic mess, although his taxable valuation was reduced by the Supreme Court, it is still not set accurately.

Taxable ag values are set at 75% of actual values, by state law, but due to a misplaced word in TERC’s final instructions to the county assessor, the land valuation is not 75% of the actual amount, it is 100%.

Therefore, Cain is back in court again, seeking a declaratory judgment that his taxable valuation should be reduced by 25%.

Needless to say, he’s still mad, and more financially strapped than he ever dreamed.

He has been assessed a total of $237,000 for the land since 2012, while the correct tax amount was $86,000, he said. So, he’s suffered a loss of $151,000, plus the time and money he’s spent in court, and the interest on money he has had to borrow.

“It’s a sham,” he said.

He said the county finally refunded the first portion of the money he overpaid, but the amount reflects 100% of the new, adjusted valuation, not 75%. Cain has not cashed the check, because the un-cashed check is evidence that he does not accept the 100% valuation.

Whatever the eventual outcome, Braithwaite likely won’t have to stand the consequences. She did not run for re-election and leaves office in December.

 

(This report was first published in the Bulletin’s Nov. 7 print edition.)