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Volume 1 - Opinions of Counsel SBEA No. 114

Opinions of Counsel index

Correction of errors (failure to remove exemption) - Real Property Tax Law, § 554:

Taxes which were not levied for prior years because of an erroneous continuation of a veteran’s exemption cannot be retroactively collected under any existing provisions of the Real Property Tax Law.

We have received an inquiry as to whether there is any procedure available for recovery of past taxes in a situation where a veteran’s. exemption was erroneously continued on property owned by a veteran’s widow who had remarried and thus ceased to be eligible for the exemption.

In reviewing the pertinent sections of the Real Property Tax Law relating to the correction of errors appearing on assessment rolls, it appears that no authority exists for the recovery of taxes which were not levied in prior years due to the erroneous continuation of a partial exemption. The circumstances do not fall under the statutory provisions relating to omitted assessments since the property was apparently assessed in each year and listed on the assessment roll (see section 550 and paragraphs (c) and (d) of subdivision 1 of section 554 of the Real Property Tax Law). The error did not arise as a result of a mistake in copying or transcribing from a field book or record card (see paragraphs (a) and (b) of subdivision 1 of section 554 of the Real Property Tax Law).

The failure to remove a partial exemption from the assessment roll upon the disqualification of the owner does not constitute an illegal or erroneous assessment since the question of the power of the assessor to take some action within his jurisdiction or the question of the exercise of his judgment in establishing the annual assessment of the property is not raised (see subdivisions 3 and 5 of section 556 of the Real Property Tax Law). Accordingly, the failure of the assessor to remove the exemption from the assessment roll does not constitute an error of law or fact subject to correction.

It should also be noted that the provisions of section 558 of the Real Property Tax Law, relating to the reassessment of real property erroneously or illegally assessed, do not apply because of the absence of an illegal or erroneous assessment.

Accordingly, it is our opinion that taxes which were not levied for prior years because of an erroneous continuation of a veterans’ exemption cannot be retroactively collected under any existing provisions of the Real Property Tax Law.

April 21, 1972

NOTE:  Construes law prior to L.1974, c.177 and L. 2002, c.616.

Updated: