Eleanor Penn Powell and late husband had tax exemptions on homes in in both Texas and Colorado for a dozen years
The Austin Bulldog’s latest investigation of illegal property tax exemptions shows that Eleanor Powell—since 1989 a City of Austin appointee to the Travis Central Appraisal District’s Board of Directors—and her late husband, Jay Frank Powell, maintained dual homestead tax exemptions for a dozen years by claiming residence homesteads in both Travis County, Texas, and La Plata County, Colorado.
Checks conducted through a national database of public records did not find exemption violations among the other appraisal district board members or the chief appraiser.
The Powells’ dual exemptions allowed them to pay lower taxes on each of their properties.
Susan Zavala, division director of Property Tax Collections for the Travis County Tax Office, calculated the Powells avoided being billed for $55,165 in Travis County property taxes by not cancelling exemptions here, as required, when they obtained a Senior Property Tax Homestead Exemption in Colorado in 2002.
Eleanor Powell will not be required to repay these taxes. Texas statutes don’t reach back far enough. Colorado officials choose not to pursue such cases.
How did this happen?
In a telephone interview Friday, October 18, Powell said, “I don’t think we had a homestead exemption in Colorado.”
“I never signed anything asking for a homestead exemption in Colorado,” Powell said. “I really don’t know anything about that. My (late) husband took care of all that … If anything was signed it wouldn’t have been from me.”
“I’d be happy to answer all your questions but I may not have all the answers because he took care of that,” she said, and agreed to a follow-up appointment at her home Sunday, October 20.
Her son-in-law, Jon Bowne, called on Saturday to say that it would not be possible to have that interview because their lawyer had advised against it in view of pending litigation involving a property dispute with neighbors.
The Powells have had a continuous residence homestead exemption on their Travis County property since tax year 1993 and an over-65 exemption since tax year 1999, according to Travis Central Appraisal District’s response to a public information request.
In 2002 they obtained a Senior Property Tax Homestead Exemption in Colorado and kept it until 2014, according to the La Plata County Assessor’s Office.
The Travis County exemptions were not revoked or suspended during the years they had a Colorado exemption, Trisha Dangerfield-Bell, TCAD’s records coordinator, stated in an email response to The Austin Bulldog’s public information request.
As it turned out, the Colorado exemption did not save the Powells much money. That state’s legislature each year decides whether to reimburse counties for the revenue lost due to exemptions. In six of the dozen years in question the legislature did not fund the program, according to the La Plata County Assessor’s Office.
In fact, La Plata County tax records obtained by The Austin Bulldog show the Powells got Colorado tax breaks only in 2012 and 2013. Nevertheless gaining the Colorado exemption without cancelling their Texas exemptions allowed them to pay far lower taxes in Travis County.
Colorado requires 10-year residency for senior exemptions
Colorado has three requirements that must be met to qualify for a Senior Property Tax Homestead Exemption:
First requirement—The qualifying senior must be at least 65 years of age on January 1 of the year they applied.
Jay Frank Powell was born December 7, 1934, according to his obituary published March 25, 2018, in the Austin American-Statesman. So he was at least 67 in 2002 when the Colorado exemption was approved.
Second requirement—The qualifying senior must be the property owner of record and must have been so for at least 10 consecutive years.
The Powells met the ownership test as well, according to a deed record obtained by The Austin Bulldog. The deed shows Jay Powell and Eleanor Powell gained joint ownership of a La Plata County home in 1991.
Third requirement—The qualifying senior must occupy the property as a primary residence and must have done so for at least 10 consecutive years.
The Colorado application form states, “For the purpose of the exemption, ‘primary residence’ is the place at which a person’s habitation is fixed and to which that person, when absent, has the intention of returning. A person can have only one primary residence at a time.” [Emphasis added.]
The Powells should not have been able to meet this criteria because they already had homestead and over-65 exemptions in Travis County.
When applying for property tax exemptions, both Texas and Colorado require property owners to declare—under penalty of perjury—that their property is occupied as their primary residence and they have not claimed a residence exemption on any other property.
The Powells forfeited the Colorado exemption in January 2014 when, according to deed records, they transferred ownership of their Colorado home to the Powell Property Trust, of which they remained trustees.
What the records show
Travis County—According to records obtained through multiple public information requests and online searches, a deed recorded in 1972 shows that Eleanor Powell and her husband purchased land located in the Windy Cove Subdivision, near the Austin County Club and the Colorado River.
A single-family home is listed on appraisal district records for the property effective in 1969.
Currently the property is zoned SF-2 for a single-family home on a standard lot and the property is in Austin’s limited-purpose extraterritorial jurisdiction, according to the City’s property profile website.
In March 2000 when Jay Powell was 65 years of age he applied for an over-65 exemption for the Windy Cove home, in addition to the homestead exemption previously obtained.
The application form he signed states, “You must notify the chief appraiser if and when your right to the exemptions end.”
TCAD, however, was never notified that the Powells had obtained the Colorado exemption in 2002, according to the agency’s response to a public information request.
La Plata County—Exemption applications in Colorado are confidential—not public records as they are in Texas.
Nevertheless, Luanne Hubertus, a senior property records technician in the La Plata County Assessor’s Office, confirmed via email that the Powells got a Senior Property Tax Homestead Exemption in 2002 and that it continued through 2013.
Carrie Woodson, the La Plata County Assessor, rebuffed The Austin Bulldog’s request for the name of the person who signed the exemption application, citing confidentiality.
Records on the La Plata County Assessor’s website show the house sits on a 4.5-acre lot. Photographs of the property that show the home overlooks Vallecito Creek. The home was valued at $282,710 in 2013, the last tax year in which the Colorado exemption applied.
The exemption was cancelled in 2014, according to La Plata County tax records, the year in which the Powells transferred ownership to a trust.
Records show they paid $681 in property taxes for tax year 2013 and $1,017 in 2014, an increase of 49 percent.
Property taxes in Colorado are low compared to Texas because Colorado levies a personal income tax and relies less on property taxes.
Texas limits collection of back taxes
If the Travis County exemptions had been given up when they gained the Colorado exemption, the Powells would have paid substantially higher taxes for tax years 2002 through 2013.
In response to The Austin Bulldog’s groundbreaking investigation of homestead exemption violators, published in 2013, TCAD required the offending homeowners to submit new applications and cancelled inappropriate exemptions. That allowed the Travis County tax assessor-collector to calculate amounts owed and bill for up to five years in back taxes, the maximum allowed by state law.
Hundreds of thousands of dollars were collected. Cancellation of illegal homestead exemptions also staunched the bleeding of tax revenue for future years.
Under Texas law back taxes can be billed only as far back as 2014, Bruce Elfant, Travis County’s tax assessor-collector, said in a telephone interview.
What does Elfant say about claiming exemptions in two states?
“It’s certainly illegal to do it. It’s my experience that not everyone understands that,” Elfant said. “Ignorance is no excuse.”
What if a person on TCAD’s board of directors had exemptions in two states for a dozen years?
“That would be disappointing,” said Elfant, who is himself a TCAD board member. “People in those types of positions should know better.”
Colorado collections unlimited but unlikely
The State of Colorado has legal authority to collect back taxes for every year in which property owners enjoyed an illegal homestead exemption, said JoAnn Groff, the state property tax administrator.
Groff served four terms as a Colorado state representative starting in 1982. She was a member of the Colorado State Board of Equalization from 1993 through 2005 and she started work as the property tax administrator in January 2006.
Asked if under Colorado law the Powells could be billed for back taxes for tax years 2002 through 2013, Groff said, “Yes, they can be collected.”
“Yes, the taxpayer can be held responsible for paying back taxes if he inappropriately received an exemption,” per state statutes, she said.
Colorado Revised Statutes, Section 39-3-205 requires an applicant who knowingly provides false information on an exemption application or files more than one exemption application in any property tax year to pay the county treasurer an amount equal to the amount of property taxes not paid as a result of the application being improperly allowed.
“I don’t believe there is any limitation on how far to go back,” Groff said.
Has the state ever collected back taxes for improper exemptions?
“No,” she said. “Colorado has not pursued a taxpayer who lied on the application and gone back and collected.”
“It’s a cost-benefit decision.”
Perjury pursuit a no-go in Colorado
Property tax exemption forms in both Texas and Colorado warn applicants they may be prosecuted for perjury for falsifying the application.
But neither state has shown interest in pursuing these cases.
“It’s costly to pursue a criminal action against someone for what could amount to a few thousand dollars,” said Groff, the Colorado property tax administrator. “We attempt to make sure that an inappropriate exemption is not approved in the first place.”
To that end, her office performs due diligence.
Colorado has a state-income tax and income-tax forms require filers to indicate whether they are a state resident, a part-time resident or a nonresident. Groff said her staff compares the property tax-exemption database to the Department of Revenue’s income-tax database. This weeds out exemption applicants whose tax returns indicate they are not state residents.
Further, the Property Tax Administrator analyzes annual reports from each county to determine if any applicants have claimed more than one exemption in Colorado, according to a brochure for Property Tax Exemption for Senior Citizens in Colorado.
“They have to prove they are a resident of Colorado” to get an exemption, Groff said, for example by being registered to vote.
Kerry Colburn, a legal and policy analyst in the Colorado Department of State, in response to The Austin Bulldog’s open records request, stated in an email, “We checked the database, and there is no Colorado voting record for the individuals you inquired about [Jay Frank Powell and Eleanor Virlene (Penn) Powell].
Groff said her office also checks death records maintained by the Colorado Department of Vital Statistics. If a person dies then the exemption is cancelled and the spouse must reapply.
TCAD follows a similar procedure and required Eleanor Powell to reapply for exemptions in 2019. When she did so, TCAD followed up to ask for a copy of Jay Frank Powell’s death certificate.
“We don’t take this lightly,” Groff said. “It’s awful (the Powells) lied about it. Colorado doesn’t usually pursue these cases. We expect people to be honest.”
“I don’t know of any case in which the state has tried to collect back taxes.”
Perjury not generally pursued in Texas either
The Texas Comptroller’s spokesman, Kevin Lyons, said in an emailed response to The Austin Bulldog’s question, “I talked to all the experts here and they don’t know of anyone ever being prosecuted for perjury on a form, but that doesn’t mean it hasn’t happened at some point.
In response to The Austin Bulldog’s question for the first investigation published in December 2013, Chief Appraiser Marya Crigler, said, “I have checked with legal counsel and the district has not reported anyone to the Travis County Attorney nor are we aware of anyone charged or convicted of filing a false statement on a homestead application.”
In that regard, nothing has changed. As we stated in that story, “In effect the toothless enforcement of criminal penalties for making false statements in applications for residence homestead exemptions constitute an open invitation to abuse the system.”
What did Eleanor Powell know?
Powell—a 30-year veteran of service on the TCAD board of directors—presumably is aware of the impropriety of holding more than one exemption.
TCAD sends owners a Notice of Appraised Value each year that lists exemptions applicable to their property.
In a telephone interview, the La Plata County Treasurer’s Office told The Austin Bulldog that La Plata County Statements of Taxes Due also contain information about an exemption if the property owner has one.
The 2012 and 2013 statements for the Powells’ property clearly indicate the amounts deducted for senior homestead exemptions.
Did Eleanor Powell read those notices?
She told The Austin Bulldog she had not seen those notices.
Was she aware of the fact they had property tax exemptions in Texas?
She said she was.
And also had a property tax exemption in Colorado?
She said she was not aware of the Colorado exemption.
Did she apply for the Colorado exemption or did her late husband?
No, she said, her late husband did, but she wasn’t aware of it until contacted for this story.
She is knowledgeable about how to file a valuation protest. She filed one concerning her Travis County property August 17, 2019. She represented herself in a formal protest hearing before the Travis Appraisal Review Board (ARB). She won a decision that the $725,286 market value of her property assigned by the appraisal district was excessive. The ARB panel recommended reducing the market value to $690,700, a reduction of $34,586.
Because the reduction also applied to the homestead cap, however, the assessed value upon which taxes are levied remained unchanged at $516,610.
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Travis Central Appraisal District record for 1810 Rockcliff Road, Austin TX 78746 showing Jay Frank Powell and Eleanor V. Powell’s ownership since March 8, 1971, a house built in 1969, and a 2019 appraised market value of $725,286 (2 pages)
Related Bulldog coverage:
Property value protest hearings harshly criticized, August 29, 2019
TCAD flubs public notice for hearing on Proposed 2020 Budget, August 9, 2019
TCAD loses landfill lawsuit at cost of nearly $1 million, July 16, 2019
New offices for Travis Central Appraisal District, July 15, 2019
Deputy chief appraiser abruptly resigns, July 10, 2019
Appraisal Review Board heads off lawsuit, June 12, 2019
New procedures undermine appraisal process, June 6, 2019
Lawsuit Seeks Property Tax Hearings, December 17, 2018
Homestead Exemptions a Tax Loophole,” February 26, 2014
Homestead Exemptions Rife With Abuse, December 20, 2013
Chris Riley Nailed for Back Taxes, August 20, 2014
Appraisal District to End Records Suppression, November 22, 2011
Appraisal Records Hidden from Public View, November 18, 2011
Are Austin’s Property Taxes Fair and Equitable? July 30, 2010
Ken Martin has been covering local government and politics in the Austin area since 1981. See more on Ken on the About page.
Email [email protected].
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