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Volume 11 - Opinions of Counsel SBRPS No. 50

Opinions of Counsel index

Correction of errors (correctable errors) (improperly granted partial exemption - deadline for correction) - Real Property Tax Law, § 553:

After the tentative assessment roll is filed, an assessor may not unilaterally remove therefrom a partial exemption. Rather, the assessor may petition the board of assessment review to correct the current tentative or final assessment roll, or, effective January 1, 2003, may petition such board to remove such exemption granted on the previous year’s assessment roll, provided title to the property has not been transferred. The opportunity for an assessor to seek such a correction on the preceding year’s school tax roll ends once the last possible date passes for a timely “second” meeting of the board of assessment review for the current year’s school tax purposes.

Our opinion has been requested as to the “statute of limitations for collection of [an] omitted tax.” It appears that, after reviewing a 2000 income tax return, an assessor determined that two parcels that had been receiving agricultural assessments (Agriculture and Markets Law, §§305, 306) no longer qualified. The assessor attempted to remove the exemptions from the 2001 assessment roll, but the exemptions were nevertheless granted for 2001-02 school and 2002 town/county tax purposes. The exemption was also continued on one of the parcels for the 2002-03 school tax year. The assessor asked if (as of November 2003) she could still correct the “omitted” 2002-03 school tax. In our opinion, by that date, it was too late to do so.

The situation described is not an “omission” as defined in the law (Real Property Tax Law, §550(4-a)). While that definition includes wholly exempt property wrongly granted exempt status, it does not include wrongly granted partial exemptions (see also, 10 Op.Counsel SBRPS No. 84).

There is a limited opportunity for an assessor to seek to correct an improperly granted partial exemption.

First, the incorrect entry of a partial exemption on an assessment roll for a parcel not eligible for such exemption is a defined “error in essential fact” (RPTL, §550(3)(e)). Section 552 of the RPTL authorizes an assessor to petition the board of assessment review to correct an error in essential fact on the current year’s tentative assessment roll, while section 553 provides similar authorization for correction of the current year’s final assessment roll (see, Niagara Power Corporation v. Town of Clay Board of Assessors, 208 A.D.2d 170, 622 N.Y.S.2d 635 (4th Dept., 1995); Niagara Mohawk Power Corporation v. Town of Potsdam Board of Assessors, 216 A.D.2d 775, 628 N.Y.S.2d 838 (3d Dept., 1995), mot. lv. app. den., 87 N.Y.2d 802, 661 N.E.2d 999, 638 N.Y.S.2d 425 (1995)). Once the assessment roll becomes a tax roll (i.e., when taxes are extended and the warrant to collect taxes affixed (RPTL, §550(6))), however, the assessor can no longer avail himself or herself of this remedy.

Second, section 553(1)(f-1) [added L.2002, c.616] now provides that an assessor may petition the board of assessment review to correct “an incorrect entry of a partial exemption on the immediately preceding year’s assessment roll for a parcel which was not eligible for such exemption, provided that there has not been a transfer of title subsequent to the filing of such roll.” Such petitions are considered by the board of assessment review at its so-called second meeting held for the purpose of reviewing assessor petitions to correct the final assessment roll. {1}

The opportunity for the assessor to seek to correct an improperly granted partial exemption on the 2002-03 school tax roll ended once the last possible date passed for a timely “second” meeting of the board of assessment review for 2003-04 school tax purposes (i.e., in August 2003). That is, for school tax purposes, the 2003 assessment roll became the 2003-04 tax roll once the 2003-04 taxes were extended and the warrant to collect those taxes was affixed (RPTL, §550(6)). {2}

November 13, 2003


{1}  As we explained in 10 Op.Counsel SBRPS No. 84: “This meeting is to be held at least 15 days after the filing of the final assessment roll and not more than 90 days but not later than 20 days before the tax levy. Since a town assessment roll may be used for three levies (i.e., for school, town/county and non-assessing unit village (RPTL, §1402(3) purposes), there can be three “second” meetings of the board of assessment review.”

{2}  If the same error appeared on the 2002 assessment roll which became the 2003 county/tax roll, there would still be time to correct that roll under section 553(1)(f-1) because the 2004 town/county levy has not yet occurred.

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