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AGO Opinion 97003

Does the Exemption in Neb. Rev. Stat. § 76-2221(5)for Persons Rendering an Estimate of Real Estate Value for Tax Purposes Apply to Property Tax Consultants?
Opinion 97003


DATE: January 8, 1997


SUBJECT: Does the Exemption in Neb. Rev. Stat. § 76-2221(5)for Persons Rendering an Estimate of Real Estate Value for Tax Purposes Apply to
Property Tax Consultants?




REQUESTED BY: Marilyn Hasselbalch, Executive Director

Nebraska Real Estate Appraiser Board




WRITTEN BY: Don Stenberg, Attorney General

Timothy J. Texel, Assistant Attorney General






Pursuant to the provisions of Neb. Rev. Stat. § 76-2248, you

have requested our opinion regarding whether the exemption provided

in Neb. Rev. Stat. § 76-2221(5) for persons rendering estimates of

real estate value for taxation purposes applies to property tax

consultants. We believe that the exemption does apply to property

tax consultants.




You explained in your opinion request that the Lancaster

County Assessor brought this matter to the Real Estate Appraiser

Board's ("Board") attention when a property tax consultant

developed and reported an appraisal for use in a property tax

appeal in Lancaster County. The consultant is not authorized to

appraise in Nebraska nor in his state of residence. The Board had

believed that the property tax consultant exemption in § 76-2221(5)

may apply only to appraisers hired by county assessors and to

persons handling their own property tax appeals.






Engaging in real estate appraisal activities without a

license, certification, or registration is prohibited in § 76-2246.

The pertinent part of § 76-2221 which sets out exemptions to the

otherwise applicable requirements states:




76-2221. Act; exemptions. The Real Estate Appraiser

Act shall not apply to:




. . .




(5) Any person who renders an estimate or opinion of

value of real estate or any interest in real estate when

such estimate or opinion is for the purpose of real

estate taxation or an employee of such person. . . .




Neb. Rev. Stat. § 76-2221(5) (Cum. Supp. 1994).




The above statutory language does not specifically address

property tax consultants, nor does it draw a distinction based on

whether the person rendering an estimate is retained by a

governmental entity or a private individual or company. It appears

the language used, including the inclusive term "any," covers a

wide variety of possibilities and was intended to be broad in its

scope. The statutory language itself therefore indicates that

property tax consultants are exempted from the requirements set out

in the Nebraska Real Estate Appraiser Act, Neb. Rev. Stat. §§ 76-

2201 to 76-2250 (1990 and Cum. Supp. 1994) ("Appraiser Act"), when

engaged in the activities set out in § 76-2221(5).




You mention in your opinion request that the Nebraska Supreme

Court has ruled that a property tax consultant is exempt from the

Appraiser Act. The cases you mentioned are DeVore v. Board of

Equalization, 144 Neb. 351, 13 N.W.2d 451 (1944), and Vogt v. Town

and Country Realty of Lincoln, 194 Neb. 308, 231 N.W.2d 496 (1975).




In the DeVore case, a property owner challenged the value

assessment placed on her property for tax purposes. In arriving at

the property valuation, the district court had allowed several

individuals who were not real estate appraisers to testify

concerning the value of the properties involved. The plaintiff

alleged that the evidence submitted by the Board of Equalization

was not competent for purposes of fixing valuations for assessment.

In reviewing the qualifications necessary for a person to provide

admissible testimony regarding property value, the court quoted

from 20 Am. Jur. 748, sec. 891, which stated that professional

appraisers and dealers engaged in the business of buying and

selling similar property are competent to testify. Id. at 358, 13

N.W.2d at 454. In addition, persons familiar with the property in

question and having knowledge of prices paid for similar property

are qualified to testify. The extent of knowledge the witness has

regarding the type of property involved goes to weight, not

admissibility. Whether a witness is qualified to testify is an

issue left to the discretion of the trial judge. Id.




The Vogt case dealt with a situation where a real estate

broker violated his fiduciary duties to the homeowner he ostensibly

represented in the sale of her home. The real estate broker,

Stanley Portsche, worked for Town and Country Realty. Gerald and

Peggy Gulland purchased the plaintiff's home. Gerald Gulland owned

one-seventh of the stock in Town and Country Realty. Portsche

never listed the plaintiff's property on the open market, knowing

that the Gullands were interested in purchasing the plaintiff's

property. The court found that neither Portsche nor the Gullands

disclosed to plaintiff that the Gullands were part owners of the

realty company where Portsche worked. The court held that Portsche

violated his fiduciary duty to plaintiff as her agent, and the

Gullands had committed constructive fraud. The Vogt case did not

deal specifically with a challenge of a tax assessment value as the

DeVore case had.




The Nebraska Supreme Court affirmed the district court's

decision that the plaintiff's home had been worth $2,500 more than

what the Gullands had paid for it. In arriving at damages, the

trial court had accepted expert testimony regarding the value of

the plaintiff's home. Expert testimony was provided by a licensed

real estate broker. Defendants alleged the trial court had

committed error by accepting the broker's testimony into evidence.

The supreme court, in holding that the district court properly

received the expert testimony, citing to its holding in the DeVore

case, and stated that "The opinion of a witness as to the value of

land will ordinarily be received if he is familiar with the

property and its uses and is informed as to the state of the

market, the weight and credibility of his testimony being for the

trier of fact." Vogt at 319-20, 194 N.W.2d at 503, citing to

DeVore v. Board of Equalization, 144 Neb. 351, 13 N.W.2d 451

(1944).




However, the Nebraska Supreme Court did not specifically hold

that property tax consultants are exempt from the Appraiser Act in

either the DeVore or Vogt decisions. We note that the Appraiser

Act, in its present form, was originally enacted in 1990 (then

known as the "Real Estate Appraiser Licensing and Certification

Act"). Prior to the Appraiser Act, Nebraska did have laws dealing

with real estate appraisers. In 1973, the Nebraska Legislature

enacted a statute which stated that the statutes dealing with real

estate appraisers were not applicable to "Any person or employee

thereof, who renders an estimate or opinion of value of real estate

or any interest therein when such estimate or opinion of value is

for the purpose of real estate taxation." Neb. Rev. Stat. § 81-

8,277(4) (Cum. Supp. 1974). Section 76-2221 in its current form

was present in the 1990 Act and was amended in 1994. The

substantive provisions of § 76-2221(5) were not changed from the

1990 version. The Appraiser Act and § 76-2221(5) were not in place

when the DeVore case was decided, but a similar law was in effect

when the Vogt decision was rendered.




Even though statutory language similar to that provided in §

76-2221(5) was present when the Vogt decision was rendered, the

cases dealt with what qualifications a person must have in order to

provide competent evidence as to the value of property, not with

licensure requirements or exemptions therefrom. The issue of

whether property tax consultants must be licensed, certified, or

registered as an additional prerequisite in order to engage in real

estate appraisal activities was not addressed. The portion of the

cases pertinent to your opinion request dealt only with evidentiary

standards. The cases held that an individual's testimony may be

admissible without meeting any licensure requirements. It does not

appear the cases set forth the proposition that any individual

engaging in providing estimates or opinions for real estate

taxation purposes is necessarily released from statutory licensure

requirements.




We have also reviewed the legislative history for the

Appraiser Act and, in particular, for § 76-2221. There is one

statement which could be seen as lending support to the belief by

some current and past Board members that the exemption in § 76-

2221(5) was intended to apply to appraisers hired by county

assessors to assist in county tax appraisals. Senator Landis,

explaining the committee amendments during the floor debate,

stated, "Secondly, there is a continuation of the list of

exemptions of appraisers who are not covered by this act, those

include . . . persons who render estimates or opinions for the

purpose of taxation, real estate taxation, for example a county who

would go out and hire an appraiser. . . ." Floor Debate on LB

1153, 91st Neb. Leg., 2nd Sess. 11870 (March 27, 1990). Other than

the one statement mentioned above, the legislative history provides

no indication that the Legislature intended the exemption in § 76-

2221(5) to be limited only to appraisers hired by county officials.

Even the statement made by Senator Landis appears to have been an

example used for illustrative purposes, not as an indication that

the language in § 76-2221(5) should be read more narrowly than its

plain and ordinary meaning.




In conclusion, we believe that the exemption in § 76-2221(5)

does apply to property tax consultants. When those individuals are

rendering real estate value estimates or opinions for the purpose

of real estate taxation, the Real Estate Appraiser Act does not

apply to them. The holdings in the DeVore and Vogt cases, although

perhaps not directly on point, do not contradict the exemption

provided in § 76-2221(5). The DeVore and Vogt holdings are not

necessary in order to arrive at our conclusion in this opinion.

The statutory language in § 76-2221(5) appears to be plain,

unambiguous, and controlling.




Sincerely,




DON STENBERG

Attorney General








Timothy J. Texel

Assistant Attorney General




08-14-14.op




Approved:








_______________________

Attorney General