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Opinions of the Colorado Supreme Court for the past twelve months are available to the public and can be accessed through the Court’s homepage at http://www.courts.state.co.us/supct/supct.htm and are posted on the Colorado Bar Association homepage at www.cobar.org.

ADVANCE SHEET HEADNOTE

DATE: February 26, 2001

Nos. 98SC869 & 99SC126 — Board of County Commissioners v. Vail Associates, Inc.; Allen S. Black et al. v. Colorado State Board of Equalization — Property Taxation — Possessory Interests — Tax-Exempt Property — Private Interests in Federal Property —Colorado Constitution Article X — Classification of Property for Taxation — Uniform Taxation Within Property Classes — Statutory Definition of “Real Property” — Statutory Tax Exemptions — Constitutional Tax Exemptions — Authority to Interpret the Constitution — Stare Decisis — Significant Incidents of Private Ownership — Severance of Unconstitutional Provisions

The corporation which owns and operates the Vail Ski Area under a long term U.S. Forest Service permit challenged Eagle County’s taxation of its interests in the federal property. Vail argued it could not be taxed because a 1996 statute of the General Assembly prohibited taxation of possessory interests in property that is itself exempt from taxation. Because the United States’ ownership interest could not be taxed, Vail contended that its ownership interests could not be taxed. The Supreme Court determines that Vail’s possessory interest in the federal property for its ski area is taxable real property under the general provisions of Colorado’s tax code. The statutory exemption prohibits taxation of certain possessory interests, such as Vail’s, while continuing taxation for other possessory interests, such as mineral leases, in federal land.

In Vail’s case and a consolidated case involving taxation of possessory interests in six other Colorado counties, the Supreme Court holds the tax exemption to be unconstitutional because it selects some possessory interests for exemption, but not others, and the exemption is not among those provided for in the Colorado constitution. The court of appeals had upheld the 1996 legislation; the Supreme Court decision reverses the court of appeals, severs the unconstitutional provisions from the tax code, and orders the tax authorities to proceed with the taxation of possessory interests that evidence significant incidents of private ownership.


SUPREME COURT, STATE OF COLORADO

Two East 14th Avenue

Denver, Colorado 80203


Certiorari to the Colorado Court of Appeals

Court of Appeals No. 97CA0265


Case No. 98SC869






Petitioner:
BOARD OF COUNTY COMMISSIONERS, County of Eagle, State of Colorado, acting as the Eagle County Board of Equalization,
Respondents:
VAIL ASSOCIATES, INC.; and the BOARD OF ASSESSMENT APPEALS.

JUDGMENT REVERSED AND CASE

REMANDED WITH INSTRUCTIONS

EN BANC


February 26, 2001
Opinion modified and, as modified, Petitions for Rehearing DENIED. EN BANC. March 19, 2001.
The final version of the modified opinion and a version showing marked revisions are both attached in Word 97 format.

James R. Fritze, Eagle County Attorney

Bob D. Slough

Cortez, Colorado


Attorneys for Petitioner

Holme, Roberts & Owen LLP

James D. Butler

Stephanie M. Tuthill

Denver, Colorado
Attorneys for Respondent Vail Associates, Inc.

(continued...)

Ken Salazar, Attorney General

Barbara McDonnell, Chief Deputy Attorney General

Alan J. Gilbert, Solicitor General

Paul Farley, Deputy Attorney

David M. Kave, First Assistant Attorney General

Mark W. Gerganoff, Assistant Attorney General

State Services Section

Denver, Colorado

Attorneys for Respondent Board of Assessment Appeals

Hall & Evans, L.L.C.

Thomas J. Lyons

Andrew D. Ringel

Denver, Colorado
Attorneys for Amicus Curiae Colorado Counties, Inc.

H. Lawrence Hoyt, Boulder County Attorney

Robert R. Gunning, Assistant County Attorney

Boulder, Colorado


Attorneys for Amicus Curiae Board of County Commissioners of the County of Boulder

(continued...)



SUPREME COURT, STATE OF COLORADO

Two East 14th Avenue

Denver, Colorado 80203


Certiorari to the Colorado Court of Appeals

Court of Appeals No. 97CA1642


Case No. 99SC126





Petitioners:
ALLEN S. BLACK, in his capacity as Eagle County Assessor; the Board of County Commissioners of Eagle County, Colorado; NANCY D. ANDERS, in her capacity as Grand County Assessor; the Board of County Commissioners of Grand County, Colorado; JUDY PETTIT, in her capacity as Jefferson County Assessor; ROBERT N. CRUZAN, in his capacity as Montezuma County Assessor; the Board of County Commissioners of Montezuma County, Colorado; TOM ISSAC, in his capacity as Pitkin County Assessor; the Board of County Commissioners of Pitkin County, Colorado; AMY J. WILLIAMS, in her capacity as Routt County Assessor; the Board of County Commissioners of Routt County, Colorado; DENISE STEISKAL, in her capacity as Summit County Assessor, and the Board of County Commissioners of Summit County, Colorado,
Respondent:
COLORADO STATE BOARD OF EQUALIZATION.

JUDGMENT REVERSED AND CASE

REMANDED WITH INSTRUCTIONS

EN BANC


February 26, 2001
Opinion modified and, as modified, Petitions for Rehearing DENIED. EN BANC. March 19, 2001.
The final version of the modified opinion and a version showing marked revisions are both attached in Word 97 format.

Bob D. Slough, Montezuma County Attorney

Cortez, Colorado
Attorney for Petitioners

Ken Salazar, Attorney General

Barbara McDonnell, Chief Deputy Attorney General

Michael E. McLachlan, Solicitor General

Christine M. Arguello, Deputy Attorney General

Maurice G. Knaizer, Deputy Attorney General

State Services Section

Denver, Colorado


Attorneys for Respondent

Holme, Roberts & Owen LLP

James D. Butler

Stephanie M. Tuthill

Denver, Colorado
Attorneys for Amicus Curiae Possessory Interest Working Group

Hall & Evans, L.L.C.

Thomas J. Lyons

Andrew D. Ringel

Denver, Colorado
Attorneys for Amicus Curiae Colorado Counties, Inc.

H. Lawrence Hoyt, Boulder County Attorney

Robert R. Gunning, Assistant County Attorney

Boulder, Colorado


Attorneys for Amicus Curiae Board of County Commissioners of the County of Boulder

JUSTICE HOBBS delivered the Opinion of the Court.

JUSTICE KOURLIS dissents, and JUSTICE RICE and JUSTICE COATS join in the dissent.

In this appeal, we review recent legislation which creates a tax exemption for ski areas and other parties with long-term leases, permits, or contracts to use federal property. We hold that this legislation violates Colorado’s constitution, which prohibits statutory exemptions to property taxation unless the exemptions are authorized in the constitution itself. Unless constitutionally authorized, the legislature may not exempt some interests in federal property from taxation while taxing others.

In 1996, the General Assembly enacted legislation directing that some possessory interests in tax-exempt property not be subject to taxation unless the legislature expressly directs such taxation by statute. See §§ 39-3-136 & 39-1-106, 11 C.R.S. (2000). The court of appeals held that this legislation was a constitutionally permissible exercise of legislative authority. See Vail Assocs., Inc. v. Eagle County Bd. of County Comm’rs, 983 P.2d 49 (Colo. App. 1998); Black v. Colorado State Bd. of Equalization, No. 97CA1642 (Colo. App. Dec. 24, 1998) (not selected for official publication). We granted certiorari and consolidated these two cases to determine the constitutionality of these provisions.1 We reverse the court of appeals.

We hold that section 39-3-136 unconstitutionally exempts some private possessory interests in tax-exempt property from taxation, contrary to Article X of the Colorado Constitution and our controlling decision in Mesa Verde Co. v. Montezuma County Board of Equalization, 898 P.2d 1 (Colo. 1995) (Mesa Verde III). This legislation exempts certain forms of property from taxation without constitutional authorization, and also treats interests within the same class of property differently for taxation purposes. Neither is constitutionally permissible. Accordingly, we sever the offending provisions and leave in place section 39-1-103(17), 11 C.R.S. (2000), which the General Assembly enacted for the valuation of private possessory interests in tax-exempt property should we determine that section 39-3-136 was unconstitutional.

I.

A. Vail Associates


Vail Associates, Inc. (Vail) operates the Vail ski resort in Eagle County under a special use permit from the U.S. Forest Service (Forest Service). This permit entitles Vail to the occupancy, use, and enjoyment of 12,590 acres of federal land in the White River National Forest for operation of its ski area

through October 31, 2031.2 The permit reserves the right of the Forest Service to allow uses by others that do not materially interfere with Vail’s rights and privileges under the permit.

In May 1996, the Eagle County Assessor sent a notice of assessment to Vail for the ski area. The assessor utilized a published formula designed for valuation of ski areas on federal lands. See 3 Division of Property Taxation, Colorado Department of Local Affairs, Assessors Reference Library: Land Valuation Manual Addendum VII-A, at 1 (1989, rev. vol. 1996) [hereinafter Land Valuation Manual]. Under this formula, the assessor multiplied the fees paid by Vail to the Forest Service the previous year by an adjustment factor for the current year, and then multiplied the adjusted figure by a capitalization rate tied to the appraisal date, to yield actual value. See id. The assessor figured the capitalization rate by adding the state discount rate,3 the state pass-through rate,4 and the effective tax rate.5 See id. The assessor multiplied the actual value of the possessory interest by the assessment rate to determine the property tax. See id.

The Eagle County Assessor valued Vail’s possessory interests at $14,040,330 for the 1996-1997 tax year. Vail appealed the assessment to the Eagle County Board of Equalization, on the basis that taxation of possessory interests in tax-exempt property violates section 39-3-136. The Board of Equalization denied Vail’s appeal. Vail then appealed to the State Board of Assessment Appeals (BAA). BAA ruled that taxation of Vail’s possessory interests in government-owned land contravened section 39-3-136; it ordered Eagle County to remove them from the tax rolls. BAA determined that it lacked jurisdiction to consider Eagle County’s constitutional challenge to section 39-3-136.

Eagle County appealed BAA’s ruling to the court of appeals, arguing that section 39-3-136 creates an exemption from taxation contrary to Article X of the Colorado Constitution. The court of appeals affirmed the Board of Assessment Appeals. Vail Assocs., 983 P.2d at 50. The majority determined that the General Assembly has plenary power over taxation and the constitution does not preclude it from defining what interests in property shall be taxed. Id. at 56-57. The majority construed the General Assembly’s 1996 enactment as a redefinition of the operable taxable property definitions and ruled that the BAA had legally ordered removal of private possessory interests in public lands from the tax rolls. Id. at 57. The dissent concluded that our decision in Mesa Verde III governed and that section 39-3-136 constituted a tax exemption contrary to Article X. Vail Assocs., 983 P.2d at 60-62 (Roy, J., concurring in part and dissenting in part).

B. Black

Implementing section 39-3-136, the Colorado State Board of Equalization (SBOE) issued an order in October 1996 to each of fourteen Colorado counties, requiring the removal of all possessory interests in government-owned land from the county’s property tax rolls.6 The county assessor and/or Board of County Commissioners of seven of the counties refused to comply with the order and commenced an action in Denver District Court. The 1996 assessed valuation of the possessory interests in the seven counties contesting the order was:


County Number of Accounts Assessed Value

Eagle 18 $4,511,100

Grand 1 8,660

Jefferson 14 1,752,060

Montezuma 4 356,530

Pitkin 7 2,313,850

Routt 1 899,660

Summit 6 4,329,040

Four of the seven counties (Eagle, Pitkin, Routt, and Summit) listed on their tax rolls at least one ski resort located on federal lands.

The seven counties argued that: (1) SBOE’s order constituted a violation of sections 3, 6, 9 and 10 of Article X of the Colorado Constitution; and (2) possessory interests in government-owned property are taxable under our decision in Mesa Verde III. The district court disagreed, affirming SBOE’s order. The court of appeals, in affirming the district court, based its ruling on the reasoning stated in Vail Associates. Black, No. 97CA1642, slip op. at 4. Judge Roy dissented, for the reasons he set forth in his Vail Associates dissent. Id. at 6.

C. The Mesa Verde Cases and the 1996 Legislation

Section 39-3-136 was not enacted in a vacuum, but rather was a direct legislative response to the third in a series of cases involving the taxation of private possessory interests in tax-exempt federal property in Mesa Verde National Park. In 1972, we were called upon to address Montezuma County’s taxation of improvements used by the Mesa Verde Company in operating its concession in the national park.7 See Mesa Verde Co. v. Board of County Comm’rs, 178 Colo. 49, 51, 495 P.2d 229, 230 (1972) (Mesa Verde I). Although the United States held title to the improvements on federal lands, the Mesa Verde Company had a contractual right to control them and a right to the occupation, use, enjoyment, and profits of the property. We thus determined that the Mesa Verde Company had a significant ownership interest in the improvements — an interest different from the ownership of the United States — that was subject to county taxation.8 Our rationale included reliance on Article X’s requirement of fair and just sharing of taxation among all private owners making similar uses of property, whether or not they held title:

Strong policy considerations underlie our decision to allow ad valorem taxation of appellant’s improvements, despite the fact that legal title is vested in the United States. After examining the ownership interest possessed by appellant, it appears that the Mesa Verde Company has full use of the improvements, as well as the right to operate these properties for private profit. In such cases, where a party has the right to possession, use, enjoyment, and profits of the property, that party should not be permitted to use the bare legal title of the Government to avoid his fair and just share of state taxation.

Id. at 56-57, 495 P.2d at 233 (emphasis added).

Three years after our decision in Mesa Verde I, the General Assembly adopted legislation entitled “An Act Concerning the Taxation of a Possessory Interest in Property Otherwise Exempt from Taxation,” ch. 342, secs. 1-5, 1975 Colo. Sess. Laws 1462. This new legislation had the intent of: (1) recognizing that private landowners and private possessory interest holders conducting a business for profit should be treated the same for tax purposes; and (2) ensuring that delinquent taxes on private possessory interests would not become a lien against the public property. The statute provided, in part:



39-3-112. Taxation of Exempt Property —— taxes not to become lien. (1) When any property which for any reason is exempt from taxation is leased, loaned, or otherwise made available to and used by a private individual, association, or corporation in connection with a business conducted for profit, the lessee or user thereof shall be subject to taxation in the same amount and to the same extent as though the lessee or user were the owner of such property, . . . .

(2) Taxes shall be assessed to such lessee or user of property and collected in the same manner as taxes assessed to owners of such property; except that such taxes shall not become a lien against the property. When due, such taxes shall be a debt due from the lessee or user to the board of county commissioners for the county where said property is located, and in the city and county of Denver to such other body as is authorized by law to levy taxes, and shall be recoverable by such body by direct action in debt on behalf of each governmental entity for which a tax levy has been made.
Ch. 342, sec. 3, § 39-3-112(1)-(2), 1975 Colo. Sess. Laws 1462-63.

The legislature recodified this section as section 39-3-135 and amended it several times to provide exemptions from taxation for certain private possessory interests. See § 39-3-135, 16B C.R.S. (1993 Supp.). These amendments, constituting the General Assembly’s first attempts to exempt possessory interests in tax-exempt property from taxation, gave rise to the second and third decisions in the Mesa Verde trilogy.

In 1989, the Montezuma County Board of Equalization ordered the County Assessor to list, appraise, and value the Mesa Verde Company’s possessory interest in federal property within Mesa Verde National Park. The company appealed to the district court, which ruled that the County Board and Assessor lacked standing in court to raise a constitutional challenge to the statute conferring a tax exemption on the company. In the absence of a legislative grant of standing authority to the county, we agreed that the county lacked standing. See Mesa Verde Co. v. Montezuma County Bd. of Equalization, 831 P.2d 482, 485 (Colo. 1992) (Mesa Verde II). The General Assembly subsequently conferred standing on counties in such cases by statute.9 See § 30-11-105.1, 9 C.R.S. (2000); Vail Assocs., 983 P.2d at 52.

Consequently, in 1995 we addressed the constitutionality of certain exemptions to possessory interest taxation embodied in the amendments to then-existing section 39-3-135. See Mesa Verde III, 898 P.2d at 2. In reliance on the text of the taxation statutes and our rationale in Mesa Verde I, we said in Mesa Verde III that its “possessory and usufructuary rights” in federal property are “interest[s] in land” and “real property” that is subject to property taxation. Id. at 5. In addition to a trilogy of Supreme Court cases led by United States v. City of



Detroit, 355 U.S. 466 (1958),10 we also placed reliance on two additional decisions for the proposition that the “use and possession of federal land by a private party is taxable” in Colorado, so long as the county tax levy operates to “segregate private from federal interests.” 898 P.2d at 10; see United States v. Colorado, 627 F.2d 217, 221 (10th Cir. 1980); Southern Cafeteria, Inc. v. Property Tax Adm’r, 677 P.2d 362, 365 (Colo. App. 1983).

Turning to the specific possessory interest exemptions embodied in section 39-3-135, we addressed “whether the limitations created by the second sentence of section 39-3-135(1) and section (4)(c) are constitutional under Article X of the Colorado Constitution.” Mesa Verde III, 898 P.2d at 7. These provisions exempted from taxation the use a concessionaire made of the property owned by the United States in a national park. Id. Notwithstanding these provisions, then-existing sections 39-3-135(4)(c) and 39-3-135(6) continued to provide for taxation of other possessory interests in federal property, including ski areas. Id. at 11.

Our decision invalidated the statutory exemptions. We relied on this court’s precedent, holding “that the general assembly may not exempt from taxation any property which is not specifically exempted in Article X of the Colorado Constitution.” Id. at 7 (citing Denver Beechcraft v. Board of Assessment Appeals, 681 P.2d 945, 948 (Colo. 1984); Young Life Campaign v. Board of County Comm’rs, 134 Colo. 15, 24, 300 P.2d 535, 540 (1956); Logan Irrigation Dist. v. Holt, 110 Colo. 253, 257, 133 P.2d 530, 532 (1943)). “The only qualification to this rule, which bars tax exemptions unless authorized by the Colorado Constitution, is that property owned by the United States government may not be subjected to state taxation under the Supremacy Clause of the United States Constitution.” 898 P.2d at 7. Pointing out the specific categories of exemption specified by Article X, we held that “the limitations on taxation of the use and possession of federal land under sections 39-3-135(1) and (4)(c) fall into none of these categories of exemptions authorized under the Colorado Constitution” and, accordingly, these provisions were unconstitutional. Id. at 8.

D. Senate Bill 96-218


In direct response to our decision in Mesa Verde III, the General Assembly enacted Senate Bill 96-218, which repealed section 39-3-135 and added a new section 39-3-136. Act approved June 5, 1996, ch. 297, secs. 1-3, 1996 Colo. Sess. Laws 1849-52. This addition to the exemption provisions of the tax code reads:

39-3-136. Legislative declaration — taxation of exempt property — possessory interests. (1) The general assembly hereby finds and declares that:


  1. Section 3 of article X of the state constitution does not require the taxation of possessory interests, which are rights to use property that do not constitute the substantial equivalent of complete ownership of the property, in land, improvements, and personal property that are otherwise exempt from property taxation, absent express statutory authorization;

  2. This position is based, in part, upon the written proceedings of the 1875 Colorado constitutional convention, which reflect that the first draft of section 3 of article X of the state constitution expressly provided for the taxation of “all property, real, personal or possessory”, while the final version of this provision adopted by the constitutional convention provided only for the taxation of “all property, real and personal” and did not refer to possessory property;
  3. In the opinion issued on April 24, 1995, entitled Mesa Verde Company v. The Montezuma County Board of Equalization and the Montezuma County Assessor, and the Property Tax Administrator of the State of Colorado (“Mesa Verde II”), 898 P.2d 1 (Colo. 1995),[11] the Colorado supreme court held that certain possessory interests in land are “real property” within the meaning of section 39-1-102(14)(a) and are therefore subject to property taxation;


  4. If, based upon the supreme court’s decision in Mesa Verde II, possessory interests are taxable, a variety of possessory interests, such as grazing leases and permits on government land or government employees’ parking spaces in government-owned garages, become subject to property taxation and could be valued by different methods;

  5. Due to the supreme court’s decision in Mesa Verde II, the property tax treatment of possessory interests in exempt properties needs to be addressed to ensure the uniformity required by section 3 of Article X of the state constitution;

  6. Subsection (2) of this section is intended to clearly state that possessory interests in exempt property shall be subject to property taxation only upon enactment of specific statutory provisions directing such taxation;

  7. The provisions of section 39-1-102(14)(a) and (14)(c) and section 39-1-106 do not direct the taxation of possessory interests in exempt properties; and

  8. Subsection (2) of this section shall not apply to and shall not be construed to affect or change the taxation of equities in state lands pursuant to section 39-5-106, the taxation of mines, quarries, or minerals, including hydrocarbons, pursuant to section 39-1-102(14)(b), articles 6 and 7 of this title, and any other article of this title, or the taxation of public utilities pursuant to article 4 of this title.

(2) Possessory interests in real and personal property that is exempt from taxation under this article shall not be subject to property taxation unless specific statutory provisions have been enacted that direct the taxation of such possessory interests.

At the same time, the legislature amended section 39-1-106:12

For purposes of property taxation, it shall make no difference that the use, possession, or ownership of any taxable property is qualified, limited, not the subject of alienation, or the subject of levy or distraint separately from the particular tax derivable therefrom. Severed mineral interests shall also be taxed. Nothing in this section shall be construed to direct the taxation of possessory interests in real or personal property that are not subject to taxation in accordance with section 39-3-136(2).


(Emphasis added to show amendment.)
II.
We begin by discussing the standard of review governing this case. We then determine the constitutionality of section 39-3-136 in two parts. First, we conclude that section 39-3-136, based upon its plain language and its context within the entirety of the tax code, creates an exemption for certain forms of property that would otherwise be subject to taxation under the statutes. We then examine whether this exemption is authorized under Article X of the Colorado Constitution.

Because we find no constitutional provision authorizing the exemption of particular private possessory interests in tax-exempt land — other than that provided for non-producing unpatented mining claims, see Colo. Const. art. X, § 3(1)(b) — we hold that section 39-3-136 creates an unconstitutional exemption for certain forms of otherwise taxable property. We therefore reverse the judgments of the court of appeals.

A. Standard of Review

Pursuant to Colorado Constitution Article VI, section 1, the judicial branch of Colorado government is empowered to construe the constitution’s meaning. While courts consider legislative declarations in the construction of constitutional provisions, see Winslow Constr. Co. v. City & County of Denver, 960 P.2d 685, 694 (Colo. 1998), the judiciary is the final arbiter of what the laws and the constitutions provide. See City of Boerne v. Flores, 521 U.S. 507, 532 (1997) (invalidating a statute that “attempt[ed] a substantive change in constitutional protections”); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); Colorado Gen. Assembly v. Lamm, 704 P.2d 1371, 1379 (Colo. 1985) (noting that “interpretation of the constitution [is] a function at the very core of the judicial role”).

We typically accord to legislative enactments a presumption of constitutionality. See City of Greenwood Vill. v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 440 (Colo. 2000); see also City of Boerne, 521 U.S. at 535. However, the legislature’s construction of a statutory or constitutional provision is advisory, not binding. See In re Interrogatory Propounded by Governor Roy Romer on House Bill No. 1353, 738 P.2d 371, 373 n.3 (Colo. 1987).

In discharging our judicial function, we afford the language of constitutions and statutes their ordinary and common meaning. People v. Banks, 9 P.3d 1125, 1127 (Colo. 2000); In re Interrogatories on House Bill 99-1325, 979 P.2d 549, 554 (Colo. 1999). We ascertain and give effect to their intent. See City & County of Denver v. Gonzales, No. 99SC738, slip op. at 6-7 (Colo. Jan. 16, 2001); Tivolino Teller House, Inc. v. Fagan, 926 P.2d 1208, 1211 (Colo. 1996). We construe statutory and constitutional provisions as a whole, giving effect to every word and term contained therein, whenever possible. Havens v. Board of County Comm’rs, 924 P.2d 517, 523 (Colo. 1996); Colorado Ground Water Comm’n v. Eagle Peak Farms, Ltd., 919 P.2d 212, 218 (Colo. 1996).

Because the principal design of the constitution’s revenue provisions is to subject all private real and personal property to the payment of its fair proportion of taxation necessary for governmental purposes, unless the property falls within a constitutionally stated category of exemption, we resolve doubts regarding the meaning of a particular word or phrase of the revenue provisions of the statutory and constitutional language in favor of this “beneficent purpose.” People ex rel. Iron Silver Mining Co. v. Henderson, 12 Colo. 369, 374, 21 P. 144, 146 (1888).

Article X of the Colorado Constitution structures and limits the legislature’s taxation powers, see Bartlett & Co. v. Board of County Comm’rs, 152 Colo. 388, 398, 382 P.2d 193, 199 (1963), providing the root fairness of treatment requisite to governmental legitimacy. Taxation is a legislative power, but is subject to constitutional limitations: “where constitutional provisions upon the subject do exist, they are to be regarded as limitations and restrictions upon the legislative power.” Board of County Comm’rs v. Rocky Mountain News Printing Co., 15 Colo. App. 189, 193-94, 61 P. 494, 496 (1900). The General Assembly’s plenary taxation role includes providing definitions of taxable property and prescribing such regulations as will secure a just and equalized valuation for taxation of all property, real and personal. See § 39-1-101, 11 C.R.S. (2000) (quoting Article X, section 3 for the proposition that “the actual value of all real and personal property not exempt from taxation under this article shall be determined under general laws, which shall prescribe such methods and regulations as shall secure just and equalized valuations for assessment of all real and personal property not exempt from taxation under this article”); City & County of Denver v. Hobbs Estate, 58 Colo. 220, 231, 144 P. 874, 878 (1914).

We proceed with our analysis mindful of these constitutional grants of, and limitations on, legislative authority.

B. Possessory Interest Taxation


We agree with the fundamental assumption of section 39-3-136 that Article X is not self-executing. Its implementation depends on exercise of the General Assembly’s legislative authority. See City & County of Denver v. Security Life & Accident Co., 173

Colo. 248, 253, 477 P.2d 369, 372 (1970);13 Stanley v. Little Pittsburg Mining Co., 6 Colo. 415, 419 (1882). However, this authority is not unconstrained. First, the General Assembly cannot refuse to exercise its taxation authority; it must enact tax statutes so that governmental operations may be funded. See, e.g., Colo. Const. art. X, § 2; Johnson v. McDonald, 97 Colo. 324, 347, 49 P.2d 1017, 1028 (1935) (holding that Article X, section 2 is a mandate to the legislature to provide for an annual tax); People ex rel. Regents of the State Univ. v. State Bd. of Equalization, 20 Colo. 220, 230, 37 P. 964, 968 (1894) (describing the creation of an annual tax pursuant to Article X, section 2 as the “imperative duty of the legislature”); In re Appropriations by Gen. Assembly, 13 Colo. 316, 326, 22 P. 464, 467 (1889) (same); People ex rel. Thomas v. Scott, 9 Colo. 422, 428, 12 P. 608, 611 (1886) (same).14 Second, it cannot provide purely statutory exemptions from taxation that are not within the constitutional exemption categories of Article X. See Mesa Verde III, 898 P.2d at 7. Third, it must not enact provisions that exempt certain private interests from bearing their fair and proportionate burden of taxation. See Mesa Verde I, 178 Colo. at 57, 495 P.2d at 233.

The doctrine of stare decisis provides that a court will follow the rule of law it has established in earlier cases, unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come from departing from precedent. People v. Blehm, 983 P.2d 779, 788 (Colo. 1999). We determined in Mesa Verde III that, even in the absence of a specific provision directing the taxation of possessory interests, Colorado’s statutory and constitutional law nevertheless provided for their taxation. In reaching this conclusion, we examined three specific provisions of the tax code: sections 39-1-102(16), 39-1-102(14), and 39-1-111(1). These sections remain in place today and are unchanged from when we considered them in Mesa Verde III.15

Section 39-1-102(16) currently provides:

“Taxable property” means all property, real and personal, not expressly exempted from taxation by law.

Section 39-1-111(1) currently provides:
No later than December 22 in each year, the board of county commissioners in each county of the state, or such other body in the city and county of Denver as shall be authorized by law to levy taxes, shall, by an order to be entered in the record of its proceedings, levy against the valuation for assessment of all taxable property located in the county on the assessment date, and in the various towns, cities, school districts, and special districts within such county, the requisite property taxes for all purposes required by law.
(Emphasis added.)

Section 39-1-102(14) currently provides, in part:

“Real Property” means: (a) All lands or interests in lands to which title or the right of title has been acquired from the government of the United States or from sovereign authority ratified by treaties entered into by the United States, or from the state; . . . .

(Emphasis added.) In Mesa Verde III, we held that section 39-1-102(14)(a) applies to include private possessory interests in federal land within the plain language of the legislature’s still-existing definition of real property, because “like all federal land, title to this land was nevertheless acquired ‘from sovereign authority ratified by treaties entered into by the United States, or from the state[].’” Mesa Verde III, 898 P.2d

at 5.16

Because possessory interests fall within the statutory definition of “real property” in section 39-1-102(14)(a), they qualify as “taxable property” under section 39-1-102(16). We therefore observed in Mesa Verde III that taxation of private possessory interests in federal land was authorized, even in the absence of section 39-3-135:

[B]ecause Mesa Verde’s possessory interest meets the definition of taxable property under § 39-1-102(16), even if Mesa Verde’s interest were not taxable under any provision of § 39-3-135, it is taxable under

§ 39-1-111. Section 39-1-111 authorizes the imposition of property taxes against all “taxable property” in a county.
Mesa Verde III, 898 P.2d at 12 n.17.

The amendments the General Assembly made to the tax statutes in 1996 through Senate Bill 96-218 did not alter these provisions or redefine real or personal property to exclude possessory interests. Nor does the plain language of section 39-3-136(1)(g) — which states that the provisions of section 39-1-102(14)(a) “do not direct the taxation of possessory interests in exempt properties” — change the operative definition of “real property” in the tax code. Section 39-1-102(14)(a) does not direct the taxation of any property; it is a purely definitional provision and is labeled as such in the tax code. See § 39-1-102, 11 C.R.S. (2000). Section 39-1-111 contains the direction to the counties to assess all taxable property, as provided by section 39-1-102(16). Defining property for taxation purposes and directing taxation of that property are different concepts. Although it could have used language in sections 39-1-102(14), 39-1-102(16), and 39-3-136 redefining “real property” so as not to include possessory interests, the legislature did not do so.

Instead, section 39-3-136 simply prohibits the taxation of possessory interests in tax-exempt property, except for property still subject to taxation under section 39-3-136(1)(h). Such language of prohibition is a limitation or exception to taxation under our holding in Mesa Verde III. The test for determining whether a statutory provision states an exemption is whether that provision “qualifies” or “limits” the “general taxation provision for such property.” Mesa Verde III, 898 P.2d at 6. Section 39-3-136 plainly has such effect. Accordingly, we must determine whether this statutory exemption is constitutional.

C. Possessory Interest Exemption

The Colorado Constitution directs that all real and personal property, as defined by the legislature, must be taxed unless it is exempted in accordance with law. See Colo. Const. art. X, §§ 3(1)(a) & 6. While the legislature may establish classes of property and provide suitable and different methods for ascertaining the value for taxation of the different classes, American Mobile Home Ass’n v. Dolan, 191 Colo. 433, 437-38, 553 P.2d 758, 762 (1976); Ames v. People ex rel. Temple, 26 Colo. 83, 102, 56 P. 656, 662-63 (1899), it may not create exemptions not contained in the constitution. See Mesa Verde III, 898 P.2d at 7. Private possessory interests in tax-exempt lands are not among the exemption categories contained in Article X, except for the exemption for non-producing unpatented mining claims. See Colo. Const. art. X, § 3(1)(b).

In addition, taxation across each class of property must be uniform. See Colo. Const. art. X, § 3(1)(a); Pueblo Junior Coll. Dist. v. Donner, 154 Colo. 26, 31-32, 387 P.2d 727, 730 (1963). In section 39-3-136, the General Assembly created a class of property that it termed “possessory interests,” and defined that class to constitute “rights to use property that do not constitute the substantial equivalent of complete ownership in the property.” § 39-3-136(1)(a). By its own definition, the legislature recognized that the class of possessory interests encompasses more than private possessory interests in lands otherwise exempt from taxation. Rather, the class includes all rights to use land that do not substantially equal the complete “bundle of sticks” that comprise fee ownership.17 Under Article X, section 3, all property within this legislative classification must be taxed uniformly.

Section 39-3-136, however, does not tax all possessory interests uniformly. Despite having defined the class of possessory interests broadly, the General Assembly exempts from taxation the subclass of private possessory interests in otherwise tax-exempt property. Section 39-3-136(2) provides:

Possessory interests in real or personal property that is exempt from taxation under this article shall not be subject to property taxation unless specific statutory provisions have been enacted that direct the taxation of such possessory interests.


By its plain language, section 39-3-136(2) exempts only those possessory interests in property that is itself exempted from taxation under Title 39, Article 3 of the Colorado Revised Statutes. Other possessory interests continue to be taxed. Likewise, section 39-3-136(1)(g) refers exclusively to non-taxation of “possessory interests in exempt properties,” not the entire class of possessory interests defined by the legislature.

Not only does section 39-3-136 treat certain possessory interests within the class it has created differently for taxation purposes, it also treats certain possessory interests within the subclass of possessory interests in tax-exempt property differently. Section 39-3-136(1)(h) specifically provides that the exemption of private possessory interests in otherwise tax-exempt lands shall not apply to or be construed to affect the ongoing taxation of equities in state lands; mines, quarries, or minerals, including hydrocarbons; or public utilities. For example, producing mineral leases in land owned by the federal government are still subject to taxation under section 39-3-136’s scheme, even though they fall within the subclass of possessory interests in otherwise tax-exempt property. See § 39-6-106 (valuing producing interests in mines); see also Rummel v. Musgrave, 142 Colo. 249, 252, 350 P.2d 825, 826 (1960) (holding that “plaintiffs’ possessory rights [in mines] by virtue of their leases with the United States of America are such an interest as is subject to taxation by the State of Colorado”); Hagood v. Heckers, 182 Colo. 337, 347-48, 513 P.2d 208, 214-15 (1973) (adopting the majority rule in western states that private oil and gas leases in federal lands are interests in real estate for the purpose of taxation, and stating that “we find no compelling reason in this instance to create an exemption for those who have assigned federal rather than private leases”); 30 U.S.C. § 189 (2000) (explicitly retaining the right of states and their subdivisions to collect taxes upon the output of mines “or other rights, property, or assets” of any lessee of the United States); Land Valuation Manual, supra, at 6.72 (rev. vol. 2000). Similarly, mineral leases and equities in land purchased by private parties from the state under contract continue to be taxed, see § 39-5-106,

11 C.R.S. (2000), although they, too, are private possessory

interests in otherwise tax-exempt property.18

Section 39-3-136 therefore: (1) defines a class of property known as “possessory interests”; (2) prohibits taxation of a subclass of that property — possessory interests in otherwise tax-exempt property — from taxation while continuing taxation of other possessory interests; and (3) carves out certain interests within the subclass for continued taxation. This disparate tax treatment within the same class of property is only permissible if the property exempted in the statute is also exempted in the constitution.

As adopted by the voters, Article X: (1) listed specific categories of property that the General Assembly could exempt from taxation; and (2) provided that all real and personal property not within the exemption categories, as implemented by the General Assembly, is subject to taxation. See Colo. Const. art. X, § 6 (stating that “All laws exempting from taxation property other than that specified in this article shall be void”). The exemption categories in the constitution included mineral claims for a certain number of years after which they would be taxable, as provided by statute, Article X, section 3;19 publicly owned property, Article X, section 4; and property used solely and exclusively for religious worship, schools and strictly charitable purposes, Article X, section 5. See The Constitution of the State of Colorado Adopted in Convention, March 14, 1876; Also the Address of the Convention to the People of Colorado 29-30 (1876).

In 1988, Colorado voters amended the constitution to provide a specific exemption for one form of private possessory interests in tax-exempt property: non-producing unpatented mining claims in federal land. See Colo. Const. art. X,

§ 3(1)(b); House Concurrent Res. 1009, sec. 1, 1988 Colo. Sess. Laws 1457-58. The General Assembly referred this amendment to the voters. The comment explaining the General Assembly’s proposal recognizes that unpatented mining claims are possessory interests and would be taxed in the absence of the amendment’s approval by the voters:

The owner of an unpatented mining claim holds a possessory interest in the federal land, which permits him to occupy the land, search for and remove mineral deposits within the stated boundaries of the claim and to employ people to work the claim. Ownership of the land resides with the federal government . . . . The proposal would discontinue the payment of property taxes by owners of nonproducing unpatented mining claims.
Legislative Council of the Colorado General Assembly, An Analysis of 1988 Ballot Proposals, Research Publication No. 326 at 9-10 (1988).

With the exception of the 1988 amendment to exempt non-producing unpatented mining claims, however, no provision of Article X exempts possessory interests in tax-exempt property from taxation. In the absence of a constitutional provision exempting the otherwise taxable property as defined by the legislature, the statutory exemption cannot stand. See Mesa Verde III, 898 P.2d at 7-8.

The express language of section 39-3-136 operates as a purely legislative exemption to taxation that is not authorized under Article X. Under our holding in Mesa Verde III, we must conclude that this purely legislative exemption is unconstitutional. Accordingly, we agree with the dissent in Vail Associates and Black that Mesa Verde III controls our decision in this case and that section 39-3-136 constitutes an exemption from taxation in contravention of Article X. As we held in Mesa Verde I, 178 Colo. at 57, 495 P.2d at 233, “where a party has the right to possession, use, enjoyment, and profits of the property, that party should not be permitted to use the bare legal title of the Government to avoid his fair and just share of state taxation.”

As a final matter, we note that the court of appeals held that the 1996 legislation redefined “real property” in the tax statutes so as to not include possessory interests. Vail Assocs., 983 P.2d at 57. As we discussed in Part II.B., we disagree with this conclusion. Even if we were to assume, however, that the text of section 39-3-136(1)(g) did redefine “real property,” the section is nevertheless unconstitutional because the redefinition does not exclude all possessory interests from “real property,” but only selected possessory interests in tax-exempt property. Therefore, the property class of “possessory interests” is not treated uniformly for taxation purposes.

D. Significant Incidents of Private Ownership

During the 1996 enactment of section 39-3-136, the General Assembly expressed concern that the taxation of any possessory interest might lead to the taxation of all possessory interests, no matter how de minimis. See § 39-3-136(1)(d). Our decision does not reach so far. We recognize: (1) that the legislature has a determinative role in adopting valuation provisions consistent with the constitution, and has exercised its authority in this regard by adopting section 39-1-103(17); and (2) the taxation of private possessory interests in federal lands — which is permissible — must be distinguished from taxation of the underlying ownership of the land by the United States.

Thus, we identify and discuss the “most significant incidents of ownership” of interests in tax-exempt property that are a predicate for taxation under the statutes and Article X. Mesa Verde I, 178 Colo. at 57, 495 P.2d at 233; see also Rummel, 142 Colo. at 250-53, 350 P.2d at 826-27 (discussing taxation of and incidents of ownership in mining claims); Denver & Rio Grande Ry. Co. v. Church, 17 Colo. 1, 5-8, 28 P. 468, 469-70 (1891) (same for railroad property); Estes Park Toll Rd. Co. v. Edwards, 3 Colo. App. 74, 77-78, 32 P. 549, 551 (1893) (same for right-of-way on federal land).

First, our decision does not change the method of assessing and levying taxes on fee ownership interests. The unit assessment rule typically operates to tax land and improvements together, without the additional separate taxation of lesser interests therein, such as leaseholds, because taxation of the whole is presumed to include taxation of the derivative parts, with the owner passing on the burden of taxation as the fee owner chooses. See City & County of Denver v. Board of Assessment Appeals, 848 P.2d 355, 358-59 (Colo. 1993). When the fee holder is tax-exempt, however, the unit assessment rule operates to tax the private ownership interest in the land and improvements together in the absence of a fee owner who pays the full taxes and may distribute the burden thereof to others

holding subsidiary interests.20

Second, for taxation to occur, the possessory interest in tax-exempt property must exhibit significant incidents of private ownership that distinguish it from the underlying tax-exempt ownership. See United States v. Colorado, 627 F.2d at 219. The tax must apply to the possessory owner’s beneficial use, not to the property itself. See United States v. Colorado, 460 F. Supp. 1184, 1189 (D. Colo. 1978), aff’d, 627 F.2d 217 (10th Cir. 1980).

Third, taxation of possessory interests in tax-exempt property depends upon three factors demonstrating ownership related to the party’s “right to possession, use, enjoyment, and profits of the property.” Mesa Verde I, 178 Colo. at 57, 495 P.2d at 233. These three factors are: (1) an interest that provides a revenue-generating capability to the private owner independent of the government property owner; (2) the ability of the possessory interest owner to exclude others from making the

same use of the interest; and (3) sufficient duration of the possessory interest to realize a private benefit therefrom.21

Fourth, the General Assembly has authority to address methods of valuation and differences between types of possessory uses in assessing their value for taxation purposes. It has done so in anticipation that we might disagree with its legal

interpretation. See § 39-1-103(17).22

In debating and adopting section 39-3-136, the General Assembly expressed particular concern about tax impacts on

agriculturists should possessory interests in government-owned lands be taxable. See § 39-3-136(1)(d). However, as we discussed in Boulder County Board of Equalization v. M.D.C. Construction Co., 830 P.2d 975, 978 (Colo. 1992), Article X, section 3, gives special tax consideration to agriculture by providing that the actual value of agricultural lands shall be determined solely by consideration of the earning or productive capacity of such lands capitalized at a rate as prescribed by law. We emphasized this difference: “The Colorado Constitution states that all taxes upon real property shall be uniform and distinguishes agricultural and residential property from other types of real property for assessment purposes.” M.D.C., 830 P.2d at 978; see also id. at 981 (holding that surface use of land for monetary profit is the subject of the statutory provisions implementing Article X’s special treatment of agricultural taxation); § 39-1-103(5)(a) (providing that the “actual value of agricultural lands, exclusive of building improvements thereon, shall be determined by consideration of the earning or productive capacity of such lands during a reasonable period of time, capitalized at a rate of thirteen percent”).23




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