Volume 10 - Opinions of Counsel SBRPS No. 94
Assessor (powers and duties) (administration of program for special franchise operator); Special franchise assessments (assessor’s administration of company program) - Real Property Tax Law, § 102(3), (17); Town Law, § 33:
The administration of a senior citizens discount program on behalf of a special franchise operator is not within the normal powers and duties of an assessor as established in State law. Whether such a function may be imposed on assessors by local law is open to question.
Our opinion has been requested concerning a policy announced by a cable television company whereby senior citizens with annual incomes of $12,000 or less will receive discounted cable television service upon income verification by the assessor or other person designated by the municipality. Property owners receiving a senior citizens exemption (Real Property Tax Law, § 467) would authorize the municipality to use their exemption application to determine income and to release that income information to the cable television company at its request. Renters would need to present their income tax return to the assessor and to authorize its release to the company. One town board adopted a resolution “requesting” the assessor to administer the program on the company’s behalf.
The assessor’s primary duty is to assess property “for the purposes of taxation or special ad valorem levies, for county, city, town, village, school district or special district purposes” (RPTL, § 102(3)). While town assessors are to perform “such duties as are, or hereafter may be, conferred or imposed by law” (Town Law, § 33), we are unaware of any provision in the RPTL or any other State law which either authorizes or directs assessors to perform the proposed functions.
Our research has disclosed no precedent regarding the meaning of “law” as used in section 33, but in other contexts, it has been defined or interpreted to include a local law (e.g., Municipal Home Rule Law, § 2(6); Tax Law, § 1826, as discussed in 9 Op.Counsel SBEA Nos. 14 and 98). Whether such a duty, seemingly unrelated to an assessor’s statutory assessment duties, could be imposed by local law, presents the issue of whether State law preempts such a local enactment (Jancyn Manufacturing Corp. v. County of Suffolk, 71 N.Y.2d 91, 518 N.E.2d 903, 524 N.Y.S.2d 8 (1987); Albany Area Builders Association v. Town of Guilderland, 74 N.Y.2d 372, 546 N.E.2d 920, 547 N.Y.S.2d 627 (1989)). This, however, is an issue which need not be addressed here as we have not been informed of any such adoption. In our opinion, a town board resolution is certainly insufficient if a town wishes to impose an additional duty on an assessor based upon section 33 of the Town Law.
We must also recognize, however, that unlike other business operators, which might request similar service from an assessor, a special franchise operator has a contractual relationship with the municipality which permits it to operate in the public right-of-way (RPTL, § 102(17)). Arguably, a municipality might negotiate and agree to participation by municipal officials in the implementation of such program. {1}
In the absence of any such agreement or required participation, the company’s self-administration of its program might be facilitated through access to available exemption data. That is, one assessor advised us that one of the municipalities she serves has a senior citizen exemption income approximating the company’s chosen income limitation. Since the assessment roll (including the exemption codes thereon) is a public record (e.g., RPTL, § 516(2)), the cable television company could make a Freedom of Information Law request and receive a listing of those parcels receiving the exemption. Of course, the viability of this option is reduced the greater the difference between the local income ceiling for section 467 purposes and the company’s chosen income limitation.
January 19, 2000
{1} Even if the assessor were obliged to participate in the program, we would question the assessor’s proposed role as to renters with whom assessors generally have no contact whatsoever. Moreover, as we have noted in conjunction with the enhanced school tax relief [STAR] exemption (RPTL, § 425(4)), persons with very low incomes are not required to file income tax returns (hence the RP-425-WKST for that group of enhanced STAR applicants). In this context, we also note the incongruity between the company’s income test for property owners (RPTL, § 467(3)(a)’s income test) versus that for renters (an unspecified line from the income tax return). Lastly, despite the purported waiver of confidentiality of income information, release of actual income figures of section 467 recipients is likely an unwarranted invasion of personal privacy under FOIL (Public Officers Law, § 87(2)(b)), while the disclosure of income tax returns is restricted and most closely regulated (compare RPTL, § 425(4)(b)(iii)).