By Gina Tabonares
Variety News Staff

THE scheduled hearing this morning on the governor’s motion to dismiss the property tax case filed by the Attorney General’s Office has been rescheduled for the second time and will be heard next month.
U.S. District Court of Guam Chief Judge Frances Tydingco-Gatewood set the hearing date on March 13 at 9:30 a.m. and vacated the Feb. 21 court schedule. The court proceeding was originally set for Jan. 24.
A motion to dismiss for failure to state a claim, and a motion to dismiss for lack of jurisdiction or in the alternative, a motion to stay were filed by the Office of the Governor, branding the case filed by former Attorney General Douglas Moylan as defective.
Moylan said the governor and Department of Revenue and Taxation director Art Ilagan should follow the law by conducting a comprehensive island-wide appraisal.
He earlier said that the appraisal is required in order to value, assess and tax real property for private and commercial property owners.
The lawsuit was originally filed on Dec. 22, 2005 and was dismissed in early 2006. The AGO revived it on Aug. 18, 2006.
The AGO alleged in the civil rights lawsuit that the people of Guam’s due process and equal protection rights have been violated due to non-appraisal of residential and commercial property.
The lawsuit seeks to compel the governor to faithfully execute the laws of Guam and like the federal courts in the U.S. Virgin Islands, asks the court to stop officials from seeking to exact real property taxes from Guam citizens under the Due Process and Equal Protection Clauses in the Organic Act, until an appraisal is conducted.
According to Moylan, GovGuam has not conducted an appraisal in 12 years despite Guam law’s requirement that an appraisal be conducted every three years. The last appraisal was done in 1993.
On Sept. 5, 2006, Dan Benjamin, conflicts counsel for the governor, filed a motion to dismiss the revived complaint for lack of jurisdiction and for failure of the plaintiff to state a claim.
Benjamin earlier said that the case is defective because it seeks to assert a federal law which is not applicable to an unincorporated territory like Guam.
The defense stated in their motion to dismiss that the Supreme Court has established that declaratory and injunctive relief are unavailable in tax cases if there is a remedy at law that is plain, adequate and complete.
Benjamin said local law provides that if a triennial evaluation has not taken place, the Department of Revenue and Taxation shall rely upon the most recent island-wide appraisal conducted.
The defense added that the law permits taxpayers on an individual basis to have their property valuations reduced pursuant to an appeals process, and pay absolutely no taxes until their case is heard by the Board of Equalization.
“This system provides a mechanism for any property owner to obtain a new, accurate valuation for any taxpayer,” Benjamin said.
The governor’s lawyer further argued that there is a system that protects due process by guaranteeing landowners a right to have their assessment evaluated before paying any taxes.
“There is no discrimination because all property owners, whether they bought their property 20 years ago or 20 days ago, have the right to challenge each year’s assessment as it comes due and obtain a new appraisal,” he said.
Deputy Attorney General Joseph Guthrie, a government prosecutor who prepared the case, said since 1993, the values of commercial and residential real property have drastically depreciated, thereby warranting a reduction in real property taxes by the defendants who have failed to conduct a valuation to base their taxation system.
The AGO further alleged that Guam property values drastically depreciated approximately 80 percent for commercial real property and approximately 35 percent for residential real property and are now only beginning to regain their lost values.
“It has been 12 years since an appraisal was last conducted. A significant number of persons are affected by the respondents’ failure to follow the law and conduct the comprehensive island-wide appraisal,” the AGO said.
Guthrie said due process rights of taxpayers are being violated since the value that the respondents are using for lands is over-inflated; hence the tax being levied is too much.