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Volume 8 - Opinions of Counsel SBEA No. 34

Opinions of Counsel index

Assessment review (agency) (liability for false statements) - Penal Law §§ 175.00, 175.35; Real Property Tax Law, § 524:

The person who signs the certification on an assessment complaint form (Part V of form EA-524), whether the owner or a designated representative, is responsible for willful false statements made on that form, regardless of who prepared the rest of the form.

A question has arisen concerning responsibility for willful false statements on the form for administrative review of an assessment, pared by a duly designated representative but endorsed by the property owner.

The certification on the complaint form (EA-524) puts the signer on notice that willful false statements therein will subject that person to “the provisions of the Penal Law relevant to the making and filing of false instruments.” Section 175.00(3) of the Penal Law defines a “written instrument” as “any instrument or article containing written or printed matter . . . used for the purpose of . . .c onveying or recording information . . . which is capable of being used to the advantage or disadvantage of some person.” A completed assessment complaint form in which a property owner is seeking a reduced assessment would seem to satisfy this definition.

A person is guilty of the crime of offering a false instrument for filing in the second degree “when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant with the knowledge or belief that it will . . . become a part of the records of such public office . . .” (Penal Law, § 175.30). The crime becomes a first degree offense when the filing includes an intent to defraud the State or some political subdivision (Penal Law,§ 175.35). It seems clear that it is the signer of the certification who is subject to these provisions of the Penal Law. This certification may be signed by the property owner or by his designated representative.

The decision whether to prosecute an alleged violation of these sections is that of the District Attorney. While prosecution for grossly understating the purchase price of one’s property, for example, may fit within the purview of the penal statutes, it is much less likely that there would be a crime involved in the submission of a list of alleged comparable parcels which the board of assessment review finds not to be comparable. The remedy in such a case, and in most situations, is for the board to reject proof that it finds unpersuasive. Charges of criminal intent should be restricted to only the most blatant cases of fraudulent submissions by taxpayers.

Where a taxpayer has designated a representative by completing Part 4 of the complaint form (or a similar designation), the board of assessment review should contact that representative if additional information is needed. In the most unusual situation, where a person has been designated as the representative of an aggrieved taxpayer without the knowledge of the designee, the property owner must be contacted (consent of both principal and agent being necessary to create an agency; see, e.g., 2 N.Y.Jur.2d, Agency, § 16 (1979)).

May 12, 1983