Volume 8 - Opinions of Counsel SBEA No. 83
Board of assessment review (powers and duties) (evidentiary demand - professional appraisal) - Real Property Tax Law, § 525:
A board of assessment review may not adopt a general policy requiring owners of residential property to submit professional appraisal reports as a condition precedent to reducing an assessment.
The powers and duties of a board of assessment review are set out in section 525 of the Real Property Tax Law [RPTL], which provides in relevant part that:
2. On the date required by law, the board of assessment review shall meet to hear complaints in relation to assessments. At such meeting, the board of assessment review may administer oaths, take testimony and hear proofs in regard to any complaint and the assessment to which it relates. If not satisfied 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 person whose real property is assessed, or his agent or representative, shall willfully neglect or refuse to attend and be so examined, or to answer any question put to him relevant to the complaint or assessment, such person shall not be entitled to any reduction of the assessment subject to the complaint. . . .
3. The board of assessment review shall thereafter determine the final assessed valuation or taxable assessed valuation ... of the real property of each complainant * * * (emphasis added).
The general presumption is that no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything which his official duty requires to be done (Matter of Marcellus, 165 N.Y. 70, 77, 58 N.E. 796 (1900)). This presumption, which applies to the acts of the assessor (People ex rel. Wallington Apartments, Inc. v. Miller, 288 N.Y. 31, 41 N.E.2d 445 (1942)), places upon the individual challenging the regularity of administrative action the burden of coming forward with affirmative evidence of unlawful or irregular conduct (see, People v. Richetti, 302 N.Y. 290, 97 N.E.2d 908 (1951)).
Since the assessor’s valuation is presumed correct, the taxpayer must produce evidence to rebut this presumption. Since the assessors are not bound to use a single valuation methodology, the type of evidence necessary to rebut the presumption will vary. However, in Grossman v. Board of Trustees of the Village of Geneseo, 44 A.D.2d 259, 354 N.Y.S.2d 188 (4th Dept. 1974), the court considered a predecessor statute of RPTL, section 525(2) and stated:
* * * It is not sufficient for the taxpayer to assert merely the conclusions of illegality or error, he must indicate where error exists. To that end, the members of the Board are entitled to view the whole matter, to ask questions and examine the records which are reasonably necessary to resolve the issue [citation omitted]. It is for the Board, not the taxpayer, to determine what information is material to the proceeding [citation omitted]. While the proceeding may appear inquisitional to the taxpayer, the boundaries of the inquiry are broad and if the questions are reasonably necessary and material to determining issues of tax exposure or assessed value for the property, they are proper. Considering “that natural tendency of human nature to make the best showing for his own side, and especially the remarkable force of that tendency when one applies to have his taxes reduced” [citation omitted], the Board is not limited to the information which the taxpayer himself decides is material . . . (354 N.Y.S.2d at 193, 194 (emphasis added)).
Clearly, a board of assessment review has discretion to require a taxpayer to furnish information reasonably necessary to resolve any issue raised by the taxpayer’s complaint, and in a proper case this could include a professional appraisal report. However, especially where a complaint concerns single family residential property (exclusive of condominiums and cooperatives), we believe for several reasons that it would be an abuse of discretion to routinely require submission of a professional appraisal report as a condition precedent to an assessment reduction.
First, section 523(1) of the RPTL requires members of a board of assessment review to have “knowledge of property values in the local government”. It seems that this is intended to limit the need to present expert testimony before a board of assessment review except in cases involving property which is difficult to value.
Second, in many cases knowledgeable taxpayers will be able to furnish a board of assessment review with an analysis similar to that which would be contained in a professional appraisal report. Single family residential property is commonly valued on the basis of comparable sales, replacement cost less depreciation, or both (see, e.g., 9 NYCRR 186-16.5, 16.8). Neither of these valuation techniques is so difficult to understand or to apply as to make it solely the province of a professional appraiser. Although there might be differences of opinion with respect to the conclusions to be drawn from an analysis prepared by a taxpayer, this is no different than when the analysis is prepared by a professional appraiser and does not provide a basis for simply ignoring the taxpayer’s proof.
Finally, and perhaps most importantly, chapter 1022 of the Laws of 1981 amended the RPTL to provide for small claims assessment review. This legislation authorizes owners of certain one, two and three family residential real property, who are not satisfied with the determination of the board of assessment review, to institute a special proceeding to review claims of excessive and unequal assessments, in lieu of a certiorari proceeding brought pursuant to Title one of Article 7. The purpose of this measure, as stated in the legislative sponsor’s memorandum, is to resolve the following problem:
Under present law, regardless of the dollar amount in controversy, a real property taxpayer who is unhappy with the assessment made by the local review board, must file a formal supreme court proceeding under Article 7 of the Real Property Tax Law. In view of the complexity and cost of this procedure, it can be said that there is an undue burden imposed on the residential property owner. The expense of an attorney and expert witnesses, appraisals, etc. often make it financially progibitive [sic] for residential taxpayers to challenge their assessments (emphasis added).
Thus, the law provides that a small claims proceeding “shall be conducted on an informal basis in such manner as to do substantial justice between the parties according to the rules of substantive law” and that “[t]he petitioner need not present expert witnesses. . .” (§732(2)) (emphasis added). It would be anomalous, to say the least, to require an owner of single family residential real property to expend funds to present a professional appraisal report to the board of assessment review, when such proof is specifically not required for subsequent small claims judicial review. Indeed, any such universal requirement imposed by a board of assessment review could give rise to the inference that the board of assessment review is merely attempting to preclude residential real property owners from seeking administrative review of their assessments.
Accordingly, we believe that a board of assessment review may not adopt a general policy requiring that owners of residential property submit professional appraisal reports as a condition precedent to reducing an assessment.
May 1, 1984