Home / Fulltext Opinions / Supreme Court of Virginia / BOARD OF SUPERVISORS OF FAIRFAX COUNTY v. FCS BUILDING ASSOCIATION (59723)





October 31, 1997

Record No. 962533






Langhorne Keith, Judge

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Whiting, Senior Justice

In this appeal, we consider whether the trial court erred in
awarding interest on a refund of erroneously assessed real estate
taxes when the local ordinance authorizing the payment of such
interest was repealed prior to entry of the final judgment order.

In December 1995, FCS Building Association (FCS) filed a
second amended motion for judgment and application for correction
of assessments against the Board of Supervisors of Fairfax County
(Board) for the 1990-1995 tax years regarding two parcels of land
owned by FCS. In a bench trial, the court modified the
assessments for tax years 1990, 1991, 1993, 1994, and 1995, and
ordered the Board to refund FCS the principal amount of
$129,353.18. The trial court also ordered interest on the refund
for tax years 1990 and 1991 from the dates the taxes were paid.
The Board appealed the trial court’s judgment solely with respect
to the award of interest.

The Board argues that interest cannot be awarded against a
local government on a refund of erroneously assessed taxes
without its consent. The Board notes that the ordinance
authorizing such interest was repealed in 1992, more than four
years before entry of the final order in this case. Prior to its
repeal in April 1992, former Fairfax County Code ? 4-4-4
provided that

[f]or tax year 1980 and subsequent years, all
erroneously assessed taxes and any penalty and interest
paid thereon . . . shall be repaid with
interest at the same rate imposed for delinquent taxes.
Such interest shall run from the date such taxes were due
or were paid, whichever is later.


The ordinance repealing this provision[1] specified
that the repeal was effective immediately, and it did not contain
a "savings clause" authorizing the payment of interest
on any tax refunds ordered after the effective date of the
repeal. Thus, the Board argues that the trial court lacked
authority to award interest to FCS, although FCS paid the
erroneously assessed taxes for 1990 and 1991 before the ordinance
was repealed.

In response, FCS asserts that, since former Fairfax County
Code ? 4-4-4 was effective when the erroneously assessed
taxes were paid, FCS acquired a substantive right to interest on
its excess payments at the time the payments were made. FCS
alleges that this substantive right could not be disturbed by
retroactive application of the repeal of former Fairfax County
Code ? 4-4-4. Thus, FCS contends that it is entitled to
interest provided by the former ordinance despite its repeal. We
disagree with FCS.

Interest may be awarded against a sovereign only by its
consent. Railway Express Agency, Inc. v. Commonwealth, 196
Va. 1059, 1066, 87 S.E.2d 183, 187 (1955); Commonwealth v.
Safe Deposit & Trust Co.
, 155 Va. 458, 460, 155 S.E. 897,
898 (1930). A trial court may order interest on a refund of
erroneously assessed local taxes only if the payment of interest
is authorized by an ordinance enacted pursuant to Code
? 58.1-3991. City of Winchester v. American Woodmark
, 250 Va. 451, 460, 464 S.E.2d 148, 153 (1995); see
Code ? 58.1-3987.

Code ? 58.1-3991 permits the governing body of any
county, city, or town to enact an ordinance requiring the payment
of interest on refunds of erroneously assessed local taxes. The
statute requires that any such ordinance provide that interest
shall run from the date the taxes were due or were paid,
whichever is later. Absent such an ordinance, the local
government has not furnished the consent required under the
common law for the payment of interest by a sovereign. See
American Woodmark, 250 Va. at 460, 464 S.E.2d at 153; Railway
Express Agency, Inc. v. Commonwealth
, 196 Va. 1069, 1072, 87
S.E.2d 188, 190 (1955); Safe Deposit & Trust, 155 Va.
at 460, 155 S.E. at 898.

An ordinance enacted pursuant to Code ? 58.1-3991 does
not create a substantive right but is purely remedial in nature.
Substantive rights are included in that part of the law
addressing the creation of duties, rights, and obligations. Commonwealth
v. Rafferty
, 241 Va. 319, 323, 402 S.E.2d 17, 20 (1991); Rotonda
Condominium Unit Owners Ass’n v. Rotonda Assoc.
, 238 Va. 85,
89, 380 S.E.2d 876, 879 (1989); Shiflet v. Eller, 228 Va.
115, 120, 319 S.E.2d 750, 754 (1984). In contrast, remedial or
procedural laws prescribe methods of obtaining redress or
enforcement of substantive rights. Rafferty, 241 Va. at
323, 402 S.E.2d at 20; Shiflet, 228 Va. at 120, 319 S.E.2d
at 754. Thus, remedial laws do not create rights but merely
operate in furtherance of already existing rights. See Walke
v. Dallas, Inc.
, 209 Va. 32, 35, 161 S.E.2d 722, 724 (1968).

Former Fairfax County Code ? 4-4-4 was a purely remedial
law because it provided a taxpayer a means of redress that was
available only after the taxpayer established a
substantive right to a refund under Code ? 58.1-3984. Once
a trial court determined that taxes were erroneously assessed
against a taxpayer and ordered a refund, the former ordinance
provided a means of redress in furtherance of the taxpayer’s
already existing right to the refund.

As a remedial provision, this section was subject to repeal at
the will of the Board as long as reasonable opportunity and time
were allowed for the enforcement of substantive or vested rights.
See Harris v. DiMattina, 250 Va. 306, 312, 462
S.E.2d 338, 340 (1995); Creteau v. Phoenix Assurance Co.,
202 Va. 641, 645, 119 S.E.2d 336, 340 (1961); Phipps v.
, 201 Va. 448, 452, 111 S.E.2d 422, 425 (1959); Duffy
v. Hartsock
, 187 Va. 406, 416, 46 S.E.2d 570, 574 (1948). In
repealing the ordinance, the Board exercised its authority to
withdraw consent to pay interest on refunds of erroneously
assessed taxes. See Railway Express, 196 Va. at
1073, 87 S.E.2d at 190. Since the repeal provision contained no
"savings clause" authorizing interest on taxes
erroneously paid prior to the repeal, the trial court erred in
awarding FCS interest pursuant to a repealed ordinance. See
Terry v. McClung, 104 Va. 599, 601, 52 S.E. 355, 356

For these reasons, we will reverse the trial court’s award of
interest to FCS, modify the judgment accordingly, and enter final
judgment in favor of FCS.

Reversed in part,


and final judgment.



[1] See Fairfax County Code
? 22-92.4