author: CAROL M. HANSEN, Judge: BAY MITCHELL, Presiding Judge:

text:
    2004 OK CIV APP 52
    The Matter of the Assessment of Certain Personal Property Owned by Visteon Corporation for Tax Year 2002, VISTEON CORPORATION, Appellant, v. Ken YAZEL, In his Official Capacity as County Assessor of Tulsa County, Oklahoma, Appellee.
    No. 100,351.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 7, 2004.

      William K. Elias, Linda Jo Blan-Byford, Elias, Books & Brown, Tulsa, OK, for Petitioner/Appellant.
    Thomas G. Potts, David W. Wulfers, Cornelius P. Dukelow, James, Potts & Wulfers, and Linda K. Graves, Office of the District Attorney, Tulsa, OK, for Respondent/Appel-lee.
   Opinion by

CAROL M. HANSEN, Judge:

¶ 1 Visteon Corporation (Visteon) appeals from the trial court’s order dismissing its appeal of the Tulsa County Equalization Board’s (Board) order which established the fair cash value of Visteon’s business personal property for the tax year 2002. Appellee, the Tulsa County Assessor (Assessor) had moved for dismissal, arguing the trial court lacked subject matter jurisdiction because [a] Visteon failed to give statutory notice to the Tulsa County Treasurer that it had appealed Board’s denial of its formal protest, and [b] Visteon had failed to pay its 2002 business personal property ad valorem taxes under protest.

¶ 2 On June 11, 2002, Visteon filed its Petition in the trial court pursuant to 68 O.S.2001 § 2880.1 (hereafter § 2880.1) seeking a trial de novo “to correct the assessment made by the County Assessor and the [Equalization] Board.” Visteon alleged the County Assessor “failed to utilize proper methodology in determining the fair market value” of its personal business property was $81,214,566, making the valuation arbitrary and excessive.

¶ 3 Visteon paid the first half of its 2002 county property taxes on December 16, 2002, and the second half on March 20, 2003. Each check was for the total amount of $705,373.50, which included $530,290.50 for the business personal property portion. The parties agree the taxes were fully and timely paid. At issue, however, is whether there were any accompanying documents with the checks when they were received by the County Treasurer. As explained below, the documents would be relevant to determining if Visteon preserved its right to the district court appeal.

¶ 4 After filing his Answer, Assessor moved to dismiss Visteon’s 2002 assessment appeal from the consolidated actions. Assessor asserted the trial court lacked subject matter jurisdiction over that appeal because Visteon had not given proper notice in accordance with 68 O.S.2001 § 2884(B) (hereafter § 2884(B)) when the 2002 taxes were paid. Section 2884(B) provides, in pertinent part, that when protested taxes are paid:

... the person protesting the taxes shall give notice to the county treasurer that an appeal involving such taxes has been taken and is pending, and shall set forth the total amount of tax that has been paid under protest.... The notice shall be on a form prescribed by the Tax Commission.... The taxpayer shall attach to such notice a copy of the petition filed in the court or other appellate body in which the appeal was taken.

¶ 6 In his motion to dismiss, Assessor asserted the requisite § 2884(B) notice form and copy of petition were not included when Visteon mailed its payments to the Tulsa County Treasurer. In support of his motion to dismiss, Assessor attached certain documents and affidavits of various county employees who were regularly involved in the operation of the County Treasurer’s office and in receipt of mail in the court house and Treasurer’s office. Assessor argued the evi-dentiary materials showed Visteon had not complied with § 2884(B).

¶ 6 Visteon, in response, contended it had met the requirements of § 2884(B) by enclosing the required notice and pleading, but additionally argued that once the district court properly had subject matter jurisdiction, it could not lose it. Visteon further argued § 2884(B) does not require abatement of a pending appeal for failure to comply with its notice requirements. Visteon attached copies of the notice form in controversy, which it asserts was properly sent with the initial 2002 tax payment, and other documents and affidavits purporting to establish compliance with § 2884(B).

¶ 7 The initial inquiry must be whether compliance with § 2884(B) is a jurisdictional prerequisite to the district court’s hearing the appeal. In Means v. Blevins, 1995 OK 76, 898 P.2d 1286, the Supreme Court held notice pursuant to § 2884(B) is a statutory condition for a trial court’s jurisdiction to decide an appeal from a County Assessor’s valuation decision. In Means, the taxpayer objected to the evaluation of property, but failed to give notice to the County Treasurer that appeal had been taken from that evaluation. The Supreme Court issued a writ of prohibition from proceeding further in the district court case “for lack of jurisdiction for failure to comply with 68 O.S.1991 § 2884(B).” In doing so, the Court cited Dolese Bros. Co. v. Board of Com’rs of Comanche County, 1931 OK 480, 151 Okla. 110, 2 P.2d 955.

¶8 In Dolese, the district court had dismissed the taxpayer’s appeal from the County Board of Equalization’s determination because no transcript of the Board’s hearing was filed with the appeal, and because the taxpayer failed to serve notice to the County Treasurer that the appeal was pending. Both the transcript and notice were statutorily required.

¶ 9 In language identical to that in § 2884(B), Section 9970, C.O.S.1921, provided that persons paying protested taxes shall give notice “that an appeal involving such taxes has been taken and is pending.” The Dolese Court noted it was the taxpayer’s duty to serve notice on the county treasurer “in order that taxes so paid might by him be held separate and apart from other taxes collected by him.” The Court concluded:

We think these provisions are mandatory, and must be complied with in order to confer jurisdiction upon the district court to entertain the appeal.

Dolese, 2 P.2d at 956; See also, Antrim Lumber Co. v. Sneed, 1935 OK 1144, 175 Okla. 47, 52 P.2d 1040.

¶ 10 The rationale expressed in Dolese for making notice to the treasurer mandatory and jurisdictional is as persuasive today as it was then. In fact, the treasurer’s duty, as contained in § 2884(C), “to hold taxes paid under protest separate and apart from other taxes collected” is substantively unchanged from the original enactment in 1915. See, Laws 1915, c. 107, art.1, subd. B, § 6. Section 2884(E) provides for refund of property taxes paid under protest if the court finds the property was assessed at too great an amount. If proper notice of appeal is not given, the County Treasurer is obligated to apportion the taxes received and would be left without proper reserves to make refunds, Such a situation would be antithetical to good business practices and good government.

¶ 11 Therefore, and in view of Assessor’s motion to dismiss for lack of subject matter jurisdiction, we hold that proof of Visteon’s compliance with § 2884(B) is required for continuing jurisdiction in the trial court to determine if the assessed value was proper. “When a jurisdictional question arises, the burden of proof is upon the party asserting that jurisdiction exists.” Union Bank v. Ferris, 1978 OK 149, 587 P.2d 454. The party asserting that jurisdiction exists here is Visteon.

¶ 12 The parties are in conflict not only as to what the evidentiary materials establish, but also as to what procedure the trial court should have applied in considering those materials. Visteon contends the trial court’s consideration of the evidentiary materials submitted in support of, and in opposition to, the motion to dismiss, converts the motion into one for summary judgment. Visteon, citing In re Macfarline, 2000 OK 87, 14 P.3d 551, then argues that because the motion is one for summary 'judgment, [a] the evidence must be considered in the light most favorable to it, the non-moving party, and [b] the motion may be granted only where there is no substantial controversy as to any material fact.

¶ 13 There clearly is substantial controversy as to material facts, i.e. whether the documents required by § 2884(B) were submitted with Visteon’s December payment of the 2002 tax. However, we are more persuaded by Assessor’s argument that under the facts here the trial court could properly consider the evidentiary materials to determine its jurisdiction without using the summary judgment procedure.

¶ 14 We are not aware of any Oklahoma appellate decisions directly on this point, but in construing provisions of our pleading code, we may consider the federal' counterpart from which it was derived. Shaffer v. Jeffery, 1996 OK 47, 915 P.2d 910. The pivotal provision-from our pleading code here is 12 O.S.Supp.2002 § 2012(B). With certain additions not relevant to the question before us, § 2012(B) is “virtually the same as Federal Rule of Civil Procedure 12(b).” See, Committee Comment to Section 2012.

¶ 15 Section 2012(B) provides, among other things, that:

If, on a motion asserting the defense numbered 6 [§ 2012(B)(6)] of this subsection to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by the rules for summary judgment.

¶ 16 Assessor argues the foregoing provision does not apply here because his motion to dismiss is not for failure to state a claim upon which relief can be granted, but for lack of jurisdiction over the subject matter under § 2012(B)(1). In Holt v. U.S., 46 F.3d 1000 (10th Cir.1995), the Circuit Court of Appeals noted that under Rule 12(b)(1), the federal counterpart to § 2012(B)(1), “a party may, go beyond allegations contained in the complaint and challenge the facts upon which subject matter- jurisdiction depends.” The Circuit Court also noted that under Rule 12(b)(1), the trial court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts”, and that “when reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint’s factual allegations.” Under these circumstances, the Circuit Court held the court’s reference to evidence outside the pleadings does not convert the motion to dismiss to a motion for summary judgment.

¶ 17 An exception discussed by the Holt Court, and asserted by Visteon as being applicable here, is where the jurisdictional question is “intertwined” with the merits of' the ease. In, that instance, the district court is required] to convert the 12(b)(1) motion to dismiss into a 12(b)(6) motion or a motion for summary judgment. -In Holt, the Circuit Court said the jurisdictional question was intertwined with the merits if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case.

¶ 18 Here, the statute which provides the substantive claim is § 2880.1, which authorizes appeal to the district court from any order of the county board of equalization. The continuing subject matter jurisdiction which Assessor raises is dependent on the § 2880.1 appellant’s compliance with the mandate of § 2884 to pay the protested taxes in full and to provide proper notice to the treasurer when the taxes are paid. The substantive claim does not arise from the same statute which regulates subject matter jurisdiction.

¶ 19 Additionally, the Tenth Circuit Court further clarified what it considered to be intertwined issues in Davis ex rel. Davis v. U.S., 343 F.3d 1282 (10th Cir.2003). There, the parties on appeal disagreed whether the district court had dismissed Davis’ claim under Rule 12(b)(1) or 12(b)(6). The plaintiffs argued that even if the defendant’s motion to dismiss was properly construed as one under 12(b)(1), the district court was precluded from considering information beyond the allegations in the complaint because that would convert the motion into one for summary judgment, and the district court did not grant summary judgment.

¶ 20 The Davis Court, citing Holt, restated the rule that where subject matter jurisdiction is factually challenged, the court has wide discretion to consider matters outside the complaint without converting the procedure to one for summary judgment. They recognized the “intertwined” rule they had discussed in Holt, but found the rule inapplicable. The Court said that when deciding if jurisdiction is intertwined with merits, “the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim”, citing Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320 (10th Cir.2002).

¶21 In Davis, the Circuit Court found jurisdiction was not intertwined. with the merits because the substantive issue in the plaintiffs’ case was whether plaintiffs had been improperly denied Certificate of Degree of Indian Blood cards, not whether a particular plaintiff had exhausted administrative remedies — the latter being the basis for dismissal. Similarly, the substantive issue in Visteon’s case is the propriety of Assessor’s evaluation methodology, not whether Visteon filed the appropriate notice with its tax payments. Resolution of the jurisdictional question does, not require resolution of any aspect of Visteon’s substantive claim. Davis, 343 F.3d at 1296. Jurisdiction was not intertwined with substance so as to require the summary judgment procedure. The trial court could properly consider the evidentiary materials in determining if the appeal should be dismissed for lack of subject matter jurisdiction.

¶ 22 The remaining question is whether the trial court properly concluded it did not have subject matter jurisdiction under the factual challenge before it. We answer that question in the affirmative. “Questions concerning a trial court’s jurisdictional power invoke the de novo standard of review.” Medcalf v. Coleman, 2003 OK CIV APP 53, 71 P.3d 53. Under a de novo standard we exercise “plenary, independent and non-deferential” authority to examine the trial court’s legal rulings. Id., at 55.

¶ 23 Visteon’s primary evidentiary material in opposition to Assessor’s motion to dismiss consists of two affidavits and documents supporting the affidavits. The first affidavit is from a Visteon employee in Michigan who was, at the time relevant here, the company’s Tax Counsel and Director, State and Local Taxes. The affiant states she was advised of the need to pay the Tulsa County 2002 personal property taxes on time and with appropriate notice. She states she communicated this information to Visteon’s property tax consultant, indicating tax payment was not to be made without notice of protest, and in December 2003 provided the notice form and copy of the appeal petition to the tax consultant. To her knowledge, no notice form accompanied the second half of the property tax payment.

¶ 24 The second affidavit is from the tax consultant’s employee responsible for Vis-teon’s account. She stated she received the communication from Visteon about providing documents with the payment to indicate payment was made under protest. She said she received the documents from Visteon, including a notice form stating the entire payment was made under protest, and mailed them with the check, which had the “check stub” attached. The phrase, “Payment made under protest — Visteon” was on the check stub. The certified mail delivery confirmation was returned to the tax consultant showing it had been received in the Tulsa County Treasurer’s office on December 23, 2003. The second half of the personal property taxes were paid in March 2003, without notice of payment under protest.

¶25 As noted above, Assessor submitted several affidavits from persons involved in the court house handling of mail and operation of the Treasurer’s office, along with Treasurer’s documents concerning tax payments under protest. An affidavit from the county’s senior mail clerk stated all county certified or registered mail is delivered to his office and sorted to be delivered or picked up by the mail clerks from the various county offices. Certified or registered mail for the Treasurer was picked up by Donald King.

¶ 26 Donald King provided an affidavit stating it was his principal job in the Treasurer’s office to obtain, open and distribute mail. He will normally sign the green cards indicating receipt of the mailed items and mail them back to the sender, but on days when there are many green cards he will ask the receptionist in the office for help in signing the cards. The receptionist does not open or distribute the mail. Mr. King stated he had been trained to recognize protests of property tax assessments and to give them to the appropriate person in the Treasurer’s office. He did not recall “receiving, opening or seeing a protest or other collection of documents relating to Visteon Corporation on December 23, 2002.”

¶ 27 An affidavit from the Treasurer’s receptionist stated she helped Donald King on occasion to sign green return receipt cards attached to certified or registered mail, but she did not open or distribute the mail throughout the Treasurer’s office. She stated it was her signature, acting as agent of the Treasurer, on the receipt -returned to Visteon.

¶ 28 Another affidavit was submitted from the Treasurer’s employee responsible for processing protested tax payments. Mailed protested payments were delivered to her by Donald King. She reviews the documents for completeness, and if in compliance, she opens a protest file which includes copies of all necessary documents, including the notice form, petition, original of the cheek stub, if any, and the envelope from the taxpayer. She enters information on the protest on the tax rolls. She maintains the protest file until the protest is resolved. She also prepares the reports of protested tax payments required by law. She did not recall Donald King or anyone else delivering to her on December 23, 2002, any documents indicating Visteon intended to protest the 2002 personal property tax. She had reviewed the Treasurer’s files on protested taxes and did not find any documents or record indicating Vis-teon’s protest.

¶ 29 Assessor also submitted the affidavit of the Chief Deputy to the Treasurer, who.is responsible for, among other things, custody of the Treasurer’s records. The Chief Deputy stated Visteon did not file notice of protest with either its December 2002 or March 2003 payments. He also stated that because Vis-teon did not provide the notice, the funds received had been apportioned according to law. One of the documents accompanying this affidavit was the Treasurer’s Report to the State Auditor, as required by 68 O.S.2001 § 2884(D), which did not include Visteon’s tax payment as being made under protest. The Chief Deputy testified by deposition that his investigation in the Treasurer’s office had failed to disclose receipt of any notice by Visteon of its protest.

¶ 30 Visteon made several objections to consideration of Assessor’s evidentiary materials. We find these objections have no merit. The records from the Treasurer’s office would be admissible in accordance with 12 O.S.2001 §§ 2803(6)(records kept in the course of regularly conducted business), 2803(8)(record of public office where there is a duty imposed by law to report), and 2803(10)(to prove absence of a record or nonoccurrence or nonexistence of a matter of which a public record was regularly made and preserved). The Chief Deputy Treasurer’s testimony that the Treasurer’s office did not receive notice of protest from Visteon, as determined by his own investigation, would also be admissible under § 2803(10) to prove the absence of a record regularly made and preserved by the Treasurer’s office.

¶ 31 An additional evidentiary matter is Visteon’s contention that the notation on its cheek stub — Payment made under protest— is sufficient to show substantial compliance with § 2884(B). Without deciding if substantial compliance is acceptable under § 2884(B), we find the notation, presuming it was attached to the check when received in the Treasurer’s office, insufficient under the facts here to have properly put the Treasurer on notice of the appeal.

¶ 32 The Supreme Court considered a similar argument in Antrim Lumber Co. v. Sneed, 52 P.2d at 1045. There, the only notice of protest was on the left hand corner of the payment check which read, “this tax paid under protest.” The Supreme Court noted this phrase was:

... wholly insufficient since it failed to set forth any ground of complaint or to advise the defendant that any suit would be brought for the recovery of said tax.... For aught else that appears, it could have been just a method of expressing dissatisfaction with the tax and a reluctance to pay it.

¶ 33 While the statutory requirements in Antrim were somewhat different, the purpose and necessity for sufficient notice is the same, that is, to allow the responsible fiscal officer to reserve funds in case the tax or evaluation is judicially determined to be incorrect. The purported protest notice on the Visteon check stub, as presented in Visteon’s brief, appears among other text on the stub and in the same size type. It is, as Assessor suggests, “almost unnoticeable”, and not sufficiently distinguishable to conclude that the Treasurer’s staff should have the duty to inquire from Visteon as to its meaning. To the contrary, the duty to comply is imposed on Visteon in accordance with § 2884(B).

¶34 Visteon argues that tax laws must be strictly construed against the sovereign, citing Samson Hydrocarbons Co. v. Oklahoma Tax Com’n, 1998 OK 82, 976 P.2d 532. While that may be the general rule, where the issue is the court’s jurisdiction, the proponent of jurisdiction must be held to strict proof. See, Macsuga v. Moreno, 2003 OK 24, 66 P.3d 409 (Although the Workers’ Compensation Act is to be construed liberally in favor of workers, claimant must be held to strict proof that he was an employee in order to be covered by provisions.)

¶ 35 We hold the trial court correctly determined, notwithstanding the conflicting evidence, that Visteon failed to meet its burden to prove compliance with § 2884(B). In the absence of such proof, the trial court was without jurisdiction to hear Visteon’s appeal of the 2002 personal property tax assessment. Accordingly, the trial court’s order is AFFIRMED.

JOPLIN, J., concurs; and MITCHELL, P. J., dissents with a separate opinion.

Dissenting Opinion by

BAY MITCHELL, Presiding Judge:

¶ 1 The majority’s opinion hinges on imposing a burden of “strict proof’ on Visteon to prove compliance with the notice provision in 68 O.S.2001 § 2884(B) to establish the district court’s jurisdiction to hear its appeal. Their sole authority is Macsuga v. Moreno, 2003 OK 24, ¶ 5, 66 P.3d 409, 411, a worker’s compensation case that holds the claimant “must be held to strict proof that he was an employee of [respondant/employer] in order to be covered by the provisions of the [Workers’ Compensation] Act.” I disagree that strict proof is required and would instead only require that Visteon prove by “competent evidence” that they gave notice of their protest to the County Treasurer.

¶2 The statute we must interpret is 68 O.S.2001 § 2884(B), which provides:

When such taxes are paid, or by December 31, whichever is earlier, the persons protesting the taxes shall give notice to the county treasurer that an appeal involving such taxes has been taken and is pending, and shall set forth the total amount of tax that has been paid under protest ... The notice shall be on a form prescribed by the Tax Commission ... The taxpayer shall attach to such notice a copy of the petition filed in the court or other appellate body in which the appeal was taken ...

Id. (emphasis added). Nothing in § 2884 requires that taxpayers be held to strict proof of compliance with the notice provision or suffer the consequence of dismissal of their appeals.

¶ 3 I recognize Oklahoma cases have held that the notice requirement in § 2884(B) is jurisdictional. See Means v. Blevins, 1995 OK 76, 898 P.2d 1286; Dolese Bros. Co. v. Board of Comm’rs of Comanche County, 1931 OK 480, 2 P.2d 955. However, in those cases, it was undisputed that the taxpayers did not give proper notice of protest. The cases did not discuss the applicable burden of proof when the jurisdictional facts are disputed. This is an issue of first impression in Oklahoma that must be determined by interpreting this statute in accord with the Oklahoma Tax Code as a whole. For several reasons, I believe that competent evidence is the correct burden of proof to satisfy the notice requirement of § 2884(B). Visteon clearly met that burden with the evidence they presented.

¶ 4 First, there is no justification for applying the burden of strict proof from the Workers’ Compensation Act to this notice provision. The majority opinion cites Macsuga, 2003 OK 24, 66 P.3d 409, for the proposition that the party seeking to establish jurisdiction is alivays held to strict proof. This is not an accurate statement of Oklahoma law. For example, a plaintiff only has the burden of proving the jurisdictional requirement of in personam jurisdiction by a “preponderance of the evidence.” Jim Marrs Drilling Co., Inc. v. Woolard, 1981 OK CIV APP 23, ¶ 18, 629 P.2d 810, 813; see also Union Bank v. Ferris, 1978 OK 149, ¶ 5, 587 P.2d 454, 455 (emphasizing personal jurisdiction over nonresident defendants “must affirmatively appear from the record”). This is a standard somewhat less than preponderance of the evidence and probably akin to competent evidence. Similarly, in order to satisfy the jurisdictional requirement of timely filing the petition in error to commence an appeal, the appellant only has to prove they timely deposited the document in the United States mail, postage prepaid. 12 O.S. Supp.2002 § 990A(B). Significantly, the only proof required is the postmark affixed to the properly-addressed mail. Id.; Whitehead v. Tulsa Public Schools, 1998 OK 71, ¶ 5, 968 P.2d 1211, 1214 n. 10 (noting a postmark affixed to certified, priority or first class mail is proof of timely mailing). Even in federal courts, where the courts must presume there is no jurisdiction because they are courts of limited jurisdiction, the burden of proof for jurisdiction is no higher than preponderance of the evidence. See, e.g., Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942) (stating party asserting diversity jurisdiction must provide “competent proof’); McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1106 (10th Cir.2002) (stating plaintiff has the burden of proving subject matter jurisdiction requirement of exhaustion of administrative remedies by competent evidence); U.S. ex rel Stone v. Rockwell Intern. Corp., 282 F.3d 787, 797-98 (10th Cir.2002) (applying preponderance of evidence burden to review subject matter jurisdiction requirements under federal False Claims Act); U.S. ex rel. King v. Hillcrest Health Center, Inc., 264 F.3d 1271, 1278 (10th Cir.2001) (emphasizing federal courts are courts of limited jurisdiction and party alleging jurisdiction has burden of “alleging the facts critical to jurisdiction and coming forth with competent proof.”). There are varying standards of proof for jurisdictional requirements. Choosing a burden of “strict proof’ without any discussion or justification is unwarranted.

¶ 5 There is no similarity between the requirement of notice in § 2884(B) and the requirement that a claimant show he is an employee under the Workers’ Compensation Act that justifies imposing the same burden of strict proof. Strict proof is required to establish workers’ compensation jurisdiction because that system is set up to only provide benefits to employees. Establishing an employer/employee relationship is a condition precedent for establishing jurisdiction. If the workers’ compensation claimant cannot prove the existence of the necessary employment relationship, the Act is inapplicable and the claimant is not entitled to workers’ compensation benefits.

¶ 6 Here, by contrast, the majority’s application of the standard of strict proof operates to dismiss a pending appeal that is proper in all other respects, even though the taxpayer had taken all reasonable steps to comply with the notice requirement. Compliance with § 2884 was not a condition precedent to filing this appeal. Instead, the appeal had already been initiated by filing a Petition in the district court after the taxpayer had exhausted their administrative remedies by unsuccessfully appealing the County Assessor’s valuation to the Board of Equalization. There is no statutory or policy justification for applying the heavy burden of strict proof to the notice requirement in § 2884(B) when the appeal is pending and proper in all other respects.

¶ 7 Second, the Legislature provided in § 221.1 of the Uniform Tax Procedure Code that mailing by registered mail is prima facie evidence that the document was actually delivered to the agency to which it was addressed. 68 O.S.2001 § 221.1. The relevant portions of this provision provide:

A. For any return, claim, statement, or other document required to be filed or any payment required to be made within a prescribed period ... under authority of any provision of a tax law of this state, the date of the postmark stamped on the cover ... shall be deemed to be the date of delivery or the date of payment, as the case may be.
B. The provisions of this section shall apply only if: ...
2. The ... document or payment was ... deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the ... office with which the ... document is required to be filed
* ⅜ ⅜ ⅜
D. For purposes of this section, if any ... document or payment, is sent by United States registered mail, the registration shall be prima facie evidence that the ... document was delivered to the ... office to which addressed, and the date of registration shall be deemed the postmark date. The Tax Commission is authorized to provide by rules or regulations the extent to which the foregoing provisions of this subsection with respect to prima facie evidence of delivery and the postmark date shall apply to certified mail ...

68 O.S.2001 § 221.1.

¶ 8 The purpose of the Uniform Tax Procedure Code is to provide uniform procedures and remedies for all state taxes, and its provisions “shall control and shall be exclusive” unless expressly excluded by a specific state tax law. 68 O.S.2001 § 201. Nothing in the Ad Valorem Tax Code (68 O.S.2001 §§ 2801-3152) or § 2884 in particular, excludes the application of the presumptive mailing rule in § 221.1. In fact, requiring strict proof of notice is in direct conflict with the presumption of prima facie evidence of delivery.

¶ 9 Another strong argument for applying the presumptive mailing rule to the notice of protest required in § 2884 is that there is a presumptive mailing provision in 68 O.S.2001 § 2876, which sets out the procedure for notification by the County Assessor to the taxpayer of an increase in the assessed value of the taxpayer’s property. If the County Assessor increases the valuation of a taxpayer’s property, the assessor is only required to give written notice to the taxpayer. 68 O.S. 2001 § 2876(A). That notice is adequate if it is “mailed or delivered to the last known address” of the taxpayer. § 2876(C). “Duplicate copies of the notice showing the date of issuance and mailing or delivery, shall be kept in. the office of the county assessor ... [and] shall be prima facie evidence as to the fact of notice having been given as required by this section.” Id. (emphasis added); see also 68 O.S.2001 § 208 (provision of Uniform Tax Procedure Code that specifically states mailing to last-known address “shall be pre sumptive evidence of receipt” for any notice Tax Commission must give, and failure to actually receive notice does not invalidate Commission’s action or relieve taxpayer of interest or penalties). The taxpayer then has twenty days “from the date the notice was mailed ... in which to file a written complaint with the county assessor ...” § 2876(D). The assessor shall notify the taxpayer of the final action taken and it is only required that the “notice shall be mailed or delivered within one working day” of the action taken. § 2876(F). The taxpayer may then appeal to the County Board of Equalization by mailing or delivering a copy of the appeal form to the county assessor and another to the equalization board. Id. Written notice is required at each stage of this protest/appeal process, but nowhere in this statutory scheme is there a requirement that notice be proven by anything approaching “strict proof’ or that “receipt” of the notice must be proven. Interpreting § 2884 as requiring strict proof of notice is a serious and unwarranted inconsistency with § 2876. Thus, the proof of mailing presumptions should clearly apply to the notice requirement in § 2884, and proof of mailing by registered or certified mail is prima facie evidence of delivery on the date marked on the mail.

¶ 10 Regulations by the Oklahoma Tax Commission have further specified that the date of the United States postmark is the date of filing for “any claim, statement, or other document required by law or agency Rule to be filed ...”. Oklahoma Administrative Code 710:1-3-30. Further, the regulations provide that when a document is sent by certified mail, the date of the postmark on the receipt is the date of the delivery. Oklahoma Administrative Code 710:1-3-32. Importantly, these presumptive mailing rules apply even if the document is not actually received, as noted in regulation 710:65-3-2 titled “Timely Mailing Treated as Timely Filing and Paying,” which provides:

(a) Any report, claim, tax return, statement or other document required or authorized to be filed with or any payment made to the Commission, which document or payment is transmitted through the United States mail, will be deemed to have been filed with and received by the Commission on the date shown by the post office cancellation mark stamped upon the envelope or other appropriate wrapper containing it. If mailed but not received by the Commission, or if received but the cancellation mark is illegible, erroneous or omitted, or envelope unavailable, the document or payment will be deemed to have been filed on the date it was mailed if the sender establishes by competent evidence that the document or payment was deposited in the United States mail on or before the date due for filing ...
(b) If any ... document is sent by United States registered mail, certified mail or certificate of mailing, a record authenticated by the United States Post Office of such registration, certificate or certificates shall be considered competent evidence that the ... document was mailed, and the date of registration, certification or certificate shall be deemed to be the date of the postmark made by the United States Postal Service.

Okla. Admin. Code 710:65-3-2 (emphasis added).

¶ 11 Thus, under this regulation, only competent evidence is required to prove filing of any document with the Oklahoma Tax Commission. Further, a receipt for certified mail, standing alone, is competent evidence to satisfy this burden of proof. Although this regulation is listed under the section for sales tax, its plain language applies to any document required to be filed with the Commission. Also, it refers to Oklahoma Administrative Code regulations 710:1-3-30 and 710:1-3-31, the general regulations regarding filing by mailing that apply to any document or act required by the Oklahoma Tax Code. Section 2884 does not set out any different standard for providing notice to the County Treasurer than that established for all filings submitted to the Tax Commission, and there is no justification for establishing a different rule where the statute is silent as to the burden of proof.'

¶ 12 Oklahoma eases have applied the general “presumptive mailing rule” in several other areas where notice is required. This rule provides: “When a letter is placed in the mail system bearing a correct address and sufficient postage to reach its destination, a rebuttable presumption arises that the letter did in fact reach the addressee. In the absence of sufficient rebuttal evidence, the presumption prevails.” Booth v. McKnight, 2003 OK 49, ¶ 3, 70 P.3d 855, 858 n. 6 (applying presumptive mailing rule to notice of hearing required for final accounting in probate action) (emphasis in original); see also Shamblin v. Beasley, 1998 OK 88, ¶ 23, 967 P.2d 1200, 1212 n. 51 (applying presumption of mailing to pre-sale notice of tax sale); Liberty Plan Co. v. Francis Smith Lumber Co., 1961 OK 30, ¶ 14, 360 P.2d 500, 504 (applying presumption of receipt of properly addressed letter to notice of claim required to enforce mechanic’s lien); 12 O.S.2001, Ch. 15, App. 1, Okla. Sup.Ct. R. 1.4(c) (stating a petition in error that is mailed by the United States Postal Service is considered filed with the Oklahoma Supreme Court on the date of the postmark).

¶ 13 The only burden required should be “competent proof,” as stated in Oklahoma Administrative Code 65-3-2, and that burden was satisfied by Visteon sending the protest certified mail, return receipt requested.

¶ 14 Finally, the burden imposed by the majority conflicts with mandatory rules of statutory construction for taxation cases and for appellate cases. As a general rule, courts will liberally construe appellate statutes to further justice and to favor the right of appeal. AP-Prescott One Ten LP v. Clay, 2001 OK CIV APP 128, ¶ 11, 34 P.3d 1169, 1171; City of Tulsa v. Board of Trustees of Police Pension & Retirement System, 1963 OK 267, ¶ 8, 387 P.2d 255, 258 (stating statutes giving the right of appeal “should be liberally construed in furtherance of justice ... ”).

¶ 15 Further, tax laws must be strictly construed against the State, and any ambiguity must be resolved in favor of the taxpayer. See, e.g., Samson Hydrocarbons Co. v. Oklahoma Tax Comm’n, 1998 OK 82, ¶ 8, 976 P.2d 532, 536. The majority opinion recognizes this rule, but then ignores it by choosing the strictest burden of proof and imposing it on the taxpayer without justifying why this burden should apply in an ad valorem tax appeal. The effect of applying this burden of proof is to greatly favor the county, in contradiction of our rules of construction in tax cases. Oklahoma courts do not have any discretion to ignore these canons of construction and impose by judicial fiat a burden of strict proof that was not intended by the Legislature.

¶ 16 When applying these rules of construction and policies that protect the taxpayer’s appeal to the notice requirement in § 2884(B), it is clear the burden of proof for complying with the notice provision should only be the same competent evidence test required for proving filing of any document or payment with the Oklahoma Tax Commission. I recognize that the purpose of the notice provision is to allow the treasurer to apportion all payments that are not protested and not be forced to refund sums that have already been apportioned. 68 O.S.2001 § 2884(C). However, this purpose does not override the requirement that tax statutes be strictly construed in favor of the taxpayer. If the Legislature had wanted to impose a burden of strict proof to protect the County Treasurer’s office, they certainly could have done so, but they did not. Instead, they established the presumptive mailing rule in § 221.1, and did not exclude this rule from applying to § 2884. Where the taxpayer proves they gave notice of the protest by proper mailing, the risk that the notice was not actually received or not processed correctly by the treasurer’s office should not fall on the taxpayer by taking away his right to appeal.

¶ 17 When the burden of strict proof requirement is removed and the competent evidence test is applied, it is clear that Visteon produced more than competent evidence that they complied with the notice provision in § 2884. Visteon produced evidence that they mailed the protest packet with their tax payment check by certified mail, return receipt requested. Visteon attached an affidavit from their general counsel stating she prepared the protest form and gave the form and the petition to their tax consultant. Vis-teon also included an affidavit from the tax consultant stating she placed all the protest information in the envelope with the check and sent it by certified mail to the County Treasurer’s office. The signed receipt was returned evidencing delivery and receipt. Visteon also received a receipt showing their check had been processed. Since all the information was sent together, Visteon had no reason to suspect the County Treasurer’s office had not received or processed the protest information. Visteon produced its copy of the signed and dated notice of protest form and a copy of the petition they sent to the Treasurer’s office. Visteon also produced copies of several ermails showing they knew exactly what was required by § 2884 and setting out their procedure for complying with the requirements provided therein. This evidence is certainly competent proof that Visteon sent all of their protest information with their tax payment by certified mail to the County Treasurer’s office and that it was received.

¶ 18 On the other hand, the Treasurer’s office produced evidence that they did not actually receive Visteon’s protest packet. They produced affidavits from the person who normally opens this mail and the person who processes these protests, who stated they did not see a protest by Visteon. This evidence, however, is not sufficient to overcome the presumption of receipt because there were deficiencies and gaps in their evidence and in their procedure for processing these protests.

¶ 19 The majority opinion discusses some of the relevant evidentiary material, but there is additional critical evidence that it fails to mention. Keith Hamilton, the Chief Deputy Treasurer for Tulsa County, testified in his deposition that the majority of tax payments are processed by an outside company, Bank of Oklahoma (BOK). He estimated that out of 200,000 payments received per year, only 30,000 are actually processed by the Tulsa County Treasurer’s Office. For the rest of the payments, an employee from BOK opens the envelope and processes any standard payment. However, BOK employees forward any nonstandard payments to the Treasurer’s office for processing. Nonstandard payments include partial payments, delinquent payments and payments that include protests.

¶ 20 The majority also fails to point out that the mail room maintains a log of all certified mail received by Treasurer’s office. Interestingly, Visteon’s certified mail was not listed in the log even though it was undisputed Visteon’s check was actually received by the Treasurer’s office' and the certified mail receipt was signed and returned to Visteon. Brad Schell, an employee in Administrative Services for Tulsa County, testified that it.is standard procedure to log-in all certified mail that comes directly to the Tulsa County Treasurer. Since Visteon’s mail was not logged in, it is probable that Visteon’s mail was initially received and opened by the outside processor and then forwarded with other nonstandard payments to the Treasurer’s office. The only reason this payment would be nonstandard would be if it included protest information. The payment was not late and it was not a partial payment. Thus, the Treasurer’s office should have known when they received Visteon’s payment that it was nonstandard.

¶21 The Treasurer’s office failed to provide any evidence that Visteon’s payment was not initially handled by BOK and then forwarded to the Treasurer’s office. They did not include any affidavits from employees at BOK stating that they did not see a protest from Visteon. In light of the evidence presented and the reasonable inferences drawn therefrom it is quite possible the protest information was lost or misplaced when the envelope was opened by BOK or forwarded to the Treasurer’s office. The Treasurer’s department also admitted that they routinely throw away the envelopes and the check stubs, which could have resulted in Visteon’s protest information being accidentally discarded. Because of the evidentiary gaps and the potential problems in the processing of protests, the Treasurer’s proof that they did not receive the protest is less probative than Visteon’s direct proof of compliance.

¶ 22 The evidence demonstrates that Vis-teon took all reasonable steps to comply with the notice provision and be able to prove compliance if necessary. In the normal course of business, proof of mailing is usually accomplished by certified mail and by keep-tag a copy of the information that was mailed. This method is specifically authorized by 68 O.S.2001 § 221.1 and regulations of the OHahoma Tax Commission. Further, Visteon’s general counsel and tax consultant are located out-of-state in Michigan. It would not be reasonable to expect them to hand-deliver the protest information. It is also not reasonable to require them to demand proof of receipt of their protest notice. The statutes set out all the steps a taxpayer must take. It does not require hand-delivery and it does not require proof of receipt in order to satisfy the notice provision. Visteon received proof that their envelope had been received and also received proof that their payment had been processed. They were entitled to assume their notice of protest had also been received. The law does not require anything more of Visteon to preserve their right to appeal. Any other decision would jeopardize taxpayers’ rights to appeal when they have taken all reasonable steps to give the required notice to the Treasurer’s office. In addition, it would reward the County when the Treasurer’s office fails to properly process notices of protest.

¶23 For these reasons, I would reverse the trial court’s dismissal of Visteon’s appeal and remand to allow the appeal in district court to continue. The affidavits by Vis-teon’s employees that they specifically remember sending the protest information with their tax payment, coupled with the signed and dated copies of the protest documents and the certified receipt of their mailing constitute competent evidence that they gave notice of their protest to the County Treasurer’s office. Visteon satisfied their burden under § 2884. '“Strict proof’ is not, and should not be required.

      . Appeals by Visteon and Assessor for the tax year 2003 business personal property assessment remain pending in the trial court, but the court made the requisite findings pursuant to 12 O.S. 2001 § 994 for immediate appeal of its determination on the 2002 assessment. The Tulsa County Board of Equalization was initially joined in this consolidated action, but was dismissed with prejudice and is not a party to this appeal.

      . Section 2880.1(A) provides, in part, that “[both] the taxpayer and the county assessor shall have the right of appeal from any order of the county board of equalization to the district court upon questions of law or fact including value, or upon both questions of law and fact."

      . Article 2 of the Oklahoma Tax Code (68 O.S. §§ 201-264) is designated in § 201 as the "Uniform Tax Procedure Code.”


source: Caselaw Access Project

license: Public Domain

text:
    2004 OK JUD ETH 1
    JUDICIAL ETHICS OPINION 2004-1.
    No. 2004-1.
    Oklahoma Judicial Ethics Advisory Panel.
    June 10, 2004.
   QUESTION:

May a Special District Judge legally and ethically serve as a part-time adjunct faculty member at a private university and be compensated for teaching various introductory college level night classes pertaining to the law?

WE ANSWER: Yes, with qualifications.

DISCUSSION:

As we have stated in previous opinions, it is not the mandate of the Ethics Commission to make findings as to whether a proposed activity inquired about is “legal” under constitutional or statutory authority. Our advisory opinions are limited to compliance with the Code of Judicial Conduct, as promulgated by the Supreme Court of the State of OHa-homa.

Canon 2A “A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

In interpreting this provision of the Code, it is sometimes necessary to call attention to a statute or constitutional provision that could affect the propriety of the activity inquired about and to caution the inquirer to be mindful thereof without expressing an opinion as to the conclusion to be reached. Therefore, we offer no opinion as to whether the judge may legally engage in the activity of which inquiry was made.

We find nothing in the Code of Judicial Conduct that would prohibit the proposed activity subject to Canon 4A(3) or Canon 4B Avocational Activities. “A Judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code.”

A number of Judicial Ethics Advisory bodies from other states have addressed this question and have overwhelmingly approved, subject to constitutional or statutory restrictions.

The Utah Ethics Advisory Committee noted in Opinion 90-1 (6/14/90), that “teaching law related matters provides intellectual enrichment for the judge, is an important source of improvement for the judicial system and is fully consistent with the public’s perception of the appropriate role for judges in our society.”

The New Mexico Advisory Committee on the Code of Judicial Conduct in Opinion 02-07 states, “It is a time-honored tradition that judges should engage in lecturing and teach legal and non-legal subjects. There is little doubt that students will benefit from involvement of the learned judge in the educational process.”

The Florida Committee on Standards of Judicial Conduct noted, “It appears to us that a justice or judge, especially learned in the law, is in a unique position to contribute to the improvement of the legal system and the administration of justice by lecturing and teaching law school students who will be the Bench and Bar of tomorrow.”

We concur in the sentiments expressed in these opinions.

Canon 4A Extra-Judicial! Activities in General. A judge should conduct all of the judge’s extra-judicial activities to that they do not: ...
(3) interfere with the proper performance of judicial duties.”

A Special District Judge serves at the pleasure of the District Judges of the administrative district and it would seem appropriate that a judge should obtain the approval of the District Judges within the administrative district prior to teaching. The judge should limit time spent on preparation for teaching so as not to interfere with the proper performance of judicial duties.

/s/ Robert L. Bailey, Chairman

/s/ Robert D. Simms, Vice Chairman

/s/ Milton C. Craig, Secretary


author: BENCH, Associate Presiding Judge:

text:
    2004 UT App 120
    STATE of Utah, in the interest of L.N. and S.N., persons under eighteen years of age. L.N., Appellant, v. State of Utah, Appellee.
    No. 20030449-CA.
    Court of Appeals of Utah.
    April 22, 2004.
    Jere Reneer and Lee Fisher, Reneer & Associates, Spanish Fork, for Appellant.
    Mark L. Shurtleff, atty. gen., and John M. Peterson, asst. atty. gen., Salt Lake City, for Appellee.
    Martha Pierce and Paul Waldron, Salt Lake City, Guardians Ad Litem.
    Before BENCH, Associate P.J., GREENWOOD and ORME, JJ.
   OPINION

BENCH, Associate Presiding Judge:

¶ 1 After a three-day trial, the juvenile court substantiated that Father, by a preponderance of the evidence, had sexually and emotionally abused his son, L.N. The court also found, by clear and convincing evidence, that L.N. and his sister, S.N., remained neglected and emotionally abused children. We affirm.

BACKGROUND

¶2 L.N., a six-year-old male child, and S.N., a three-year-old female child, come from a family with a lengthy history of involvement with the Division of Child and Family Services (DCFS). A domestic violence worker from DCFS counseled L.N. and S.N.’s mother for several months before the State sought, and received, an order of protective supervision over L.N. based upon allegations of domestic violence perpetrated by Father. After obtaining jurisdiction, the juvenile court directed Father to comply with the requirements of his service plan, but Father refused to cooperate. The court terminated jurisdiction because Father’s refusal rendered DCFS’s attempted ■ intervention meaningless. Later, DCFS was again alerted to an allegation of domestic violence in the home. The State obtained an investigative subpoena to interview L.N. at the Children’s justice Center (the CJC). The State once again sought protective supervision, this time over both L.N. and S.N. The parents admitted to engaging in domestic violence in front of the children, and Father admitted to using inappropriate discipline with L.N. The juvenile court assumed jurisdiction over the family once again.

¶ 3 Later, L.N. told intern therapist, Nancy Coyne, that Father made L.N. touch Father’s “private parts.” L.N. said that the touching happened a lot and that it made him feel bad. During play therapy, L.N. showed Ms. Coyne a penis on one of the dolls and explained to Ms. Coyne that penises grow and then melt. Because of these disclosures, DCFS began an investigation that culminated in L.N.’s removal into protective custody. After his removal, L.N. was seen by physician assistant, Bret Davis. L.N. told Mr. Davis that Father touched L.N.’s genital region “with a stick.” L.N. also disclosed to Mr. Davis that sometimes Father touched his penis to L.N.’s “peepee area.” Mr. Davis did not find any physical evidence of sexual abuse.

¶ 4 L.N. was again interviewed at the CJC. This interview was videotaped. Before trial, the State filed a motion in limine seeking to introduce L.N.’s videotaped interview at the CJC as well as a videotape from an interview between L.N. and Ms. Coyne. The court ruled that the videotapes were not sufficiently trustworthy to be admitted for the truth of the matter asserted, but that the tapes were admissible to show L.N.’s mental state. Based upon L.N.’s conduct in the videotapes, the court further ruled that L.N. was unavailable as a witness because he would be traumatized if required to testify.

¶ 5 At trial, L.N.’s shelter mother, Michelle, and foster mother, Kari, both testified. The court found that hearsay statements made by L.N. to Michelle and Kari were admissible pursuant to Utah Code Annotated section 78-3a-116(5) (2002) as “statements made by a minor under eight years of age to a person in a trust relationship.” Id.

¶ 6 Michelle testified that L.N. shared many of his feelings with her, and that he was very huggable and loveable. After having lived in Michelle’s home for only a short time, L.N. told her “my dad likes me to be naked.” He also told Michelle that “my dad touches my parts.” When Michelle asked him how the touching made him feel, he responded “scared.” Both S.N. and L.N-said, “My dad hurts me. My dad hits me.” Additionally, L.N. made disclosures unrelated to abuse. Michelle testified that when L.N. felt sad, he would say, “I’m feeling very sad,” or “I miss my mom.” In Michelle’s view, L.N. did not seem tentative or fearful to share his feelings, and he sought comfort from her. The court asked Michelle whether she thought L.N. was confiding in her when he made the disclosures about Father, and she answered affirmatively.

¶ 7 Kari told the court of a time when she found L.N. in a bedroom with S.N. She could hear L.N. “talking and giggling and laughing.” When she entered his room, she found him leaning over S.N. who was half-naked. L.N. then ran and hid in his closet. Kari asked L.N. what they were doing and L.N. told Kari that they were “playing the naked game.” Kari then changed S.N.’s diaper. The diaper was completely undone and only halfway -on. Kari found a mark on S.N.’s upper inner thigh. Kari asked S.N. how she got the “owie,” and S.N. told her that she got it “from the game.” Kari asked L.N. where he learned the game. L.N. answered, “My dad. We played it in the living room.” -Kari asked him how he felt when he played .that game, and he said, “Uncomfortable.”

¶ 8 At the close of trial, the court found, by clear and convincing evidence, that the children remained neglected and emotionally abused. Additionally, the court found, by a preponderance of the evidence, that L.N. had been a victim of sexual abuse at the hands of Father, and that DCFS’s findings of sexual and emotional abuse were substantiated. Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Father asserts that the trial court erred in permitting the CJC videotaped interview to be used to show the mental state of L.N., while denying Father the opportunity to use the videotape to demonstrate that L.N. did not understand the difference between reality and fantasy. “A trial court has broad discretion to admit or exclude evidence and its determination typically will only be disturbed if it constitutes an abuse of discretion.” In re S.A.K., 2003 UT App 87,¶ 9, 67 P.3d 1037 (quotations and citations omitted).

¶ 10 Father next contends that the trial court failed to analyze the unreliability of L.N.’s statements, due to L.N.’s incompetence, pursuant to Utah Rule of Evidence 403. “ ‘A trial court’s decision to admit evidence under rule 403 of the Utah Rules of Evidence is reviewed for an abuse of discretion.’ ” State v. Fedorowicz, 2002 UT 67,¶ 35, 52 P.3d 1194 (citation omitted).

¶ 11 Father also argues that Michelle’s testimony of what L.N. had told her was hearsay, and not admissible pursuant to Utah Code Annotated section 78-3a-116(5) (2002). “Application of statutory law to the facts presents a mixed question of fact and law. We review .the juvenile court’s findings for clear error and its conclusions of law for correctness, affording the court ‘some discretion in applying the law to the facts.’ ” In re G.B., 2002 UT App 270,¶ 11, 53 P.3d 963 (quoting In re C.B., 1999 UT App 293,¶ 5, 989 P.2d 76).

¶ 12 Finally, Father claims that the evidence was insufficient to substantiate him for sexual and emotional abuse by a preponderance of the evidence, and insufficient to support a finding, by clear and convincing evidence, that the children remained neglected and emotionally abused. Father “must mar-shall [sic] the evidence in support of the findings and then demonstrate that despite this evidence, the [juvenile] court’s findings are so lacking in support as to be against the clear weight of the evidence.” In re E.R., 2001 UT App 66,¶ 5, 21 P.3d 680 (alterations in original) (quotations and citations omitted).

ANALYSIS

I. The CJC Videotape

¶ 13 Father claims that the court erred when it prohibited him from using the videotape to elicit testimony regarding L.N.’s inability to distinguish between reality and fantasy. Additionally, Father claims this error was exacerbated when the court allowed the videotape to be admitted for purposes of demonstrating L.N.’s demeanor and state of mind. We find no merit to Father’s contention. Although the court did use the videotape to find L.N. unavailable as a witness, it is clear from the following remarks that the court agreed with Father:

When I viewed that videotape I felt like that we had just gotten started in trying to determine whether or not L.N. could tell the truth — tell the difference between the truth and a lie.
I’ve always used at least three or four hypothetical questions, but in this videotape the question was initiated and not followed through. I felt like I had to know more, because L.N. obviously was a little bit scatter brained, and I wanted more information. I wanted a more vigorous structure for questioning L.N.
So as far as that goes, I don’t think that would help me at all, because I don’t think that it was done in such a fashion that I could be confident in making the decision as to whether or not L.N. was telling the truth, knew the difference between truth and a lie, based on that initial part of the videotape. So I don’t think it’s relevant, and so I’m not going to admit it into evidence anyway.

¶ 14 Thus, Father’s claim on appeal that “[t]he court erred in prohibiting [him] from eliciting testimony regarding LN’s inability to differentiate between reality and fantasy, including prohibiting the use of the CJC videotape itself and testimony about the videotaped interview” is pointless. The court agreed with Father, and acknowledged the inadequacies of the interview and the inability of L.N. to distinguish between reality and fantasy.

II. Unreliability of L.N.’s Statements Due to Incompetence

¶ 15 In addition to the videotaped statements made by L.N., Father argues that all of L.N.’s statements are inadmissible because they are unreliable due to his incompetence. Father asserts that the court must determine whether L.N. is competent under rule 403 of the Utah Rules of Evidence before any of his statements can be admitted. “In the past, competency requirements served to ensure that the jury would not be exposed to unreliable testimony; now Rule 403 can be employed to serve a very similar function.” State v. Fulton, 742 P.2d 1208, 1218 (Utah 1987). According to Fulton, “the elements of competency outlined in our past ease law are not wholly irrelevant to a Rule 403 determination.” Id. at 1218 n. 15.

¶ 16 Father is correct that rule 403 is the appropriate avenue to be used by trial courts in determining a witness’s competence as well as whether the probative value of a witness’s testimony is “ ‘substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ” Fulton, 742 P.2d at 1218 (quoting Utah R. Evid. 403). However, the concerns expressed in rule 403 are primarily relevant to jury trials. In this case, the judge heard the evidence, ruled on its admissibility, and rendered a judgment based on the law and facts. As pointed out by Father, the issue is not whether the judge is more or less likely than a jury to be inflamed by the statements, but instead whether the statements were unreliable due to L.N.’s incompetence. We conclude, however, that the court properly considered the issue of L.N.’s competence by giving less weight to L.N.’s statements.

III. Statements Made to a Person in a Trust Relationship

¶ 17 The trial court also properly identified as an issue the definition of “trust relationship.” Utah Code Annotated section 78-3a-116(5) (2002) provides: “For the purpose of establishing the fact of abuse, neglect, or dependency, the court may, in its discretion, consider evidence of statements made by a minor under eight years of age to a person in a trust relationship.” Id. Neither the statute, nor case law, defines “trust relationship.” Father draws a distinction between a “relationship of trust” and a “position of trust.” He argues that, in order to be admissible, L.N.’s statements must have been made to a person that L.N. actually trusted. He further argues that, in order to have the requisite indicia of reliability, the “trust relationship” must exist when the statements were made. He contrasts this with statements made to a person who occupies a position of trust, objectively viewed, which may not carry a comparable indicia of reliability.

A. L.N.’s Statements to Shelter Mother, Michelle

¶ 18 With regard to Utah Code Annotated section 78-3a-116(5), the trial court made the following observations and ruling:

I think that this statute was probably put in place by the Legislature for a situation almost like this, where a child is in the care of someone in a trust relationship. When I look at a trust relationship in sort of an objective sense, initially that is parent/ehild, teacher/student, maybe Boy Scout leader and Boy Scout, but especially I think foster mother and child is by definition a trust relationship.
In fact, if I remember correctly, L.N. immediately became attached to the foster mother and did confide in her, simply by revealing what he stated. That would not be easy to do for a child unless he probably felt some trust.
I’m going to make a ruling that even with the short period of time, by living with that person for a couple of days and indicating his trust in that person by making the statement — so it’s kind of a circular argument, in fact — that based upon the statute I’m going to go ahead and make a finding that there was a trust relationship between the initial foster mother — I think her name was Michelle, wasn’t it? — and L.N.

¶ 19 Contrary to the trial court’s statement that “foster mother and child is by definition a trust relationship,” the statute requires more than simply the “position” of foster mother. In order for L.N.’s statements to satisfy the requirements of the statute, and to carry an indicia of reliability equal to those made “to a person in a trust relationship,” Utah Code Ann. § 78-3a-116(5), it must be demonstrated that L.N. in fact trusted Michelle, as well as that L.N. and Michelle were in a “trust relationship” when the statements were made. This, Father argues, cannot be shown under the facts of this case; that is, given that only a few days had elapsed between the time L.N. came to live with Michelle and the time he made some of the statements, a “trust relationship” could not have existed when L.N. made some of the statements. In this case, however, the court examined the nature of the relationship before determining that a trust relationship existed. The court found that L.N. immediately became attached to Michelle, and that L.N. was confiding in Michelle when he made the statements. Thus, the trial court did not err in finding that a trust relationship existed between L.N. and Michelle at the time L.N. made the statements to her about Father.

B. L.N.’s Statements to Intern Therapist, Ms. Coyne

¶20 The State sought to introduce statements made by L.N. to Ms. Coyne under rule 803(4) of the Utah Rules of Evidence, the hearsay exception covering “[sjtatements for purposes of medical diagnosis or treatment.” Utah R. Evid. 803(4). Father objected. After limited discussion of the issue, the court asked whether the statements could be admitted pursuant to the trust relationship statute. See Utah Code Ann. § 78-3a-116(5).

¶21 We do not reach the merits of Father’s contention that L.N.’s statements to Ms. Coyne do not qualify as hearsay exceptions either under rule 803(4), or under the trust relationship statute. Even without Ms. Coyne’s testimony, the testimony from Kari, Michelle, and Mr. Davis is sufficient to substantiate Father for sexual and emotional abuse. L.N. told Michelle that Father likes L.N. to be naked and that Father touches L.N.’s privdte parts. L.N. told Mr. Davis that Father touched him “with a stick” in the genital region, and that Father used his penis to touch L.N. in the “peepee area.” L.N. told Kari about a naked game that Father had taught him.

¶22 We do not analyze and address in ■writing the remaining issues Father raises on appeal because we have reviewed them and found them to be without merit. See Springville Citizens for a Better Cmty. v. The City of Springville, 1999 UT 25,¶ 20 n. 2, 979 P.2d 332; see also State v. Allen, 839 P.2d 291, 303 (Utah 1992) (permitting appellate courts to decline to analyze and address in writing every issue or claim raised).

CONCLUSION

¶ 23 The trial court did not err in substantiating Father for sexual and emotional abuse, and finding that L.N. and S.N. remained emotionally abused and neglected.

¶ 24 We therefore affirm.

¶ 25 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, Judges.

      . The order of protective supervision only extended to L.N. because S.N. had not yet been born.

      . The court properly noted that the sexual abuse findings were substantiated under the lower preponderance of the evidence standard, see Department of Human Servs. v. B.R., 2002 UT App 25,¶ 12, 42 P.3d 390, rather than the higher clear and convincing or proof beyond a reasonable doubt standards.

      . Specifically, the court made the following ruling:
      I've said the videotape is not reliable when the child makes statements that this person touched me or not, because of the child’s condition. He's obviously ... one of the more anxious and confused and disturbed children I’d ever seen in a videotape.
      Because of that situation I can’t allow to make a finding of fact that Dad or Mom committed abuse based upon his statement in the videotape. That videotape can surely be placed into evidence to show the child's emotional condition, obviously.
      Even if we were to assume that the court erred in admitting the videotape to show L.N.'s emotional condition, it appears from the record that the videotape was never offered for this purpose.
      MR. WALDRON [Guardian Ad Litem]: Well, the Court did allow the videotape for purposes of the demeanor of the children.
      THE COURT: Right. That's true, yeah.
      MR. WALDRON: And I think that the Court—
      THE COURT: Nobody's requested that [the videotape] be admitted into evidence during this hearing. I just indicated that I could — I could review the videotapes for that purpose, but nobody's requested that.

      . Among other things, Father objected to the admission of the statements under rule 803(4) of the Utah Rules of Evidence because Ms. Coyne was a graduate student at the University of Utah's Graduate School of Social Work and an intern working under the supervision of a licensed therapist.