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Volume 9 - Opinions of Counsel SBEA No. 66

Opinions of Counsel index

Assessments, generally (inventory data mailer) - Municipal Home Rule Law, § 10; Real Property Tax Law, §§ 500, 501:

An assessing unit has the authority to enact a local law requiring owners of real property to complete inventory data questionnaires relating to their property and to provide for a monetary fine in the event of noncompliance.

Our opinion has been requested regarding a municipality’s authority to send a questionnaire to each property owner to assist the assessor in data collection. The municipality proposes to bill a property owner for noncompliance.

Sections 500 and 501 of the RPTL require each assessor to prepare, maintain and make available assessment inventories. State Board Rules (9 NYCRR 190-1.2) define the inventory required by sections 500 and 501 to include the following information:

(1) name of property owner(s);

(2) tax map land parcel number;

(3) property description;

(4) physical characteristics of the improvements to the parcel that are necessary to value the parcel by at least one of the standard appraisal methods; and

(5) exemption status.

The questionnaire is designed to assist the assessor in obtaining the data specified in paragraph (4).

An assessor’s duty to assess encompasses the authority to send out an inventory questionnaire to assist in data collection. The State Board’s Rules for Real Property Tax Administration provide for an inventory mailer (9 NYCRR Part 192). Specifically, 9 NYCRR 192-3.2(a)(5)(vii) requires an inventory mailer to be mailed to each property owner as part of the standards for State assistance for improved collection and maintenance of real property valuation data (RPTL, Art. 15-B). However, neither State law nor the Board’s Rules address the two issues of whether real property owners may be required to respond to this questionnaire and whether a charge may be imposed for a failure to respond. As is explained in the following analysis, we conclude that both requirements may be imposed, provided a local law is adopted.

The power to tax is vested solely in the State Legislature (N.Y. Const., Article III, § 1; Article XVI, § 1). The Legislature has delegated to its municipal subdivisions the authority to assess, levy and collect real property taxes for local purposes. The Constitution expressly empowers local governments to adopt and amend local laws including, but not limited to, the collection and administration of local taxes as authorized by the Legislature (N.Y. Const., Article IX, § 2(c)(8)).

Municipal Home Rule Law, section 10(1)(ii)(c)(2), (1)(ii)(d)(1) and (1)(ii)(e)(1) are directly derived from Article IX of the Constitution and expressly grant to cities, towns and villages the authority to adopt local laws relating to “the preparation, making, confirming and correction of assessments. . . .” However, a municipality’s authority to adopt a local law relating to “the preparation or making of assessments” may not be exercised in a manner inconsistent with the Constitution or any general law of the State (Consolidated Edison v. Town of Red Hook, 60 N.Y.2d 99, 456 N.E.2d 487, 468 N.Y.S.2d 596 (1983)).

In our judgment, the provisions of the Municipal Home Rule Law cited above provide a municipality with the authority to enact a local law requiring the completion of an inventory mailer because the filing of the completed questionnaire relates essentially to the “preparation of assessments.”

The New York State Court of Appeals has stated that:

[A] duly enacted local law is clothed with the presumption of constitutionality that applies to State legislative enactments. . . . This is especially pertinent and cogent in the area of taxation where special deference is given to legislative policy choices. . . . Defeating this presumption places a heavy burden, at the threshold, on the party challenging the local prove inconsistency with the State Constitution or general laws of the State (Kew Gardens Road Assoc. v. Tyburski, 70 N.Y.2d 325, 333, 514 N.E.2d 1114, 520 N.Y.S.2d 544, 548 (1987)).

In Kew Gardens, a taxpayer challenged a local law which required owners of income-producing property to furnish income and expense statements to the Commissioner of Finance of the City of New York in preparation for real property tax assessment. The property owner alleged that the local law was an exercise of impermissible personal taxing jurisdiction over individual property owners and was inconsistent with the so-called in rem nature of the real property tax as defined by the State Legislature (RPTL, § 304). The Court determined that the taxpayer’s construction of the local law was not persuasive because the law only required the filing of information related solely to the operation of the income-producing property and did not contain any distinctly personal financial information. The Court also stated that:

To the extent that the data overlap or partake of some personal attributes, that is incidental to and inherent in the legitimate acquisition of information about the property itself.

Notably, these data are of the type customarily required of real property taxpayers as a prerequisite to certiorari challenges to reduce assessments and taxes in particularized instances . . . (70 N.Y.2d at 334, 520 N.Y.S.2d at 448). {*}

Similarly, the proposed questionnaire here would presumably require some of the data that taxpayers must provide when bringing judicial challenges to reduce their assessments.

Accordingly, in our opinion, assessors may be authorized by local law to mail out a questionnaire as part of the data collection process, which will assist them with their duty to assess. However, the filing of this completed questionnaire would not relieve a municipality (i.e., assessors) from its statutorily imposed non-delegable duty of determining the value of all real property in the assessing unit (RPTL, §§ 500, 501, 504). In Kew Gardens, the Court found that the filing requirement did not shift the burden of determining the value of the property to be taxed to the real property taxpayer; rather, the information served instead to assist the assessor in valuing the property and preparing the assessment.

The collection and cataloguing of accurate data is essential to any appraisal process, especially when a computer-assisted mass appraisal (CAMA) system is providing predicted values. The aforementioned Article 15-B data mailer is used to confirm the data collected by the assessor or contractor.

The concept of a self reporting system is quite different, with the burden of verifying or contesting the data being shifted from the taxpayer to the assessing unit (or perhaps another property owner). For this reason, we have been (and remain) reluctant to endorse such proposals, even though, as discussed above, we conclude that such a system may be required by a properly adopted local law.

As to the municipality’s right to charge a property owner who fails to file a completed questionnaire, this would be in the nature of a fine for violation of the local law. Municipalities are authorized to provide for the enforcement of local laws and to provide for the punishment of violations thereof by civil penalty or fine (Municipal Home Rule Law, § 10(4)(b)).

March 24, 1989

{*}  For further discussion of the Kew Gardens decision, see 9 Op.Counsel SBEA No. 7.