Volume 9 - Opinions of Counsel SBEA No. 12
Assessment review, small claims (failure to enter reduction on assessment roll); Correction of errors (clerical error) (failure to enter small claims judgment on assessment roll) - Real Property Tax Law, §§ 550, 733; Suffolk County Tax Act, § 30:
The failure to enter on the current assessment roll small claims assessment review reductions ordered upon the prior year’s roll does not constitute a “clerical error” pursuant to Article 5, Title 3 of the RPTL.
Our opinion has been requested concerning applications to correct the 1986-1987 assessment and tax rolls of a town in Suffolk County.
As we understand the facts, applications have been submitted pursuant to Title 3 of Article 5 of the Real Property Tax Law (§§550-559), the so-called “Correction of Errors Law”, with respect to the assessments of some 85 parcels. Each of the parcels was the subject of a 1985 small claims assessment review proceeding in which the assessment was ordered reduced. Apparently, in preparing the 1986 assessment roll, the assessor entered as the value for almost all these parcels the amounts entered on the 1985 final assessment roll, prior to their reduction through the small claims proceedings.
The assessor has signed an application form which claims in part that a “clerical error” has occurred, the explanation being a “[f]ailure to act on Small Claims Court ordered reductions.” Attached is a resolution of the Town Board expressing its support for the Suffolk County Legislature’s approval of the application, which includes a notation that “the assessment cards for each project were not changed to reflect the hearing officers’ decisions.” It appears that this fact may be the basis upon which the parties are seeking the remedy provided by Title 3 of Article 5 of the RPTL.
It is our opinion that the facts as presented do not state a case for administrative correction pursuant to Title 3 of Article 5. In a small claims assessment review proceeding (Article 7, Title 1-A), if the hearing officer determines that an assessment is unequal or excessive “he shall order a correction of the assessment upon the roll...” (RPTL, §733(2), emphasis added). There is no requirement that the assessor make a corresponding change to his property record card.
The failure to correct a prior roll to conform to a small claims decision has no direct bearing on rights or remedies with respect to assessment of the same property on a subsequent roll. An assessment fixes value as of a certain time, and each year’s valuation is separate and distinct from any other (see, Vantage Petroleum v. Board of Assessment Review of Town of Babylon, 61 N.Y.2d 695,460 N.E.2d 1088,472 N.Y.S.2d 603 (1984); People ex rel. Hilton v. Fahrenkopf, 279 N.Y. 49, 17 N.E.2d 765 (1938)). Thus, a prior judicial determination of value in a certiorari proceeding does not bind successor assessors as to subsequent assessments (id). If, however, following such judgment, the assessor unjustifiably increases the assessment the next year, the complainant may be awarded costs in a successful judicial challenge (RPTL, §722).
When a property owner does not file a complaint with the assessor or with the board of assessment review prior to the date on which such board conducts its hearing with respect to the tentative roll, no administrative remedy lies unless the assessment is correctable as one which falls within the definition of a “clerical error”, “error in essential fact” or “unlawful entry” of section 550 of the RPTL. In examining those definitions, we find none which applies to the facts presented. Had the assessor entered a lower assessed value on his property record card or other final work product, and then failed to carry over that entry to the 1986 assessment roll, there would have been an error in transcription within the meaning of section 550(2)(a).
Nor is the alleged failure to mail notices of increases in assessed value a type of action which would permit “correction” pursuant to Title 1 of Article 5. In fact, the statute which directs the mailing of such notice (RPTL, §510(1)) includes this exculpatory language: “Failure to mail any such notice or failure of the owner to receive the same shall not prevent the levy, collection and enforcement of the payment of the taxes on such real property.”
Section 30 of the Suffolk County Tax Act [SCTA] (L.1920, c.311, as amended) provides that the County Legislature may “compromise and authorize the receiver of taxes or county treasurer to accept in payment a lesser sum than the face amount...of any tax...which is unpaid”, where it is shown that the tax or assessment is erroneous, illegal, unjust or unequitable “by reason of over valuation, double assessment, erroneous area or other error, which has not otherwise been corrected without fault of the person...assessed” (emphasis added). Section 559(2) of the RPTL provides that “[provisions of all general, special, local or other laws which are inconsistent with the provisions of (Title 3 of Article 5] shall be inapplicable to municipal corporations to which this title applies.” Title 3 of Article 5 applies to all municipal corporations other than the City of New York (§559(3)). Since Title 3 includes provisions for correction of errors with respect to unpaid taxes (§554), we conclude that the State has preempted the subject matter (Atria Associates v. County of Nassau, Sup. Ct., Nassau Co. (6/14/89), No. 13089/88; see, Coliseum Towers Associates v. Livingston, 153 A.D.2d 683, 545 N.Y.S.2d 174 (2d Dept. 1989); 6 Op.Counsel SBEA No. 88) and, therefore, section 30 of the SCTA has been superseded.
Furthermore, even assuming that section 30 has any effect at all, it applies only to an unpaid tax, which is not the case here. Moreover, the last sentence of the section refers to a charge-back to the town in which the error arose “in the same manner as provided by the tax law in the case of a refund of a tax erroneously or illegally assessed or levied.” These references to the Tax Law are deemed references to the successor provisions of the RPTL (RPTL, §2008(2)). In other words, the SCTA itself recognizes that statutory authority for administrative tax refunds is the exclusive province of State law.
Accordingly, it is our opinion that the Suffolk County Legislature does not have jurisdiction to change the tax roll under the circumstances presented.
March 27, 1987
NOTE: The assessor’s alleged failure to comply with section 733 of the RPTL in regard to assessments on the 1985 assessment roll, which were the subject of small claims assessment review proceedings, and section 510 in regard to notices of increases in assessments on the 1986 tentative assessment roll were the subject of a State Board proceeding (8 Op.Counsel SBEA Report 8 - IX).