Opinion
HHBCV166036375S
08-02-2017
American Industries, Inc. dba American Industries v. Town of Groton
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS (#101)
Arnold W. Aronson, Judge Trial Referee.
The plaintiff, American Industries, Inc. d/b/a American Industries, brought this three-count complaint challenging the action of the assessor of the town of Groton (town). The assessor imposed an assessment for tax purposes on the plaintiff's personal property on the Grand List of October 1, 2014. The personal property consisted of paving equipment used in the resurfacing of the Gold Star Bridge located in the town.
The plaintiff contends that the paving equipment " was not stored in the [town] . . . during the entire pendency of the project, but rather was moved from job site to job site and never remained in any one location for 90 days." (Plaintiff's complaint, count 1, 4.)
The plaintiff further alleges in paragraph 5 of its complaint that " [o]n or about October 1, 2014 . . . the Assessor . . . laid a tax on the Plaintiff's Personal Property which is not taxable in the [town]."
The plaintiff brought this action pursuant to General Statutes § 12-57. The plaintiff, in paragraph 7 of the complaint, " seeks a Certificate of Correction removing the Plaintiff's personal property which was assessed in error from the October 2014 Grand List."
Count 1 was brought pursuant to § 12-57. In count 2, paragraph 8, the plaintiff seeks a declaratory judgment " that the Plaintiff's personal property is not subject to tax in the [town]." During oral argument, the plaintiff's attorney reported that count 3 would be withdrawn.
The town moves to dismiss this action claiming that the plaintiff failed to appeal the action of the assessor to the board of assessment appeals pursuant to General Statutes § § 12-117a and 12-119. Therefore, the town claims that the court lacks subject matter jurisdiction.
The parties stipulated that, although the plaintiff alleges in paragraph 6 of count 1 that the plaintiff paid the tax under protest, in fact, the parties agree the plaintiff never paid the tax.
At oral argument, the town acknowledged that 1) the plaintiff does not challenge the amount of the assessment, and 2) the plaintiff claims that the assessor was in error for assessing personal property not within its jurisdiction.
The town argues that the plaintiff was required to bring this action pursuant to § 12-119 within one year from the date of October 1, 2014. The complaint was brought more than two years following the revaluation date of October 1, 2014.
It is the plaintiff's objection to the defendant's motion to dismiss that it was not required to bring this action pursuant to § 12-119. In support of its objection, the plaintiff relies on National CSS, Inc. v. Stamford, 195 Conn. 587, 489 A.2d 1034 (1985).
In National CSS, both the lessor and lessee paid the same tax on personal property each believing, at the time of their payments, that they were responsible for the payment of the tax. Under the terms of the lease, the lessee was obligated to pay the personal property taxes. The lessor, therefore, sought a refund of the taxes paid.
Although the trial court in National CSS treated this case as being brought pursuant to § 12-60, see id., 590-91 n.6, the Supreme Court held that § 12-60 related to clerical errors, not intentional errors like the lessor's error in that case.
In the present case, not only did the plaintiff not pay the tax and, in turn, could not seek a refund, the plaintiff had no intention to pay a tax on its paving equipment, a more significant difference from the National CSS case. In addition, the present case was brought under § 12-57. As noted in National CSS, § 12-60 applies to cases involving a clerical error, not where the taxpayer voluntarily paid the tax.
Although the plaintiff points out to factual issues that challenges the situs of the personal property for tax purposes, the legal issue raised by the defendant must be dealt with first. The legal issue is whether the appropriate statute to appeal the decision of the assessor was § 12-57 or § 12-119. In this case, § 12-119 is the appropriate statute to appeal the action of the assessor.
A certificate of correction, as sought by the plaintiff under § 12-57, applies to the assessor, not the taxpayer. As recited in § 12-57, " (a) When it has been determined by the assessors of a municipality that tangible personal property has been assessed when it should not have been, the assessors shall, not later than three years following the tax due date relative to the property, issue a certificate of correction removing such tangible personal property from the list of the person who was assessed in error . . ."
Recognizing that neither § 12-60 nor § 12-57 provide a proper basis for the plaintiff to appeal the assessor's decision to assess the plaintiff's personal property on the October 1, 2014 Grand List, the defendant's motion to dismiss is granted.