Volume 10 - Opinions of Counsel SBRPS No. 80
Assessment review, Board of (powers and duties) (late, defective and insufficient complaints - dismissal) - Real Property Tax Law, §§ 524, 525:
It is lawful for a Board of Assessment Review (1) to dismiss a defective complaint when the taxpayer is notified but fails to cure the defect, and (2) to demand certain documents and then to dismiss the complaint if the documents are not produced, provided the demands are reasonable.
To obtain a hearing before the board of assessment review [BAR], a property owner must file the State Board-prescribed complaint form (RP-524) on or before Grievance Day. The completed form must include:
a statement specifying the respect in which the assessment is excessive, unequal or unlawful, or the respect in which real property is misclassified, and the reduction in assessed valuation or taxable assessed valuation or change in class designation or allocation of assessed valuation sought. *** Such statement must be made by the person whose property is assessed, or by some person authorized in writing by the complainant or his officer or agent to make such statement who has knowledge of the facts stated therein . . . (RPTL, § 524(3)).
We have been asked how BAR should best respond to late, incomplete, or even misleading assessment complaints filed with them, frequently by firms (attorney or non-attorney) specializing in assessment challenges. {1} It is alleged that some representatives treat the board of assessment review in a cursory fashion, preferring to obtain relief for their clients in a subsequent judicial proceeding.
Some BAR have sought to deal with such complaints by dismissing as many as possible on technical grounds. When a BAR dismisses a complaint, never considering its merits, this is equivalent to no complaint having been filed, provided the dismissal is justified. That is, following a justified dismissal, no judicial review is available pursuant to Article 7 of the Real Property Tax Law. {2} In contrast, when a BAR denies a requested reduction in assessment or grants only part of it, subsequent judicial review is available.
We believe that the board of assessment review must carefully distinguish between deciding to dismiss a complaint (thereby foreclosing subsequent judicial review) and denying the same (thereby preserving the right to judicial review). The New York Court of Appeals has consistently held that “because the Real Property Tax Law relating to assessment review proceedings is remedial in character, it should be construed in such a way that the taxpayer’s right to have his assessment reviewed and the appropriate relief granted should not be defeated by a pleading technicality” (W.T. Grant Co. v. Sroqi, 52 N.Y.2d 496, 420 N.E.2d 953, 438 N.Y.S.2d 761, 769 (1981); see also, Great Eastern Mall v. Condon, 36 N.Y.2d 544, 330 N.E.2d 628, 369 N.Y.S.2d 672, 675 (1975) and Application of Batavia Enterprises, 72 A.D.2d 912, 422 N.Y.S.2d 191 (4th Dept. 1979)). While these decisions address judicial review, their tenor applies to administrative review as well.
Late complaints
Complaints may be filed with the assessor at any time prior to the BAR hearing or with the BAR at such hearing, but they may not be submitted at an adjourned hearing of the BAR (RPTL, § 524(1)). {3} An assessment complaint submitted after Grievance Day should be returned, since the BAR has no jurisdiction to consider untimely complaints. Technically, a late complaint is not dismissed; rather, the attempt to file was not effective. Nevertheless, the return of an untimely complaint has the same effect as a dismissal: no judicial review will be possible.
Defective complaints
Dismissal of a complaint may result from failure to satisfy the minimum requirements. A complaint is defective if it lacks one or more of the necessary elements (e.g., the complainant’s signature is missing), even though it was submitted on the proper form and in a timely fashion.
If the BAR acts on the complaint, the defect is waived for assessment review purposes under both Article 5 and Article 7 of the RPTL (City of Little Falls v. Board of Assessors, 68 A.D.2d 734, 418 N.Y.S.2d 809 (4th Dept. 1979); Henderson v. Silco, 36 A.D.2d 439, 321 N.Y.S.2d 313 (4th Dept. 1971); Extrom v. Town of Skaneateles, 112 A.D.2d 35, 490 N.Y.S.2d 942 (4th Dept. 1985); 9 Op.Counsel SBEA No. 15). {4}
Such a defect may be cured by a further submission (Astoria Fed. Sav. & Loan Ass’n v. Board of Assessors, 212 A.D.2d 600, 622 N.Y.S.2d 551 (2d Dept. 1995); Divi Hotels Mktq. v. Board of Assessors, 207 A.D.2d 580,615 N.Y.S.2d 496 (3d Dept. 1994); Rotblit v. Board of Assessors, 121 A.D.2d 727, 504 N.Y.S.2d 61 (2d Dept. 1986)). The courts “have ruled in general that if a complaint . . . has been timely filed with the Review Board, that gives jurisdiction, and that other requirements are procedural and may be supplied by amendment or may be deemed waived by action of the Board” (Raer Corp. v. Village Bd. of Trustees, 78 A.D.2d 989, 433 N.Y.S.2d 926, 927 (4th Dept. 1980), mot. for lv. to app. dsmd, 53 N.Y.2d 677, 421 N.E.2d 123, 438 N.Y.S.2d 1003 (1981)). The Court of Appeals has held that amendment of an assessment complaint is permitted “if the change corrects a defect in form rather than adds a matter of substance because the taxpayer’s right to review should not be defeated by technicalities” (Sterlinq Estates v. Board of Assessors, 66 N.Y.2d 122, 127, 485 N.E.2d 993, 495 N.Y.S.2d 328, 331 (1985), mot. for rearg. den., 66 N.Y.2d 1036, 489 N.E.2d 1304, 499 N.Y.S.2d 1031 (1985); Miller v. Board of Assessors, 91 N.Y.2d 82, 689 N.E.2d 906, 666 N.Y.S.2d 1012 (1997)).
In our opinion, the BAR may not dismiss a defective complaint without giving the property owner (or his or her representative) a reasonable opportunity to correct the defect (see, Tennanah Lake Townhouse and Villa Community, Inc. v. Town of Fremont, 168 A.D.2d 789, 563 N.Y.S.2d 933 (3d Dept. 1990); Mendick v. Sterling, 83 A.D.2d 749, 443 N.Y.S.2d 508 (4th Dept. 1981)). If the complainant is notified of the defect but fails to correct it in a timely fashion, then the BAR has justification to dismiss the complaint. As long as the complaint is filed on time, the deadline for submitting a correction may be after Grievance Day.
Insufficient complaints
Sometimes, a complaint may not be defective but may seem insufficient to the BAR.
If not satisfied that such assessment is excessive, unequal or unlawful, or that real property is misclassified, the board may require the person whose real property is assessed, or his or her agent or representative, or any other person, to appear before the board and be examined concerning such complaint, and to produce any papers relating to such assessment. If the person whose real property is assessed, or his or her agent or representative, shall willfully neglect or refuse to attend and be so examined, or to answer any question put to him or her relevant to the complaint or assessment, such person shall not be entitled to any reduction of the assessment subject to the complaint (RPTL, § 525(2)(a)).
Since the creation of BAR in 1970 (c.957), the courts have had to interpret the term “willfully” in this context. The taxpayer can be required to produce only information that is relevant to the assessment, but who decides what is relevant? Although the burden is upon the complainant to show that the assessment is incorrect, the BAR decides “what information is material to the proceeding.” If the BAR’s questions “are reasonably necessary and material to determining issues of tax exposure or assessed value for the property, they are proper” (Grossman v. Board of Trustees, 44 A.D.2d 259, 354 N.Y.S.2d 188, 193-94 (4th Dept. 1974)). Thus the BAR may formulate its demands, subject only to judicial review.
Failure to respond to the BAR’s request for additional information concerning the property has in the past been considered sufficient evidence of “willfulness” (Jakubovitz v. Dworschak, 67 A.D.2d 977, 413 N.Y.S.2d 444, 445 (2d Dept. 1979); Spencer v. Mullen, 84 A.D.2d 790, 444 N.Y.S.2d 22 (2d Dept. 1981)). More recently, however, the Appellate Division ruled that dismissal is appropriate only if there is evidence in the record “that the petitioner’s nonappearance or failure to submit information was willful” (Doubleday v. Board of Assessors, 202 A.D.2d 424, 608 N.Y.S.2d 699, 700-701 (2d Dept. 1994), mot. for lv. to app. dsmd., 83 N.Y.2d 906, 637 N.E.2d 279, 614 N.Y.S.2d 388 (1994)). {5} Furthermore, where “a genuine issue existed as to the relevancy and propriety of the documents requested,” failure to respond was not considered willful (Niagara Mohawk Power Corp. v. Town of Clifton, Real Prop. Tax Admin. Rep., April 1995 at 55 (Sup.Ct. St. Lawrence Co., Nov. 14, 1994)).
However, as noted in Review and Reduction of Real Property Assessments in New York, Lee & Leforestier 3d Edition, § 2.10, the courts have been somewhat reluctant to dismiss petitions based on a failure to appear and answer questions at the demand of the board of assessment review. The key issue is whether the questions asked and not answered are material to the issue (New York ex rel. Irving Savings Bank v. Howes, 266 A.D. 1024, 44 N.Y.S.2d 818 (2d Dept. 1943)).
Most recently, the Court of Appeals has stated:
Second, RPTL 525(2) precludes an adjustment only if failure to disclose the requisite information to the Board is willful. Courts have therefore refused to dismiss judicial challenges to realty assessments absent proof that noncompliance was occasioned by a desire to frustrate administrative review [citations omitted] (Fifth Ave. Office Center v. Mount Vernon, 89 N.Y.2d 735, 741-42, 680 N.E.2d 590, 658 N.Y.S.2d 217, 220 (1997)).
BAR response
In our opinion, it is certainly reasonable for a BAR to demand that a complainant or complainant’s representative explain incomplete or confusing complaint forms. For example, while there is nothing inherently wrong in presenting alternative theories for an assessment reduction, it would be wrong to knowingly submit false statements (e.g., claiming that property clearly located within the assessing unit boundaries is located outside such boundaries). If a complainant or complainant’s representative refuses the opportunity to correct the submission and to provide such clarification, this might well constitute a willful failure to cooperate justifying dismissal of a complaint and the resultant preclusion of judicial review.
On the other hand, in recent years, the evidentiary demands of some boards of assessment review have escalated sharply. Faced with an increased number of assessment complaints, some boards have responded with letters demanding additional documentation from all complainants. In some cases, the taxpayer has been told to appear personally, not by a representative. {6} The tone of these letters is often legalistic and forbidding. The list of documents demanded varies, but may include deeds, closing statements, statements relating to mortgages and loans, appraisals, surveys, statements of the nature and cost of improvements, fire insurance policies, photographs, leases, and records of income and expenses for income-producing property. {7} A time period, often brief, is specified for submitting the documents. If a document is unavailable, the letter typically does not advise the complainant to state that fact. Rather, the implication is that the complaint will be dismissed if the property owner cannot produce all of the items listed before the deadline.
In our opinion, the same standard of reasonableness applies to the actions of the BAR as to any governmental officer or agency. The BAR may not place unjustifiable stumbling blocks before those who seek assessment review. The demands made may not be unduly burdensome. For example, we have concluded that a BAR cannot require a homeowner to obtain an appraisal as a condition precedent to seeking an assessment reduction (8 Op.Counsel SBEA No. 83). Similarly, while photographs of the subject property may be useful evidence, a demand for the same may unduly burden some taxpayers.
The BAR may not deliberately discourage taxpayers from exercising their right to designate a representative and to seek reductions in their assessments. Letters requesting additional documentation should make clear that the taxpayer is not expected to produce documents which are not readily available or which are not relevant to determining the value of the property in question. To be effective, taxpayer representatives may have to anticipate the BAR’s demands and collect copies of relevant documents in advance.
Finally, it is important to place the “problem” of increased numbers of grievances in its proper perspective. We note that in several of the assessing units which have experienced an increasing volume of complaints, no general reassessment has occurred for many years. This factor, along with higher levels of municipal spending and the marketing activities of assessment reduction firms, helps to explain the increase. The administrative and judicial review process is not designed to correct major inequities and is not an alternative to conducting a revaluation program. While a long delayed revaluation may cause a temporary increase in the number of grievances, experience shows that this number is soon diminished if an equitable revaluation is followed by regular updates.
To summarize, in our opinion, it is lawful for a board of assessment review (1) to dismiss a defective complaint, when the taxpayer (or taxpayer’s representative) is notified but fails to cure the defect; and (2) to demand certain documents and then to dismiss the complaint if the documents are not produced, provided the demands are reasonable.
December 26, 1995
Revised May 5, 1999
{1} For example, in some cases, the filed form presents but the barest evidence for reduction. At the other extreme, each and every ground for complaint (RPTL, § 524(2), § 522(4), (6), (9) and (10)) is alleged.
{2} That is, a petition to commence a tax certiorari or small claims assessment review proceeding must show that the complainant exhausted his or her rights to administrative review of the assessment by filing a complaint with the BAR (RPTL, §§ 706(2), 730(1)(a), respectively).
{3} At one time complaints could be filed at adjourned hearings (see, 7 Op.Counsel SBEA No. 61). This practice was ended by chapter 662 of the Laws of 1991 (see, 9 id. No. 53).
{4} Waivers to jurisdictional defects occurred even before the creation of the BAR (see, People ex rel. Irving Trust Co. v. Miller, 264 App.Div. 270, 37 N.Y.S.2d 266 (1st Dept. 1942) construing Tax Law, § 27, a predecessor to section RPTL, § 525).
{5} Indeed, the Second Department has often reviewed the record in considering dismissal motions (e.g., Hyacinthe v. Glaser, 104 A.D.2d 651, 480 N.Y.S.2d 30 (2d Dept. 1984); Doubleday & Co.,Inc. v. Board of Assessors of Village of Garden City, 202 A.D.2d 424, 608 N.Y.S.2d 699 (2d Dept. 1994), lv. to app. den., 83 N.Y.2d 906, 637 N.E.2d 279, 614 N.Y.S.2d 388 (1994); and Lynch v. Board of Assessors of Town of Riverhead, 227 A.D.2d 486, 642 N.Y.S.2d 930 (2d Dept. 1996), where the record failed to justify dismissal, as contrasted with Fox Meadow Partners, Ltd. v. Board of Assessment Review, Town of LaGrange, 227 A.D.2d 400, 642 N.Y.S.2d 68 (2d Dept. 1996); Town of Babylon v. Fred N. Perry, 230 A.D.2d 802, 646 N.Y.S.2d 623 (2d Dept. 1996); and Sarsfield v. Board of Assessors of Town of Islip, 240 A.D.2d 506, 659 N.Y.S.2d 773 (2d Dept. 1997), where the record supported dismissal).
{6} This is clearly wrong. Taxpayers may choose to designate a representative to present their complaints (RPTL, §§ 524(3), 525(2)(a); 9 Op.Counsel SBEA No.63; 10 Op.Counsel SBRPS No. 53)), and a taxpayer represented by a consultant has the same rights as a taxpayer representing himself. There is no authority for a board of assessment review to treat complaints presented by taxpayer representatives differently from those presented by taxpayers themselves. The representatives are responsible for meeting the board’s demands; if a complaint is dismissed by a representative’s willful failure to comply with the BAR, the representative will be answerable to his or her client/customer.
{7} For a discussion of the ability of an assessing unit to require income and expense statements, see 9 Op.Counsel SBEA No. 7; but see also, Fifth Ave. Office Center v. Mount Vernon, 89 N.Y.2d 735, 680 N.E.2d 590, 658 N.Y.S.2d 217 (1997).
