What is Tax Certiorari?
Tax certiorari is a mechanism for appealing a property owner’s grievance with an assessment of their real estate tax. Every county in New York State, except for those in New York City, has an assessment agency, often referred to as an Assessor’s Office. These offices must re-assess taxable properties every year, and they sometimes don’t do a good job. The local Assessor typically uses the mass appraisal method which considers the simple supply and demand curve as well as amortization of a property’s improvement cost, among other factors. These offices have general knowledge of local real estate, usually based on square foot prices; however, they generally do not have the special set of skills or detailed knowledge needed in some more complicated cases. Such is the case with a tax certiorari application, which assertions need to be substantiated with facts and/or scientific reasoning, together with supporting documentation. Therefore, an attorney familiar with appraisal standards and methods, zoning regulations, leasing realities, and detailed statutory and case law in this area is important so a challenge to the local assessing agency’s valuation can be undertaken. Tax certiorari is an Article 78 proceeding, which is a special statutory proceeding under the CPLR (Civil Practice Law and Rules) . A person or corporate entity that owns real estate being taxed is considered aggrieved and is the party that needs to commence a Challenge. While that party can be represented by a certified public accountant or other individual, its recommended that a legal representative with detailed knowledge of this Article 78 proceeding is retained to avoid dismissal of a Challenge based on technicalities. The law states: [t]he court must allow a [tax certiorari] petition [to] be amended on such terms as may be just at any time before final judgment as to defects, irregularities, omissions or delays in the proceedings… or upon motion for leave to intervene as a party petitioner [based on] existing rights and interests. In other words, it can be somewhat unforgiving if the tax certiorari filing is not executed properly or within a prescribed timeframe, and the law courts are hesitant to extend the timeframes or overlook a procedural misstep, including time periods for filing a grievance before the local assessing agency. Our firm regularly prosecutes cases in the Supreme Court in each jurisdiction outside of New York City, as well as in the Appellate Division, Second Department, which hears appeals for such cases in Westchester, Rockland, Putnam, Dutchess and Albany counties, and the Appellate Division, Third Department, which hears appeals for such cases in Nassau and Suffolk counties.
Why You Need a Tax Certiorari Attorney
Although appearing to be a simple administrative function, a property tax appeal can be quite complicated and time consuming. A property owner is often unfamiliar with the procedure, and frequently misses the deadline for filing an appeal. Moreover, the property assessment system is more complex than most property owners realize, requiring an understanding of land use and zoning regulations. Many owners do not properly prepare a petition, thereby forfeiting their rights. That is where the services of a tax certiorari attorney can prove invaluable.
Depending on the state, there are numerous procedural requirements and forms that must be utilized and completed correctly. Some states have several tiers of appeal within their property tax system, often with different requirements and deadlines. Even in states with relatively low bar fees for refiling a previously unsuccessful petition, a property owner is unlikely to get the best result possible if they do not seek expert advice.
In most states, the bar fees attributable to tax certiorari are relatively small in comparison to other practice areas. While costs may vary from state to state, the following price ranges give an idea of the average fee structure around the country: a tax certiorari attorney can also advise you about other issues such as:
In addition to expertise and reasonableness of fees, a property owner should determine whether the tax certiorari attorney has sufficient experience handling cases in the municipality where their property is located before retaining them.
How to Choose a Tax Certiorari Attorney
When you are searching for a tax certiorari attorney, there are several factors to take into consideration:
Seek Experience
With stakes this high, you want an attorney who has plenty of experience — somebody who has successfully helped many other people get the same results you want.
Look for a Winner’s Track Record
What’s their history? Are they able to say that in most cases, they either get reductions or prevent increases? Have they won cases in front of the assessment review board? Have they won in court? You should be able to get a feel for this information when you sit down and talk to any potential lawyer.
Go Local
A tax certiorari case isn’t like other types of lawsuits. It’s really more of a business than a lawsuit. Real estate is local, so you want a lawyer who only practices in the areas that you need them. If you hire a lawyer from out of state, they will have to learn the procedures and customs as if they were an entirely new case.
The Process of Property Tax Appeal
Process for an Appeal
- File a grievance petition: This is the initial step in appealing your property taxes. If your municipality is in Nassau County, the date to file a grievance petition is May 17th; if your municipality is in Suffolk County, the date to file a grievance petition is May 23rd. The grievance petition must be filed with your local Board of Assessment Review. This petition will include a list of all properties that you are aiming to extend the deadline on. A tax certiorari attorney will typically have a form petition that should be used. Use of this form will ensure that the proper language is included and that no other boxes are checked that may hinder the application process. A tax certiorari attorney will also know which form petition to file based on your current property classification status, or will know to amend the petition if further investigation reveals that your property should be classified differently. The form petition should be filed by mail or in person (depending on where your property is located) with the appropriate local Board of Assessment Review on or before the applicable date.
- Processing of a grievance petition: Following the filing of your grievance petition, the local Board of Assessment Review will process the petition. The local Board of Assessment Review is required to meet within one week of the close of the filing period. At this meeting, the local Board of Assessment Review will review each grievance petition and the information provided in support of the application. If they require more information, they will send a letter requesting such information to the applicant and send notice of the letter to the applicant’s tax certiorari attorney.
- Intervenor petitions for a subsequent trial date: If the local Board of Assessment Review denies your grievance petition, they will forward a copy of the petition to the Supreme Court in New York State along with instructions on how to file an application before the court. The filing with the Supreme Court is done via a petition for judicial review. The applicant’s name must be on the caption of the form petition and the form petition must be completed and submitted to the Supreme Court. An intervenor petition will be filed by the local Board of Assessment Review to intervene and all intervenor petitions must be completed and answered by the applicant with a response by affidavit.
- During trial: At trial, your tax certiorari attorney will cross-examine each of the witnesses and make a legal argument.
Common Issues in Property Tax Appeals
The process can be so overwhelming and work-intensive that several issues will arise that can slow down the process or put a halt to it entirely. That is why it is so important to have a specialized attorney to help with your case. One such issue is what happens if the property has been incorrectly assessed? Many times, once the assessment is carried out it is then correct. When that is not the case, it’s then your job to show exactly where and how the assessment is wrong. This can be quite difficult because when you’re purchasing a house , the inspection will show you if there are any major issues with the home like broken doors or problems with the roof. It does not concern itself nearly as much with the land itself so you may not know just how the assessment is incorrect.
One of the more common issues people face is when they have already made an offer on a property but have not closed on it yet the latter occurs after the assessment deadline. You may have three days to close on the house and you do not want to have to wait a full year and then start the appeal process. The appraiser will have to depend upon some detail from the closing that only lasts a couple of days and not being able to have someone who knows the process by your side can make it not go as smoothly as you would like.
More than a few times, your dates may be wrong for one reason or another. If you move forward with the process knowing that you’ve given the date incorrectly you have no right to appeal. Plus, if you push forward with your case knowing it has a mistake, you then lose your right to appeal. Understandably, this might be something you do not have done correctly and would then put all of your time and effort into.
Winning Property Tax Appeals: Case Studies
First, let me say that the stories below are not meant to be guarantees or promises of what you may be able to expect if faced with a similar situation. Both New York State and the NYC Civil Court require taxi owners to follow certain guidelines in pursuing their property tax relief petitions; your taxi medallion or vehicle must be subject to one of their established categories to allow for a special reduced rate of tax, any other use will require you to pursue judicial relief through the Articles of the Civil Practice Law and Rules (CPLR). Secondly, it doesn’t matter who prepares your tax certiorari petition, it must include a referral to CPLR § 1111 which is the provision that gives the taxi owner his or her appeal rights to the court. Lastly, the amount of your refund is not the same as the amount of the special reduced rate; they can exceed one another. Here are some success stories:
Case #1: In Matter of Arlington Cab Corp., et. al. v. Michael R. Bloomberg, the petitioners, a group of Brooklyn taxi owners sought a declaration that the tax rate imposed on their taxi medallions was in excess of that legally permitted. Petitioners had brought their Article 78 before the New York State Supreme Court and were unsuccessful. Realizing the need for an expert, they enlisted the aid of their tax certiorari attorney who filed suit on petitioners’ behalf. The case went to trial and petitioners proved that the tax on taxi medallions was excessive and that the city had miscalculated; in fact, the city had omitted the value of the medallion in favor of the per se taxi rates and the true value of the tax was something close to $1,000,000.00!
Case #2: Matter of F&F Taxi Corp., et. al. v. NYC Tax Commission, involves a group of Queens based medallion owners. Each of the individual petitioners got a piece of a municipal judgment against NYC for $965.70. In addition to that, we are now "pursuing" interest and costs.
Case #3: Matter of Award Medallions Corp., et. al. v. City of New York, this mirrors case #2 above. It involves a group of Bronx based medallion owners. Each got a piece of a municipal judgment against NYC for $720.00, plus we are pursuing interest and costs.
Tax Certiorari FAQ
Answers to some common questions about tax certiorari attorneys and what they do for clients:
Q: What is the role of a tax certiorari attorney?
A: A tax certiorari attorney helps property owners dispute their property assessments with their local assessment authority if they believe that their taxes are too high because their properties have been overassessed. The tax certiorari attorney advocates on behalf of the property owner and files the necessary documentation with the local assessment authority, negotiating either a reassessment or reduction in taxes. If an agreement cannot be reached with the local assessment authority, the tax certiorari attorney will file a petition with the tax certiorari court to initiate litigation.
Q: Who needs a tax certiorari attorney?
A: In general, any property owner that is unsatisfied with their current property tax assessment should contact a tax certiorari attorney . If, in the attorney’s opinion, the property has been over-assessed, they may recommend filing a petition with the appropriate court for a reassessment or reduction in taxes.
Q: How does the tax certiorari attorney prepare to represent an individual client?
A: Every tax certiorari attorney has their own strategy involved in preparing a petition for reassessment or reduction. Typically, most tax certiorari firms tend to heavily rely on comparable sales data in a particular area, assessing how many similar properties were recently sold at various rates. From this information, they can draw a comparison with the client’s property. Most tax certiorari attorneys will not or cannot assess the value of a client’s home by visiting the property without a retainer for an appraisal. Taking this step is completely reasonable and is usually the course of action for most tax certiorari firms. Additionally, preparing a tax certiorari claim requires a substantial investment of time and attention to detail.