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Volume 9 - Opinions of Counsel SBEA No. 124

Opinions of Counsel index

Board of assessment review (powers and duties) (correction of errors - lack of quorum); Correction of errors (board of assessment review) (lack of quorum); (final assessment roll) (board of assessment review - lack of quorum) - General Construction Law, § 41; Real Property Tax Law, §§ 523,553:

A Board of Assessment Review which lacks a quorum cannot act upon an assessor’s petition for the correction of errors on a final assessment roll.

Our opinion has been requested as to whether errors appearing on the current year’s assessment roll may be corrected upon an assessor’s petition to a three member Board of Assessment Review, where the Board only has one member, the other two having resigned. Section 553 of the RPTL authorizes an assessor to petition the Board of Assessment Review to correct certain “errors,” as defined in the statute, which appear on the final assessment roll. The issue here is whether a single remaining Board member may act on an assessor’s requests for correction, and, if not, what procedures may be used to correct the errors.

As we discussed in 9 Op.Counsel SBEA No. 111, General Construction Law, section 41, which applies to Boards of Assessment Review, provides that a majority of the “whole number” of members of a board must be present in order for that board to exercise its “power, authority, or duty.” The “whole number” is the number of members which the board would have if there were no vacancies. RPTL, section 523, requires a Board of Assessment Review to have at least three members. If a town has such a Board consisting of three members, then at least two members must be present at a meeting in order for the Board to conduct any business. Any action taken in the absence of such a quorum would be of no force or effect. Thus, the procedure outlined in RPTL, section 553, is not available to the assessor as long as the Board of Assessment Review does not have at least two active members.

This situation is most unfortunate as it makes impossible the timely administrative correction of errors. For that reason we routinely impress upon assessing units the need to maintain a functioning Board of Assessment Review throughout the year. Vacancies should be filled by appointment as they occur.

Although the Board of Assessment Review quorum problem here renders the section 553 procedure inoperative, some errors may still be corrected administratively. If the errors which the assessor sought to correct fall within the definitions of “clerical error,” “unlawful entry,” or “error in essential fact” (other than an “error in essential fact” as defined in RPTL, § 550(3)(d)), the owners of the property may use the procedure provided in RPTL, section 554, to apply for a correction of the tax roll by filing form EA-554 with the county director of real property tax services. The tax levying body acts upon such applications on the basis of the county director’s recommendation. Applications must be filed prior to the expiration of the warrant. (The Board of Assessment Review is not involved in this procedure; hence, its lack of a quorum is not a problem.)

Once the deadline for applications under section 554 has passed, property owners may apply for refunds under RPTL, section 556. Such an application must be made within one year of the annexation of the warrant in the case of an error in essential fact and within three years of the annexation of the warrant in the case of a clerical error or an unlawful entry.

Moreover, under certain circumstances, RPTL, section 553(1), authorizes correction of errors present in the preceding year’s assessment roll. The assessor may petition the Board of Assessment Review to correct a clerical error “which has resulted in an assessed valuation which is less than that actually appearing upon the property record card, field book or other final work product of the assessor” or an omission of the assessed valuation of taxable real property. In addition, the assessor may petition the Board when the assessment roll shows an assessed valuation less than that determined by the State Board of Equalization and Assessment for State land subject to .taxation or for a special franchise. Errors falling into any of these categories can be corrected using form EA-553. To correct the preceding year’s final assessment roll, the form must be filed no later than ten days prior to the meeting (the so-called “second meeting”) held the following year by the Board of Assessment Review to review such petitions. If the errors do not fall into these categories, there is no procedure by which the assessor may correct the preceding year’s assessment roll.

The only way to assure that the full panoply of correctable errors may be corrected through the administrative correction of errors procedure is to be sure that all of the offices involved are properly staffed. Vacancies in the office of assessor, county director of real property tax services or board of assessment review {*} at the critical time when certain errors may be corrected may make it impossible for those errors to be corrected administratively.

January 12, 1994

{*}  In the case of a board of assessors or board of assessment review, a quorum is necessary for any official action.