Tax Certiorari cases are difficult enough but, should not be impossible. The Fourth Department recently decided a case, Buscaglia v Assessor, Town of Hamburg, 2018 N.Y. App. Div. Lexis 4854 [4th Dept 2018], where it reversed an Order of Supreme Court, Erie County, which dismissed petitions to reduce assessed taxes.
The property involved a waterfront parcel on Lake Erie. The parties stipulated to the admission in evidence of their respective appraisal reports. The Court agreed with the assessor that petitioner failed to overcome the legal presumption that respondents’ assessment was valid by introducing substantial evidence that the property was overvalued.
The Appellate Division stated, it is well settled that, “[i]n an RPTL article 7 proceeding, a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority,” and “a petitioner challenging the accuracy of a tax valuation has the initial burden to rebut the presumption by introducing substantial evidence that the property was overvalued.” (Matter of Roth v City of Syracuse, 21 NY3d 411, 417 ; see Matter of Canandaigua Natl. Bank & Trust Co. v Brown, 137 AD3d 1627, 1629 [4th Dept 2016]). “[T]he substantial evidence’ standard merely requires that petitioner demonstrate the existence of a valid and credible dispute regarding valuation. The ultimate strength, credibility or persuasiveness of petitioner’s arguments are not germane during this threshold inquiry” (Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 188 ). This burden, which is lower than “proof by a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt’ “(id., quoting 300 Gramatan Ave. Assocs. V State Div. of Human Rights, 45 NY2d 176, 180 , is most often attempted to be met by a taxpayer by the submission of a “detailed, competent appraisal based on standard, accepted appraisal techniques and prepared by a qualified appraiser’” (Matter of Board of Mgrs. of French Oaks Condominium v Town of Amherst, 23 NY3d 168, 175 , quoting Matter of Niagara Mohawk Power Corp. v Assessor of Town of Geddes, 92 NY2d 192, 196 ). An appraisal “should be disregarded [, however,] when a party violates [22 NYCRR] 202.59 (g) (2) by failing to adequately set forth the facts, figures and calculations supporting the appraiser’s conclusions’” (id. at 176, quoting Pritchard v Ontario County Indus. Dev. Agency, 248 AD2d 974, 974 [4th Dept 1998], lv denied 92 NY2d 803 ).
Here, the court did not conclude that petitioner’s appraisal was facially insufficient under section 202.59 (g) (2), and there was no finding by the court that the “sales, leases or other transactions involving comparable properties…relied on…[were not] set forth with sufficient particularity as to permit the transaction to be readily identified” (id.; see Boards of Mgrs. of French Oaks Condominium, 23 NY3d at 175-176). The court, relying on respondents’ allegation that petitioner’s appraisers had misidentified the types of transactions underlying each comparable and the import thereof, determined that dismissal of the petitions was warranted “[b]ecause there was no other evidence presented by Petitioner to support his arguments and substantiate [his] appraisal report to overcome the legal presumption that the Assessor’s valuation is accurate.” That was error.
In other words, the appraisal reports stipulated in evidence by the parties presented a valid and credible dispute regarding valuation. Put another way, rebuttable presumption means valuation can be contested and proven otherwise.
If we can add our own two cents, these cases are tough enough without a biased court that refuses to consider the evidence.
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