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Volume 10 - Opinions of Counsel SBRPS No. 104

Opinions of Counsel index

Assessment review (inequality) (underassessment of comparable parcels); Assessment review, Board of (powers and duties) (increased assessment) - Real Property Tax Law, §§ 305, 522, 525, 701, 729:

A taxpayer has the right to be assessed at the average percentage of value applicable in the assessing unit, but not to be assessed at a lesser percentage thereof. Accordingly, a board of assessment review should not reduce an assessment to a level less than the average percentage, even if the complainant submits assessments of comparable properties which are assessed at less than such average percentage. The board of assessment review may point out such anomalies to the assessor, but it may not increase an assessment or affect any assessment not properly before it for review.

A member of a board of assessment review is urging the town assessor to increase the assessments of several properties which the board member believes are assessed at less than the locally applicable average percentage of value. {1}  The board member expects that these properties will be used as evidence of unequal assessments by other complainants and is apprehensive that the board will be constrained to award assessment reductions when presented with such evidence.

It is the role of the board of assessment review to review those tentative assessments with which property owners disagree and for which timely complaints have been filed. As to those parcels, the board has the authority to reduce assessments or leave them unchanged (RPTL, § 525(3)(b)). The board has no jurisdiction as to other parcels, nor may it increase assessments. {2}  While any person, including a member of a board of assessment review, has the right to point out to an assessor perceived errors in assessments, that person/board member has no jurisdiction to affect those assessments; only the assessor has the power to assess (RPTL, § 102(3); 1 Op.Counsel SBEA No. 39; 2 id. No. 29).

One of the more frequently alleged grounds for assessment complaints is a claim of “unequal assessment,” an allegation that can form the basis for an administrative complaint (RPTL, § 522(9)), a tax certiorari proceeding (RPTL, § 701(8), or a small claims assessment review proceeding (RPTL, § 729(4)). In presenting proof of alleged inequality in assessments, property owners have the right to present evidence of comparable property which they believe is more favorably assessed than their own. The burden of proving inequality is on the property owner, and the board of assessment review’s function (comparable to that of the assessor) is to attain or preserve assessment uniformity.

While every taxpayer has the right to be fairly assessed, there is no right to be underassessed. {3}  As the State’s highest Court held in conjunction with a tax certiorari proceeding:

The reason why a mere comparison of the assessment of a neighbor’s property is irrelevant, and why the question is solely one of comparative rate of assessment, is evident when the purpose of an inequality proceeding is borne in mind. This court long ago held that the injustice to be redressed in such a proceeding is discriminatory assessing which has the effect of compelling the taxpayer to pay more than his due share of the aggregate tax, that is, the levy on all the taxpayers in the entire district. ([citation omitted]; People ex rel. Warren v. Carter, supra, 109 N.Y. 576.) But that grievance may not be established simply by showing an underassessment of neighbor A’s property. As Judge ANDREWS, writing for the court in the Warren case, put it, “If a particular piece of property [e.g., neighbor A’s] on an assessment-roll is under-valued, another [e.g., neighbor B’s] may be correspondingly over-valued” (109 N.Y., at pp. 580-581). In such circumstances, the subject property would be bearing no greater than its due proportionate share of the total tax burden, and, as indicated, the petitioner would have no cause or basis for complaint.
More precisely, petitioner, to become entitled to relief, must show that the inequality of which he complains would subject him to the payment of more than his just proportion of the aggregate tax. That is the rationale underlying our decision in People ex rel. Warren v. Carter (supra, 109 N.Y. 576), and that is the reason why proof of inequality may be established only by showing that the assessment has been made, to quote the applicable provision of statute, “at a higher proportionate valuation than the assessment of other property on the same roll by the same officers” (Tax Law, § 290-c) {4}  (Wolf v. Assessors of Town of Hanover, 308 N.Y. 416, 421-22, 126 N.E.2d 537, 541 (1955)).

More recently, the Appellate Division similarly construed the small claims assessment review procedure:

The petitioners had the burden of demonstrating that their properties were assessed at a higher percentage of full market value than the average of all residential property on the same assessment roll. Although a homeowner may offer evidence of “the assessment of comparable residential properties within the same assessing unit” (RPTL 732 [2]), such evidence serves merely to “bolster” the claim that a petitioner’s assessment is erroneous (see, State Board of Real Property Services, A Taxpayer’s Guide: How to File a Complaint on Your Assessment, at 30 [Jan. 1998 rev]) and is of low probative value (see, Lee and LeForestier, Review and Reduction of Real Property Assessments in New York § 9.06, 1.17 [3d ed 1988])(Pace v. Assessor of the Town of Islip, 252 A.D.2d 88, 92, 682 N.Y.S.2d 447, 451 (2d Dept. 1998), lv. to app. den., 93 N.Y.2d 805, 689 N.Y.S.2d 707 (1999)).

Boards of assessment review should consider these judicial precedents as they weigh the evidence of alleged inequality in assessments presented to them and make their administrative determinations. Since an assessing unit has no right to appeal a decision of a board of assessment review (1 Op.Counsel SBEA No. 83), a board’s decision to effectively underassess property brought before it for review will undermine the overall uniformity of assessments on the final assessment roll and subsequent tax rolls.

April 3, 2000

{1}  The law requires assessors to assess at a uniform percentage of value (Real Property Tax Law, § 305(2)). This percentage is to appear on the assessment roll (RPTL, § 502(3)) and on tax bills (RPTL, § 922(1)(a)(iii)).

{2}  Boards of assessment review were originally empowered to increase assessments subject to their review, as well as to reduce them or leave them unchanged, but the authority to increase assessments was eliminated in 1981 (c.994).

{3}  If a taxpayer’s property is fairly assessed, but he or she has evidence to prove that other properties are underassessed so as to unfairly shift the burden of taxation to the taxpayer, the judicial remedy is a proceeding to compel a reassessment (Hellerstein v. Assessor, Town of Islip, 37 N.Y.2d 1, 332 N.E.2d 279, 371 N.Y.S.2d 388 (1975), mod., 39 N.Y.2d 920, 352 N.E.2d 593, 386 N.Y.S.2d 406 (1976)).

{4}  Now RPTL, § 701(8)(a); see also, RPTL, §§ 522(9)(b), 729(4)