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Volume 10 - Opinions of Counsel SBRPS No. 110

Opinions of Counsel index

Assessment review (tax certiorari proceeding) (settlement-delegation of assessment function); Assessor (powers and duties) (delegation of assessment function) - N.Y. Constitution, Art. 16, § 1; Real Property Tax Law, §§ 102(3), 720:

A provision in a tax certiorari settlement agreement which delegates the assessing function from the assessor to a third party may not be enforceable.

We have been informed that a taxpayer and a town have entered into a stipulation of settlement in a tax certiorari proceeding (per Real Property Tax Law, § 720) regarding the operation of a mine. The stipulation provides for the town assessor and the taxpayer to attempt to negotiate an assessed value for the property and, in the event this is not successful, for submission of the issue to an independent expert, whose conclusion would be binding, with neither party having any recourse. The question is whether this provision of the stipulation is void as “against public policy.”

Assessors have the statutory duty to “assess[] real property in an assessing unit for the purposes of taxation . . .” (RPTL, § 102(3). Section 1 of Article 16 of the State Constitution provides, in pertinent part, that, “The power of taxation shall never be surrendered, suspended or contracted away, except as to securities issued for public purposes pursuant to law” (emphasis added).

While our research has not disclosed any precedent directly on point, there are precedents on the related issue as to whether an assessor is bound by a stipulation to “fix” future assessments. All reported cases and opinions answer this in the negative (see, e.g., People ex rel. Beard’s Erie Basin v. Sexton, 247 A.D.754, 285 N.Y.S.786 (2d Dept. 1936); Snowpine Village Condo. Bd. v. Great Valley, 144 Misc.2d 1049 545 N.Y.S.2d 1004 (Sup.Ct. Cattaraugus Co. 1989); North Country Savings Bank v. Nunziato, 123 Misc.2d 502, 473 N.Y.S.2d 682 (Sup.Ct. Albany Co. 1984); 1970 Op.Atty.Gen. (Inf.) 207; 5 Op.Counsel SBEA No. 23).

Similarly, the courts have construed Article 16, section 1, to preclude assessing units from granting exemptions not authorized by statute or altering the terms of statutorily authorized exemptions (see, e.g., Roosevelt Raceway v. Monahan, 9 N.Y.2d 293, 174 N.E.2d 71, 213 N.Y.S.2d 729 (1961), cert. den, 368 U.S. 12, 82 S.Ct. 123, 7 L.Ed.2d 752 (1961); Empire Blue Cross and Blue Shield v. Tax Commission, 245 A.D.2d 135, 668 N.Y.S.2d 4 (1st Dept. 1997), lv. to app. den., 91 N.Y.2d 812, 695 N.E.2d 717, 672 N.Y.S.2d 848 (1998); Troy Union R. Co. v. Troy, 227 A.D. 351, 238 N.Y.S. 577 (3d Dept. 1929), aff’d, 253 N.Y. 597, 171 N.E. 798 (1930); see also, 8 Op.Counsel SBEA No. 120).

In view of the unequivocal language of the Constitution and the above-cited cases and opinions, in our opinion, it is unlikely that a court would enforce a provision in a tax certiorari settlement agreement which delegates the assessing function from the assessor to a third party.

July 3, 2000