No. 34276 - In re: Tax Assessment Against Purple Turtle, LLC, et al., v. Gooden
Benjamin, Chief Justice, concurring:
FILED
July 27, 2009
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
I agree with the majority per curiam opinion of the Court and its resolution of
this matter based upon the methodology established by statute and solidified by Rawl Sales
and Processing Co. v. County Comm’n., 191 W.Va. 127, 443 S.E.2d 595 (1994) and In re
Stonestreet, 147 W.Va. 719, 131 S.E.2d 52 (1963). I write separately, however, to again
underscore my disagreement with the continuing disparity which currently exists regarding
the proof burdens of the State and of its citizens in property tax assessm ent cases in West
Virginia.1 Absent reliance on som e vague statist doctrine of a superceding governm ental
entitlement to the fruits of one’s labors, there is no com pelling or even rational basis to
permit the State a lesser burden of proof in the taking of a citizen’s property (in the form of
tax payments) than there is for the citizen in keeping his or her property. The resolution of
this matter turning not on proof burdens, but rather on procedural m
ethodology, I concur in
the majority opinion.
Pursuant to this Court’s decision in In re Tax Assessment of Foster Foundation’s
Woodlands Retirement, 223 W.Va. 14, 672 S.E.2d 150 (2008), the State need only meet a
preponderancy burden of proof in tax assessment cases, whereas a citizen seeking to keep
his property (in the form of tax payments) must meet a higher clear and convincing
burden of proof. Foster Foundation’s Woodlands, at Syl. Pt. 5. As set forth in my
dissenting opinion therein, I believe such a disparity is constitutionally impermissible. In
re Tax Assessment of Foster Foundation’s Woodlands Retirement, supra (J. Benjamin,
dissenting).
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