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Volume 7 - Opinions of Counsel SBEA No. 42

Opinions of Counsel index

Assessment review (tax certiorari proceeding) (settlement - uncontested succeeding assessment) - Real Property Tax Law, §§ 512, 706:

Settlement of a prior Article 7 proceeding may not include provision for a reduction in current assessed value, if no complaint was filed prior to the meeting of the board of assessment review to consider complaints with respect to the current roll.

We have been asked whether a proposed settlement of an Article 7 proceeding to review the prior year’s assessment may include provisions for the Assessor to similarly reduce the current assessment of the same property. The petitioners did not file a written complaint with the Board of Assessment Review prior to its hearing of complaints with respect to the current year’s assessment roll.

There is no question that, under these circumstances, the Assessor may not reduce the current year’s assessed value.

Section 706 of the Real Property Tax Law prescribes the contents of a petition for judicial review of an assessment. In part, that section provides that “[such] petition must show that a complaint was made in due time to the proper officers to correct such assessment.”

It is the complaint to the “proper officers” (i.e., to the assessor or board of assessment review – see, § 512(1)) which gives the court jurisdiction to proceed. Except in a case where there is no jurisdiction to assess, “the court has jurisdiction to review the assessment only when such protest has been made [citations omitted]. If no protest was made, then it follows that the court has no jurisdiction of the subject of the proceeding” (City of Albany v. Town of Coeymans, 253 App.Div. 436, 2 N.Y.S.2d 735, at 737 (3d Dept., 1938); see also, People ex rel. Powott Corp. v. Woodworth, 260 App.Div. 168, 21 N.Y.S.2d 785 (4th Dept., 1940)).

The fact that the petitioners filed timely complaints with the Board of Assessment Review in 1980 is irrelevant to the question of whether the court has jurisdiction to review assessments of the same properties in 1981. As the Court of Appeals has stated, “[it] is the essence of an assessment that it fixes value as of a certain time. Each annual proceeding is separate and distinct from every other. Year by year an assessor must use his own judgment and must verify the roll.” (People ex rel. Hilton v. Fahrenkopf, 279 N.Y. 49, at 52-53, 17 N.E.2d 765 (1938) (emphasis added)). Similarly, it has been said that “[in] no sense can the value fixed by the assessors for one year, or by a court on review, have any application to the issue of value in recurring assessments or proceedings to review them [citations omitted]” (Lome v. Tax Comm. of City of N.Y., 19 Misc.2d 803, 192 N.Y.S.2d 787, at 792 (S.Ct., Queens Co., 1959), aff’d, 11 A.D.2d 773, 204 N.Y.S.2d 910 (2d Dept., 1960), app.den., 11 A.D.2d 948, 206 N.Y.S.2d 551 (2d Dept., 1960)).

Accordingly, there being no indication that the assessments in 1981 were void for lack of jurisdiction (cf., People ex rel. Erie R. Co. v. State Tax Comm., 246 N.Y. 322, 158 N.E. 844 (1927)), it is our opinion that the failure of the petitioners to file with the Assessor or the Board of Assessment Review timely written complaints in regard to the current assessments of their properties precludes any reduction in those assessed valuations. the proposed stipulation must be limited to the assessments on the prior year’s roll.

October 2, 1981

NOTE: Construes law prior to L.1995, c.693.