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Opinion 98041

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

part:




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,




DON STENBERG

Attorney General








L. Jay Bartel

Assistant Attorney General