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Volume 9 - Opinions of Counsel SBEA No. 11

Opinions of Counsel index

Board of assessment review (powers and duties) (adequacy of proof for assessment reduction - assessments of comparable properties) – Real Property Tax Law, § 525:

A board of assessment review may reduce an assessment whenever the board determines that the proof submitted by the complainant is sufficient to overcome the presumption that the tentative assessment is correct. Although a complainant may submit assessments of comparable properties, it is the board which determines what weight to give such evidence.

We have received an inquiry as to whether a town board of assessment review reduced assessments on the basis of inadequate proof. We are informed that in 1984 a board of assessment review reduced 103 assessments out of 116 complaints it received, including several properties owned by three members of the board. Several residential assessments were reduced on a showing that the house did not have a finished basement; other assessments were reduced on the basis of proof of the assessments of comparable properties; and in one case an assessment was reduced without consideration of the value of a new building

Upon complaint and after a hearing, RPTL, §525(3) provides that:

t]he board of assessment review shall thereafter determine the final assessed valuation or taxable assessed valuation...of the real property of each complainant....The final assessed valuation or taxable assessed valuation of real property may be the same as or less than the original assessment....

Clearly, where warranted, the board of assessment review has authority to reduce the assessment in each and every case brought before it, including cases where the complainant is a member of the board. {1}  Assessment reductions are warranted in each case in which the board determines that the proof submitted by the complainant is sufficient to overcome the presumption that the tentative assessment is correct. Aside from the provisions of RPTL, Article 7, which authorize “aggrieved persons” to seek judicial review of assessments, {2} there is no express authority in the RPTL for an assessor or a taxpayer other than the complainant to seek judicial review of a board of assessment review's determination to reduce an assessment (1 Op.Counsel SBEA No. 83). However, it may be possible for a taxpayer other than the complainant to seek judicial review of a board of assessment review’s determination in the context of an action brought pursuant to the General Municipal Law, §51 (prosecution of officers for illegal acts); it may also be possible to seek limited review under CPLR, Article 78 (proceeding against body or officer) (compare Dudley v. Kerwick, 52 N.Y.2d 542, 421 N.E.2d 797, 439 N.Y.S.2d 305 (1981)).

With respect to those residential assessments which were reduced on a showing that a structure has an unfinished basement, we note that RPTL, §305(2) requires that assessments be made at a “uniform percentage of value” and that RPTL, §502(3) provides that “[o]nly the total assessment...shall be subject to judicial review” (emphasis added). Certainly, a board of assessment review could logically conclude that a residence with an unfinished basement is worth less than a comparable residence with a finished basement and adjust the total assessed value accordingly.

As to the assessments that were reduced on the basis of the assessed value of comparable properties, we assume that the complainants alleged “unequal assessments” (see RPTL, §522(9)(b) or (c)). In the case of tax certiorari proceedings brought pursuant to RPTL, Article 7, Title 1, proof of inequality may not be based solely on the assessments of other comparable properties (see RPTL, §720(3); see also Wolf v. Assessors of the Town of Hanover, 308 N.Y. 416, 126 N.E.2d 537 (1955)). However, in the case of judicial small claims assessment review proceedings brought pursuant to RPTL, Article 7, Title 1-A, petitioners are specifically authorized to submit proof of “the assessment of comparable residential properties within the same assessing unit” (RPTL, §732(2)).

Unlike situations where judicial review is sought under RPTL, Article 7, there is no statutory or judicial authority which touches on the issue of whether a complainant before a board of assessment review may submit the assessments of comparable properties as proof of inequality. Absent a specific prohibition, we believe a complainant is entitled to do so, even though there is the distinct possibility that the comparable properties selected by the complainant will be assessed at a percentage of value below the average level of assessment. However, if a complainant submits assessments of comparable properties which are below the average level of assessment, the assessor should point this out at the hearing of the board of assessment review and have his remarks recorded in the minutes (see RPTL, §525(2)). It will then be up to the board of assessment review to decide what weight to give the competing evidence.

With respect to the situation where the board of assessment review apparently ignored the value of a new building, we note that it is unclear whether the board of assessment review was apprised of the fact that the building in question was newly constructed. Assuming that the board made an inadvertent error, the assessor can add the value of the improvement to next year’s tentative assessment roll pursuant to RPTL, §551 (entry by assessor of omitted real property on current assessment roll). However, should the assessor act pursuant to RPTL, §551, we recommend that he so notify the taxpayer shortly after the completion and filing of that tentative roll.

December 17,1984


{1}  Where a complaint is filed for property in which a board member has a direct or indirect interest, the member must comply with the disclosure provisions of RPTL, §523(2).  In such cases to avoid even an appearance of impropriety, we also recommend that the board member not participate in the deliberation or determination of the complaint, unless a quorum (i.e., a majority of the board) would not otherwise be available.

{2}  Proceedings brought pursuant to RPTL, Article 7 are trials “de novo” to determine the proper assessment; technically, they do not review the determination of the board of assessment review.

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