In Re the Appeal of North Carolina Forestry Foundation, Inc.

MITCHELL, Judge. Appellant Foundation first contends that the Superior Court erred in affirming the Tax Commission’s decision that Onslow County did not fail properly to discover the Foundation’s property prior to adjournment of the Onslow County Board of Equalization and Review during 1974. This contention is without merit. From 1969 through 1973, the Foundation did not pay ad valorem taxes on its timberland in Onslow County. Instead, it made payments, in lieu of taxes, of ten cents (10<¿) per acre per year on this property pursuant to the terms of then G.S. 105-279(b). During those years, the Foundation did not contend that the property in question was of a type classified as “excluded from the tax base” by G.S. 105-275 which set forth all of the forms of property classified as “excluded” property. Additionally, the Foundation did not contend during those years that its timberland in Onslow County was exempt from taxation under the terms of G.S. 105-278 which set forth a listing of classes of property exempt from taxation and purported on its face to be an exclusive listing of such property. Rather, the Foundation made *420 its payments of ten cents (10$ per acre per year in lieu of paying the county taxes “otherwise assessed against such timberland” pursuant to G.S. 105-279(b), which did not by its terms purport to grant either an “exclusion” or an “exemption” from ad valorem taxation. If the timberland in question was neither exempt nor excluded property, but instead ordinary taxable real property merely subject to a statute permitting an alternate method of payment, the amendment of G.S. 105-279 in no way altered the Foundation’s underlying tax liability on the property or its duty to list the property for ad valorem taxes each year. Under this view, had the Foundation failed to list the property in years prior to 1973, the county would have been obliged to discover the property pursuant to G.S. 105-312. If, however, the Foundation’s Forest property were viewed as being “exempt” by virtue of G.S. 105-279(b), it would have been, nonetheless, subject to listing. Until its repeal, effective 1 January 1974, G.S. 105-282 commanded the county to enter in its tax records the name of the owner together with a clear description and statement of value of all property exempt from taxation. If property upon which payments in lieu of taxes pursuant to G.S. 105-279(b) be considered exempt property, then, nothing else appearing, we must presume the tax supervisor, a public official, acted pursuant to law and listed the Foundation’s property pursuant to G.S. 105-282. 10 Strong, N.C. Index 3d, Public Officers, § 8.1, pp. 472-73. Although this presumption may not be used, standing alone, as proving an independent material fact, it is supported in the present case by the sworn testimony before the Tax Commission of James Justice, tax supervisor for Onslow County. He testified that in Onslow County, by statute, real estate is automatically listed for ad valorem taxes. He further testified that prior to 1974, the Foundation was making payments of ten cents (10$ per acre in lieu of ad valorem taxes on the Forest land. Beginning in 1974 he listed the Foundation’s Forest property for taxes in the same manner as adjoining forest land. Additionally, the presumption that the Forest was listed pursuant to G.S. 105-282, if the property was exempt, is supported by the documentary exhibits filed with this Court together with the record in this case. Respondent’s Exhibit Number 10 de *421 scribed as “Onslow County Tax Collector’s Collection Record” properly sets forth the name and address of the Foundation together with an indication that the property listed thereon apparently lies within White Oak Township and that the acreage is that of the Forest property in question. The exhibit appears to be a tax record for the years 1970 through 1975 inclusive. For each year during 1970 through 1973 inclusive, the exhibit reflects under the column “total tax” an amount equal to ten cents (10$ multiplied by the Foundation’s acreage. In each of those years, the exhibit reflects that amount was paid. For the years 1974 and 1975, the exhibit reflects payment of the ordinary ad valorem tax at the assessed value of the property. If the Foundation’s property was not exempt property prior to 1974, and G.S. 105-279(b) merely provided for special or alternate payment, the same exhibits and the testimony of the tax supervisor would support the presumption that the county had discovered the property, then carried it forward in the Foundation’s name in each year prior to 1974 in accordance with the terms of G.S. 105-312 and G.S. 105-303(b). Therefore, whether the Forest property in Onslow County is viewed as having been “exempt” property during the year 1973 and preceding years or as taxable property upon which the owner was permitted to make a special or alternate payment in lieu of taxes, we conclude that the property was “listed” in the name of the Foundation and described with particularity from at least 1970 through 1975 inclusive. As G.S. 105-279 was rewritten effective 1 July 1973, the Foundation had notice that it was required to list its Forest property in Onslow County for 1974 just as any other taxpayer. The Foundation is presumed to know the law and to know, therefore, that its Forest property is not now and has never been excluded from the tax base. Pinkham v. Mercer, 227 N.C. 72, 40 S.E. 2d 690 (1946). The Foundation was, therefore, presumed to know of any amendment to G.S. 105-279 and that the amendments which rewrote that statute did not remove its duty to list its property and to pay the standard tax rate on its property for 1974. The Foundation apparently recognized that, effective with the 1974 tax period, it no longer had the option of payments in lieu of taxes, and that, pursuant to G.S. 105-282.1, every owner of property claiming an exemption or exclusion must file its applica *422 tion for such not later than 31 May 1974. On 11 November 1974, the Foundation wrote the Onslow County Board of Commissioners to apply for exemption of its Forest property. In that letter, signed by Rudolph Pate, Secretary of the Foundation, it was expressly recognized that: “Because the Foundation failed to make application for exempt status prior to May 31, 1974, its claim of exemption is based on its right to appeal provided by North Carolina General Statutes, Section 105-282.1(c). . . .” By this communication, the Foundation specifically recognized that its application for exemption was not timely filed. The Foundation then contended and now contends that it was entitled under G.S. 105-282.1(c) and G.S. 105-312(c) and (d) to receive notice from the tax supervisor that the property had been discovered and listed in its name and that it was entitled to appear before the Onslow County Board of Equalization and Review to contest the discovery with a right of additional appeal to the Tax Commission. We do not agree. G.S. 105-312(c) requires the tax supervisor to carry forward to the lists of a current year all real property that was listed in the preceding year but not listed for the current year. When so carried forward, the property is to be listed “in the name of the taxpayer who listed it” in the preceding year. The Foundation would have us construe the phrase “in the name of the taxpayer who listed it” quite literally and limit its application in this case solely to a prior listing of the Forest in the name of the Foundation and by the Foundation. We do not find this interpretation of the language employed by the statute persuasive. It is an elementary rule of statutory construction that, all sections and subsections of the same statute dealing with the same subject are to be construed together as a whole, and every part thereof must be given effect if this can be done by any fair and reasonable intendment. In re Hickerson, 235 N.C. 716, 71 S.E. 2d 129 (1952). Any irreconcilable ambiguity in such cases should be resolved so as to effectuate the true legislative intent. Comr. of Insurance, v. Automobile Rate Office, 287 N.C. 192, 214 S.E. 2d 98 (1975). Applying these principles, we look to G.S. 105-312(a)(l) which defines the term “discovered property” as used in that statute and in the entire subchapter and provides it “shall include prop *423 erty that was not listed by the taxpayer or any other person during a regular listing period.” [Emphasis added.] With this legislatively mandated definition in mind, we conclude that the phrase “listed in the name of the taxpayer who listed it for the preceding year” as used in G.S. 105-312(c) includes a listing of property in the name of the taxpayer both when listed personally by the taxpayer and when listed in the taxpayer’s name by “any other person,” according to law, for the preceding year. It is our duty to interpret the language of statutes so as not to lead to absurd results or contravene the manifest purpose of the statute and in such manner as will give effect to the reason and purpose of the law. Hobbs v. County of Moore, 267 N.C. 665, 149 S.E. 2d 1 (1966). This construction of the phrase promotes the object of the statute that all property be listed promptly, and recognizes the rule that a statute should not be construed to defeat or impair its object if that can reasonably be done without violence to the legislative language. State v. Hart, 287 N.C. 76, 213 S.E. 2d 291 (1975). Having so interpreted the phrase, we turn to the language of G.S. 105-312(c) which, in some instances, requires notice to the taxpayer and the opportunity to appear pursuant to G.S. 105-312(d). Under the terms of G.S. 105-312(c), the notice and hearing requirements and procedures: [Prescribed in subsection (d) . . . shall be followed unless the property discovered is listed in the name of the taxpayer who listed it for the preceding year and the property is not subject to appraisal under either G.S. 105-286 or G.S. 105-287 in which case no notice of the listing and valuation need be sent to the taxpayer. [Emphasis added.] The provisions of G.S. 105-286 and G.S. 105-287 are not applicable in the present case. Therefore, as we have construed the phrase “listed in the name of the taxpayer who listed it for the preceding year” to include a listing in the name of that taxpayer by any other person according to law, the listing for the previous year by the tax supervisor in the name of the Foundation would remove any requirement of notice of discovery or granting of a hearing to the Foundation concerning its 1974 taxes. For reasons previously discussed, such listing by the tax supervisor is presumed, and no notice or hearing was required. *424 Having determined that no notice or hearing was required, we need not consider the issue of whether the county’s letter of 13 January 1975 offering to allow the Foundation to make a presentation to the Onslow County Commissioners concerning its 1974 listing, coming after the adjournment of the Onslow County Board of Equalization and Review, was an adequate opportunity for a hearing. Neither are we called upon to decide whether the Foundation’s letter of 29 January 1975 requesting a more or less indefinite deferral of the 1974 matter until action had been taken on the Foundation’s 1975 application for exemption constituted a waiver of any hearing. The Foundation’s next contention concerns the listing of its property for 1975 ad valorem taxes. It is uncontested that the petitioner Foundation timely mailed an application for exemption of its Onslow County property to the county tax supervisor and that the application was timely received by an agent of the county. Mr. James Justice, the tax supervisor for Onslow County, testified, however, that he had not to his knowledge ever received the Foundation’s application for exemption for 1975. The Foundation contends that general principles of law and G.S. 105-282.1 in particular require that Onslow County’s failure to respond to the application require that it be deemed accepted for the year 1975. We specifically reject this contention and decline to hold that the failure of Onslow County to respond to the application for exemption established a presumption, rebut-table or otherwise, that the application for exemption had been granted. It would appear that, on this point, both the county and the Foundation must accept some fault. Neither party’s course of dealing with the other in this case is a model of efficiency. A more direct and knowledgeable approach by both parties to the problems involved possibly could have eliminated the need for the lengthy record, numerous exhibits and exhaustive briefs of the parties filed with this Court. In any event, it is difficult for us to determine how the Foundation has been denied any substantial right by the lack of a hearing at the county level due to its own inattentiveness compounded by that of the county. The Tax Commission has authority, notwithstanding irregularities at the county level, to review matters such as those presented in this *425 case. See, In re Appeal of Broadcasting Corp., 273 N.C. 571, 579, 160 S.E. 2d 728, 733 (1968). The Foundation sought and received a full hearing de novo before the Tax Commission at which, unlike hearings before county boards, a full and complete written record was made. The Foundation has additionally sought and received a review of the Tax Commission’s findings, conclusions and final decision before the Superior Court. At the hearing before the Superior Court on the Foundation’s petition for review of the final administrative action of the Tax Commission, the respondent county moved to dismiss the petition and sought to raise affirmative defenses. The record does not reveal that a similar motion was ever made before the Tax Commission or that the affirmative defenses were ever raised or argued there, despite the fact that there is specific precedent for hearings before the Tax Commission limited to the issues presented by motions to strike and dismiss. Brock v. Property Tax Comm., 290 N.C. 731, 738, 228 S.E. 2d 254, 259 (1976). Our courts have long recognized that the public interest demands questions relating to the base of taxable property be settled as cheaply and speedily as possible consistent with due process. Belk’s Department Store, Inc. v. Guilford County, 222 N.C. 441, 448, 23 S.E. 2d 897, 903 (1942). We hold that the respondent county waived any affirmative defenses it might have had by its failure to raise them before the Tax Commission, and the Superior Court properly overruled and denied the respondent’s motion to dismiss. Additionally, as the appeal to the Tax Commission, the Superior Court and ultimately to this Court has been limited almost entirely to an effort to bring up for review assignments of errors of law arising from uncontested facts, we do not feel equity required the Superior Court or requires us now to take cognizance of the respondent’s attempts to assert affirmative defenses which it did not present and argue before the Tax Commission. The petitioner Foundation contends that the Tax Commission erred by failing to find the Forest property in Onslow County exempt from taxation under the terms of four specific statutory exemptions. Three of the four statutes relied upon by the Foundation as alternative grounds for exemption from ad valorem taxes require the property to have been used exclusively for the pur *426 pose exempted. Each statute sets forth its own requirements, but each commands the property be exclusively used for the required purpose. The applicability of those statutes will, therefore, to a great extent hinge upon our construction of the term “exclusive use.” The Foundation contends its Forest in Onslow County is exempt from taxation under G.S. 105-275(12) which excludes from the tax base: Real property owned by a nonprofit corporation or association exclusively held and used by its owner for educational and scientific purposes as a protected natural area. (For purposes of this subdivision, the term “protected natural area” means a nature reserve or park in which all types of wild nature, flora and fauna, and biotic communities are preserved for observation and study.) [Emphasis added.] Not only the purpose for holding the real property but also its actual use determines whether it is to be excluded from or included in the tax base. Use, rather than ownership or objective, is the primary exempting characteristic of the Machinery Act, G.S. 105-271 through G.S. 105-395, which includes the statutes under consideration. H. Lewis, Annotated Machinery Act of 1971, (Supp. 1973, Comment, p. 55). While it is true that the Foundation holds the Forest for educational and scientific purposes, its use of the property is not limited to such purposes. The Foundation also uses the Forest to generate income by leasing it to the Corporation which, by the Foundation’s own evidence, is primarily concerned with the use of the Forest as a supply of timber and pulpwood for its business. The amounts the Corporation pays its lessor, the Foundation, are the result of the Corporation’s commercial activity, which the evidence revealed involves active competition with other commercial packaging corporations. The Corporation’s manager testified that the use of the Forest by the Corporation did involve some concern for it as an educational and scientific resource. He made it clear, however, that the Corporation’s main interest in the Forest was as a source of timber for commercial activities. No matter what euphemism is employed, it is readily apparent from the evidence that the Forest is used as a commercial *427 timber farm. That it is also used for scientific research is, at best, incidental. The fact that the Foundation is precluded by its articles of incorporation from using any profits or revenues paid it under the lease for other than educational purposes is not determinative in this instance. It is the manner in which the real property itself is used which is to be determinative and not the purpose to which possible future profits may be put. In Rockingham County v. Eton College, 219 N.C. 342, 13 S.E. 2d 618 (1941), rental property of Elon College was held nonexempt even though the college used the rental income exclusively for educational purposes. The determining factor seems to have been that the real property itself was used to generate income from commerce by renting it to businessmen. It was held in that case that Article V, sec. 5 [now Article V, sec. 2 (3)] of the Constitution of North Carolina, granting the General Assembly discretionary authority to exempt property held for educational purposes, was not subject to a construction permitting such exemptions. That case is analogous to the case sub judice. It is the commercial use of the real property by the lessee, the Corporation, that generates the Foundation’s income and is determinative of whether the real property is “used exclusively” for an exempted purpose. The Forest is not, therefore, “used exclusively” for educational and scientific purposes. Rather, it is used primarily as commercial property. The 1945 lease of the Forest by the Foundation to the Corporation, together with 1951 amendments thereto, is a lengthy and detailed document in the nature of a contract which must be construed according to the general rules governing the construction of contracts in ascertaining the intent of the parties. Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 127 S.E. 2d 539 (1962). It would appear the parties never intended that the interests of the Foundation in using the Forest for educational purposes would override the Corporation’s interests in using it as a timber farm. The contract, in the form of the lease, permitted the Foundation the use of the property for educational and scientific purposes only upon the condition that such study groups or students would do nothing whatsoever to interfere with any program undertaken or in progress by the Corporation in or on the Forest. As previously pointed out, the use of the property rigidly *428 complied with this section of the lease. The actual use of the property was almost exclusively for the commercial purposes of the Corporation with only incidental use for any other purposes. Additionally, G.S. 105-275(12) requires that the real property exempted by its terms be held not only for educational and scientific purposes. There is the additional requirement that it be held for such purposes “as a protected natural area.” Although the Foundation concedes it has engaged in extensive road building, draining and cutting in the Forest, it contends these activities have improved the habitat for deer and quail and should bring it within the definition of a “protected natural area.” Following this line of reasoning, it could be argued that completely removing the timber and planting crops of corn and grain on the Foundation property each year would improve it by making it more conducive to certain forms of animal life. The property would, thereby, remain a “protected natural area.” This, of course, would be to misconstrue the term “protected natural area.” We hold the term “protected natural area” to mean property which, insofar as possible, is kept in a pristine state free from those interferences which any given generation may feel to be “improvements” on nature. Mankind’s judgment as to what constitutes an “improvement” on nature has been so frequently wrong in the past, that the General Assembly apparently wished to set aside some areas which, with the exception of minor alterations necessary for observation and study, would be left free from direct tampering by humans. We conclude the General Assembly intended the protection of such natural areas be of a passive nature designed to prevent manmade or natural disasters and not of an active nature envisioned as “improvements” of the areas. We are not called upon to consider and do not hold that such activities as placing fire towers in an area or removing injured or diseased animals would be activities of a type so interfering with the area as to remove its status as a “protected natural area.” Such questions are best left for cases in which they are presented squarely for consideration. We do hold, however, that the use to which the Foundation put its Forest in Onslow County did not qualify it as a “protected natural area.” Statutes exempting property from taxation due to the purposes for which such property is held and used must, of course, *429 be strictly construed against exemption and in favor of taxation. Harrison v. Guilford County, 218 N.C. 718, 12 S.E. 2d 269 (1940); Piedmont Memorial Hospital v. Guilford County, 218 N.C. 673, 12 S.E. 2d 265 (1940). In the present case, we need not rely on this rule of construction, as whether judged by the “exclusive use” or “protected natural area” tests, the Foundation’s property clearly falls outside the terms of G.S. 105-275(12). With one exception which will be discussed, the remaining statutes relied on by the Foundation also employ the “exclusive use” test. Under the stipulated facts in this case, the Foundation simply does not pass that test. G.S. 105-278.4 exempts real and personal property used for educational purposes if “[wjholly and exclusively used for educational purposes by the owner or occupied gratuitously by another non-profit educational institution . . . and wholly and exclusively used by the occupant for nonprofit educational purposes. ” [Emphasis added.] The Rockingham case and our previous discussion in this case require that we hold the Foundation does not use the Forest exclusively for educational purposes. Additionally, as previously noted, the Foundation’s evidence itself makes it clear that the Corporation does not occupy the property gratuitously or exclusively for nonprofit educational purposes. The exemption set forth in G.S. 105-278.4 does not, therefore, apply. The Foundation additionally contends it is entitled to an exemption under the terms of G.S. 105-278.6(7). Even if the Foundation as owner of the property is, as required by the statute, “[a] nonprofit, life saving, first aid, or rescue squad operation,” it does not qualify for the exemption. The statute provides that property of such organizations shall be exempt from taxation if “[a]s to real property, it is actually and exclusively occupied and used, and as to personal property, it is entirely and completely used, by the owner for charitable purposes.” For reasons previously pointed out, the Forest was not exclusively used for “charitable purposes” as defined within the statute. Finally, the Foundation contends the Forest is owned by the University of North Carolina and exempt from taxation under G.S. 116-16. Article V, sec. 2 (3) of the Constitution of North Carolina commands, inter alia, that property belonging to the State shall be exempt from taxation. The Foundation contends *430 that the Forest is owned by North Carolina State University as a branch of the University of North Carolina and exempt under G.S. 116-16, which is founded on the constitutionally mandated exemption of State owned property. It is clear, however, that North Carolina State University is merely represented on the Foundation’s Board of Directors. Although it is to receive the Foundation’s assets, if any, upon dissolution, it has neither legal nor beneficial ownership of the Forest. The Foundation is now, and has been from the original purchase, the sole owner of the Forest. Additionally, the stipulated evidence tends to indicate that the Foundation’s Board of Directors is in no way controlled by North Carolina State University and apparently has the power to act without regard to the wishes of the University. The Foundation being the sole owner of the Forest, G.S. 116-16 does not exempt or exclude the property from taxation. For reasons previously stated, the judgment of the Superior Court affirming the Tax Commission is Affirmed. Judges MORRIS and CLARK concur.