Generally, if a property owner believes that a property tax assessment is unfair, the property owner has several opportunities to challenge the tax assessment. The property owner may challenge the tax assessment before the board of review or file a claim with the circuit court.

However, under current law, property owners are prohibited from challenging their tax assessment if an assessor requests entry into a property owner’s home and the request is denied. See Wis. Stat. §§ 70.47(7)(aa) and 74.37(4)(a). This is true regardless of the size of increase in assessed value, whether the comparables used were incorrect, or whether error was intentional or accidental. 

Both the Wisconsin Supreme Court and the Wisconsin Legislature are currently evaluating this law and could be repealing it in the near future. In Milewski v. Town of Dover, the Wisconsin Supreme Court is evaluating whether the law violates, among other things, the 14th Amendment’s due process clause. In addition, the Wisconsin Legislature is currently considering Assembly Bill 211/Senate Bill 158, which would repeal the law and allow all property owners to challenge their assessments regardless of whether they denied an assessor entry into their home. 

The WRA, through its Legal Action Program and its lobbying efforts, is actively working to change this law to ensure that all property owners have a right to challenge an assessment they believe to be incorrect. 

Background

Article VII, Section 1, of the Wisconsin Constitution requires the method of taxing real property to be uniformly applied to all classes of property. To ensure a uniform method of taxation, assessors are required to assess real estate at its fair market value, using the best information the assessor can practicably obtain. See Wis. Stat. § 70.32. 

Fairness is also a fundamental principle of the due process protections provided to property owners under the due process clause of the 14th Amendment. The due process clause requires that a property owner whose interests have been affected by a government action be given both notice and an opportunity to be heard before the property owner is deprived of any significant property interest. 

By prohibiting property owners from challenging their assessments if they deny the assessor entry into their home, Wis. Stat. §§ 70.47(7)(aa) and 74.37(4)(a) deprive property owners of their fundamental due process rights. In doing so, the statutes also jeopardize the accuracy and uniformity of Wisconsin’s property tax system, which relies on property owners to identify inaccuracies. 

Assessors make mistakes

Property tax assessments are opinions of value. Assessors are human, and humans make mistakes. Because of the complexity of property tax assessments, assessors can make mistakes based on a variety of factors including erroneous information about a property, using the wrong comparables to determine fair market value, or applying an incorrect valuation methodology. The following are several examples where Wisconsin courts determined that assessors made mistakes and overturned the property tax assessment:

• In Noah’s Ark Family Park v. Board of Review of the Village of Lake Delton, 210 Wis. 2d 310 (1997), a property owner successfully challenged a property tax assessment that used an incorrect assessment methodology. 
• In U.S. Oil Co., Inc. v. City of Milwaukee, 2011 WI App. 4, a property owner successfully challenged a tax assessment on the basis that it violated Wisconsin’s uniformity clause. 
• In Walgreen Co. v. City of Madison, 2008 WI 80, a property owner successfully challenged a property tax assessment that used above-market leases to determine fair market value. 
• In State ex rel. Levine v. Board of Review, 191 Wis. 2d 363 (1995), a property owner successfully challenged a property tax assessment that used an incorrect assessment methodology by applying different valuation standards to old and new properties.
• In some cases, assessors have intentionally assessed a property incorrectly by ignoring appraisal standards in the law for personal reasons. For example, in Semple v. Langlade County, 75 Wis. 354 (1890), the assessor intentionally ignored state statutes requiring assessment and taxation of improvements upon government homesteads. 

By eliminating the ability of property owners to challenge assessments if they refuse to allow assessors to enter their home, Wis. Stat. §§ 70.47(7)(aa) and 74.37(4)(a) remove the primary means to ensure that assessments are fair and accurate and are performed in accordance with the uniformity clause. 

Assessments are presumed to be accurate

The state’s current “burden of proof” framework for challenging a property tax assessment alone is a sufficient means to ensure that Wisconsin’s property tax assessment system is accurate and fair for everyone. Under this framework, the assessor’s opinion of value is presumed to be correct, and the property owner has the burden to prove the assessment is incorrect. This is a very high burden and requires the property owner to show there is no credible evidence to support the assessor’s valuation. Consider the following: 

If a property owner challenges an assessment, the assessor’s assessment is presumed to be correct. See Wis. Stat. § 70.49(2).

On appeal to the board of review, the assessor’s valuation “[is] prima facie correct and [is] binding on the board of review in the absence of evidence proving it to be incorrect.” See State ex rel. Kimberly-Clark Co. v. Williams, City Clerk., 160 Wis. 648, 649 (1915)(citations omitted). 

Even if the property owner provides evidence that the assessment was too high, the board of review must uphold the assessor’s opinion of value “[i]f there is credible evidence before the [b]oard that may in any reasonable view support the assessor’s valuation.” See State ex rel. North Shore Development v. Axtell, City Clerk, 216 Wis. 153, 157 (1934). 

If the property owner then decides to appeal to the circuit court, the findings of the board of review will be upheld if the evidence presented in favor of the assessment furnishes a substantial basis for the valuation. See State ex rel. Brighton Square v. City of Madison, 178 Wis. 2d 577, 582 (Ct. App. 1983). 

The assessor’s opinion of value is given tremendous deference by both the board of review and a reviewing court on appeal. The only way a property owner can overcome this presumption of correctness is to present significant evidence showing the assessor was incorrect. In situations where a homeowner refuses to allow an assessor to enter the property and the assessor provides an opinion of value absent an inspection of the interior of the home, the assessor’s opinion of value is presumed to be correct and the property owner must provide significant evidence demonstrating that the assessor was incorrect. 

While we all want an assessment system that is fair and requires everyone to pay their fair share of property taxes, prohibiting the property owners from challenging an assessment they believe to be unfair goes too far. The current presumption of correctness given to an assessment requires a property owner to provide sufficient evidence to prove the assessment is incorrect, which would likely include sufficient evidence demonstrating the current condition of a home’s interior.

Tom Larson is Senior Vice President of Legal and Public Affairs for the WRA.