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Volume 11 - Opinions of Counsel SBRPS No. 122

Opinions of Counsel index

Assessment review (tax certiorari proceeding) (refund - resolution); Assessment review, board of (implementation of decision - resolution); Assessment review, small claims (refund - resolution); Correction of errors (tentative assessment roll) (final assessment roll) (resolution) - Real Property Tax Law, §§ 525, 554, 556, 726, 734:

No municipal governing board resolution is necessary to implement a board of assessment review determination on an assessment complaint or an assessor’s petition to correct an administrative error. Similarly, no resolution is necessary to implement a determination made in a tax certiorari or small claims assessment review proceeding.

A resolution of a municipal governing board that is a tax levying body is necessary to implement a county director’s recommendation to issue a corrected tax bill or a refund/credit of taxes. No resolution is necessary by a non-tax levying body governing board which implements the tax levying body’s determination.

Our opinion has been requested as to the necessity for the adoption of municipal governing board resolutions in conjunction with various aspects of real property tax administration: administrative and judicial review of assessments as well as administrative correction of errors on assessment and tax rolls. Even if a resolution is not required at one or more stages in the process, we’re asked if one is recommended.

In our opinion, no resolution is needed for purposes of implementing a board of assessment review determination made after grievance day or upon submission of an assessor’s petition to correct the tentative or final assessment roll.

Section 525(4) of the Real Property Tax Law provides that the board of assessment review is to “prepare and verify a statement showing the changes determined to be made by them in the assessments” and to deliver it “to the assessor on or before the date required by law for the final completion of the assessment roll. . . .” It then becomes the assessor’s duty to “make the changes in assessments on the assessment roll in accordance with such verified statement” (RPTL, § 526(5)). The assessor then files the verified statement with the final assessment roll (ibid.).

When an assessor successfully petitions the board of assessment review to correct an error on the tentative assessment roll, the changes ordered by that board “shall be effected in the manner prescribed by sections [525] and [526]” (RPTL, § 552(3)).

Similarly, when an assessor successfully petitions the board of assessment review to correct an error on the final assessment roll, the board’s verified statement of changes is to be “delivered to the appropriate tax levying body” with a copy to the assessor who files it with the final roll (RPTL, § 553(3)(c)). The tax levying body is then obliged “prior to the extension of taxes and annexation of the warrant” to implement those changes and notify the owner affected by the correction (§ 553(4)).

The municipal governing board is not directly involved in the grievance process or in corrections to the tentative assessment roll (except insofar as the governing board may appoint the assessor and board of assessment review). As to administrative corrections to the final assessment roll, even where the governing board is the tax levying body, its role is ministerial; it has no discretion but to implement the board of assessment review’s determinations. Consequently, no governing board resolution seems necessary or appropriate at these stages of the assessment process.

Insofar as judicial review of assessments is concerned, where a tax certiorari proceeding (RPTL, Art. 7, title 1) is successfully pursued by a taxpayer, the court will issue an order finding the assessment to be “excessive, unequal or unlawful, or that real property is misclassified” (RPTL, §§ 706(1), 720(1)). Section 726 prescribes the procedure for the refund of taxes and, again, no discretion is given to municipal officials. {1}

The provisions applicable to small claims assessment review (RPTL, Art. 7, title 1-A) are comparable (RPTL, §§ 733, 734). Again, no discretion is given to municipalities in implementing the court order, {2} and no resolution seems necessary or appropriate.

We reach a slightly different conclusion vis-à-vis administrative corrections to tax rolls and bills (per RPTL, § 554) and refunds and credits of taxes (RPTL, § 556). Here, we must distinguish between the roles of municipal governing boards in general and those municipal governing boards which are tax levying bodies. {3}

The county director of real property tax services, upon receipt of a petition for a corrected tax bill (RP-554) or refund/credit (RP-556, RP-556-b) investigates the claimed error and offers a recommendation to the tax levying body (RPTL, §§ 554(4), 556(4), 556-b(3)). It is then up to the tax levying body whether to approve or reject the application (§§ 554(5), 556(4), 556-b(3)). These provisions do not specify how such decision is to be made, but would seem to connote the need for a vote of the members of that body, such as by resolution.

For those counties in which the county legislative body is the tax levying body, section 153(1) of the County Law provides that a power vested in a county, unless otherwise expressed, shall be exercised by “a local law or resolution duly adopted by the board.” {4}  Where the town is the tax levying body, as is the case in Westchester County, section 63 of the Town Law provides, in part, “Every act, motion or resolution shall require for its adoption the affirmative vote of a majority of all members of the town board” (see, Jewett v. Luau-Nyack Corp., 31 N.Y.2d 298, 291 N.E.2d 123, 338 N.Y.S.2d 874 (1972); Clay v. Helsby, 45 A.D.2d 292, 357 N.Y.S.2d 291 (4th Dept., 1974); Antieau on Local Government Law, [2 ed.], § 25.10[1]; McQuillin, Municipal Corporations, [3 ed.], § 13.43). Consequently, some formalized vote, such as a resolution, seems necessary when a Westchester County town board acts upon a correction of errors petition. {5}  A perusal of the Education Law and judicial decisions construing the same indicates that school boards also act by resolution, so a school board resolution implementing a county director's recommendation under section 554 or 556 of the RPTL seems necessary.

The governing boards of the other (i.e., non-tax levying body) municipal corporations affected by the correction of errors determination made by the tax levying body perform only ministerial duties (e.g., accounting for any tax refund charged back to them (RPTL, § 556(6)). Yet again here, no resolution seems necessary.

April 7, 2008

{1}  An application for audit and payment of the order must be made within three years after the entry of the court order, the pendency time of any appeal of that order being excluded (RPTL, § 726(3); 860 West Tower, Inc. v. Levy, 53 N.Y.2d 450, 425 N.E.2d 839, 442 N.Y.S.2d 451 (1981)).

{2}  Indeed, a municipality may not seek to review a small claims assessment review determination (RPTL, § 736(2); Board of Assessors v. Hammer, 181 A.D.2d 885, 581 N.Y.S.2d 423 (2d Dept., 1992); Fishel v. Gaffney, 224 A.D.2d 769, 637 N.Y.S.2d 504 (3d Dept., 1996)).

{3}  For purposes of title three of Article five of the RPTL (which includes §§ 554, 556, and 556-b), '“‘Tax levying body’ means the governing board of a municipal corporation which annexes a warrant for the collection of taxes to a final assessment roll” (RPTL, § 550(5)).

{4}  A local law is more formal than a resolution and must be adopted in accordance with the provisions of the Municipal Home Rule Law (Reese v. Lombard, 47 A.D.2d 327, 366 N.Y.S.2d 493 (4th Dept., 1975)).

{5}  That a resolution or other formal authorization is contemplated in sections 554(5), 556(4), and 556-b(3) is further evinced by the provisions of sections 554(9) and 556(8) of the RPTL which authorize the tax levying body “by resolution” to delegate its duties under those respective provisions to an official who is empowered to authorize payment of bills without prior audit (provided the amount in issue is $2,500 or less). Section 556(8) was originally enacted by chapter 383 of the Laws of 1984. The justification in the sponsor’s memo for the bill (S.5396 B) later enacted as chapter 383 states: “Under present law, the county legislative body must pass a formal resolution authorizing the refund of these minor corrections in property tax bills.”