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Ewald v. Central Nebraska Public Power and Irrigation District

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Wednesday, December 4, 2013

S-13-0277, Douglas A. Ewald, Tax Commissioner and Ruth Sorensen, Property Tax Administrator (Appellants) v. Central Nebraska Public Power and Irrigation District and Keith County Board of Equalization

Tax Equalization and Review Commission

Attorneys: Jonathan D. Cannon, Special Asst. Attorney General (Appellants) --- Randy Fair (Keith County Attorney for Keith County Bd. of Equal.) --- Charles D. Brewster (Anderson Klein Swan & Brewster) (for Central Neb. Public Power and Irrigation District)

Civil: Determination of exemption for parcels of real property in Keith County, Nebraska

Proceedings below: The Keith County Assessor determined the property was subject to property taxation. Central protested the Assessor’s determination to the Board. The Board upheld Central’s protest and found the properties were exempt from taxation. The Tax Commissioner and Property Tax Administrator appealed to TERC. TERC affirmed the Board. Appellant’s filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: 1. The Commission incorrectly determined that Article VIII, Section 2 of the Nebraska Constitution is harmonious and consistent with Article VIII, Section 11 of the Nebraska Constitution, to the extent the Commission determined that land held by a public power and irrigation district upon which payments in lieu of tax are made is exempt from all other taxes, regardless of whether that land is being used for a public purpose. 2. The Commission failed to consider the provision of Nebraska's statutes that specifically imposes the property tax on property not being used for a public purpose upon which a payment in lieu of tax is being made. 3. While the Commission took statutory notice of the legislative history of the statutes subjecting the subject properties to ad valorem property taxation, it erred by not taking judicial notice of that legislative history. 4. The Commission erred by failing to address the issue of whether or not the subject properties were being used for a public purpose.

This page was last modified on Wednesday, December 4, 2013