Volume 10 - Opinions of Counsel SBRPS No. 77
Assessments, generally (parcel) (split by special district boundary line); Correction of errors (error in essential fact) (incorrect apportionment of parcel split by special district boundary line) - Real Property Tax Law, §§ 102(11), 504, 550:
An assessor is required to apportion a parcel split by a special district boundary line, and a taxpayer may challenge that apportionment through the usual “grievance” procedures of Articles 5 and 7 of the Real Property Tax Law. An error in such apportionment does not constitute a “clerical error,” “unlawful entry” or “omission” as those terms are defined in section 550 of the RPTL, but, in certain circumstances, may constitute an “error in essential fact” as defined in such section.
We have been asked whether a taxpayer is entitled to an administrative refund of taxes (per Real Property Tax Law, § 556) for fire district charges he paid. The taxpayer owns a 27-acre tract which is split by a fire district boundary line. The northern portion of the property, which includes his house, is in District #1; the southern portion is in District #2. The taxpayer’s property was listed on the 1996-98 assessment rolls as being exclusively in District #2. The taxpayer brought the matter to the assessor’s attention and for purposes of the 1999 assessment roll, the assessor has apportioned the parcel’s $323,500 assessment between the two districts: $300,000 in District #1; $23,500 in District #2. Using the apportionment figures, the taxpayer is seeking a refund of 1997-99 fire district charges based on the lower tax rate applicable in District #1.
We are asked if it is appropriate for the assessor to “allocate” the parcel’s assessed value between the districts. In our opinion, such allocation (or apportionment) is required by section 504(2)(a) of the Real Property Tax Law: “where a parcel separately assessed for general municipal purposes lies partly within a special district the portion within such special district shall be separately assessed for special district purposes.” This provision was amended by chapter 347 of the Laws of 1986 and is explained in that bill’s sponsor’s memorandum: “Therefore the law should be amended to require separate parcel (lot) descriptions and assessments of properties bisected by county, city, town, village or school district lines [see RPTL, § 102(11)] and to allow apportioning of an assessment for special district purposes of a property bisected by a special district boundary line” (1986 NYS Legislative Annual, p.182).
Such apportionment is essentially a valuation procedure. That is, if a taxpayer is dissatisfied with the apportionment made for a particular special district, this is a matter which is subject to the regular administrative and judicial assessment review processes of Article 5 (title 1-A) and Article 7 of the RPTL. {1} So, in this case, the taxpayer could have challenged the assessor’s failure to apportion his assessment by protesting in a timely manner to the town board of assessment review. Since the dates to protest the tentative 1996, 1997 and 1998 assessment rolls have all long since passed, those remedies are no longer available.
As this is a valuation issue, it is unlikely that the facts submitted constitute a correctable error justifying a refund pursuant to section 556 of the RPTL. That is, before any administrative refund may be authorized pursuant to section 556, the alleged facts must fit within one of the definitions of “clerical error,” “error in essential fact,” or “unlawful entry” as defined in section 550 of the RPTL (subds. 2, 3 and 7, respectively). A perusal of those definitions indicates that the definition closest to the facts herein is an “unlawful entry” as defined in section 550(7)(b): “an entry on an assessment roll or a tax roll, or both, of the assessed valuation of real property which is entirely outside the boundaries of the . . . special district in which the real property is designated as being located” (emphasis added). Here, only a portion of the property (albeit the more valuable portion) of the property is located outside District #2 so the definition is inapposite.
The rationale for the inapplicability of section 550(7)(b) to situations such as that here is explained in 5 Op.Counsel SBEA No. 61. We noted therein that this definition was intended to apply only to questions of jurisdiction, not valuation. In that opinion, however, we also note that the definition of “error in essential fact” in section 550(3)(c) may apply if incorrect acreage (as proven in a survey) was considered by the assessor in valuing the parcel. Note that if the facts herein support a finding of the occurrence of an error in essential fact, a refund based upon such an error may be granted, but for only one year (RPTL, § 556(1)(a)).
Finally, we note that the omission provisions of section 551 or 553 cannot be used to charge the parcel for District #1 purposes for prior years. {2} The definition of “omission” includes “taxable real property for which no . . . special district tax was levied because of a failure to include the property within the appropriate taxing district” (RPTL, § 550(4-a); emphasis added). Here, of course, a special district tax was levied, albeit (mostly) for the wrong district.
March 30, 1999
{1} While none of the definitions of the grounds for administrative and judicial review (RPTL, §§ 522, 701) specifically refer to a challenge to apportionment of special district charges, due process of law guarantees require that a taxpayer have a right to review the assessor’s action. Accordingly, we read the definition of “unequal assessment” (RPTL, § 522(9), 701(8)) to include such an apportionment challenge (i.e., a challenge to the fairness of the assessed value of each portion of the parcel).
{2} We do note that section 556(1)(b) authorizes the omission procedure to be used when a refund is paid for an error as defined in section 556(7)(b), but, as noted above, the facts herein do not satisfy that definition.
