Can a Mississippi county board waive the 10% penalty for failure to file a personal property tax rendition if the taxpayer paid the back taxes once they learned of the mistake?
Plain-English summary
Neshoba County's attorney described a situation where a convenience store owner bought a neighboring property with a car wash in December 2015. The owner kept filing renditions and paying taxes on the convenience store, but never filed a rendition or paid taxes on the car wash. The personal property rendition request and tax bill kept going to the previous owner of the car wash. From 2015 to 2020, no rendition and no taxes for the car wash. When the new owner and the assessor figured this out, the owner paid all the back taxes. The board asked whether they could also waive the 10% penalty.
The AG said the penalty is mandatory but may not have been triggered.
The framework: Section 27-35-23 requires personal-property owners to file renditions of taxable property by April 1 of each year (or earlier on the assessor's demand). Section 27-35-45 imposes a 10% penalty when "any person shall fail to list for assessment, as required by law, any personal property which is taxable . . . or shall intentionally fail to provide the tax assessor with any documentation that the tax assessor considers necessary to verify the list, the current year assessment shall be increased by ten percent (10%)."
The penalty's plain language is mandatory. AG opinions consistently hold that neither the board nor the assessor can forgive or reduce it (Wilkinson 1997, Thaggard 2008). The Mississippi Constitution's restrictions on tax forgiveness reinforce this.
But the penalty is conditioned on the taxpayer's failure. If the taxpayer did submit proper documentation, the penalty was never triggered. The 2008 Thaggard opinion said "the Tax Assessor would be authorized . . . after a challenge by the taxpayer, to review all facts and make a determination, consistent with fact, that the taxpayer did submit the proper documentation, and that the penalty is not warranted."
In the Neshoba scenario, the AG identified another path: assessor error. The 2017 Tutor opinion (in a different delinquent-tax context) held that "a property owner does not owe penalties and interest for unpaid taxes . . . when an error by the tax assessor resulted in the owner's delinquency of the tax payment." If the Neshoba assessor sent the rendition request to the wrong owner (the previous owner of the car wash), and that error caused the new owner's failure to file, the board could find that the assessor failed to fulfill statutory obligations and that the taxpayer does not owe the penalty.
This is a finding-based escape, not a waiver. The board still cannot forgive a properly triggered penalty. The board can only find that the penalty was not triggered because of assessor error.
What this means for you
For Mississippi tax assessors and collectors
When sending personal property rendition requests, take steps to ensure they reach the current owner:
- Cross-check ownership against deed records annually
- For new acquisitions, follow up with the new owner and the previous owner
- Document the actions taken to identify and reach the correct owner
If a taxpayer challenges a 10% penalty arguing they did submit proper documentation, review the facts and make a determination consistent with the record. If your records show the documentation was submitted, the penalty was not triggered.
If your records show you sent the rendition request to the wrong owner, the board can find your error caused the failure and decline to assess the penalty.
For county boards of supervisors
When a taxpayer requests waiver of the 10% rendition penalty:
- Confirm the legal framework: the penalty is mandatory if properly triggered.
- Look for findings the board can make to negate the trigger:
- Did the taxpayer submit proper documentation? (Assessor reviews this.)
- Did the assessor fail to fulfill statutory obligations? (Board reviews this.) - Document the findings on the minutes if either applies.
- If neither applies, the penalty stands. The board cannot waive it.
For business property owners
If you have purchased property and not received a personal property rendition request, contact the county tax assessor to update ownership records. Do not assume the absence of a request means no obligation. Section 27-35-23 puts the duty on the owner to file by April 1 even without a demand.
If you receive a 10% penalty for failure to file:
- Check whether you actually submitted documentation that should have satisfied the rendition requirement
- Check whether the assessor's error contributed (e.g., sent request to wrong address)
- Present these facts to the assessor or board for a finding that the penalty was not triggered
If neither applies, the penalty is mandatory and you owe it.
For tax professionals handling assessment disputes
The two paths to escape the 10% penalty:
-
Documentation already submitted (assessor's call): Review what you provided. If your documentation was substantively sufficient, even if not on the right form, argue it satisfied the rendition requirement. Thaggard 2008 supports this.
-
Assessor error (board's call): Document the assessor's failure (sent to wrong owner, failed to demand from current owner, did not respond to ownership-update efforts). The Tutor 2017 opinion supports the board's finding that assessor error negates the penalty.
Both paths require findings on the record. A bare argument without supporting findings will not succeed.
For legislators and policy makers
The mandatory nature of Section 27-35-45 protects the integrity of the personal-property tax system. Allowing waiver would invite gamesmanship. The narrow factual escapes (proper documentation submitted; assessor error caused the failure) provide some equitable flexibility without opening the door to general waiver.
If the legislature wants to provide more discretion, it can amend the statute to authorize waiver in specified circumstances. As currently written, the statute is rigid.
Common questions
Q: Why is the penalty mandatory?
A: The statute uses "shall" language ("the current year assessment shall be increased by ten percent"). Mandatory statutes do not permit discretion. The Mississippi Constitution also restricts tax forgiveness, reinforcing the mandatory reading.
Q: What counts as "proper documentation"?
A: The Section 27-35-23 rendition is a list of taxable personal property with assigned values. Proper documentation is one that fairly identifies and values the property. The assessor judges whether the documentation is sufficient.
Q: What about innocent mistakes?
A: If the mistake was the taxpayer's, the penalty applies. The mandatory nature does not permit waiver for innocence. Only if the assessor's error caused the failure can the board negate the penalty.
Q: Does the rule apply to real property or only personal property?
A: This opinion is about personal property under Section 27-35-23. Real property has different procedures. Penalties for delinquent real-property taxes follow different statutes.
Q: What if the property was rendered in one year but not subsequent years?
A: Each year's failure is a separate trigger for the 10% penalty. The taxpayer must file annually unless exempt.
Q: What if the taxpayer pays the back taxes immediately upon learning of the issue?
A: Payment of back taxes does not waive the penalty. The penalty is for the failure to file, not for the failure to pay. Both are separate.
Q: Can the board negotiate a payment plan for the penalty?
A: Possibly. Payment plans are different from waiver. Board policies on collection may include installment options. The penalty itself, once owed, has to be collected.
Q: Is there a statute of limitations on the penalty?
A: Personal property tax penalties follow the standard tax-collection limitations. If the county did not assess the penalty within the statutory window, the right may be lost. Review the specific facts.
Q: What about appeal rights?
A: Mississippi has an appeal process for property tax disputes. A taxpayer can challenge the penalty through the proper appeal channel. The 2008 Thaggard opinion explicitly contemplated the assessor's review of factual challenges by the taxpayer.
Q: Can the previous owner sue the new owner for not paying the taxes?
A: This is a private legal question between the parties. The deed of conveyance, escrow arrangements, and standard real-estate practices may have provided for tax allocation. The AG opinion doesn't address it.
Background and statutory framework
Mississippi's personal-property tax system requires owners to render their taxable property annually. Section 27-35-23 puts the burden on the owner to file by April 1 (or earlier on assessor's demand). The system depends on owner cooperation; assessors cannot inventory every taxpayer's personal property.
To enforce the duty, Section 27-35-45 imposes a 10% penalty when the owner fails to list. The mandatory penalty creates a strong incentive to comply.
The 1997 Wilkinson opinion established the mandatory reading. The 2008 Thaggard opinion added the proper-documentation escape. The 2017 Tutor opinion (in a delinquent-tax context, not specifically Section 27-35-45) recognized the assessor-error escape.
The 2021 White opinion synthesizes these. The penalty is mandatory; the board cannot waive. But the penalty was not triggered if either (a) proper documentation was actually submitted, or (b) the assessor's error caused the failure.
The Neshoba scenario fits the (b) escape if the board makes findings: the assessor sent the rendition request to the wrong owner from 2015 to 2020. That assessor failure caused the new owner's failure to file. The board can find this and decline to assess the penalty.
The opinion's caveats: the AG cannot make factual determinations, only describe the legal framework. The board has to make the findings consistent with the actual facts.
Citations and references
Statutes:
- Miss. Code Ann. § 27-35-23, requirements for reporting taxable personal property
- Miss. Code Ann. § 27-35-45, mandatory 10% penalty for failure to list taxable personal property
Prior AG opinions cited:
- MS AG Op., Blackledge (Feb. 20, 2004), failure to comply triggers Section 27-35-45 penalty
- MS AG Op., Martin (Dec. 7, 2001), board may make factual determinations on penalty applicability
- MS AG Op., Thaggard (Feb. 29, 2008), neither assessor nor board may forgive Section 27-35-45 penalty; but proper-documentation determination can negate trigger
- MS AG Op., Tutor (Jan. 20, 2017), property owner does not owe penalties when tax assessor's error caused delinquency
- MS AG Op., Wilkinson (June 20, 1997), penalty is mandatory based on plain reading of statute
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/W.White-November-30-2021-Authority-of-Board-of-Supervisors-to-Forgive-Penalties-for-Failure-to-File-Ad-Valorem-Tax-Rendition.pdf
Original opinion text
November 30, 2021
Wade White, Esq.
Attorney, Neshoba County Board of Supervisors
501 Main Street
Philadelphia, Mississippi 39350
Re: Authority of Board of Supervisors to Forgive Penalties for Failure to File Ad Valorem Tax Rendition
Dear Mr. White:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, a convenience store owner purchased neighboring property with an existing car wash in December 2015. While the convenience store owner always filed a personal property rendition and paid personal property taxes on the convenience store, he never filed a personal property rendition or paid personal property taxes on the newly acquired car wash. The personal property rendition request and personal property tax bill continued to go to the car wash's previous owner. From 2015 to 2020, no rendition was filed, and no personal property taxes were paid on the car wash. When the car wash's new owner and the tax assessor/collector learned of this, the owner paid all past due ad valorem taxes on the car wash's personal property.
Question Presented
May the County Board of Supervisors (the "Board") and/or the tax assessor/collector waive the penalty for failure to file a rendition since the personal property taxes were paid once the mistake was learned?
Brief Response
The penalty provided in Section 27-35-45 is mandatory. Neither the Board nor the tax assessor/collector may waive or forgive the penalty. However, if the tax assessor/collector determines that the taxpayer did submit the proper documentation or the Board determines that the tax assessor/collector did not fulfill his statutory mandates, the Board may determine that the taxpayer does not owe the penalty.
Applicable Law and Discussion
Section 27-35-23 of the Mississippi Code sets forth the requirements for reporting taxable personal property, and states, in part, the following:
(1)(a) Except as may be otherwise provided for in subsection (2) of this section, the tax assessor shall call upon each person liable to taxation in his county for a list of his taxable personal property, either in person, or by leaving a copy of the prescribed tax list at his business or his usual place of residence, and it shall be the duty of each person to make out and deliver to the tax assessor, upon demand, and if not demanded, not later than the first day of April in each year, a true list of his taxable property with the true value of each article, specifying all such property of which he was possessed on the next preceding tax lien date in his own right or in the right of his wife or minor child, or as executor, administrator, guardian, trustee, agent, or otherwise, rendering separate lists of the property of each. The taxpayer shall fill in all blanks on the tax lists and show in the proper place all taxable personal property owned by him or by any person for whom he is required to give in taxable property.
Section 27-35-45 states the corresponding penalty for failure to submit a list of taxable personal property:
If any person shall fail to list for assessment, as required by law, any personal property which is taxable under the laws of the State of Mississippi, and which said person should list for assessment under the laws of the state, or shall intentionally fail to provide the tax assessor with any documentation that the tax assessor considers necessary to verify the list, the current year assessment shall be increased by ten percent (10%).
Based on a plain reading of this statute, the penalty provided therein is mandatory. MS AG Op., Wilkinson at 1 (June 20, 1997) (opining that "it appears from a plain reading of the statute that [the penalty] is in fact mandatory if the tax assessor makes the determination that the schedules or documents provided by the taxpayer are insufficient"). Consistent with the Mississippi Constitution, this office has opined that neither the tax assessor nor the board of supervisors may forgive or reduce the penalty imposed by Section 27-35-45. MS AG Op., Thaggard at 2 (Feb. 29, 2008).
However, while a taxpayer's failure to comply with the personal property rendition requirement of Section 27-35-23 triggers the penalty provided in Section 27-35-45, MS AG Op., Blackledge at 2 (Feb. 20, 2004), there may be circumstances where the penalty is not triggered. MS AG Op., Thaggard at 1 (Feb. 29, 2008) (finding that "[t]he Tax Assessor would be authorized . . . after a challenge by the taxpayer, to review all facts and make a determination, consistent with fact, that the taxpayer did submit the proper documentation, and that the penalty is not warranted.").
As the basis for the property owner's failure to submit a personal property rendition or pay any personal property taxes on the car wash for the years 2015 through 2020, you state that the tax assessor/collector sent the notice to the previous owner of the car wash. This office has opined previously, although in a different delinquent tax context, "that a property owner does not owe penalties and interest for unpaid taxes . . . when an error by the tax assessor resulted in the owner's delinquency of the tax payment." MS AG Op., Tutor at * 3 (Jan. 20, 2017). Whether the tax assessor/collector made an error is a question of fact to be determined by the Board. If the Board makes a finding that the tax assessor failed to fulfill his or her statutory obligations, the Board may find that the taxpayer does not owe the penalty. See MS AG Op., Martin at *1 (Dec. 7, 2001).
Because the statutory language of Section 27-35-45 is clear, and on its face the penalty is mandatory, neither the Board nor the tax assessor/collector may waive or forgive the penalty. However, if the tax assessor/collector determines that the taxpayer did submit the proper documentation or the Board determines that the tax assessor/collector did not fulfill his statutory obligations, the tax assessor/collector or Board may determine that the taxpayer does not owe the penalty.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Misty Monroe
Misty Monroe
Special Assistant Attorney General