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Texas’ Rollback Tax is a Potential Dealbreaker

Land use changes can subject unwary landowners and developers to massive property tax bills.

For real estate developers in Texas, the purchase and development commencement dates on a land project may have heavy tax implications that could make or break a deal.

Agricultural Exemptions

The Texas Property Tax Code allows some landowners to benefit from special property valuations for wildlife management, agriculture, or open-air uses, commonly referred to as agricultural exemptions. Depending on the valuation and exemption in place, a landowner may be excused from paying large amounts of taxes.

Under an agricultural exemption, tax liability is based on the land's productive agricultural value, as opposed to market value. The agricultural exemption supports and promotes the land's agricultural or wildlife- use by providing a discounted land value for use in calculating property tax liability while the land is being used for approved agricultural purposes.

Securing an agricultural exemption is not necessarily an easy process or a guaranteed result for a landowner in Texas. To qualify, land must have been primarily used for agriculture at least five of the past seven years. Accepted agricultural purposes include crop production, raising livestock, beekeeping, timber production, wildlife management, and similar activities. Additionally, many counties set minimum acreage requirements, and some consider the agricultural activity's degree of intensity.

Triggering Rollback

An agricultural exemption does not attach to the land forever, and some developers may be unaware of the rollback tax. This somewhat vague provision of the state's tax code can impose a heavy tax burden when a piece of agricultural land is purchased for development, and/or when the land use changes. This tax burden may be more onerous than simply losing the exemption moving forward.

Appraisal districts maintain two values on the appraisal roll for agricultural land. Similar to how homestead exemptions are recorded, the appraisal roll lists the land's market value and the lower valuation reflecting its wildlife or agricultural production. When appraising agricultural land, the assessor will determine and record both its market value and the value of its capacity to produce agricultural products.

When an assessor calculates the amount of tax due on the land, he/she will also calculate the amount that would have been required had the land not benefited from an agricultural exemption. The difference in the amount of tax imposed under the exemption and the amount that would have been due without an exemption is called the additional tax for that year.

If land that has been designated for agricultural use in any year is sold or diverted to a nonagricultural use, it triggers a rollback tax. The taxes due under this provision include the total amount of additional taxes for the three years preceding the year in which the land is sold plus interest at the rate provided for delinquent taxes. This rollback tax is in addition to the larger, non-exempt tax burden moving forward from the sale.

The chief appraiser determines whether the land has been diverted to a nonagricultural use. A tax lien attaches to the land on the date the usage change occurs to secure payment of the additional tax imposed, as well as any penalties and interest incurred if the tax becomes delinquent.

The lien favors all taxing entities for which the additional tax is imposed. If the usage change applies to only part of a parcel, the additional tax applies only to that portion of the tract and equals the difference between the taxes imposed on that section of the property and the taxes that would have been imposed had that part been taxed on market value.

Monitor Exemptions 

The county appraisal district may have incomplete or incorrect information about a particular property's change in use. It could be that the use is diverting from agricultural use to wildlife management, and the exemption may still apply. This means that an agricultural exemption could be erroneously removed from a property that would still qualify.

This happens most often when a change of ownership and a deed newly recorded with the county triggers the removal of the special valuation. Owners must be diligent in submitting to the county a new application for agricultural or wildlife management use by April 30 of each year to ensure that their exemption stays in place.

Review Annual Assessments

Landowners should not grow complacent about protesting assessments annually. If agricultural owners don't file protests to keep their assessed land value down year over year, they may be on the hook for more taxes when they sell the land to a developer.

A taxpayer may protest a property valuation each year for the current tax year, but many Texas counties do not increase land values every year unless property transactions prompt them to do so. Few taxpayers protest when their assessments do not increase from the previous year, and the protest process is even more likely to be overlooked when the landowner has an agricultural exemption.

Repercussions for the landowner become apparent when they receive a compelling offer to sell. The landowner may make a sweet deal with a developer, but this will always trigger a change of use and the rollback tax. The buyer and seller will need to reach an agreement about satisfying the tax payment upon closing.

This becomes even more difficult for the landowner to manage if their properties are in counties that do not send a notice of appraised value when the value rolls over unchanged from the prior year. Therefore, it is still important and worth the effort to protest the valuation of agricultural land each year, even when the value is unchanged or minimally increased.

To accurately forecast potential property tax liabilities for development projects, landowners and developers alike must be aware of both the taxable and market values of land under consideration for sale or development. The rollback tax provision can be a bit complicated, but the right property tax team can help to navigate the process and avoid pitfalls that could disrupt the project's profit potential.

Beverly Mills is a Tax Consultant at Austin, Texas law firm Popp Hutcheson PLLC, which focuses its practice on property tax disputes. The firm is the Texas member of American Property Tax Counsel, the national affiliation of property tax attorneys
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