This includes some review, to drive these principles home and further clarify.
In the previous posts, I have expected you to swallow that your property tax is being imposed incorrectly– fraudulently, to tell the truth. Do you believe it?
Back to the Statutes
The “exemptions and exclusions” clause, and related section on remedies, states that non-business property is personal property not used in the pursuit of profitable enterprise. Throughout “105 Taxation”, personal property is referred to as “anything that’s not real property”, and uses tricky methods to paint the picture of sharply defined classes of property according to whether something is moving or not. Okay. Something is taxable if it cannot be moved? An odd basis and justification for taxing something, isn’t it?
The real deciding factor on whether something is taxable is whether or not it is used in some privileged activity. Personal property, in its true sense, is anything that can be owned. Real property is a category of personal property used in a commercial fashion. That is the reason for that misleading “definition” of Real Property:
§ 105-273. Definitions.
The following definitions apply in this Subchapter:
(13) Real property, real estate, or land. – Any of the following:
a. The land itself.
b. Buildings, structures, improvements, or permanent fixtures on land.
c. All rights and privileges belonging or in any way appertaining to the property.
Notice “Any of the following–“. A definition is not supposed to list possibilities of what a term could mean. Doing this leaves the reader to think that the listed items are always real property. From a legal/statutory construction standpoint, it is really only saying that those items CAN be Real Property.
The real determining factor of whether something can be taxed is HOW IT IS USED. If you are using your home as a matter of right, that is not a taxable use. Remember, rights and privileges are not the same. Privilege is a subset of rights, which are conditional and can be taken away. Hardly inalienable. True rights, human rights, cannot be taken away unless you allow it. You and I are both responsible for clearly establishing which rights those are, on an ongoing basis.
“§ 105-275. Property classified and excluded from the tax base.
The following classes of property are designated special classes under Article V, Sec. 2(2), of the North Carolina Constitution and are excluded from tax:
(16) Non-business Property. – As used in this subdivision, the term “non-business property” means personal property that is used by the owner of the property for a purpose other than the production of income and is not used in connection with a business. The term includes household furnishings, clothing, pets, lawn tools, and lawn equipment. The term does not include motor vehicles, mobile homes, aircraft, watercraft, or engines for watercraft.”
When you read this, you my automatically put “Real Estate” and “Real Property” out of the realm of possibility in your mind. Don’t do it. That was the intent of the ones who wrote this– to be legal only in a very technical sense when it is analyzed closely by an experienced person. It is easily construed wrongly by the average man and woman.
The assumption is:
They are only speaking of movable objects, not houses.
That is not true, and here’s why. If personal property, in the class of movable objects, is not taxable when not used in a business effort, why would a house be taxable if not used for business, but to live one’s private life in? Think about that for a few minutes.
Then read this:
Black’s Law, 5th Edition:
“Personal property. In broad and general sense, everything that is the subject of ownership, not com ing under denomination of real estate. A right or interest in things personal, or right or interest less than a freehold in realty, or any right or interest which one has in things movable.
Generally, all property other than real estate. It is sometimes designated as personalty when real estate is termed realty. Personal property also can refer to property which is not used in a taxpayer’s trade or business or held for the production or collection of income. When used in this sense, personal property could include both realty (e.g., a personal residence) and personalty (e.g., personal effects such as clothing and furniture).”
How does that grab you? This non-business property can be your house. You need to establish that with the county, who is operating under the presumption that your house and land are used in business. Why? That presumption makes them money. Rather dishonest, I would say.
However, a clear method for establishing the facts is indicated in the “Taxation” title;
§ 105-381. Taxpayer’s remedies.
(a) Statement of Defense. – Any taxpayer asserting a valid defense to the enforcement of the collection of a tax assessed upon his property shall proceed as hereinafter provided.
(1) For the purpose of this subsection, a valid defense shall include the following:
a. A tax imposed through clerical error;
b. An illegal tax;
c. A tax levied for an illegal purpose.
(2) If a tax has not been paid, the taxpayer may make a demand for the release of the tax claim by submitting to the governing body of the taxing unit a written statement of his defense to payment or enforcement of the tax and a request for release of the tax at any time prior to payment of the tax.
(3) If a tax has been paid, the taxpayer, at any time within five years after said tax first became due or within six months from the date of payment of such tax, whichever is the later date, may make a demand for a refund of the tax paid by submitting to the governing body of the taxing unit a written statement of his defense and a request for refund thereof.
There you have it.
An assertion, of course is a statement that is made but not proven.
(a) Application. – Every owner of property claiming exemption or exclusion from property taxes under the provisions of this Subchapter has the burden of establishing that the property is entitled to it. If the property for which the exemption or exclusion is claimed is appraised by the Department of Revenue, the application shall be filed with the Department. Otherwise, the application shall be filed with the assessor of the county in which the property is situated. An application must contain a complete and accurate statement of the facts that entitle the property to the exemption or exclusion and must indicate the municipality, if any, in which the property is located. Each application filed with the Department of Revenue or an assessor shall be submitted on a form approved by the Department. Application forms shall be made available by the assessor and the Department, as appropriate.
Except as provided below, an owner claiming an exemption or exclusion from property taxes must file an application for the exemption or exclusion annually during the listing period.
(1) No application required. – Owners of the following exempt or excluded property do not need to file an application for the exemption or exclusion to be entitled to receive it:
a. Property exempt from taxation under G.S. 105-278.1 or G.S. 105-278.2.
b. Special classes of property excluded from taxation under G.S. 105-275(15), (16), (26), (31), (32a), (33), (34), (37), (40), (42), or (44).”
So this class of non-business property as mentioned in 16 does not require an application, merely an assertion and demand establishing your right to use it free of taxation. Is the law saying you have to prove the land/house is not taxable? No, just establish that it is such.
Good ol’ Black’s Law 5th again:
“Establish. This word occurs frequently in the Constitution of the United States, and it is there used in different meanings: ( 1 ) To settle firmly, to fix unalterably; as to establish justice, which is the avowed object of the Constitution. (2) To make or form; as to establish uniform laws governing naturalization or bankruptcy. (3) To found, to create, to regulate; as: “Congress shall have power to establish post-offices.” (4) To found, recognize, confirm, or admit; as: “Con gress shall make no law respecting an establishment of religion.” See Establishment clause. (5) To create, to ratify, or confirm, as: “We, the people . . . do ordain and establish this Constitution.” Ware v. U. S., 71 U.S. (4 Wall.) 617, 18 L.Ed. 389.
To settle, make or fix firmly; place on a permanent footing; found; create; put beyond doubt or dispute; prove; convince. Wells Lamont Corp. v. Bowles, Em.App., 149 F.2d 364, 366. To enact permanently. To bring about or into existence.”
A firm statement that your property is non-business property is sufficient. It’s all in the law.
Furthermore, this is the only place where a duty to pay the tax is mentioned:
if you’re interested, read within the links. “Special duties” means “Specific duties”, not some rare or unusual situation. It is specifying who has the duty. Please find a section that indicates someone living in a house having a duty to pay tax on it. I have looked and looked. I know you won’t find it.
Not that anyone reads my blog… yet.
I would like to make these posts short and sweet, believe me, but if I only say enough for it to make sense to me, it is pointless to write. I want to bring others, and myself, into a better understanding of the law as pertains to the average man and woman. The “common understanding” of laws is a MIS-understanding in most cases, even by those imposing the laws.
Let’s all please put aside political differences and stand together against the corporate authority finding any way it can to increase the bottom line by extracting ever more energy from us. Is your energy valuable? is it also limitless? You have the right to use it for yourself. Right now, it is being sucked away to enrich the rich. Leaving minimum wage low is a hidden tax. Have more respect for the people around you than the soulless, fictional corporate authority.
Why I am I using that term “corporate authority“? I guess that’s my next area to tackle in umpteen entries.