Opinion
No. CV 92 0331827 S
May 20, 2004
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
This is an appeal from an assessment levied on October 1, 1990 on real property located at and known as 155 Middle Beach Road in the Town of Madison.
The case achieved its longevity because of a series of misadventures which included two dismissals and a failed stipulation for judgment.
The assessment levied was in the amount of $690,415, representing a 100% evaluation for "fair market value." The town's appraisal was prepared in 1997, but related back to the assessment date, and stated a fair market value of $740,000. The appellants' appraisal argues for a value of $550,000.
DISCUSSION I
Examining both appraisals and the testimony of their respective proponents, the court finds itself in agreement with some statements but uncomfortable with others.
The $740,000 figure seems high when its proponent's comparable # 1 (the appellants' comparable #2) is compared to the subject property.
On the other hand, the appellants, whose appraiser described this property to be in one of the best areas in town, propose a value which seems low in the face of its sale in September of 1993 for $615,000.
To further cloud the issue is the apparent agreement by the two appraisers that water influenced properties were in decline on the assessment date. Mr. Thomas Boyle, the town's appraiser, actually gave an estimate of 0.3% per month as the rate of decline, but that is a modest per annum factor. Mr. Philip Ball, the appellant's appraiser, did not specify at what rate "the market was dropping sharply."
The appellants provided the court with four "comparables" that ranged from $375,000 to $825,000. Three "comparables" in the $740,000 range were offered by the town.
After consideration of this pool of data and opinion, it is the conclusion of the court that the fair market value, representing a 100% evaluation, of the subject property on October 1, 1990 was $625,000.
This evaluation shall apply for the years of 1991 through 1997 per the agreement of the parties. Effective with the October 1, 1994 assessment, the evaluation stated above shall be increased by $3460 by agreement of the parties.
II
The parties were also at issue on the question of whether the appellants would be entitled to interest should the court reduce the assessment levied by the town. The appellants claim to have paid the taxes required to be paid by them on that assessment. The town, via Special Defense, alleges that the appellants paid the total tax due for 1991 without protest and are thereby precluded from claiming interest. At least that is the argument put forth at trial. The Special Defense does not refer to interest but alleges the failure to protect precludes any challenge to the assessment.
Section 12-117a of the General Statutes governs appeals from boards of tax review and describes in detail how taxes are to be collected after appeal:
. . . The pendency of such application shall not suspend an action by such town or city to collect not more than seventy-five per cent of the tax so assessed or not more than ninety per cent of such tax with respect to any real property for which the assessed value is five hundred thousand dollars or more, and upon which such appeal is taken . . . If the assessment made by the board of tax review or board of assessment appeals, as the case may be, is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and any costs awarded by the court, or, at the applicant's option, shall be granted a tax credit for such overpayment, interest and any costs awarded by the court. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and any costs awarded by the court.
There is no requirement that the appellant file a protest or pay under protest.
The town relies on Underwood Typewriter Co. v. Chamberlain, Treasurer of the State, 92 Conn. 199 (1913). In that case, the taxpayer paid the tax under protest and still preserved its right to attack the validity of the taxing statute. That case and others cited by the town stand on their own facts and reliance on them in this instance is misplaced.
Section 12-117a deals with tax appeals and the issues involved in them. If a "formal protest" were required it would say so. It is hard to imagine the legislature set up a payment schedule and allowed interest but left all this to become a nullity without an appellant's protest. The conclusion is inescapable that the taking of the appeal, with its notice to the town, was deemed to be a notice of protest.
As in the Underwood case, the appellants' payment was made to avoid the penalties of a failure to pay 75% or 90% of the assessed taxes. As such, it "is not a voluntary payment." Id., at 205.
It is the conclusion of the Court that the appellants are not required to file a protest or pay under protest once an appeal was taken.
Unfortunately, this does not end the dispute because the town has also argued that it should not pay interest for the whole time this case languished in court.
The appeal was returned to court on May 1, 1992 and was heard by this court on May 6, 2004. An examination of the file reveals it was dismissed twice and those judgments were reopened twice. While there appears to be some confusion over an alleged settlement, the operative complaint was filed on December 3, 1999.
This court is well acquainted with the state of and the operation of the court trial list in the New Haven Superior Court. The delay encountered here is unique, to say the least, and one cannot charge the delay entirely to one side or the other. However, the town should not be charged for 12 years of interest absent a showing of fault on its part.
The court concludes that a fair and equitable resolution would be an award of interest for 4 years.
Anthony V. DeMayo Judge Trial Referee