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Volume 10 - Opinions of Counsel SBRPS No. 73

Opinions of Counsel index

Senior citizens exemption (application) (failure of exemption recipient to receive renewal application); Correction of errors (clerical error) (partial exemption-failure of assessor to mail or recipient to receive renewal application) - Real Property Tax Law, §§ 467, 550:

It is the responsibility of a senior citizen to file the renewal application for the senior citizens exemption regardless of whether he or she receives a blank form from the assessor. Where the senior citizen fails to timely file for renewal, the correction of errors provisions provide a remedy for the granting of the exemption only where it can be proven that the assessor failed to mail the renewal application to the senior citizen.

A senior citizen failed to apply for renewal of her senior citizens exemption (Real Property Tax Law, § 467). She claims that the assessor failed to send her the renewal form and that she should therefore be granted the exemption. It has been suggested that the correction of errors provisions of title 3 of Article 5 of the RPTL may be used to grant the exemption. We agree that such remedy exists but only in limited circumstances.

The continuation of a senior citizens is dependent on the filing of an annual renewal application (RP-467-Rnw). {1}  Section 467(6)(a) of the RPTL requires the assessing authority to mail a renewal application to each person who received the exemption on the latest final assessment roll along with a notice that such application must be filed on or before taxable status date (accord: RPTL, § 459-c(8)). {2}  Of special relevance here, the exculpatory language in the final sentence of section 467(6)(a) provides, “Failure to mail any such application form or notices or the failure of such person to receive any of the same shall not prevent the levy, collection and enforcement of the payment of the taxes on property owned by such person.” In other words, it is the responsibility of the senior citizen to timely file the renewal application regardless of whether he or she receives a blank form from the assessor.

The correction of errors provisions of title 3 of Article 5 of the RPTL provide an administrative remedy where certain clerical-type errors occur in the preparation and administration of the assessment and tax rolls. Among the definitions of a “clerical error,” which may be corrected for up to three years following its occurrence (RPTL, § 556(1)(a)), is “an incorrect entry of assessed valuation on an assessment roll or on a tax roll which, except for a failure on the part of the assessor to act on a partial exemption, would be eligible for such partial exemption” (RPTL, § 550(2)(c)).

In general, the cited provision refers only to situations where an assessor receives a complete and timely application for exemption, decides that the applicant is entitled to receive the exemption, but through inadvertence, fails to grant the exemption (e.g., the application is mislaid; a data entry error is made). {3}  However, section 467(6)(a) is fairly unique in that, as part of the administration of that section, it requires assessors to mail blank renewal applications to last year’s exemption recipients. Consequently, if it can be proven that an assessor failed to mail the renewal application (through the assessor’s admission or otherwise), it may be said that the assessor has failed to “act” on the exemption. On the other hand, if there is no such proof, but the senior citizen merely alleges (or even proves) that he or she failed to receive the blank form, this is insufficient given the exculpatory language quoted above. {4}

December 29, 1998

{1}  At local option, outside the City of New York which has its own option, municipalities which authorize the senior citizens exemption may permit persons who have received the exemption on five consecutive assessment rolls to file an affidavit of continued exemption eligibility (RP-467-aff/ctv and RP-467-aff/s) with the tax collector in lieu of filing a renewal application with the assessor (RPTL, § 467(6)(b)). That option is not relevant to the facts presented here.

{2}  Note that while the application for the senior citizens exemption also serves as the application for the enhanced school tax relief (STAR) exemption (see, RPTL, § 425(4)(c)), unlike section 467, section 425 does not require assessors to mail renewal applications to enhanced STAR recipients (who are not also senior citizen exemption recipients).

{3}  Where an assessor intentionally denies a partial exemption, the applicant has rights to administrative and judicial review of such decision (RPTL, §§ 522(4)(b), 701(4)(b), 729(2)(b)). The correction of errors procedures are not an alternative remedy in such a situation (9 Op.Counsel SBEA No. 112).

{4}  The exculpatory language of section 467(6)(a) is comparable to that of section 525(4): the notice of determination of the board of assessment review. In construing the latter (albeit in dicta), in Adventist Home, Inc. v. Board of Assessor of the Town of Livingston, 83 N.Y.2d 878, 634 N.E.2d 972, 612 N.Y.S.2d 371 (1994)), the Court of Appeals concluded that the 30 day statute of limitations to commence a proceeding for judicial review of an assessment (RPTL, Art. 7) was effectively tolled by a failure to mail the required notice. (That proceeding was time-barred, however, because it was commenced more than four months after the petitioner received its tax bill.)