Volume 10 - Opinions of Counsel SBRPS No. 113
Assessment review, Board of (notice of determination) (erroneous notice); Assessment review (tax certiorari proceeding) (statute of limitations; tolling); Assessment review, small claims (time for filing petition) (erroneous notice from board of assessment review) - Real Property Tax Law, §§ 525, 702, 730:
Where a board of assessment review mails an incorrect notice of its determination to a taxpayer (which is not an applicant for wholly exempt status), the taxpayer has an extended opportunity to seek judicial review. The taxpayer has not less than 30 days from receipt of the tax bill to do so.
Our opinion has been requested concerning an erroneous notice of determination sent by a board of assessment review (Real Property Tax Law, § 525(4)). Apparently, the board received a complaint wherein the taxpayers sought a reduction in their tentative assessment of $45,100 to $20,000. The board of assessment review agreed to reduce the tentative assessment, but only to $41,500. The board advised the assessor accordingly on the board’s verified list of changes to be made to the tentative assessments (RPTL, § 525(4)), but then erroneously advised the taxpayers that their assessment had been reduced to $20,000. School taxes were levied on the $41,500 final assessment entered on the final assessment roll and the taxpayers have submitted a petition for a corrected tax bill (per RPTL, § 554).
In relevant part, section 525(4) of the RPTL provides:
The members of the board of assessment review or a majority of them shall prepare and verify a statement showing the changes determined to be made by them in the assessments. *** Such verified statement shall be delivered to the assessor on or before the date required by law for the final completion of the assessment roll. . . .
On or before the date the verified statement of changes made by the board of assessment review is delivered to the assessor, the board of assessment review shall mail to each complainant a notice of the board’s determination of his or her assessment. . . . Such notice shall contain a statement of the reasons for such determination. Such notice shall also contain [information advising of the taxpayer’s rights to judicial review]. . . . Failure to mail any such notice or failure of the complainant to receive the same shall not affect the validity of the assessment.
The assessor must then proceed as provided in section 526(5) of the RPTL:
As soon as possible after receiving the verified statement prepared by the board of assessment review pursuant to [§ 525(3)], the assessor shall make the changes in assessments on the assessment roll in accordance with such verified statement, shall certify on such verified statement that he has recorded on the assessment roll the changes set forth in such verified statement and shall file such verified statement with the final assessment roll filed pursuant to [RPTL, § 516] . . . (emphasis added).
Consequently, the assessor is required to change the tentative assessments in accordance with the verified statement of changes submitted by the board of assessment review.
It is true that the correction of errors procedure of title 3 of Article 5 of the RPTL may apply to the implementation of a review board’s changes. A “clerical error” occurs when there is “an incorrect entry of assessed valuation on an assessment roll or on a tax roll which, because of a mistake in transcription, does not conform to . . . the verified statement of the board of assessment review . . .” (RPTL, § 550(2)(a)). Here, however, the final assessment roll does conform to the board’s verified list of changes, so, in our opinion, the correction of errors provisions are inapplicable.
Nevertheless, the taxpayers were understandably misled by the erroneous notice. They do, however, appear to have a remedy: a judicial remedy.
That is, in Adventist Home v. Board of Assessors, 83 N.Y.2d 878, 634 N.E.2d 972, 612 N.Y.S.2d 371 (1994), the Court of Appeals construed the notice provision of section 525(4) in a situation where the board of assessment review failed to mail a notice of determination to a party which had grieved its assessment. The Court rejected the town’s contentions that the exculpatory language in the last sentence of section 525(4), quoted above, excused its failure and that the statute of limitations on filing for judicial review therefore began when the final assessment roll was filed on July 1 (see RPTL, § 516(1)). The Court then held that, given the facts presented, the judicial challenge was subject to a four month statute of limitations measured from the owner’s receipt of its tax bill.
Here, of course, a notice of determination was sent and received, but that notice would obviously mislead reasonable people into believing that they had totally prevailed in their grievance and that no further action was necessary on their part. True, the taxpayers could have examined the final assessment roll and ascertained their actual final assessment, but the Adventist Home court noted that, “the very purpose of RPTL 525(4) was to relieve the taxpayer of the burden of checking the assessment roll” (83 N.Y.2d at 880, 634 N.E.2d at 974, 612 N.Y.S.2d at 373). The Court did recognize the exculpatory language of section 525(4) but noted that the Court was concerned only with the timeliness of the judicial proceeding before it, not the validity of the tax bill. {1}
Generally, of course, a proceeding for judicial review of an assessment must be commenced within 30 days of the filing of the final assessment roll (RPTL, §§ 702(2) [tax certiorari], 730(3) [small claims assessment review]). In Adventist Home (supra), however, the taxpayer was seeking wholly exempt status, so it had the additional remedy of an Article 78 proceeding/declaratory judgment action available to it (Kahal Bnei Emunim v. Town of Fallsburg,78 N.Y.2d 194, 577 N.E.2d 34, 573 N.Y.S.2d 43 (1991)), hence the longer statute of limitation (CPLR, § 217; Solnick v. Whalen, 49 N.Y.2d 224, 401 N.E.2d 190, 425 N.Y.S.2d 68 (1980)).
Based on Adventist Home (supra), where, as here, a board of assessment review mails an incorrect notice of its determination to a taxpayer (which is not an applicant for wholly exempt status), in our opinion, the taxpayer has an extended opportunity to seek judicial review. The taxpayer would have not less than 30 days from receipt of the tax bill to do so. {2} We note that this result places the taxpayer in the same situation as if it had received a correct notice from the board of assessment review in the first place.
September 29, 2000
{1} In fact, the Adventist Home proceeding was dismissed as untimely because the petitioner did not commence the proceeding within four months of receipt of the tax bill.
{2} Whether, given the presumably inadvertent but nevertheless misleading notice which was sent in the first place, a court would apply the longer four month statute of limitations is unknown; that issue must await future judicial interpretation.