Volume 10 - Opinions of Counsel SBRPS No. 89
Assessment review (stipulation) (failure to ratify-judicial review) - Real Property Tax Law, §§ 525, 706, 730:
Where an assessment stipulation is not ratified, the taxpayer may seek judicial review pursuant to Article 78 of the Civil Practice Law and Rules or Article 7 of the Real Property Tax Law.
We have been asked whether a property owner, who has entered into an assessment stipulation with his or her assessor, may seek judicial review pursuant to Article 7 of the Real Property Tax Law, if the board of assessment review fails to ratify the stipulation. The correspondent is aware that the taxpayer may seek judicial review pursuant to Article 78 of the Civil Practice Law and Rules, but wishes to know if tax certiorari (RPTL, Art 7, title 1) and small claims assessment review (RPTL, Art. 7, title 1-A) are also available. We believe so.
In 10 Op.Counsel SBRPS No. 37, we discussed the stipulation procedure (added L.1996, c.541) and concluded that if a board of assessment review refuses to ratify a stipulation, the board may be:
sued in a mandamus proceeding for rejecting a stipulation [brought by the taxpayer or assessor where] the board will then have an opportunity to explain its rationale to the judge. Note that the issue in such proceeding would not be whether the stipulated value is appropriate; the issue would be whether the board of assessment review “failed to perform a duty enjoined upon it by law” (Civil Practice Law and Rules, § 7803(1)).
This is not to say, however, that Article 78 is the exclusive remedy available to the taxpayer when a board of assessment review fails to ratify his or her stipulation. As we also noted in our prior opinion, section 524(3) now concludes, “Where such stipulated assessed value is entered on the final assessment roll, no review of the assessment shall be allowed pursuant to article seven of this chapter.” Since an assessor may only change the tentative assessment roll in accordance with the verified list of changes submitted by the board of assessment review (see, RPTL, §§ 526(5), 525(4), 514), if that board fails to ratify a stipulation and enter it on such list, the assessor cannot enter the stipulated assessed value onto the final roll and the provision of section 524(3) foreclosing judicial review pursuant to Article 7 of the RPTL is not triggered. While it is true that a taxpayer must exhaust his or her administrative remedy by petitioning the board of assessment review before judicial review may be sought (RPTL, §§ 706(2), 730(1)(a)), we believe that the ill-fated attempt at the stipulation satisfies this prerequisite to judicial review.
Accordingly, where an assessment stipulation is not ratified, in our opinion, the taxpayer may seek judicial review pursuant to Article 78 of the CPLR or Article 7 of the RPTL. In many cases, especially where the taxpayer is not eligible for the simplified small claims assessment review procedure, note that there may be advantages to the Article 78 procedure over that of Article 7 (e.g., longer statute of limitation, lesser burden in presenting a prima facie case).
July 16, 1999
