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Volume 10 - Opinions of Counsel SBRPS No. 91

Opinions of Counsel index

Taxes, payment (interest and penalties) (private delivery service) - Real Property Tax Law § 924,925:

Interest and penalties may not be canceled on a tax payment which was never received by the collecting officer, even if there is some evidence that the payment may have been delivered by a private delivery service to a town employee other than the collecting officer.

We have been asked whether it is permissible to cancel interest and penalties on a tax payment that was allegedly delivered by a private delivery service (e.g., Federal Express, United Parcel Service) to a town employee, but was never received by the town collecting officer, and was included on the ensuing return of unpaid taxes.

The facts recited to us are as follows: On February 5, 1998, the delivery service apparently attempted to deliver an envelope to the collecting officer at town hall. The collecting officer was not present at the time, {1} and a town employee who is not part of the staff of the collector’s office accepted and signed for the delivery in her stead. The sender of this envelope {2} claims that it contained a check for the taxes that were then due, and has prepared an affidavit to that effect. The town reportedly has a “policy” that “permits employees other than the addressee to sign for deliverables when the addressee is not available.”

Unfortunately, this particular “deliverable” never found its way to the collecting officer, and its whereabouts remain unknown. The check supposedly contained therein was never negotiated. Meanwhile, the property was included on the return of unpaid taxes, and interest and penalties continued to accrue. A number of delinquency notices were reportedly mailed to the owner, but did not elicit a response. The owner or its agent has indicated that it may now be willing to pay the total amount due, provided that the interest and penalties accruing after February 5, 1998 {3} are canceled and refunded to it shortly thereafter. The question is whether this would be permissible under the circumstances. We think not.

The collecting officer is the only party who is authorized to accept tax payments during the normal collection period prescribed by law (Real Property Tax Law, §§102(5), 904), subject to a few narrow (and, given the facts herein, seemingly irrelevant) exceptions. {4}  The public has at least constructive notice of the days and times during which the collecting officer is present to receive tax payments (RPTL, §§920(2), 924(1)). The law requires interest - and eventually, penalties - to be imposed on all taxes not received by the collecting officer during the interest-free collection period prescribed by law (RPTL, §§924(2), 924-a(1)). The only exception is that a tax payment mailed via the United States Postal Service in an envelope which is properly addressed to the collecting officer, and which bears a timely postmark, is deemed to have been received on the date of the postmark (RPTL, §925). That exception would not apply here even if the envelope could be found, because a private delivery service was used. {5}

If someone other than the collecting officer purported to accept a tax payment, that action was ultra vires and cannot be binding upon the town or its collecting officer. It is the responsibility of the property owner to ensure that his or her payment is actually received by the collecting officer. If the property owner chooses to act through an agent, he or she accepts the risk of imperfect performance by that agent. As the State Comptroller has stated in a related context:

A taxpayer has the options available to him of paying his taxes personally to the collecting officer or of sending his tax payment to the collecting officer through the mail or by other means of delivery. If he sends the tax payment through the mail, he has selected the U.S. Post Office to act as his agent for the delivery of his payment, just as if he selected any other third party to make the delivery, and is responsible for any interest penalties that accrue by reason of lateness of payment arising from his agent’s delay in delivery (Op.State Compt. No. 78-829).

The same reasoning would apply where the taxpayer’s agent has delivered the payment to someone other than the collecting officer. To ensure that the payment is properly delivered, the taxpayer should instruct the delivery agent to deliver the payment only to the collecting officer. If the taxpayer fails to do so, or if the delivery agent will not agree to such a restriction, {6} the taxpayer effectively accepts the risk that the payment may be delivered to someone other than the collecting officer, with the attendant consequences.

Perhaps the town may have contributed to the current problem to the extent that it allowed the employee in question to accept tax payments. However, the Real Property Tax Law does not authorize the cancellation of interest or penalties under such circumstances. The remedy of the taxpayer, if any, would be to pay the taxes due with all applicable interest and penalties, and to bring legal action against the town seeking recovery of the amount in dispute. However, any such claim would seem to be in the nature of estoppel, which does not generally lie against governmental entities (see, e.g., 57 N.Y.Jur.2d, “Estoppel, Ratification and Waiver,” §68, and cases cited therein). Accordingly, the prospects for success in such an action seem remote, at best. {7}

June 21, 1999

NOTE:  Construes law prior to L.2002, c. 568.


{1}  The tax bill apparently listed several dates during February on which the tax collector would be in town hall to accept tax payments; February 5 was not among them.

{2}  The sender apparently was not the property owner, but rather was a company that submitted payment on behalf of the owner in some capacity.

{3}  There apparently is no dispute that the property would be liable for one percent interest for the portion of February during which the tax remained unpaid, since the alleged payment occurred on February 5, 1998, several days after the end of the applicable interest-free period (RPTL, §924-a).

{4}  Taxes may also be collected during the interest-free period by a duly designated deputy tax collector or deputy tax receiver (Town Law, §§20(3)(c), 35(2)), by the town clerk in certain towns (Town Law, §36), by a duly authorized bank (RPTL, §996), and, in certain cases, by the county treasurer (RPTL, §930). There is nothing in this inquiry to suggest that any of these exceptions might apply, so, for purposes of this opinion, we assume that none of them do.

{5}  Contrast section 691(a)(2)(A) of the Tax Law, which specifically provides for the use of designated private delivery services to deliver income tax returns under certain circumstances. There is no comparable provision in the RPTL.

{6}  We understand that the private delivery service used here does not offer “restricted delivery” service.

{7}  We express no opinion herein as to whether the property owner may have a remedy against the delivery service for recovery of any or all of the penalties or interest.

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