Volume 9 - Opinions of Counsel SBEA No. 15
Board of assessment review (powers and duties) (unsigned complaint form) - Real Property Tax Law, § 524:
Complaints in relation to tentative assessments must be signed by the person making the complaint or his or her authorized agent. However, the board of assessment review may act on a complaint which is not signed, thereby waiving the defect.
We have been asked whether a board of assessment review may act on a complaint which is not signed.
Complaints in relation to assessments are governed by RPTL, § 524, subdivision three of which provides in part that:
A complaint with respect to an assessment shall be on a form prescribed by the state board. . . . 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 statement shall also contain the following sentence: “I certify that all statements made on this application are true and correct to the best of my knowledge and belief and I understand that the making of any willful false statement of material fact herein will subject me to the provisions of the penal law relevant to the making and filing of false instruments.”
Although RPTL, § 524(3) does not expressly require a signature on a com plaint, the statutory certification requirement would be meaningless without a signature. Therefore, in our opinion, RPTL, § 524(3) requires complaints in relation to assessments to be signed by the person making the complaint. {*}
With respect to whether a board of assessment review may waive the certification requirement, in Mendick v. Sterling, 83 A.D.2d 749, 443 N.Y.S.2d 508 (4th Dept. 1981), the court considered whether a tax certiorari proceeding could be maintained where the complaint filed with the board of assessment review had not been certified. The court held the municipality estopped from asserting the defense of lack of jurisdiction because representatives of the municipality contributed in large measure to the defect in the complaint. However, the court did not address the question of whether the absence of the statutory certification would normally constitute a jurisdictional defect. We are not aware of any other case precisely on point.
By way of analogy, prior to 1978, complaints in relation to assessments made to boards of assessment review (or analogous administrative review bodies) were required by statute to be made under oath. Several courts held that unsworn complaints were jurisdictionally defective (People ex rel. Schwartz v. Miller, 256 A.D. 956,10 N.Y.S.2d 169 (2d Dept., 1939), rev’d. on other grounds, 281 N.Y. 554, 24 N.E.2d 465 (1939); People ex rel. Laurelton Development Co. v. Purdy, 190 A.D. 957, 179 N.Y.S. 944 (2d Dept. 1920); Grey v. Board of Assessors of the Town of Bristol, 14 Misc.2d 858, 180 N.Y.S.2d 607 (Sup.Ct., Monroe Co., 1958); see also In re Onteora Club, 17 A.D.2d 1008, 233 N.Y.S.2d 855 (3d Dept. 1962)). Other courts held that defects in the complaint form could not be waived (Raer Corp. v. Village Board of Trustees of the Village of Clifton Springs, 79 A.D.2d 989, 433 N.Y.S.2d 926 (4th Dept. 1980) [board of assessment review could not waive statutory requirement of written complaint]; 1600 Elmwood Avenue, Inc. v. Wiles, 42 Misc.2d 759, 249 N.Y.S.2d 11 (Sup.Ct., Monroe Co., 1964) [board of assessors could not waive statutory requirement that complaint specify respect in which assessment is illegal, erroneous or unequal]; People ex rel. 2440 Concourse, Inc. v. Miller, 178 Misc. 1038, 37 N.Y.S.2d 264 (Sup.Ct., Bronx Co., 1940), affd., 261 A.D. 948, 26 N.Y.S.2d 219 (1st Dept. 1941), lv. to app. den., 261 A.D. 1073, 27 N.Y.S.2d 784 (1st Dept. 1941), affd., 285 N.Y. 862 (1941) [New York City Tax Commission could not waive charter provision requiring complaints to set forth grounds of objection to assessment]).
However, other courts held that by acting on an unsworn complaint or contributing to the defect, the administrative review body waived the defect (Henderson v. Silco, 36 A.D.2d 439, 321 N.Y.S.2d 313 (4th Dept., 1971); Romas v. Huffcut, 39 Misc.2d 872, 242 N.Y.S.2d 113 (Sup.Ct., Broome Co., 1963); People ex rel. City of Watertown v. Gilmore, 166 Misc. 323, 2 N.Y.S.2d 388 (Sup.Ct., Jefferson Co., 1938); People ex rel. W.T. Grant Realty Corp. v. Clinton, 138 Misc. Rep. 333, 245 N.Y.S. 544 (Sup.Ct., Schenectady Co., 1930); compare DHI Management Agency v. City of Yonkers, 67 A.D.2d 913, 413 N.Y.S.2d 39 (2d Dept., 1979) [error to grant summary judgment dismissing RPTL, Article 7 proceeding when affidavit raises question of fact whether board of assessment review waived compliance with statutory requirements governing complaint in relation to assessment]; People ex rel. Scobell v. Kilborn, 35 Misc. Rep. 599, 72 N.Y.S. 133 (Sup.Ct., Onondaga Co., 1901) [administrative review board waived statutory requirement that complaint be in writing and under oath when it reduced assessment based on verbal objection]; but cf. Hersch v. Stroup, 19 A.D.2d 664, 241 N.Y.S.2d 218 (3d Dept. 1963), mot. lv. to app. den., 13 N.Y.2d 597, 243 N.Y.S.2d 1027 (1963) [doctrine of waiver or estoppel should not be applied in tax matters]).
In view of the repeated holdings of the Court of Appeals that the law relating to review of assessments is remedial in character and should be liberally construed to the end that the taxpayer’s right to have his assessment review should not be defeated by a technicality (Great Eastern Mall, Inc. v. Condon, 36 N.Y.2d 544, 330 N.E.2d 628, 369 N.Y.S.2d 672 (1975); People ex rel. New York City Omnibus Corp. v. Miller, 282 N.Y. 5, 24 N.E.2d 722 (1939)), the court in Raer Corp., supra, may very well have enunciated the proper rule when it stated that “if a complaint or a reasonable substitute therefore has been timely filed with the Review Board that gives jurisdiction,. . . other requirements are procedural and may be supplied by amendment or may be deemed waived by action of the Board” (433 N.Y.S.2d 926 at 927).
Given the unsettled state of the law, the assessor should review for completeness each complaint brought before the board of assessment review. Should a complaint not be certified, the assessor should inform the board of assessment review and have his remarks recorded in the minutes of the hearing (see RPTL, § 525(2)). This will ensure that the Board does not inadvertently waive the defect.
December 17, 1984
{*} RPTL, § 524(3) was added by chapter 714 of the Laws of 1982 and merely recodifies provisions previously located in RPTL, § 512(1) (added L.1958, c.959 and amended through L.1982, c.620). Prior to 1978, RPTL, § 512(1) and its predecessor statutes (former Tax Law, § 37, added L.1909, c.62; renumbered § 27, L.1933, c.470; and repealed L.1958, c.959) required complaints in relation to assessments to be made under oath. Chapter 193 of the Laws of 1977 deleted the requirement that complaints be made under oath in favor of the existing certification requirement. The sponsor’s memorandum for the bill enacted as chapter 193 states in part that:
The requirement that taxpayers’ complaints relative to their assessments be made under oath has been used in some jurisdictions to deprive taxpayers of administrative review. Paragraph (b) of subdivision 2 of section 1524 of the Real Property Tax Law empowers the board of assessment review to administer oaths. However, many taxpayers do not personally appear on grievance day, and if they have not verified their complaint, their grievances may be summarily dismissed. In many rural areas, there is a lack of readily available notaries public making it difficult for taxpayers to get their complaints verified. This bill replaces the existing verification requirement with the certification set forth above. This notice seems adequate to inform taxpayers of the consequences of filing a false complaint to the board of assessment review.
