Volume 6 - Opinions of Counsel SBEA No. 64
Assessment roll (verification) (assessor’s oath); Correction of errors (unlawful entry) (authority to make entry) - Real Property Tax Law, §§ 514, 550, 552:
If a majority of a board of assessors refuses to sign the verification of the assessment roll, the roll is a nullity and confers no jurisdiction to extend taxes thereon.
If one member of a board of assessors has acted contrary to the opinion of a majority of the board in making entries on the tentative assessment roll, the majority may petition the board of assessment review for correction of these as unlawful entries.
A majority of a three member board of assessors has refused to sign the verification of the assessment roll as required by section 514 of the Real Property Tax Law. These two members claim that the third assessor made entries of assessments on the tentative assessment roll which do not reflect the judgment of the majority of the board. We have been asked to explain the consequences of this refusal.
Section 514 of the Real Property Tax Law requires “the assessors, or a majority of them” to take an oath which is to be set forth on the assessment roll and signed and verified by them. The oath must be in the following form:
“We, the undersigned, do severally depose and swear that, to the best of our knowledge and belief, we have set forth in the foregoing assessment roll all the real property situated in the assessing unit in which we are assessors and, with the exception of changes made by a board of review and special franchises assessed by the state board, we have estimated the value of such real property at the sums which we have decided to be the full value thereof [.]”
The requirement that the verification be signed by at least a majority of a board of assessors is consistent with the rule of law that assessments on the assessment roll must be determined by a vote of at least a majority of the members of the board of assessors (see, People ex rel. Mygatt v. Supervisors of Chenango, 11 N.Y. 563; 2 Op.Counsel SBEA No. 77). That is, the signed verification serves as testimony to all owners of property on that roll that each of the assessments reflects the judgment of a majority of the board of assessors.
There is no question that with the exception of errors which might be characterized as ministerial or “trifling” (see, Brevoort v. City of Brooklyn, 89 N.Y. 128 at 134, describing the error in Parish v. Golden, infra), an unverified assessment roll fails to confer jurisdiction upon taxing authorities to impose taxes on assessments on that roll and any tax sale resulting from a failure to pay such taxes is void (see, Van Rensselaer v. Witbeck, 7 N.Y. 517; Westfall v. Preston, 49 N.Y. 349; Brevoort v. City of Brooklyn, supra; People v. Inman, 197 N.Y. 200,90 N.E. 438). While certain defects in verification can be remedied by subsequent corrective legislation (see, e.g., Ensign v. Barse, 107 N.Y. 329), this rule would not apply to the circumstances present here, i.e., a refusal (rather than a mere omission or failure) on the part of a majority of the assessors to act.
Essentially, even those cases which recognize exceptions to the rule require substantial compliance with the verification requirement. For example, the omission of words “[excepting] such other property as is exempt by law from taxation” from the verification was held not to affect the validity of the roll. It was stated that “it does not appear, affirmatively, that the assessors neglected any duty which was necessary to the protection of the rights of the taxpayers. . . ” (Parish v. Golden, 35 N.Y. 462 at 465). In contrast,where the assessors substantially changed the form of the verification from an affirmation that they had assessed at “true value” to a statement that they had assessed at sums they “deemed proper” and “according to the usual way of assessing,” the Court of Appeals concluded that a jurisdictional defect had occurred (Van Rensselaer v. Witbeck, 1 N.Y. 517). The court compared the role of assessors in preparing assessment rolls to judges in courts of law and found that “without the certificate, the roll would resemble a judgment-record, without the judgment clause” (id. at 521).
In Hoen v. Suffolk County, 146 Misc. 489, 261 N.Y.S. 535, the Court sustained the validity of an “untimely” verification where it was shown by extrinsic evidence that the incorrect date was merely a clerical error entered by someone other than the assessors. Conversely, where the assessors had in fact sworn to the oath prior to the hearing of complaints on the tentative assessment roll, there was no substantial compliance with the terms of the statute (Westfall v. Preston, 49 N.Y. 349 at 353). The Court declared that “the time had not arrived when by law they could declare it completed and verify it as the completed and perfected roll. The affidavit was a nullity, and the defect appearing on the face of the paper by the date of the jurat, it conferred no jurisdiction upon the board of supervisors to impose a tax upon personal property named therein” (id. at 354).
Finally, when assessors were required to sign both the assessment roll and an attached certificate, but they signed only the certificate, the assessments were held valid (Ensign v. Barse, 107 N.Y. 329,14 N.E. 400). The Court stressed the specifics of the case, namely, that the certificate “referred to and identified the roll to which it was attached” and “spoke of it as the ‘above assessment roll,’ and is having been the work of the assessors” (id. at 339). Where simply no verification was made, a Court concluded that the roll was not completed and that the board of supervisors had not been empowered to levy taxes thereon (People ex rel. Gillies v. Suffern, 68 N.Y. 321).
The language of the decision of the Court of Appeals in the last cited case is particularly noteworthy. The Court stated:
The roll is not finally completed until the oath has been taken and certified as required. The roll cannot be said to be finally completed until the assessors have discharged their whole duty in reference thereto. For the purpose of securing equality of assessment and taxation among taxpayers, the law prescribes a particular oath calculated to secure that end, and until the assessment has the sanction of that oath, it has no validity as an assessment, and cannot form the basis of taxation and can in no sense be said to be finally completed. [citations omitted] 68 N.Y. at 326.
Based on this case law, we believe that in the absence of a signing of the verification of the assessment roll by a majority of the board of assessors, there is no jurisdiction to levy taxes on that assessment roll and a sale to enforce the lien of a tax levied would be void.
Where, as in the instant case, the refusal of the majority is based upon a claim that the third assessor entered assessments on the tentative roll contrary to the judgment of the majority, it may be possible to petition for correction of those entries so that a majority of the assessors would agree to sign the verification. The majority may petition the board of assessment review for corrections on the tentative assessment roll of “unlawful entries,” assuming that timely application is made. An “unlawful entry” is defined (in Real Property Tax Law, §550(7)(c)) to include “an entry of assessed valuation on an assessment roll . . . which has been made by a person or body without the authority to make such entry.” In light of the previous discussion of the law requiring each assessment to reflect the judgment of a majority of a board of assessors, any entries made by one member of the board contrary to the determinations of the majority are made “without authority” as that phrase is used in section 550(7)(c).
Pursuant to section 552 of the Real Property Tax Law, unlawful entries may be corrected on tentative assessment rolls upon petition from the assessor to the board of assessment review. That section requires the petitions for correction of those types of errors to be submitted prior to the date on which the board of assessment review meets to hear complaints on the tentative assessment roll (§552(2)(b), and (3)). Since, at an adjourned hearing, the board of assessment review is empowered to accept additional complaints, petitions for correction of unlawful entries may also be submitted at an adjourned hearing (§§512(2), 1526(3); 5 Op.Counsel SBEA No. 74).
Finally, it has been suggested that if the entries in question were made by the chairman of the board of assessors, they would not constitute unlawful entries as defined in section 550. The authority cited for this proposition is section 22-b of the Town Law. Pursuant to that section, a town board of any town having more than one assessor may establish the office of the chairman of the assessors, appoint an assessor to fill that office and require the chairman to “perform such service in connection with the assessment and taxation of property... as the town board shall direct....” We do not believe that the additional duties or responsibilities which may be imposed by the town board could include the right of the chairman to make entries contrary to the determinations of a majority of the board of assessors. Rather, the powers and duties which may be assigned pursuant to that section are more in the nature of administrative or ministerial duties and could not be construed to relate to the fundamental duty to assess properties as a unit (see also, 23 Op.State Compt. 914).
July 17, 1979