Volume 10 - Opinions of Counsel SBRPS No. 53
Assessment review, board of (powers and duties) (multiple designations of representatives) (notice to attorneys and other representatives) - Real Property Tax Law, §§ 524, 525:
A taxpayer may designate one representative to appear before the board of assessment review on his or her behalf. Where a property owner has duly designated an attorney to represent him or her in proceedings before the board of assessment review, the board must thereafter send its notices, including its notice of determination, to the attorney. It is advisable for the board to follow a similar policy as to non-attorney representatives.
Our opinion has been requested concerning a policy announced by the chairman of a city board of assessment review that the board will no longer send correspondence pertaining to assessment complaints to complainants’ attorneys or other agents. It appears that the city has experienced an increase in the number of assessment grievances it receives annually, allegedly due, in part, to some taxpayers designating more than one representative to appear on their behalf. These representatives may, but need not be attorneys (9 Op.Counsel SBEA No. 63). The board’s notice policy is intended to partially mitigate this problem.
Designation of representative
There can be no question but that taxpayers may designate representatives to appear before the board of assessment review on their behalf. Section 524(3) of the Real Property Tax Law, which provides that assessment complaints are to be filed on State Board prescribed forms, goes on to state:
Such statement must be made by the person whose property is assessed, or by some person authorized in writing by the complainant or his officer or agent to make such statement who has knowledge of the facts stated therein. Such written authorization must be made a part of such statement and bear a date within the same calendar year during which the complaint is filed. . . . {1}
On the other hand, we do not think that boards of assessment review should be forced to receive multiple complaints for a single parcel. Section 524(3) refers to the filing of “a complaint with respect to an assessment” (emphasis added). Moreover, as has been stated (albeit with respect to New York City assessment review procedures), “As a practical matter there should be but one party before the court in a tax proceeding” (Mott Haven Furniture Co. v. Finance Administrator, 130 Misc.2d 667, 497 N.Y.S.2d 213, 217 (Sup.Ct. Bronx Co., 1985)). We see no reason why similar considerations should not apply to boards of assessment review.
In the absence of evidence that one principal-agent relationship has been terminated before another has been entered into, we believe that a board of assessment review may rely on the first such agency relationship presented to it. However, if a taxpayer causes confusion by designating multiple agents, further inquiry may be necessary. Where an attorney has been designated as one such agent, we suggest that the attorney be contacted. Where more than one non-attorney agent has been designated, we suggest that the board contact the taxpayer.
Notice to representative
Section 525(4) of the RPTL requires the board of assessment review to send a notice of its determination “to each complainant.” Since that same section of the law otherwise refers to each person who comes before it as “the person whose real property is assessed, or his agent or representative,” the term “complainant” here might best be construed to encompass whoever appeared before the board, that is, the principal or his or her agent.
Moreover, at least as to attorneys, it is axiomatic that notice of transactions regarding the scope of the attorney’s representation must be sent to the attorney. Expanding on this point, the attorney-client relationship was discussed by the Court of Appeals in Bianca v. Frank, 43 N.Y.2d 168, 371 N.E.2d 792, 401 N.Y.S.2d 29 (1977), where the Court held that the attorney, who represented a police officer in a disciplinary proceeding, was entitled to notice of the determination, and that the statute of limitations to commence judicial review of that determination was tolled until such notice was given. The Court said:
Indeed, once a party chooses to be represented by counsel in an action or proceeding, whether administrative or judicial, the attorney is deemed to act as his agent in all respects relevant to the proceeding. Thus any documents, particularly those purporting to have legal effect on the proceeding, should be served on the attorney the party has chosen to handle the matter on his behalf. This is not simply a matter of courtesy and fairness; it is the traditional and accepted practice which has been all but universally codified [citations omitted](43 N.Y.2d at 173, 401 N.Y.S.2d at 31).
The Court did go on to note that a statute could specifically exclude the necessity of serving counsel, “but any intention to depart from the standard practice must be clearly established and stated in unmistakable terms” (ibid.).
Thereafter, another court was concerned with a zoning statute which did not provide for notice. The court distinguished Bianca, concluding that it did “not create a notice requirement where there is none” (Pagliaroli v. Zoning Board of Appeals, 66 A.D.2d 997, 411 N.Y.S.2d 767, 769 (4th Dept., 1978)).
The administrative assessment review process, however, does include a statutory notice requirement (i.e., RPTL, § 525(4)), the importance of which has been addressed judicially. The Court of Appeals disagreed with an assessing unit’s contention that the statute of limitations to commence judicial review began with the filing of the final assessment roll, despite the failure to send the section 525 notice. “To hold, as respondent urges, that the limitations period commences with publication of the assessment roll -- whether or not the taxpayer has been given the required notice -- would eviscerate the statute” (Adventist Home v. Board of Assessors, 83 N.Y.2d 878, 880, 634 N.E.2d 972, 612 N.Y.S.2d 371, 373 (1994) {2} see also, Corning Hotel Corporation v. Assessor of the City of Corning, Sup.Ct., Steuben Co., Index #72203 (1/2/96) wherein the judge held that the petitioner’s tax certiorari proceeding was not untimely because the city’s failure to mail notice of the board of assessment review’s determination tolled the statute of limitations on such filing).
Based on the foregoing, if an attorney has been duly designated as an aggrieved taxpayer’s representative, we believe that case law requires that the board of assessment review send its notice of determination to such attorney-representative. Since taxpayers may also designate non-attorneys to represent them, we would advise boards of assessment review to send its notices to duly designated non-attorney representatives as well.
September 11, 1996
{1} Similarly, section 525(2)(a) of the RPTL, which describes the hearing of the board of assessment review, provides that where the board is “not satisfied [from the proof submitted to it] that such assessment is excessive, unequal or unlawful, or that real property is misclassified, the board may require the person whose real property is assessed, or his agent or representative, or any other person, to appear before the board and be examined concerning such complaint, and to produce any papers relating to such assessment.” If the taxpayer or the taxpayer’s representative “willfully neglect[s] or refuse[s] to attend and be so examined, or to answer any question put to him relevant to the complaint or assessment,” the taxpayer’s complaint may be dismissed foreclosing the taxpayer’s rights to assessment review, including judicial review, for that assessment cycle (Jakubovitz v. Dworschak, 67 A.D.2d 977, 413 N.Y.S.2d 444 (2d Dept. 1979)).
{2} Although the Court dismissed the petitioner’s (CPLR) Article 78 proceeding/declaratory judgment action as untimely, since no section 525 notice was sent, the Court measured the four month statute of limitations from receipt of the tax bill which gave petitioner actual notice of the board of assessment review’s determination.