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Volume 9 - Opinions of Counsel SBEA No. 97

Opinions of Counsel index

School districts (tax levy) (Suffolk County) - Suffolk County Tax Act, § 8:

School district taxes in Suffolk County are levied by town supervisors on or before December 1 annually when town and county taxes are also levied.

We have received an inquiry concerning the levy date for school taxes in Suffolk County. There is some confusion regarding whether that date is December 1 or October 1. The request arose because the levy date is a deadline for establishing special equalization rates and certified changes in level of assessment (9 NYCRR 186-3.1(a)).

Section 8 of the Suffolk County Tax Act (SCTA), entitled “Certification and Levy of School Tax,” provides that, on or before the first day of October in each year, each school district shall adopt the tax rate for the school district. The tax rate is to be certified “to the Supervisor of the town.”

Sections 10 and 11 of the SCTA provide for the extension of taxes. Section 10 provides that, on or before December first, the town supervisor is to extend the school tax in a separate column of the town assessment roll. Section 11 of the SCTA provides that, on or before December first, the town supervisor is to extend on the town assessment roll the taxes “fixed and determined by the County Legislature” (i.e., the town and county taxes). Section 13(a) of the SCTA provides for the annexation of a warrant to the tax roll by the County Legislature; the warrant authorizes the receivers of taxes to collect all taxes, including school taxes.

These sections of the SCTA were reviewed by the Supreme Court, Appellate Division, Second Department. In 510 Joint Venture v. Board of Assessors of the Town of Huntington, 129 A.D.2d 675, 514 N.Y.S.2d 436 (2d Dept. 1987), the Court held that:

Under the Suffolk County Tax Act, although each school district within Suffolk County computes, ascertains and adopts the tax rate necessary to raise the amount required for its budget (see, Suffolk County Tax Act, § 7) and certifies that rate and the amount to be raised to the Town Supervisor (see, Suffolk County Tax Act, § 8), it is the Town Supervisor who extends upon the assessment roll the school tax against taxable property in each school district (see, Suffolk County Tax Act, § 11), and it is the County Legislature which causes the warrant for the collection of the taxes to be annexed to the assessment roll (see, Suffolk County Tax Act, § 13(a)). Thus, school districts within Suffolk County . . . do not levy school taxes . . . (514 N.Y.S.2d at 437; emphasis added).

The Court of Appeals has similarly concluded, in a case involving the “opt-out” provisions of the business investment exemption (Real Property Tax Law (RPTL), § 485-b), that schools in Nassau County which submit the amount of taxes to be raised to the County Board of Supervisors do not “levy” taxes (Walker v. Board of Assessors, 66 N.Y.2d 702, 487 N.E.2d 276, 496 N.Y.S.2d 419 (1985)). {*}  Therefore, notwithstanding the heading of section 8 of the SCTA, the levy date for school taxes in Suffolk County is the levy date for the town/county taxes (i.e., December 1).

If a special equalization rate is established after the school district has certified a tax rate to the town supervisor but before the levy of taxes, the provisions of RPTL, section 1314(3), require the school district to establish a new tax rate. If the special equalization rate is established after the levy of taxes, the school district superintendent must cause the school district levy for the following year to be adjusted to account for the improper apportionment which resulted from the failure to use the special equalization rate (RPTL, § 1314(3); see also, 9 NYCRR 186-3.9).

September 17, 1992

{*The tax levy procedure between the school districts and the towns in Suffolk County is comparable to that between school districts and the County Board of Supervisors in Nassau County. Indeed, the Appellate Division, in Joint Venture, relied upon the Court of Appeals’ Walker decision.