When figuring out who owns a property for Virginia real estate taxes, can a commissioner of the revenue rely on a court decree instead of the deed?

Plain-English summary

Pulaski County Commissioner of the Revenue Kim Matthews asked the AG whether she had to look beyond a recorded deed when a taxpayer told her a later circuit court decree had cancelled out the deed. Background: a 2000 quitclaim deed described certain property as conveyed to the taxpayer. In 2004, the Pulaski County Circuit Court entered a decree (recorded in the deed book) that, according to the taxpayer, established that no property had actually been transferred by the 2000 deed.

The AG's answer: yes, the commissioner may consider that decree, and any other recorded legal document affecting title. The Code requires clerks to send commissioners summaries not just of deeds and wills (§§ 58.1-3303, 58.1-3304) but also "all decrees or judgments affecting title to real property." The statutory scheme would make no sense if commissioners had to ignore the latter. The opinion stops short of saying what the 2004 decree actually did, that is a fact-specific call left to the commissioner.

What this means for you

Landowners with a tax bill on property they say they don't own

The opinion holds that a deed is not the only record bearing on ownership for tax assessment. A later recorded court order affecting title (a decree of title, a partition decree, a quiet-title judgment) is something the commissioner of the revenue may consider. The opinion does not decide what any particular decree accomplishes; that is left to the commissioner.

Commissioners of the revenue

The opinion holds that you may consider recorded circuit court decrees and judgments affecting title, not just the deed, when determining ownership for tax purposes, because §§ 58.1-3303 and 58.1-3304 require the clerk to forward those decrees to your office. It adds that a judgment establishing that a recorded deed passed no title takes priority over the deed, while the effect of any one decree is a fact-specific determination for your office.

Real estate attorneys and title examiners

The opinion confirms that the records the commissioner relies on include decrees and judgments affecting title, not deeds alone, once they are recorded in the circuit court. It rests on the clerk's statutory duty under §§ 58.1-3303 and 58.1-3304 to forward those orders to the commissioner.

Taxpayers who believe a deed in their name is incorrect

The opinion expressly declined, citing § 2.2-505(B), to address what legal options a taxpayer has to correct a deed they believe is inaccurate, because that question was not directly related to the requesting official's duties. On that point the opinion offers no guidance.

Common questions

Q: My deed says I own land I never bought. The tax bill is huge. What can I do?
A: Under this opinion, a recorded court order resolving the dispute is something the commissioner of the revenue may consider, and a judgment that a recorded deed passed no title takes priority over the deed. The opinion declined to address what options a taxpayer has to correct an allegedly inaccurate deed, so it does not speak to how to obtain such an order.

Q: Does this mean the commissioner can just decide who really owns the property?
A: Within the realm of tax administration, yes. The commissioner has statutory authority under § 58.1-3281 to determine ownership for tax purposes. That determination uses the records the clerk forwards under §§ 58.1-3303 and 58.1-3304. The commissioner is not deciding ultimate ownership for all purposes, just for assessment.

Q: A judgment from a year ago says title to my land is in my name. The commissioner still bills my neighbor. What do I do?
A: Under the opinion, once a judgment affecting title is recorded in the circuit court deed book, it is forwarded to the commissioner under §§ 58.1-3303 and 58.1-3304 and is something the commissioner may consider in the ownership determination. The opinion treats the effect of any particular decree as a fact-specific call for the commissioner.

Q: I'm a commissioner of the revenue. What if I'm not sure what a decree means?
A: The opinion says the effect is fact-specific. Consult county counsel for close calls. The opinion confirms that you have the authority to consider the decree, it does not tell you how to read every decree.

Background and statutory framework

Virginia Code § 58.1-3281 requires the commissioner of the revenue (or equivalent local official) to determine the ownership of real property for tax purposes. To do that, the commissioner uses the periodic summaries the clerk of the circuit court sends under §§ 58.1-3303 and 58.1-3304. Those statutes require the clerk to forward summaries of:

• All recorded deeds and wills that transfer interests in real property.
• All decrees or judgments affecting title to real property that have been recorded in the court.

The opinion reads that statutory architecture as resolving the question. The clerk's duty to forward decrees and judgments would be pointless if commissioners had to ignore them. A judgment establishing that a recorded deed did not pass any title takes priority over the deed for purposes of the commissioner's ownership determination. Whether any particular recorded decree did or did not pass title is a fact-specific determination by the commissioner.

The opinion also cites 1996 Op. Va. Att'y Gen. 204 for the proposition that "determining the ownership of property for tax purposes involves the exercise of discretion by the commissioner of the revenue."

The AG declined to answer a related question, what legal options taxpayers have to correct an inaccurate deed, citing Va. Code § 2.2-505(B), which limits AG opinions to questions directly related to the discharge of the requesting official's duties.

Citations and references

Statutes:

• Va. Code § 58.1-3281 (Commissioner's duty to determine ownership)
• Va. Code § 58.1-3303 (Clerk's lists of recorded deeds and decrees)
• Va. Code § 58.1-3304 (Clerk's lists of recorded wills)

Prior AG opinions:

• 1996 Op. Va. Att'y Gen. 204 (commissioner of the revenue exercises discretion in determining ownership for tax purposes)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/20-012-Matthews-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

April 9, 2021

The Honorable Kim Matthews
Pulaski County Commissioner of Revenue
52 W. Main Street, Suite 200
Pulaski, Virginia 24301

Dear Ms. Matthews:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a commissioner of the revenue is required to consider legal documents other than the deed when determining whether an individual owns a particular piece of land for purposes of assessing real estate taxation.

Background

You relate that a taxpayer has requested that you consider a decree entered by the Pulaski County Circuit Court in 2004 in determining whether she owns certain property for purposes of real estate taxation. In particular, you relate that although a quitclaim deed describing the property in question was conveyed to the taxpayer and recorded in 2000, the taxpayer asserts that the circuit court's 2004 decree (which was recorded in the court's deed book) establishes that no property was transferred by the deed. You ask whether you are required to consider the court's 2004 decree in determining whether the taxpayer owns the property for tax purposes or whether the 2000 deed should be considered definitive.

Although you also ask what "legal options ... taxpayers have to correct a deed they feel is inaccurate," I must respectfully decline to address that question. See Va. Code § 2.2-505(B) (providing that, apart from exceptions not relevant herein, "the Attorney General shall have no authority to render an official opinion unless the question dealt with is directly related to the discharge of the duties of the official requesting the opinion").

Applicable Law and Discussion

The Code of Virginia requires the relevant commissioner of the revenue to determine the ownership of real property for tax purposes. To accomplish that task, the commissioner primarily uses summaries of land records submitted by the clerk of the circuit court. Specifically, Virginia Code § 58.1-3303 and § 58.1-3304 require the clerk of the circuit court to periodically submit lists to the commissioner of the revenue containing summaries of all recorded deeds and wills that transfer interests in real property, as well as all decrees or judgments affecting title to real property that have been recorded in the court.

This statutory scheme clearly indicates that a commissioner of the revenue may consider not only recorded deeds and wills, but also decrees and judgments affecting title to real property that have been recorded in the circuit court when determining land ownership for tax purposes. While a recorded deed is certainly important evidence in determining ownership, a judgment or decree establishing that a recorded deed did not pass any title in land will take priority over the deed. Whether the particular recorded decree of the Pulaski County Circuit Court you reference had the effect of establishing that the quitclaim deed passed no title to the taxpayer, however, is a fact-specific matter for your office to determine.

Conclusion

It is my opinion that a commissioner of the revenue may consider recorded legal documents other than the deed, including circuit court decrees, when determining whether an individual owns land. The effect of any particular decree, however, is a fact-specific inquiry for the commissioner of the revenue to determine.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General