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Volume 3 - Opinions of Counsel SBEA No. 31

Opinions of Counsel index

Assessment, special franchise (correction of errors) (omitted property) (procedure) - Real Property Tax Law, §§ 550, 554, Article 6:

Property not located in the public way owned by a cable TV company may be added to the final assessment roll pursuant to sections 550 and 554 of the Real Property Tax Law if such property may be separately described and is not an addition to an entry already appearing on the final assessment roll.

Our opinion has been requested concerning procedures applicable in determining special franchise assessments.

Pursuant to Article 6 of the Real Property Tax Law, the State Board of Equalization and Assessment annually determines the assessment of each special franchise subject to assessment in each assessing unit. And, upon completion of the various activities necessary to compute an assessment, the State Board of Equalization and Assessment annually determines a tentative special franchise assessment pursuant to section 608 of the Real Property Tax Law.

A hearing to review this assessment is then scheduled and notice is transmitted to the designated local officials and corporate officers in accordance with section 600. In this instance a complaint was filed by a cable TV company pursuant to section 610 of the Real Property Tax Law. A final assessment was determined by the State Board of Equalization and Assessment, which resulted in a significant decrease in the special franchise assessment in question.

           A final special franchise assessment is determined in accordance with section 616 of the Real Property Tax Law, and the assessor is directed by subdivision 2 of such section to enter the final special franchise assessment on the proper part of the assessment roll. Section 616 contains a time period within which the actions relating to the final assessment should take place, namely, for town special franchise assessments, the certificate should be issued not later than ten days prior to grievance day, and the assessor should enter the assessment prior to the date for final completion of the roll.

          However, it is our opinion that the dates contained in section 616 are directory rather than mandatory, and that the assessor must await receipt of the certificate of final assessment before making an entry on the final assessment roll. Likewise, he is without authority to enter the tentative special franchise assessment on the final roll.

Finally, in regard to the assessor’s authority to enter a final special franchise assessment, subdivision 2 of section 606 specifically authorizes the assessor (or other officials who may have custody of the roll) to enter a special franchise assessment which has been adjusted for a change in the level of assessment. The authorization contained in this subdivision includes a recognition that the final special franchise assessment may be received subsequent to the completion of the final assessment roll (i.e., “notwithstanding the fact that he may receive the determination . . . after the final completion, verification and filing of such assessment roll”).

A problem arises, however, when the reduction of the assessment is the result of the finding that the tentative assessment included property, which, although owned by the cable TV company in question is not located in the public way, and, therefore, is not classified as special franchise (Real Property Tax Law, § 102(17)) and is not subject to the assessing jurisdiction of the State Board. Subsequent to the correction of the special franchise assessment, therefore, the question becomes one of how or whether the assessed value attributable to the nonspecial franchise property may be entered on the assessment roll.

If the value of separately described and assessed property is completely omitted from an assessment roll, then such value may be entered on a final assessment roll prior to levy pursuant to section 554(1) of the Real Property Tax Law or on the next successive assessment roll pursuant to section 550 of the Real Property Tax Law. The nonspecial franchise property in question is transmission equipment which may be separately described as a mass account and which would not be an addition to an entry which already appears on the final assessment roll.

Therefore, it is our opinion that the property in question may be added to the current roll by the board of supervisors (upon petition of the assessors) pursuant to paragraph (d) of subdivision 1 of section 554 of the Real Property Tax Law. In the alternative, we believe that the property may be entered on next year’s roll by the assessor pursuant to the authority contained in section 550 of the Real Property Tax Law.

October 24, 1973

NOTE: Construes law prior to the enactment of Chapter 177 of the Laws of 1974, which repealed sections 550 and 554, and added a new correction of errors procedure contained in Article 5, Title 3, sections 550-559.

Updated: