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Volume 4 - Opinions of Counsel SBEA No. 21

Opinions of Counsel index

Assessor (powers and duties) (appearance in tax certiorari proceeding)  Assessment review, board of (appearance in tax certiorari proceeding) - Real Property Tax Law, Article 7:

A tax certiorari proceeding brought pursuant to Article 7 of the Real Property Tax Law is a trial de novo of the assessor’s original assessment, and the assessor, not the board of assessment review, is the necessary party-respondent to such a proceeding.

We have been asked whether the chairman of the board of assessors or the chairman of the board of assessment review may be required to make a court appearance in a Real Property Tax Law Article 7 or certiorari proceeding.

Pursuant to section 500 of the Real Property Tax Law, on or before the first day of May in each year, the assessors in each town are required to ascertain “by diligent inquiry” all real property located therein and the names of the owners thereof. The assessors must then fix an assessment of each parcel of real property in their assessing units on or before June 1, the date for the completion of the tentative assessment roll. The assessment so fixed is, in effect, the assessor’s opinion or estimate of the value of the property (see the language of the assessor’s oath as set forth in Real Property Tax Law, § 514), and in arriving at such values, the assessors may avail themselves of all tests of such value within their reach and of every effect, and all information which in their judgment has any bearing upon such value.

Once the tentative assessment roll has been completed and filed, the assessor loses all jurisdiction to change or amend such roll except upon direction of the local board of assessment review acting in response to a timely written verified complaint filed on or before grievance day (the third Tuesday in June) by a real property owner, his agent or attorney.

If a taxpayer has filed a timely written complaint with the board of assessment review and is dissatisfied with the determination of that board, he may then commence a judicial proceeding to have his assessment reviewed pursuant to Article 7 of the Real Property Tax Law. While an Article 7 proceeding has been called a “review” proceeding it is in reality a trial de novo rather than a “review” as such. As noted by the court in People ex rel. Four Park Avenue Corp. v. Lilly, 265 App. Div. 68, 37 N.Y.S.2d 733, at 737:

A certiorari proceeding to review a tax assessment is not merely a writ of review. The law is settled that it is also in the nature of a new trial or a venire de novo; that upon a hearing of the application before the court all proof which was before the assessors ... and such further evidence as the relator chooses to produce bearing upon the material issues raised by the petition and return may be produced and given. [citing cases]

Thus, in fact, the purpose of an Article 7 proceeding is to determine whether the original assessment as made by the assessor was correct or not, rather than to review the findings of the board of assessment review.

An Article 7 proceeding is to be maintained “ . . . against the assessors either by naming them individually or by using the official name of the assessing unit.” (Real Property Tax Law, § 704(2).) In People ex rel. Calderazzo v. Stiner, 60 N.Y.S.2d 502, aff’d, 270 App. Div. 1019, 62 N.Y.S.2d 367, app. den., 270 App. Div. 1046, 63 N.Y.S.2d 840, the petitioner claimed that the assessor was not a necessary party-respondent to an Article 7 proceeding since (as we previously noted) an assessor lacks authority after tentative completion of the assessment roll, to change the assessment roll without direction to that effect from the board of assessment review or a court. The court responded (at p. 504) by stating that:

The court cannot concur with the contention of relator that upon the preparation and filing of the assessment roll, the Assessor is supplanted for all purposes by the Board of Review, and is therefore not a necessary party in subsequent judicial proceedings to review the final assessment. The Board of Review does not make the assessment, but acts merely in an revisory capacity. Such board acts “instead of the elected [assessor]” solely for [the] purpose of reviewing his original appraisal. The function of review does not substitute the board for the Assessor, and constitute the board the sole interested party-respondent in subsequent judicial proceedings to review.

Although it has been held that the real party in interest in an Article 7 proceeding is the municipality, and not the assessor (People ex rel. Beaunit Weaving Mills Co. v. Shiner, 245 App. Div. 790, 280 N.Y.S. 920), as the Calderazzo case indicates, the assessor is a necessary party-respondent to such a proceeding. This follows from our previous discussion of the nature of an Article 7 proceeding; i.e., that such a proceeding is not really a “review”, as such, of the determination of the board of assessment review on grievance day, but is rather a trial de novo in which the assessor’s original assessment is called into question and the court is required to determine whether or not such assessment was correct. Subdivision 2 of section 720 of the Real Property Tax Law provides that if it appears to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct. The report of the referee and the decision or final order of the court finding the value of the property and the proper assessment thereof must contain the essential facts found upon which the ultimate findings of fact are made. Since an assessment is the opinion or estimate of an assessor as to the value of a particular parcel of real property, it appears likely that in most cases, the assessor will be called upon in an Article 7 proceeding to explain the basis for this assessment and the manner in which he arrived at the assessment(s) in question.

October 10, 1974