Volume 5 - Opinions of Counsel SBEA No. 111
Correction of errors (unlawful entry) (exempt parcel erroneously taxed) - Real Property Tax Law, §§ 550, 554:
The entry of wholly exempt real property on the taxable portion of the assessment roll is an unlawful entry (Real Property Tax Law, § 550(6)(a)). However, such unlawful entry may not be corrected administratively after the extension of taxes (Real Property Tax Law, § 554(1)). The proper procedure for correcting such unlawful entry after the extension of taxes is to commence a civil proceeding pursuant to Article 78 of the Civil Practice Law and Rules.
Our opinion has been requested concerning the application of a religious organization for the cancellation of delinquent property taxes levied against its real property.
The statement of facts forwarded to us discloses that the organization was denied a religious exemption prior to preparation of the current tax rolls, and that due to the resolution of a misunderstanding, the board of assessors now consents to the granting of the religious exemption to the organization “on the previous 1975-1976 school tax and the 1975 town tax rolls.”
It is the opinion of this office that the retroactive grant of the exemption contemplated, and the consequent cancellation of delinquent taxes, cannot be accomplished administratively. The board of assessors would be acting ultra vires in attempting to grant an exemption in this manner.
The administrative correction of errors in the assessment and taxation process is governed exclusively by Title 3 of Article 5 of the Real Property Tax Law, the so-called “Correction of Errors” law. Provision is made in this law for administrative correction of certain errors even after the extension of taxes. The entry of wholly exempt real property on the taxable portion of the assessment roll is defined in section 550 (6)(a) of the Real Property Tax Law as an “unlawful entry,” post-extension correction of which is governed by section 554 of the Real Property Tax Law. That section provides for administrative correction of certain unlawful entries at any time prior to the expiration of the warrant. It does not, however, extend its coverage to the correction of the unlawful entry of a wholly exempt parcel on the taxable portion of the assessment or tax rolls. A careful reading of section 554 permits no other conclusion. The unlawful entry in question, as stated above, is defined in section 550(6)(a) of the Real Property Tax Law. The first subdivision of section 554 reads as follows:
The appropriate tax levying body may correct a clerical error or an unlawful entry as defined in paragraphs (b) and (c) of subdivision six of section five hundred fifty of (this chapter in accordance with the provisions of this section).
Note that paragraph (a), the relevant paragraph for our purposes, is specifically excluded. The inevitable result is that after the extension of taxes, which is the stage reached in the instant case, the “correction of errors” law is not applicable to the question of the improper addition of wholly exempt real property to the taxable portion of the roll. The question becomes one for a court of law, which is properly reached by the property owner in the context of a civil proceeding commenced pursuant to Article 78 of the Civil Practice Law and Rules.
December 13, 1976
NOTE: Construes law prior to L.1988, c.160.