Volume 3 - Opinions of Counsel SBEA No. 117
Taxes (refund) (judicial review) (assessor’s duties) - Real Property Tax Law, § 726:
Where a court order reducing an assessment is made subsequent to the imposition of any tax or special ad valorem levy on real property, refunds are required to be audited and paid by the unit of government which made the levy and tax refund petitions should be returned to the county attorney for processing by the county treasurer. The assessor does not audit and pay refunds of taxes.
Our opinion has been requested as to whether it is the responsibility of the assessor to determine and certify to the county treasurer the tax refund payable to a property owner who obtained a reduction in the assessment of his real property as a result of a judicial proceeding commenced pursuant to Article 7 of the Real Property Tax Law.
The primary responsibility of the assessor is to ascertain all real property located within his assessing unit, determine the taxable status thereof, place a value thereon, and make the appropriate entries upon the assessment roll. In making such entries, the assessor indicates the school district and special districts in which each separately assessed parcel of real property is located. After making such changes as may be directed by the board of assessment review, the assessor files the assessment roll with the clerk of the board of supervisors.
The assessor is not involved in the levy, extension, collection or enforcement of local real property taxes.
Taxes are levied and extended by the county board of supervisors (Real Property Tax Law, § 900) and upon the annexation of the warrant, the assessment roll becomes the tax roll (Real Property Tax Law, § 904). The tax roll and warrant is delivered to the collecting officer (Real Property Tax Law, § 920) who collects the taxes until such time as he is required to make his return of unpaid taxes to the county treasurer (Real Property Tax Law, § 936) and the county treasurer is responsible for the enforcement of delinquent taxes (Real Property Tax Law, §§ 1000 et seq.).
Clearly, pursuant to section 726 of the Real Property Tax Law, where an order reducing an assessment is made subsequent to the imposition of any tax or special ad valorem levy upon the real property in question, refunds are required to be audited and paid by the unit of government which made the levy and provision is made for charging back so much of such refund which was imposed for other units of government.
Paragraph 4 of the order in question provides:
4.The officer or officers having custody of the assessment rolls or tax rolls upon which the above-mentioned assessment, and any taxes levied thereon are entered, shall forthwith correct the said entries and shall note upon the margin of said rolls opposite said entry that the same have been corrected.
Since this order was made subsequent to the levy of taxes, the correction of such entries must be made by the county treasurer since he is the officer having custody of the tax roll upon which such entries were made.
Paragraph 5 of the order in question provides:
5. There shall be audited and allowed to the petitioner, and paid to the petitioner, or to any other person or persons who shall have paid the taxes upon such erroneous and excessive assessments, the amounts, if any, paid in excess of what the tax would have been if the assessment had been as herein agreed and stipulated, without interest thereon.
The assessor does not audit and pay refunds of taxes. Indeed, subdivision 3 of section 726 of the Real Property Tax Law specifically provides, in part, “Application for the audit and payment of a tax or other levy made upon an assessment determined upon final order to be illegal, erroneous or unequal must be made to the proper fiscal officer or body . . .”. The county treasurer is in possession of all of the information which is required in order to determine the excess of what the taxes in question would have been if the assessment had been in the reduced amount. The assessor is not in possession of such information and, in any event, has no authority to make the audit which has been requested.
Accordingly, the tax refund petitions should be returned to the county attorney for processing by the county treasurer.
November 8, 1973
