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HomeMy WebLinkAbout1983-12-06; City Council; 7573; Designation of Agent Tax Refund CasesAB# 7!f MTG. 12/6/83 DEPT. CA O W O a n. CL Q CIT,. OF CARLSBAD - AGENDkBILL TITLE: DESIGNATION OF COUNTY OF SAN DIEGO AS AGENT FOR SERVICE OF PROCESS IN TAX REFUND CASES RECOMMENDED ACTION: DEPT. HD.` — CITY ATTY\-I-Ea CITY MGR. ' That the City Council adopt Resolution No. /S designating the County of San Diego as its agent for service of process in tax refund actions. ITEM EXPLANATION The County of San Diego collects property taxes on behalf of the City of Carlsbad. For years, the law provided that along with assessing and collecting taxes the county would provide an appeals process and defend any lawsuits seeking tax refunds. That law was changed in 1981 to provide that the county would only defend these cases if the City Council had designated them as our agent for service of process and only if we paid the cost of the defense. Since that time the San Diego -Imperial County City Attorney's Association has been negotiating with the county counsel to work out a mutually satisfactory arrangement to allow the county to continue to defend the cities in tax refund cases. In the meantime, our office has been responsible for watching out for the City's interests in all of these cases. In that regard attached is a summary prepared by the county counsel of the currently pending tax cases which all involve claims by railroad companies for refunds. The total amount at stake in all the cases is approximately $1 million with Carlsbad's share estimated at approximately 1 percent. The county counsel has adopted a policy providing for their defense of these cases with the costs shared in proportion to the amount of money the City has at stake. Our association has unanimously concurred in this policy and we recommend its acceptance to the City Council. Attached is a letter dated November 3, 1983 from the assistant county counsel explaining their new policy. it is our recommendation that the City Council adopt Resolution No. proc�//SL designating the county as its agent for service of ess in tax refund actions. Once that resolution is filed with the county clerk the county counsel will be responsible for the defense of any cases filed in the future with the cost shared in accordance with their policy. All of the cases currently pending are being defended by San Diego County or some other county under previous arrangements with one exception. In that case, the City of San Diego has agreed to answer on behalf of all of the individual cities. Our office will continue to monitor all the cases and in addition be responsible for the full defense of that particular one. EXHIBITS Letter dated November 3, 1983 from County Counsel Memorandum dated October 11, 1983 from County Counsel Resolution No. 7y/sue' -• �o�tv[ it rh. T O Moccc� LWYD M. HMUM, JR. Co.." Co .N.t• , JOSEPH KASE. JR. A.a1.TANT CaY v, CoY"au r__9 County of San Dreg® OFFICE OF COUNTY COUNSEL 355 COUNTY ADMINISTRATION CENTER SAN DIEGO. CALIFORNIA 92101.2469 (714) 236.3651 November 3, 1983 San Diego/Imperial County City Attorneys Association San Diego, California Dear Counsel: AMTKONV ALt(wf O •-v w.... t f•,ar•aa wr.u.+ W, T..n O...,. .•..r .... w."... o S.r.. 0.... 0, K.— I•r.ar. L. Ka.•• Wra.r.r A.C.t.•n• C•+w.•. A Vrvr,,. R.ra.•a •r C. Rl.+.a".a Na. •C.N•+)+uI A„• N...•♦ t•a.••n L.N.,)•a as L..•.+• W I•..+.a 11 e.+•.,, •, a+r+. e+oea w,e•.e. e..aa•ft. awl [ll•. w M,a-.a.. l.tt A. a•,aa.aa You have asked that County Counsel detail for you the manner and method by which San Diego County has been applying Revenue and Taxation Code Section 5149 (as amended effective January 1, 1982), which requires County Counsel to represent, for a fee, cities who designate the County as its agent for service of process in tax refund actions. You have also asked how this has been applied in the railroad cases seeking substantial refunds on a state-wide basis naming many cities. Application of Revenue and Taxation Code Section 5149. Revenue and Taxation Code section 5149 authorizes any city for which the county collects taxes to provide for the city's defense by the county counsel in any actions brought against the city under the refund -of -taxes article of that code. Effective January 1, 1982, Section 5149 was amended to impose these conditions on such a defense: (1) The city may provide for when the city previously as its agent for service may be withdrawn at any a defense by the county has designated the county or process (this designation time); (2) The city must notify the county of this designation and also inform the county clerk; (3) The county clerk shall keep and maintain a public record of all cities who have designated the county as agent for service of process, and delete therefrom the name of any city which has withdrawn the designation; 2. City Attorneys Assoc. -2- November 3, 1983 (4) The county thereafter shall notify the city of any process in a tax refund action served on it naming the city; and (5) The county shall impose fees on a city which has designated the county as it's agent for service of process which shall cover the costs incurred in giving the notice and the defense of the suit. Pursuant to this authorization, County Counsel has - adopted a policy for the defense of cities in tax refund actions. This policy requires that the costs of defense of the lawsuit be borne by the city designating the county as its agent for service in an amount prorated on the basis of the amount of tax being challenged. A copy of that policy is attached. The initial communications from -County Counsel to the cities indicated that the costs of defense would be shared pro-rata based on the number of named defendants represented by County Counsel. The policy as finally adopted modified this to reflect, more r�,ali.stically, that the city s obliga- tion to share in the co_,4s of defense would be based on the amount of its taxes at stake as compared to the total taxes at stake in that proceeding for the particular property located in the city. County Counsel's current billing rate is $60.00 per hour plus out-of-pocket costs. The Railroad Cases. Suits in both federal and state courts individually brought by AT&SF, Southern Pacific and SD&AE seek refunds of property taxes from '197A to the present, on a variety of theories, principally on violation of the Federal 4-R Act which prohibits states from discriminating against railroad property in assessing property taxes. Some of these name cities in which the railroad property is located, some do not. A lead counsel has undertaken defense of some of these cases; where there. is no lead counsel, San Diego County Counsel is provid:.ng the defense. Attached is a list of the cases. County Counsel's practice has been: 1. For any suit filed and served on a city before January 1, 1982: County Counsel or lead counsel engaged will represent the city upon request, under the provisions of the prior Section 5149. The cities named (as shown on the attachment) are being provided a defense either by San Diego or the lead counsel. City Attorneys Assoc. -2- November 3, 1983 (4) The county thereafter shall notify the city of any process in a tax refund action served on it naming the city; and (5) The county shall impose fees on a city which has designated the county as its agent for service of process which shall cover the costs incurred in giving the notice and the defense of the suit. Pursuant to this authorization, County Counsel has adopted a policy for the defense of cities in tax refund actions. This policy requires that the costs of defense of the lawsuit be borne by the city designating the county as its agent for service in an amount prorated on the basis of the amount of tax being challenged. A copy of that policy is attached. The initial communications•from County Counsel to the cities indicated that the costs of defense would be shared pro-rata based on the number of named defendants represented by County Counsel. The policy as finally adopted modified this to reflect, more realistically, that the city's obliga- tion to share in the costs of defense would be based on the amount of its taxes at stake as compared to the total taxes• at stake in that proceeding for the particular property located in the city. County Counsel's current billing rate Is $60.00 per hour plus out-of-pocket costs. The Railroad Cases. Suits in both federal and state courts individually brought by AT&SF, Southern Pacific and SD&AE seek refunds of property taxes from '1974 to the present, on a variety of theories, principally on violation of the Federal 4-R Act which prohibits states from discriminating against railroad property in assessing property taxes. Some of these name cities in which the railroad property is located, some do not. A lead counsel has undertaken defense of some of these cases; where there ii no lead counsel, San Diego County Counsel is providing the defense. Attached is a list of the cases. County Counsel's practice has been: 1. For any suit filed and served on a city before January 1, 1982: County Counsel or lead counsel engaged will represent the city upon request, under the provisions of the prior Section 5149. The cities name (as shown on the attachment) are being provided a defense either by San Diego or the lead counsel. City Attorneys Assoc. -3- November 3, 1983 2. For any suit filed before January 1, 1982, but served on the city after January 1, 1982: County Counsel will represent the city upon request at no cost provided that if lead counsel imposes additional costs for such representation these costs will be passed on to the city. 3. For any suit filed and served on a city. after January 1, 1982: County. Counsel will represent the city only when, prior to the service of the suit, the city has designated the County as its agent for service of process and has agreed to the fee structure outlined in the County Counsel policy. 4. For any suit not naming the cities (there are presently two of these in federal court): If the cities are later named and served, defense will be provided under the conditions of 2 or 3 above. Section 5149 was originally intendeA as a simplified method for taxpayers seeking refunds to avoid the multiple service on cities. it began with resolution from the Confer- ence of Delegates after initial efforts at elimina%.tng the city as a party to tax refund actions did not receive support. The section should be examined very carefully. if the cities wish to continue to be named separately, the cities should be prepared to accept the consequences of such service. We find this section awkward to work with inasmuch as it imposes additional burdens on County Counsel, when the County has bL.:n designated, to determine if the proper substituted service has been made upon the County and the subsequent notice to the city of the action. Very truly yours, M. HARMON, JR:, County Counsel KASE, JR., Assistant JK:mk Encs. 3 I COUNTY COUNSEL ADMINISTRATIVE MANUAL SUBJECT: Item Page TAX REFUND ACTIONS: Number Representation of Cities Effective Date: May, 10► 1983 XIII-10 1 of, 3 Background The County of San Diego is required to defend actions for refunds of taxes collected by the County. While these taxes are collected on the county tax rolls, they are distributed to various taxing agen- cies. Some of them are assessments or other collections which, by law, are authorized to be collected with the regular taxes. The law presently requires any city to be named in a suit for collection of taxes. Claims are also required. Generally, other public taxing agencies included in the general tax collections are not required to be named. (County of Los Angeles v. Superior Court (19411 17 Cal.2d 707.) Effective January 1, 1982, the law permits any city for which the county collects taxes to provide for defense by County Counsel of any actions brought against the city under the refund article of the Revenue and Taxation Code or the city may choose to defend such actions itself. To impose this duty on County Counsel, the city must designate the County of San Diego as its agent for :service of process. This designation may be withdrawn at any time. The County Clerk is required to maintain a current racord of all cities who have designated the County of San Diego as its agent for service of process. (Presently the Clerk of the Board of Supervisors keeps such a list of those of which she is aware.) The County is required to impose a fee on each city for costs incurred. (Rev. & Tax. Code S 5149.) Policy It is the duty of the County Counsel of San Diego to defend any action for refund of taxes, except as hereinbelow noted, when that City has designated the County of San Diego as its agent for service of process in the manner required by the Revenue and Taxation Code. This duty will extend only to those cases in which the City is actually named as a defendant, as long as that requirement remains in the law. l Rev. 12, 5/10/83 COUNTY COUNSEL ' ADMINISTRATIVE MANUAL _SUBJECT: Item Page TAX REFUND ACTIONS: Number Representation of Cities Effective Date: Mav 10, 1983 XIII-10 2 of 3 Exception: The County Counsel of San Diego will decline to defend any action to refund a tax, assessment or other item collected by the County if the defense of that tax, assessment or item is not a general defense of all collected twxes which are the subject of that suit. For example; the County Counsel will not defend a specikl override tax levied by a city when the issue is the City's authority to levy that override. However, if the City,- after notice that the County Counsel will not defend, insists that the County defend the action, the City shall be charged the full fee for all services related to the defense of that item. Notice to Citv that Suit Has Been Filed Within 10 days after the summons and complaint is served, County Counsel is required to notify the city of the title and general nature of any action naming the city as a defendant. A courtesy ( copy should also be provided to the City Attorney of that: city. That letter should reference the city's resolution and note that a fee will be charged for our services defending the action. Presently, the following cities have designated the County of San Diego as its agent for service of process: City of Del Mai- (Res. No. 82-16 adopted March 1, 1982) City of Poway (Res. No. 212 adopted March 2, 1982) City of San Marcos (Res. No. 82-1658 adopted February 23, 1982) These resolutions are on file with the Clerk of the Board of Super- visors or the County Clerk. The records of these offices should be checked for subsequent filings and, as appropriate, this policy item updated. I£ for any reason, it appears that the County should not defend a particular action for a city, the attorney assigned to that suit shall notify the County Counsel and give his/her recommendations regarding further proceedings. Rev. 12, 5/10/83 COUNTY COUNSEL ADMINISTRATIVE MANUAL Item rage SUBJECT:-- Number TA}� REFUND ACTIONS Representation of Cities XIII-10 2 of 3 Effective Date: May 10, 1983 I Exce tion: The County Counsel of San Diego will decline action to refund a tax, assessment or other to le any the, County if the defense of that tax, item collected byI defense assessmettaxesitem which are theesubject.of thatfsunera it. For' collectedCounsel will not defend a special example, the County when the issue is the a city override tax levied by ide. However, if the s that overr City'authority to levy Counsel will not City, after notice that the County Co'l the action, the defend, insists that the County ene City shall be charged the full fee for all services related to the defense of that item. Notice to Cit that Suit Has Been Filed d to notify the city of the title and general Within 10 days county ys after the summons and complaint is served, Counsel is 1. the city as a defendant. A courtesy nature of any action naming of that city. copy should also be provided to the City Attorney That letter should reference the city's resolutthe actionte that a fee will be charged for our services defending of San presently, the following cities have designated the County Diego as its agent for service of process: City of Del Mar (Res. No. 82-16 adopted March 1, 1982) City of Poway (Res. No. 212 adopted March 2, 1982) City of San Idarcos (Res. No. 82-1658 adopted February 23, 1982) on fof the Board of Super - These resolutions treClerkileThetrecordsh the l fkthese offices should olicy be em visors or the county as appropriate, thin n checked for subsequent filings and, updated. should not defend a If for any reason, it appears that the County the attorney assigned to that suit particular action for a city, county Counsel and give his/her recommendations the Co shall notify ntyco regarding further proceedings. Rev. 12, 5/10/83 I.-N COUNTY COUNSEL ADMINISTRATIVE MANUAL \ I SUBJECT : TALC REFUND ACTION: Representation of Cities li Effective Date: Aiay 10, 1983 1._ Item J Page XIII-10 1 3 of 3 Fee The standard fee charged County Counsel clients shall be charged each city for the service$ provided. That fee shall be prorated when the general collection is the subject of the lawsuit, so that the city's fee is equal to the ratio of the city's taxes at stake to the total taxes at stake in that lawsuit. For example, if the tax distribution for the particular parcel was: County of San Diego $54,000.00 City of San Diego 42,000.00 School District 140,000.00 Community College 20,000.00 Other Ed. Purposes 4,000.00 Total Taxes $260,000.00 the City's share of the costs (including court costs and other expenses) attributable to the defense of that lawsuit, whether or not it was successful, would be 42000/260000. Any time for services specifically identified for that City shall be billed at the full rate (i.e., the letter notifying the district of the suit ana any other similar items inquiring of the status, and any special tax imposed by the City which County Counsel is required to defend). This County notified all cities when the legislation authorized counties to be designated as the city's agent for service of pro- cess. (See attached letter dated January 12, 1982 and form of resolution.) Some of the cities are displeased with this procedure, inasmuch as prior to the effective date of this legislation, County Counsel, as a courtesy defended the city without cost. Authorized: s- Rev. 12, 5/10/83 OFFICE OF COUNTY COUNSEL ., MEM0RAND-" 70 Joseph Kase, Jr. DATE October 11, 1983 FROM Bruce W. Beach RE Railroad Assessment Cases You have requested that I advise you regarding the status of the cities in San Diego County in the various railroad cases filed in the State and Federal Courts. The attached outline sets forth the information you requested. For purposes of explanation, the various cities in the County of San Diego have only been named in one of the three Federal District Court actions and in that action they have not been served. These three Federal District Court actions have been combined for discovery proceedings and it is in these actions that all of the recent proceedings have been occurring. Whatever decision is reached by the Federal Courts in these actions will, no doubt, control the adjudica- tion of those actions filed in State Superior Courts. In those cases where Santa Clara and Sacramento County are lead counsel, answers on behalf of the County of San Diego and the cities named have been filed by the lead County. In those three actions where there are no lead counsel, we have obtained (1) an open extension to respond for the County of San Diego as well as the various cities named, (2) have answered on behalf of the County of San Diego and the cities named, and in the most recent action, (3) have answered only on behalf of the County of San Diego, notifying those cities which have tendered defense to the County that we will not represent them unless they have complied with the provisions of Revenue & Taxation Code Section 5149. BRUCE W. BEACH BWB:sc Enc. 2 t Amount Claimed Against County Lead Status of Plaintiff County Counsel # Court Tax ':ears Taxing Agencies Counsel Cities ATSF'* 82-91085 U.S.D.C. 1961-82 No ariount Howard, Rice, Nemerovski, Vista Chula V Del Mar Cal. N.D..D. Cal. stated Canady, Escondido Robertson & San Diego MPH Falk San Marcos Vista Named --not served U.S.D.C. 1981-82 No amount " No cities named Sn * 82-91134 N.D. Cal stated #C-82-6009 SW 82-90047 U.S.D.C. 1979-80 No amount " No cities named Sp * N.D. Cal 1980-81 stated #C-81-4848 1981-82 SW �ATSF + 81-90179 San Fran. 1978-79 $125,658.10 Santa CoountyClara Counsel Chula Vista S.C. 761819 Del Mar Escondido National City, Oceanside San Diego San Marcos Vista Defense ten- dered to Santa Clara for County & Cities + These cases consolidated for trial * combined for all three cases and will also Discovery proceedings probably be consolidated for trial purposes -1- Amount Claimed County Against County Lead Status of , Plaintiff Counsel # Court Tax Years Taxing Agencies Counsel Cities ATSF + 81-90537 San Fran. 1979-80 $140,366.60 Santa Clara Counsel Chula Vista Escondido S.C. 778986 County National City' Vista Del Mar Oceanside Defense ten- dered to Santa Clara for County Cities Sp 79-90461 Sacramento 1977-78 $123,420.00 Sacramento Counsel County had Chula Vista S.C. 281434 Coronado E1 Cajon Imperial Beach La Mesa National City San Diego Defense ten- dered to Sacramento for County & Citie 81-90421 Sacramento 1974-75 $265,320.00 None Car ula Vista Sp S.C. 282416 1975-76 Coronado 1976-77 E1 Cajon Imperial Beach La Mesa National City San Diego, Open Extension Motion for Summary •judgme filed # 9 /4A?-C -2- c - - - Amount Claimed Lead , Status of County Against County Taxing Agencies Counsel Cities Plaintiff Counsel # Court Tax Years 81-91300 San Fran. 1980-81 $145,601.15 None Answer filed• by San Diego ATSF + S.C. 788219 County for: Chula Vista Del Mar Escondido National City Oceanside San Diego San Marcos Vista San,Diego & 81-90567 San Diego 1980 $ 87,424.00 San Diego County Chula Vista Coronado Arizona S.C. 475303- E1 Cajon Imperial Beach Eastern RR La Mesa Lemon Grove National City , San Diego Stipulation between Cities & Plaintiff' to be bound by settlement with Count 83-90624 San Fran. 1978-79 $117,572.48 None Carlsbad C ula Vista Sp S.C. 810433 1979-80 $117,572.48 $ 32,322.40 Coronado 1980-81 1981-82 $ 24,897.22 El Cajon Imperial Beach La Mesa Lemon Grove National City San Diego Answer filed by County -- No defense of -X) Cities assumed S N ) -3- m oZ- o�,0 0 ILLV�J7 ZWWU zo m V U 1 RESOLUTION NO. 7415 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA DESIGNATING THE COUNTY OF 3 SAN DIEGO AS ITS AGENTS FOR SERVICE OF PROCESS PURSUANT TO SECTION 5149 OF THE REVENUE AND 4 TAXATION CODE. - 5 WHEREAS, the City Council of the City of Carlsbad, 6 California wishes to provide for the defense by counsel for the 7 County of San Diego of actions brought against the City of 8 Carlsbad for property tax refunds 9 NOW, THEREFORE, BE IT RESOLVED: 10 1. That the above recitiation is true and correct. 11 2. Pursuant to Section 5149 of the Revenue and 12 Taxation Code the City of Carlsbad hereby designates the County 13 of San Diego as its agent for service of process for any and all 14 actions brought against the City of Carlsbad under Article 2, 15 Part 9, Division 1 of the Revenue and Taxation Code of the State 16 of California. 17 PASSED, APPROVED AND ADOPTED at a regular meeting of 18 the City Council of the City of Carlsbad on the 6th day of 19 DecEnJber , 1983, by the following vote, to wit: 20 AYES: Council Manbers Casler, Lewis, Kulchin, Prescott and Chick 21 NOES: None 22 ABSENT: None 23 � 24 MARY H. SLER, Mayor 25 ATTEST: 26 27 -'0-er ALETHA L. RAUTENKRANZ, City 28