July 18, 2008
Under New York Real Property Tax Law, taxpayers who have filed unsuccessful grievances challenging real property tax assessments may file a proceeding in New York State Supreme Court within thirty days of the filing of the final assessment roll. For many school districts, depending on the county where they are located, that date is fast approaching. Surprisingly, many school districts do not actively participate in the defense of Article 7 tax proceedings and instead rely on the municipality to defend them. This Legal Alert is intended to inform school districts of the advantages of actively participating in the defense of these proceedings. School Districts have the Most at Stake. In most jurisdictions, school districts receive more than 50-60 percent of real property taxes. A breakdown of a typical district where the tax rate is $85 per $1,000 of assessed value would look something like this: Assume: A petitioner seeking a $100,000 reduction in its assessed value Tax rates: $25 (per $1,000.00 of assessed value) County = $2,500.00 refund $15 (per $1,000.00 of assessed value) Town = $1,500.00 refund $45 (per $1,000.00 of assessed value) School District = $4,500 refund
Procedural Advantages. New York Real Property Tax Law provides several procedural advantages to school districts. RPTL §708 is designed to alert a school district that a proceeding has been commenced that may effect it by virtue of the refund provisions contained in §726 of the RPTL. Pursuant to §708(3), taxpayers must strictly comply with the note of provisions therein or could face a dismissal of their claim: A copy of the Notice of Petition and Petition must be mailed (within 10 days of service on the municipality) to the superintendent of schools… Proof of mailing one copy of the Petition and Notice to the superintendent of schools…must be filed with the County Clerk within 10 days of mailing. Pursuant to New York CPLR §3018(b) Affirmative Defenses, “a party shall plead all matters which if not pleaded would likely take the adverse party by surprise…” A petitioner’s failure to follow notice provisions as they relate to school districts is fatal error only if the school district raises it as a defense. The failure to raise the defenses provided in RPTL §708 as affirmative defenses in litigation constitutes a waiver of those defenses. Court Cases. The Appellate Division, Fourth Department in Rochester, New York has dismissed numerous cases against school districts where requirements of §708 of the RPTL were not precisely followed. Cases have been dismissed under the following circumstances: - petitioner mailed the Petition to the clerk of schools, instead of the school superintendent;
- late hand delivery to the school district;
- service on the clerk of the school district;
- failure to timely mail to the superintendent of schools;
- actual notice to the school district, but failure to mail to superintendent;
- personal service on the school district receptionist and district clerk, without mailing to the superintendent; and
- proper and timely mailing to the superintendent with failure to file an Affidavit of Service within the time limit set by the statute.
In all of the above cases, the school districts participated in the litigation, raised affirmative defenses and were successful in obtaining outright dismissal of petitioners’ claims. Conclusions. The New York State Legislature has provided procedural defenses for school districts in real property tax assessment litigation. Many school districts in the Rochester and Buffalo area do not actively participate in litigation and, therefore, lose the right to assert effective defenses which they would otherwise have. When served with a Notice of Petition and a Petition, it is very important for someone to make note of the manner in which service was made. Once you have been served with an Article 7 tax proceeding, you should notify your attorney in a timely fashion so that your attorney can discuss your options. In the coming weeks as you receive notification and service of new litigation matters, please feel free to contact us and we can analyze and discuss your options. If you have questions relating to the information contained in this Legal Alert, please contact Ted H. Williams at 315-214-2015, or the Harris Beach attorney with whom you usually work.
This Legal Alert provides a brief analysis or comments on matters related to real property tax assessments. This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach has offices throughout New York state in Albany, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Syracuse, and Yonkers, as well as Newark, New Jersey. |
