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Department of Taxation and Finance

Volume 5 - Opinions of Counsel SBEA No. 50

Opinions of Counsel index

Correction of errors (clerical error) (changes to assessment roll pursuant to board of assessment review’s instructions) - Real Property Tax Law, §§ 550, 554:

Where the assessor properly changes the assessment roll in response to the instructions of the board of assessment review, no “clerical error” within the meaning of subdivision 2 of section 550 of the Real Property Tax Law exists.

Our opinion has been requested as to the proper interpretation to be given to a provision of section 554 of the Real Property Tax Law. By a properly executed application for a corrected real property tax (EA:74-4), a private club has requested a correction of a tax levied by the central school district in which the club’s property is located for the year 1975. It is claimed that the alleged incorrect entry is the result of a clerical error appearing on the town assessment roll and carried over to the school district assessment and tax rolls.

Briefly stated, the facts, as we have received them from the several parties involved, begin with a dispute as to the precise number of acres owned by the club in the town. Based upon a review of the condition of the various properties owned by the club in the town as of May 1, 1975, the assessors for the town made a determination that various assessed values for such properties should be changed (the result of which included several net decreases as well as a series of net increases in assessed valuation) and that 3,000 acres be added to the description of the various parcels held by the club. These acreage and valuation changes were duly published in the tentative assessment rolls for the town, and the representatives of the club properly protested these tentative assessments at grievance day.

Laying aside for the moment the various other accounts, the primary dispute concerning acreage involved accounts herein designated as 408, 410, 411, 412, 413 and 414. Basically, as a result of the action of the board of assessors, accounts 408 and 414 were eliminated from the assessment roll and accounts 410, 411, 412 and 413 were combined for purposes of acreage only to indicate a total acreage of 14,390 rather than the previous acreage (within the six accounts) of 10,704.5 acres. The previous assessed values of $360 and $8,550 attributable to accounts 408 and 414 respectively were eliminated. Netting out the increases and decreases in assessed valuation, the total change in assessed valuation for the land described on the 1975 assessment rolls within parcels 410 through 413 was an increase of $109,205.

Apparently the club filed grievance complaints against the assessments on nine of their parcels including accounts 410 through 413. In all cases, the club alleged inequality as the basis for its request for a reduction, and, in addition, as to accounts 410 through 413, it claimed that the additional acreage was inaccurate.

By order dated July 2, 1975 the town board of assessment review instructed the assessor to change the assessments on seven parcels (i.e., accounts) of property owned by the club, including accounts 410 and 411. In addition, the change order included an instruction to strike 3,000 acres from the description of the four parcels (accounts 410 through 413), such instruction being bracketed so as to apply to all four parcels. While the instruction to strike 3,000 acres is explicit on the face of the change form, there is also clear indication by means of horizontal lines that no instructions to change the assessed valuation on this bracketed group of accounts was provided. Immediately below this acreage change, there are instructions to change the assessments on accounts 410 and 411. These orders were duly followed by the board of assessors, and, the final 1975 assessment roll shows the series of accounts attributable to the club to be consistent with the change instructions of the board of assessment review.

Subsequently a dispute arose concerning the intentions of the board of assessment review in striking the 3,000 acres from the four parcels. Eventually, the board of assessment review, acting through its chairman, took the position that it had intended to reduce the assessed valuation of the four parcels in question by an amount equal to $10 per acre, that is, $30,000.

By petition dated August 26, 1975, the chairman of the board of assessors requested that the final assessment roll for the town be changed as to account 413 to indicate a final assessment of $30,000 less than that entered on the final assessment roll. The explanation for the requested change was “Clarification of instructions issued by Board of Assessment Review. Pursuant to Section 553-1-B of Real Property Tax Law.” The board of review convened on August 26 and reduced the assessments in accordance with the request of the board of assessors. The final assessment roll for the town was then apparently changed to conform to this instruction of the board of assessment review. However, coincidentally with the changing of the town assessment roll, the school district levied its taxes upon the original version of the 1975 final town roll. Thus, the tax bill which the club received from the school district was based upon the assessed valuations existing on the roll prior to the change ordered by the town board of assessment review at its second meeting (i.e., $30,000 more then the current town roll).

By application dated September 11, 1975, the club has requested a correction of the tax levied by the school district for the year 1975. The description of the claimed error is “Correction of Tax Levied is sought due to correction of Final Assessment Roll to reduce final assessment from $93,540 to $63,540. Correction of Roll is made by Board of Assessment Review at request and on Petition of Board of Assessors date 8/26/75 pursuant to Real Property Tax Law, Sec. 553(1)(b).” A copy of the completed petition for correction of the final assessment roll with the instruction of the board of assessment review is attached to the application.

Having reviewed this rather complex pattern, it would appear to be clear that the only question involved is whether there is an entry on the 1975-76 school district tax roll which can be classified as a “clerical error” (Real Property Tax Law, § 550(2)). Section 554 of the Real Property Tax Law also permits the correction of certain “unlawful entries” (Real Property Tax Law, § 550(6)) which appear on final tax rolls, but such has not been claimed by the club, and we would certainly agree that none exists. The property subject to dispute is located within the town and the assessors have acted within their jurisdiction and authority. Accordingly, an unlawful entry does not exist.

Section 556-a of the Real Property Tax Law also authorizes the correction of tax rolls which contain certain “errors in essential fact” (Real Property Tax Law, § 550(3)). No such error has been claimed, and we would also agree that none exists in this situation. There would appear to be no dispute as to the correct amount of acreage, and there is no question as to the presence or absence of improvements, nor is there a dispute in regard to a partial exemption.

As in the case of the above described errors, paragraphs (b), (c) and (d) of subdivision 2 of section 550 (i.e., clerical error) can be eliminated from consideration. The entry on the tax roll is not alleged to be the result of a mathematical mistake in the extension of the tax or in the processing of a partial exemption. No such claim has been made, and we would certainly agree that none exists. Accordingly, the question becomes whether or not the entry in question is a clerical error as described by paragraph (a) of subdivision 2 of section 550:

(a) 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 entry for the same parcel which appears on the property record card, field book or other final work product of the assessor, or the final verified statement of the board of assessment review; . . .

We believe that it is clear that the entry in question cannot be designated as a clerical error. The assessor has certainly not made a mistake in transcribing from his property record card, field book or other final work product. In fact, we believe that it is clear that the assessor has not made a mistake in transcribing from any document. Namely, the instructions which he received from the board of assessment review as to accounts 410 through 413 were explicit, and they were carried out, as can be seen from an examination of the final assessment roll. The function of the assessor in carrying out the instructions of the board of review subsequent to grievance day is ministerial. The assessor simply makes the changes ordered by the board of assessment review, and he certainly has no discretion in carrying out those instructions.

Thus, we do not believe that the question of ambiguity is even present in this situation. However, since there has been such an abundance of comment concerning the instructions of the board of assessment review and the alleged ambiguity present in those instructions, we believe that it is incumbent upon us to comment on the question of ambiguity. As has been described above, parcels 410 through 413 appear on the change order from the board of review in a bracketed formation with the instruction to subtract 3,000 acres from the overall acreage description of those four parcels. Within that same bracketed instruction, however, there is a clear indication that the assessments are not to be altered under that instruction, this indication being the use of horizontal lines in the spaces available for change orders. Immediately following this bracketed formation, accounts 410 and 411 are entered with instructions to reduce the assessed valuations on each. This series of entries would seem to lead inevitably to two conclusions:

1. That the board of assessment review had thoroughly reviewed the grievances against accounts 410 through 413 and had taken specific action in both reducing the acreage and the assessments of one or more of the four accounts.

2. The statutory authority of the board of assessment review at grievance day includes the right to increase an assessment. The fact that one method of computation of final assessed valuation results in a higher dollar per acre value than the $10 per acre generally used by the assessors does not on its face indicate a mistake. It is perfectly within the authority of the board of assessment review to raise the assessed valuation, and therefore the dollars per acre value of any parcel, which comes before it for its review.

Finally, it is to be noted that in rendering this opinion we are rendering only our interpretation of the termination of procedures for the administrative review of assessments. We are, of course, in no way commenting upon the ultimate valuation of the property, and the review of such determination by a court of law remains the right of the owner of the property in question.

October 30, 1975