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Volume 4 - Opinions of Counsel SBEA No. 93

Opinions of Counsel index

Special franchise assessment (assessment by State Board) (late mailing of final special franchise assessments) - Real Property Tax Law, § 616:

The late filing of certificates of final special franchise assessments has no jurisdictional effect on the validity of the special franchise assessed valuations or the necessity for entering such valuations on the final assessment or tax roll when they are received by the local assessing unit.

We have received an inquiry regarding the proper procedure under the Real Property Tax Law for entering final assessments of special franchise property on various local tax rolls.

The State Board of Equalization and Assessment has sole jurisdiction under the Real Property Tax Law to determine the assessed valuation of special franchise property within the State of New York. Article 6 of the Real Property Tax Law sets out the procedure by which the State Board shall determine special franchise assessments. The Article requires the State Board to determine final assessments of special franchises and “file a certificate of the amount thereof with the assessors of the assessing unit in which such special franchise is subject to the assessment” (§ 616). Subdivision 2 of section 616 of the Real Property Tax Law states that “the final assessment of every special franchise in an assessing unit as shown on such certificate shall be entered by the assessors in the proper part of the assessment roll. . .”.

As the comptroller has stated in a published opinion, the final certified version of every special franchise “shall be entered by the assessors or other officers .. . in the proper part of the assessment roll” (3 ;Op.State Compt. 487). There can be no doubt from the language of the above quoted sections that the provisions regarding entry of final special franchise assessments as determined by the State Board of Equalization and Assessment are mandatory.

We are also asked for an opinion as to the effect where the certifications of final special franchise assessments are mailed after the date provided by law for the filing of such certificates with the local assessing units. The late filing of such certificates does not invalidate the special franchise assessment.

It has been held that various provisions in the Real Property Tax Law relating to filing a certification of assessment rolls are directory and not mandatory in their effect (Rose v. Elliott, 218 App.Div. 287, 218 N.Y.S. 185). In the case of Matter of Brenner v. Bruckmen, 253 App.Div. 607, 3 N.Y.S.2d 265, the court stated that:

A provision in a statute which directs an act to be performed by a public officer or body within a certain time is usually given for the purpose of securing system uniformity, and dispatch in the conduct of the public business, rather than for the purpose of making the rights of persons dependent on the doing of the act at the specified time . . . especially is this so when the acts are to be done for the benefit of the public or where there are no negative words in the statute forbidding the acts to be done at any other time.

(See, also, McKinney’s Statutes, § 172; Broadway Realty v. State Division of Human Rights, 43 App.Div.2d 754, 349 N.Y.S.2d 1003).

In its decision in Fallon v. Hattemer (229 App.Div. 397, 242 N.Y.S. 93) the court in citing another case with approval stated the general rule to be as follows:

The general rule most certainly is that where a statute directs a public officer to do a thing within a certain time, without any negative words restraining him from doing it afterwards, the naming of the time will be regarded as merely directory and not as a limitation upon his authority.

Section 616 of the Real Property Tax Law contains no negative language restraining the State Board of Equalization and Assessment from filing a certificate of final special franchise assessment after the directory date contained in the section. The late filing of such certificates has no jurisdictional effect on the validity of the special franchise assessed valuations or the concomitant necessity for entering these valuations on the final assessment or tax roll when they are received by the local assessing unit.

February 21, 1975

Updated: