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Volume 8 - Opinions of Counsel SBEA No. 74

Opinions of Counsel index

Assessment review (tax certiorari proceeding) (settlement - effect upon county) - Real Property Tax Law, §§ 708, 726:

Effective July 22, 1982, the treasurer of any county in which real property is the subject of a judicial proceeding to review an assessment, must receive a copy of any Article 7 petition. Accordingly, settlement of such a proceeding would bind the county only if such service is completed.

Article 7 of the RPTL provides that judicial orders in tax certiorari proceedings direct the correction of assessment rolls, not tax rolls (§ 720[1]). Where an order is not issued in time for correction of the assessment roll prior to the extension and levy of taxes, the implication of subdivision one of section 726 is that the Article 7 petitioner must pay the tax as levied and then apply to the tax levying body for a refund of that portion of the tax attributable to the assessment corrected or stricken by the court.

The person or body directed by the judicial order to correct the assessment roll must comply with that order. In the event that the court makes no specific direction, the person or body in custody of the roll should make the appropriate change(s). Prior to the levy and extension of taxes, this person would be the clerk of the county legislative body and the town clerk (RPTL, § 516[1]); afterward, the collecting officer (RPTL, § 904[1]).

Note that, in our opinion, an Article 7 proceeding against a town may be settled only by the town board (3 Op.Counsel SBEA No. 92). However, the settlement is binding on any school district which levied a tax based on the assessment if the district had received notice (2 Op.Counsel SBEA No. 37). In 6 Op.Counsel SBEA No. 116, we wrote that since there was no statutory requirement that a county be served with a copy of a petition in a proceeding for assessment review pursuant to Article 7, a settlement of that proceeding would be binding upon the county regardless of whether notice was given of the settlement negotiations. However, by amendment in 1982, RPTL, section 708(3) now requires service of the petition upon the county treasurer (L.1982, c.655, effective July 22, 1982). Accordingly, we believe the rationale expressed in 2 Op.Counsel SBEA No. 37 with respect to school districts would be equally applicable to counties and, to that extent, 6 Op.Counsel SBEA No. 116 is superseded.

February 25, 1985

NOTE:  This Opinion modifies Opinion 6-116; both opinions construe law prior to L.1995, c.693.