Argued
October 15, 2018
Procedural
History
Appeals
from the decisions of the defendant's Board of Assessment
Appeals denying the plaintiffs' appeals from the
allegedly improper retroactive assessment of tax penalties on
certain of the plaintiffs' real property, brought to the
Superior Court in the judicial district of New Britain, Tax
Session, where the appeals were consolidated and tried to the
court, Hon. Arnold W. Aronson, judge trial referee;
judgments for the defendant, from which the plaintiffs filed
a joint appeal to this court. Reversed; judgments
directed.
Matthew T. Wax-Krell, with whom were Marci Silverman and, on
the brief, Denise P. Lucchio, for the appellants
(plaintiffs).
Barbara M. Schellenberg, with whom were Jonathan S. Bowman
and, on the brief, Joseph D. Szerejko, for the appellees
(defendants).
DiPentima, C. J., and Moll and Bishop, Js.
OPINION
MOLL,
J.
The
principal issue in this real estate joint tax appeal is
whether the trial court properly rendered judgments in favor
of the defendant, the town of Wilton, despite having
concluded that the defendant's tax assessor (assessor)
violated General Statutes § 12-55 (b) when he added late
filing penalties pursuant to General Statutes § 12-63c
(d)[1]
against the plaintiff property owners[2] three months after taking
and subscribing to the oath on the 2014 grand list. The
plaintiffs appeal from the judgments of the trial court
rendered in favor of the defendant. In their joint appeal,
the plaintiffs claim that the trial court erred by rendering
judgments in favor of the defendant despite having properly
concluded that the assessor acted without statutory authority
when he added the late filing penalties to the 2014 grand
list after taking and subscribing to the oath. We agree.
Accordingly, we reverse the judgments of the trial court.
The
record and the parties' stipulations of
fact[3]
reflect the following facts and procedural background. On or
before April 15, 2014, pursuant to § 12-63c (a), the
assessor requested from the plaintiffs annual income and
expense reports for the year 2013 for their respective
subject properties and provided them with the requisite
forms. At all times from April 15, 2014 through October 26,
2016, [4] including October 1, 2014, the date of the
grand list at issue, the plaintiffs owned their respective
subject properties. Pursuant to § 12-63c (a), the
plaintiffs were required to submit their 2013 income and
expense reports to the assessor on or before June 1, 2014. On
June 2, 2014, the plaintiffs sent, by Federal Express
overnight mail, their 2013 income and expense reports, along
with a cover letter dated May 30, 2014, to the assessor, who
received them on June 3, 2014.
On or
before January 31, 2015, the assessor took the oath on the
2014 grand list, [5] at which time he (1) knew that he had
received the plaintiffs' income and expense reports after
the June 1, 2014 deadline, and (2) did not add any late
filing penalties to the 2014 grand list with respect to the
subject properties. The assessor's practice has been to
assess, pursuant to General Statutes § 12-60,
[6] any
late filing penalties under § 12-63c (d) retroactively,
after signing the grand list for a given
year.[7]
On
April 29, 2015, the assessor issued certificates of change
for the subject properties in connection with the 2014 grand
list and sent them, respectively, to the plaintiffs' last
known addresses. The certificates of change each contain the
following prefatory language: ‘‘By authority of
[§] 12-60 of the Connecticut General Statutes, the
Assessor hereby adjusts the assessment list of
2014.'' Each certificate of change identifies, among
other things, the ‘‘original'' assessment
amount, the ‘‘adjustment'' amount
reflecting the late filing penalty (i.e., approximately 10
percent of the original assessment), [8] and the
‘‘current'' assessment amount (i.e., the
original assessment amount plus the adjustment amount). The
certificates of change reflect no exemptions.
Pursuant
to General Statutes § 12-119, to the extent that it was
necessary to do so, the plaintiffs timely filed respective
appeals from the assessor's actions to the Superior
Court.[9] See Wilton River Park 1688, LLC v.
Wilton, Superior Court, judicial district of New
Britain, Docket No. CV-15-6030507-S; Wilton Campus 1691,
LLC v. Wilton, Superior Court, judicial district of New
Britain, Docket No. CV-15-6030508-S; Wilton River Park
North, LLC v. Wilton, Superior Court, judicial district
of New Britain, Docket No. CV-15-6030509-S. Pursuant to
General Statutes § 12-111, [10] the plaintiffs also
timely filed appeals to the Wilton Board of Assessment
Appeals (board), which, subsequent to a hearing on April 5,
2016, denied their appeals, making no changes to the
certificates of change. Pursuant to General Statutes §
12-117a, [11] the plaintiffs filed timely appeals from
the actions of the board to the Superior Court. See
Wilton River Park 1688, LLC v. Wilton, Superior
Court, judicial district of New Britain, Docket No.
CV-16-6034627-S; Wilton Campus 1691, LLC v. Wilton,
Superior Court, judicial district of New Britain, Docket No.
CV-16-6034566-S; Wilton River Park North, LLC v.
Wilton, Superior Court, judicial district of New
Britain, Docket No. CV-16-6034565-S.
The six
appeals filed in the Superior Court were consolidated and
adjudicated together. The parties submitted memoranda of law
regarding the legal issues, as well as the stipulations of
fact, accompanied by stipulated exhibits with numerous
appended exhibits, which furnish the entire factual basis for
the judgments of the trial court.
On July
12, 2017, the court issued its memorandum of decision, ruling
in favor of the defendant. As an initial matter, the court
rejected the defendant's argument that the assessor had
the authority to impose the late filing penalties after
signing the 2014 grand list pursuant to § 12-60, which
provides in relevant part: ‘‘Any clerical
omission or mistake in the assessment of taxes may
be corrected according to the fact by the assessors or
board of assessment appeals, not later than three years
following the tax due date relative to which such
omission or mistake occurred, and the tax shall be levied and
collected according to such corrected assessment.''
(Emphasis added.) Citing National CSS, Inc. v.
Stamford, 195 Conn. 587, 595-96, 489 A.2d 1034 (1985),
the court reasoned that § 12-60 applies only to clerical
errors, and not to errors of substance, and that, because the
omission of the late filing penalties from the 2014 grand
list at the time the assessor signed it was intentional, the
assessor's delayed imposition of the late filing
penalties ‘‘was by no means a clerical
error.''
The
court went on to consider § 12-55 (b), which provides in
relevant part: ‘‘Prior to taking and subscribing
to the oath upon the grand list, the assessor or board of
assessors shall equalize the assessments of property in the
town, if necessary, and make any assessment omitted by
mistake or required by law. . . .'' The court
emphasized the requirement in § 12-55 (b) that the
assessor make any assessment ‘‘required by
law'' prior to signing the grand list. Because §
12-63c (d) provides that a property owner who fails to submit
timely income and expense reports, as required under §
12-63c (a), ‘‘shall be subject to a penalty equal
to a ten per cent increase in the assessed value of such
property for such assessment year, '' the court
concluded that ‘‘[t]he act of imposing the 10%
penalty was not discretionary on the part of the assessor; it
was mandatory.'' Thus, applying § 12-55 (b) to
the present case, the court concluded that ‘‘[i]t
is clear that the penalty should have been imposed prior to
the assessor signing the completion of the grand
list'' on or before January 31, 2015.
The
court opined that ‘‘[c]ompliance with §
12-55 (b) is imperative because a late filing of the grand
list by the assessor reduces the time given to the property
owner to appeal to the Board of Assessment Appeals for relief
from the action of the assessor. See Wysocki v.
Ellington, 109 Conn.App. 287, 299, 951 A.2d 598 ([I]n
the context of statutes relating to property tax assessment,
when the statutory provision is for the benefit and
protection of the individual taxpayer . . . the provision is
mandatory. . . . If the provision is mandatory it must be
followed or the assessment will be invalid. . . . All
provisions designed to give [the taxpayer] an opportunity of
a review of the assessment, whether by the assessors
themselves or on appeal from their conclusions, are
exclusively in his interest. [Internal quotation marks
omitted.]), cert. denied, 289 Conn. 934, 958 A.2d 1248
(2008).'' The court found that the assessor's
delay in imposing the late filing penalties deprived the
plaintiffs of the opportunity to appeal for a period of three
months following the assessor's signing of the grand
list. Specifically, the court opined that, ‘‘[a]s
noted in General Statutes § 12-111, the plaintiffs are
required to challenge the action of the assessor by filing an
appeal to the [board] ‘in writing, on or before
February twentieth.' The imposition of the penalty by the
assessor on January 31, 2015, [12] left the plaintiffs with
twenty days to take their appeals instead of three
months.'' (Footnote added.)
Notwithstanding
the foregoing conclusions, the court rendered judgments in
favor of the defendant, reasoning that
‘‘[a]lthough the plaintiffs seek to avoid the 10
[percent] penalty for failure to comply with § 12-55
(b), the only redress for the assessor's failure to
comply with the provisions of § 12-55 (b) is to postpone
the right of the plaintiffs to appeal the action of the
assessor until the succeeding grand list. See § 12-55
(c):
‘‘
‘If any such assessment increase notice is sent later
than the time period prescribed in this subsection, such
increase shall become effective on the next succeeding grand
list.' The penalty prescribed for in § 12-63c (d)
makes no provision for the removal of the 10 [percent]
penalty imposed by the legislature, regardless of the action
taken by the assessor.'' This joint appeal followed.
On
appeal, the plaintiffs claim that the trial court erred by
rendering judgments in favor of the defendant despite having
correctly concluded that, pursuant to § 12-55 (b), the
assessor was required to add any late filing penalties
pursuant to § 12-63c (d) prior to signing the 2014 grand
list. The defendant presents three alternative grounds for
affirmance of the trial court's judgments: (1) the
assessor made no mistake in assessing the late filing
penalties at issue; (2) if the assessor made a mistake, then
it was a clerical mistake that was corrected pursuant to
§ 12-60; and (3) the plaintiffs were not harmed by the
assessor's actions. We agree with the plaintiffs'
claim and do not agree with any of the defendant's
alternative grounds for affirmance.
Before
reaching the plaintiffs' claim on appeal, we briefly
address the applicable standard of review. Resolution of the
principal issue in this joint appeal requires us to analyze
specific sections of chapter 203 of the General Statutes,
which governs ‘‘Property Tax
Assessment.'' Because statutory interpretation
involves a question of law, our review is plenary. Bell ...