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Volume 6 - Opinions of Counsel SBEA No. 53

Opinions of Counsel index

Assessor (powers and duties) (changes on final assessment roll); Correction of errors (generally) (changes on assessment roll) - Real Property Tax Law, §§ 506, 553:

Upon the filing of the tentative assessment roll, the right of the assessor to change entries on the roll is limited to those ordered by the board of assessment review or tax levying body.

A question has been raised in regard to the authority of the assessor to change entries once they have been made on the tentative assessment roll. The facts are as follows:

An assessor incorrectly included a value for an improvement, which had been destroyed prior to taxable status date, in assessing a parcel on the 1977 tentative assessment roll. (This type of mistake is an “error in essential fact” under section 550(3)(a) of the Real Property Tax Law, for which correction may be had or a refund made upon timely application in accordance with the provisions of Title 3 of Article 5.) The error was not discovered until after the tax roll was prepared. An application for correction of that roll was submitted, however, prior to the expiration of the warrant for collection (see, § 554(2)), and the tax levying body thereafter approved the application and ordered that the tax roll be corrected (§ 554(5)).

In the course of preparing the 1978 tentative assessment roll, the assessor repeated this mistake. (The parcel had not been improved in the interim.) The property owner did not file a written complaint with the board of assessment review for consideration on grievance day. The assessor did not file a petition with that board for correction of the error on either the tentative (§ 552) or final (§ 553) assessment roll; rather, the assessor unilaterally changed the entry from that originally appearing on the tentative assessment roll in order to correct the error. Thereafter, a petition was presented by the assessor for “correction” of the tax roll in an apparent attempt to “legalize” that which he had already done.

It is clear that the assessor exceeded his statutory authority in making the aforementioned change on the final assessment roll. Assessments entered on the tentative assessment roll indicate the assessor’s judgment as to the value for each parcel (Real Property Tax Law, § 506). Thereafter, the assessor has no jurisdiction to change those entries (2 Op.Counsel SBEA No. 62) unless either:

(1) a written complaint is filed with the board of assessment review on or before “grievance day,” and the board directs a change to be made with respect to the complainant’s parcel (Real Property Tax Law, § 1524(2)(c); or

(2) there is an error as defined in section 550 of the Real Property Tax Law and the appropriate review body (i.e., either the board of assessment review pursuant to § 552 or § 553, or the tax levying body by the authority of §§ 554, 556, or 556-a) directs that a change be made.

A long history of case law makes it clear that, with the exceptions noted, an assessor has no authority to change entries on the tentative assessment roll (see, e.g., People ex rel. Chamberlain v. Forrest, 96 N.Y. 544; Henderson v. Silco, 36 A.D.2d 439,321 N.Y.S.2d 313). Quite clearly then, the assessor lacked the authority to make the change on the 1978 final assessment roll. The filing of the petition to “correct” the tax roll (when, in fact, that roll already included the assessment as changed by the assessor) appears to have been an attempt by the assessor to legitimize his act ex post facto. The petition in this case is a nullity and the county director should recommend rejection and the tax levying body should abide by this recommendation.

The assessor, of course, could have followed established procedures for the correction of this error. For example, he could have submitted a petition to the board of assessment review for correction of the final assessment roll (§§ 556(2), 553). Failing that, application could have been made by the property owner for correction of the tax roll, as was done in 1977 (§§ 556(3), 554).

The fact that this was a repetition of the same error which had been corrected by the tax levying body in the prior year did not give the assessor any jurisdiction to unilaterally make the change in this instance.

April 17, 1979