Opinion
No. CV 03-0195964 S
April 26, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Before this court is the motion for summary judgment of the plaintiff, Wee Burn Country Club, Incorporated (Wee Burn). The following facts are pertinent to this appeal. Wee Burn is the owner of certain real property, which is developed as a beach club facility, located in Norwalk, Connecticut. Prior to March 11, 2003, the Norwalk tax assessor established an assessed value of the subject property as part of the last prior general revaluation of all real property in the city of Norwalk as of October 1, 1998. This property, known as 0 Anchor Road, 0 Compass Road and 0 Roton Avenue (identified as District 6, Block 1B, Lot 7; District 6, Block 3, Lot 1 and District 6, Block 2, Lot 1, respectively) was assessed for a total value of $1,044,470, $15,820 and $620,690, respectively. The Norwalk tax collector issued tax bills to Wee Burn on the basis of that established assessed value. Wee Burn paid all the taxes that were claimed due including the payment due January 1, 2003, which represented the second half payment of the real property taxes for the grand list of October 1, 2001.
On March 11, 2003, Wee Burn received a "Tax Collector's Demand for Payment" from the Norwalk tax collector, claiming that additional taxes and interest was due on the list of October 1, 2000 and the list of October 1, 2001. This was allegedly Wee Burn's first notice that the city of Norwalk had established a revised assessed value of Wee Burn's property. Upon receipt of the demand, Wee Burn contacted the Norwalk tax assessor who responded in writing on March 12, 2003 that there had been a "clerical error" in the process of the 1999 revaluation. The tax collector's documentation, which was forwarded to Wee Burn, demonstrates that a certificate of change was made on February 18, 2003, by the assessor and, allegedly, no notice of that change was provided to Wee Burn. Wee Burn, through its attorneys, sought clarification of the claimed "clerical error" from the tax assessor on March 14, 2003. According to Wee Burn, such clarification has not been received to date.
"By memorandum dated March 12, 2003, the Tax Assessor claimed that 'the value of the Wee Burn Beach properties were grossly understated for the 1999 revaluation due to a clerical error during the valuation process,' and accordingly the subject properties had been reassessed for a total value of $2,965,830, $1,183,700 and $1,285,270." (Complaint paragraph 3.)
The board alleges that the March 12, 2003 writing was attached to the tax collector's demand which was sent on March 11, 2003.
Wee Burn appealed, within the time prescribed by law, to the board, claiming that the reassessment was improper. Wee Burn provided the board with evidence of its efforts to obtain information and clarification of the "clerical error" and the assessor's alleged failure to provide any additional information. As a result of this alleged failure to provide information, Wee Burn was unable to completely present its claim for review to the board. Subsequently, the board slightly reduced the assessment value of Wee Burn's property, but not to the original assessed value that had been established during the general revaluation in 1999. Thereafter, Wee Burn filed this appeal pursuant to General Statutes § 12-117a. The summons and complaint was served on the board on June 30, 2003 and on the city on July 1, 2003.
Wee Burn moves for summary judgment on the ground that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Wee Burn asserts that neither the assessor nor the board provided the information required by General Statutes § 12-60 for the correction of a "clerical error" in the assessment of real property within the time prescribed by law. The only notice received by Wee Burn was an untimely tax bill claiming back taxes and interest. Consequently, Wee Burn maintains that the tax assessor's actions fail to comply with the requirements of § 12-60 and, therefore, summary judgment should be granted. Attached to Wee Burn's memorandum in support is the affidavit of Sharon McGrath (controller of the Wee Burn Country Club, Inc.) and exhibits A-C, consisting of the tax collector's demand for payment dated March 11, 2003, the March 12, 2003 tax assessor's memorandum and a letter from the plaintiff's attorney dated March 14, 2003, respectively.
The board argues that the type of error made in the assessment for Wee Burn's property was not clerical but an error that went to the substance of the assessment. It maintains that whatever defect may have been in the notice, without conceding that there had been any, was waived by the fact that Wee Burn is now appealing to the superior court, the very same forum it would have been with "proper notice." The board submits that under General Statutes § 12-55, the assessor has a watchtower role to equalize taxes throughout the city. Therefore, notice should be given as directed by § 12-55. In support of its motion, the board includes the affidavit of Kenneth Whitman (the tax assessor for the city of Norwalk).
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).
"[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., supra, 263 Conn. 252-53.
"A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn. App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Id.
"Appeals to courts from administrative agencies exist only under statutory authority . . . A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions which create it." (Citations omitted, internal quotation marks omitted.) Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 152, 584 A.2d 1183 (1991). "[F]ailure to comply strictly with the statutory provisions by which a statutory right to appeal is created will subject an appeal to dismissal." Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 757 (1991). "Section 12-117a, which allows taxpayers to appeal the decisions of municipal boards of tax review to the Superior Court, provide[s] a method by which an owner of property may directly call in question the valuation placed by assessors upon his property . . . In an appeal pursuant to § 12-117a, the trial court hears the tax appeal de novo on the premise that throughout, it is the taxpayer who bears the burden of establishing an overassessment . . ." (Citations omitted, internal quotation marks omitted.) Ress v. Suffield, 80 Conn. App. 630, 631-32, 836 A.2d 475 (2003), cert. denied, 267 Conn. 920, 841 A.2d 1191 (2004).
General Statutes § 12-117a states in pertinent part:
Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court.
(Emphasis added.)
"Municipalities have no powers of taxation other than those specifically given by statute, and strict compliance with the statutory provisions is a condition precedent to the imposition of a valid tax . . . The statutes relating to the assessment of property for taxation and to the duties of assessors . . . are prescribed with particularity. The manner in which real estate is to be described and assessed is explicitly set out. Failure of the assessors to list real estate in a manner conforming to the statutes will result in an invalid assessment and prevent recovery of the tax based on it . . . The power of assessors to alter assessments exists only during the lawful period for the performance of their duties, before the lists are completed and filed . . . Once the assessors have completed their duties as prescribed by statute, they have no authority to alter a list except to remedy a clerical omission or mistake." (Citations omitted.) Empire Estates, Inc. v. Stamford, 147 Conn. 262, 264-65, 159 A.2d 812 (1960); see also Metropolitan District v. Burlington, 241 Conn. 382, 398, 696 A.2d 969 (1997); ZML 301 Tresser Ltd. Partnership v. Stamford, 67 Conn. App. 697, 698-99, 789 A.2d 538, cert. denied, 260 Conn. 902, 793 A.2d 1091 (2002).
Wee Burn argues that the Norwalk tax assessor claimed that the change in the assessment of its property was to correct a "clerical error." Corrections of "clerical errors" are governed by General Statutes § 12-60; and the tax assessor's actions did not comply with the notice requirements of § 12-60. The board argues that the changes in valuation, from the last preceding grand list, however, were made pursuant to General Statutes § 12-55 which requires notice under General Statutes § 12-55(b) and § 12-62(f), not pursuant to § 12-60.
General Statutes § 12-60 states:
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. In the event that the issuance of a certificate of correction results in an increase to the assessment list of any person, written notice of such increase shall be sent to such person's last-known address by the assessor or board of assessment appeals within ten days immediately following the date such correction is made. Such notice shall include, with respect to each assessment list corrected, the assessment prior to and after such increase and the reason for such increase. Any person claiming to be aggrieved by the action of the assessor under this section may appeal the doings of the assessor to the board of assessment appeals as otherwise provided in this chapter, provided such appeal shall be extended in time to the next succeeding board of assessment appeals if the meetings of such board for the grand list have passed. Any person intending to so appeal to the board of assessment appeals may indicate that taxes paid by him for any additional assessment added in accordance with this section, during the pendency of such appeal, are paid "under protest" and thereupon such person shall not be liable for any interest on the taxes based upon such additional assessment provided (1) such person shall have paid not less than seventy-five per cent of the amount of such taxes within the time specified or (2) the board of assessment appeals reduces valuation or removes items of property from the list of such person so that there is no tax liability related to additional assessment.
(Emphasis added.)
General Statutes § 12-55 provides in pertinent part:
The assessor or board of assessors may increase or decrease the valuation of property as named in any of such declarations or in the last-preceding grand list, but, in each case of any increase in valuation of such property above the valuation, if any, stated by the person filing such declaration or in each case of any increase of valuation above the valuation of such property in the last-preceding grand list, except with respect to the valuation of any motor vehicle, they shall send written notice by mail of such increase in accordance with subsection (b) of this section, or in accordance with subsection (f) of section 12-62 in the year of a revaluation, including in such notice the valuation prior to and after such increase with respect to each parcel of real property, the valuation of which has been increased, to the last-known address of the person whose valuation is so changed . . .
(b) The written notice of assessment increase as required in subsection (a) of this section shall be mailed no earlier than the assessment date and no later than the tenth calendar day immediately following the date on which the grand list abstract is signed and attested to by the assessor or board of assessors. If such assessment increase notice is sent later than the time period herein prescribed, such increase shall become effective on the next succeeding grand list.
(Emphasis added.)
See footnote 5, supra, General Statutes § 12-55(b).
General Statutes § 12-62(f) states in pertinent part:
The assessor or board of assessors shall send written notice by mail of each revaluation conducted pursuant to this section to each person whose property was revalued. Such notice shall include information describing the property owner's rights to appeal the valuation of his property, including the manner in which an appeal may be filed with the board of assessment appeals. The written notice shall be mailed no earlier than the assessment date and no later than the tenth calendar day immediately following the date on which the grand list abstract is signed and attested to by the assessor or board of assessors. The assessor or board of assessors may require the revaluation company to send such written notice on behalf of the assessor or board of assessors.
I.
The threshold issue is whether the notice provision in General Statutes § 12-60 or the notice provision in § 12-55 applies to the present case. In Matzul v. Montville, 70 Conn. App. 442, 444, 798 A.2d 1002, cert. denied, 261 Conn. 923, 806 A.2d 1060 (2002), the plaintiffs challenged the right of the assessor of the defendant town of Montville to make an interim change in the assessment of their property. The plaintiffs were owners of mobile home parks at 15 Meeting House Lane, Chesterfield Road, 75 Chesterfield Road and 55 Chesterfield Road. Id. On the October 1, 1991 revaluation date the assessor set the assessment of the 15 Meeting House property at $45,890. Id. On February 23, 1996, the assessor sent a notice to the plaintiffs for the assessment year 1995, which indicated an increase in the assessment of the 15 Meeting House property to $129,010. Id. Also, by notice on February 23, 1996 for the assessment year of 1995, the assessor set the Chesterfield Road property at $23,630, which had no prior assessment and $40,740 on the property at 75 Chesterfield Road, which also had no prior assessment. Id.
"The notice of increase dated February 23, 1996 stated in relevant part: 'Pursuant to the provision of Sec. 12-55 of the General Statutes of the State of Conn., you are hereby notified that the Assessor has assessed your property in the tax records.' The notice then reflected the change in assessment." Matzul v. Montville, supra, 70 Conn. App. 450.
On March 4, 1996, the assessor mailed a notice to all mobile home park owners explaining that a correction, "of a clerical error in the land valuation used for mobile home parks," had been made. (Emphasis added.) Matzul v. Montville, supra, 70 Conn. App. 444. The letter indicated that the February 23 notices of increase were due to the fact that their properties had previously been incorrectly classified as "excess acreage" when they should have been classified as "commercial land" Id., 444-45.
"The letter of explanation dated March 4, 1996, although indicating that a clerical error had been corrected, makes clear that the correction involved changing the classification of the plaintiffs' property from excess acreage to commercial land" Matzul v. Montville, supra, 70 Conn. App. 450.
The plaintiffs claimed "that the trial court improperly found that the assessor was operating in his 'watchtower role,' pursuant to § 12-55, when in fact he was operating pursuant to § 12-60, which allows for the correction of [a]ny clerical omission or mistake in the assessment of taxes." (Internal quotation marks omitted.) Matzul v. Montville, supra, 70 Conn. App. 449. They argued that the use of the phrase "clerical error" implied that the assessor was acting pursuant to General Statutes § 12-60. Id. The defendant argued that the use of the phrase "clerical error" did not transform his actions into a correction pursuant to § 12-60. Id. Both of the parties agreed that the correction involved a matter of substance, as opposed to the correction of a clerical error which is permitted by § 12-60. Id.
The appellate court held that "the assessor's broad powers pursuant to § 12-55 are not restricted to changes 'omitted by mistake' or 'required by law.' Rather, [t]he power to equalize the lists, if necessary, imports a watchtower role for the assessor to correct inequalities, whether too high or too low." (Internal quotation marks omitted.) Matzul v. Montville, supra, 70 Conn. App. 451.
The Matzul case is factually similar to the present case. Wee Burn has property located at 0 Anchor Road, 0 Compass Road and 0 Roton Avenue, which was assessed as of October 1, 1998, for $1,044,470, $15,820 and $620,690, respectively. On March 11, 2003, however, a "Tax Collector's Demand for Payment" letter was sent out for additional taxes on the properties as of October 1, 2000 and October 1, 2001. On March 12, 2003, the tax assessor sent a letter indicating that there had been a "clerical error" in the process of the 1999 revaluation. Specifically, the affidavit of Kenneth Whitman attests that he reviewed the tax records for Wee Burn in 2003 and discovered that the property was "underassessed by virtue of the fact that the classification for land, which is represented by a code number in the computer, was incorrect." (Memorandum in Opposition, Affidavit, pp. 1-2.) Upon discovery of the mistake, the code was changed so that the Wee Burn property could be correctly assessed as waterfront property, which resulted in an increase in taxes. (Memorandum in Opposition, Affidavit, p. 2.)
The number used for Wee Burn was the same used for properties which are not waterfront-based properties whereas the Wee Burn property is waterfront property. (Memorandum in Opposition, Affidavit p. 2.)
"Thus, in the present case, notwithstanding the reference to a clerical error, the assessor retain[s] the broad power under § 12-55 to equalize the assessments. To accept the plaintiff's argument that the erroneous classification of their property could not be corrected until the next decennial revaluation would [be] inequitable to all other correctly classified and valued commercial properties." Matzul v. Montville, supra, 70 Conn. App. 451. Additionally, "the assessor not only [has] the right to make the correction but also the obligation, as an assessor, once the misclassification [becomes] known to him." Id. Just as in Matzul, the use of the phrase "clerical error" in the context of the change in assessment due to the wrong classification of the Wee Burn properties involves a matter of substance. Therefore, in the present case General Statutes § 12-55 applies, as does that statutory notice provision.
II.
The next issue the court must decide is the effect of the defendant's failure to give statutory notice under General Statutes § 12-55 had on the plaintiff. The answer to that question depends on whether or not General Statutes § 12-55 is mandatory or directory. In Katz v. Commissioner of Revenue Services, 234 Conn. 614, 615, 662 A.2d 762 (1995), the court was faced with the issue of whether General Statutes § 12-515, the statute governing refund claims, was mandatory or directory.
"A 'mandatory' provision in a statute is one the omission to follow which renders the proceedings to which it relates void, while a 'directory' provision is one the observance of which is not necessary to validity of the proceeding." Black's Law Dictionary (6th Ed. 1992).
General Statutes § 12-515 provides:
REFUND CLAIMS. Any taxpayer who feels that he has overpaid any taxes due under this chapter may file a claim for refund in writing with the commissioner within three years from the due date for which such overpayment was made stating the specific grounds upon which the claim is founded. Not later than ninety days following receipt of such claim for refund the commissioner shall determine whether such claim is valid and if so, said commissioner shall notify the comptroller of the amount of such refund and the comptroller shall draw an order on the treasurer in the amount thereof for payment to the taxpayer. To the amount of such refund there shall be added interest at the rate of three-fourths of one per cent for each month or fraction thereof which elapses between the ninetieth day following receipt of such claim for refund by the commissioner and the data of notice by the commissioner that such refund is due. Failure to file a claim within the time prescribed in this section constitutes a waiver of any demand against the state on account of overpayment. Within thirty days after disallowing any claim in whole or in part the commissioner shall serve notice of his action on the claimant.
In Katz, the plaintiff invested in the Merrill Lynch CMA Tax-Exempt Fund (fund) in 1987. Katz v. Commissioner of Revenue Services, supra, 234 Conn. 615. That same year, he received payment from the fund in the amount of $24,736. Id., 615-16. "The distributions were designated by the fund as tax-exempt interest dividends. On the plaintiff's 1987 federal tax form, he reported this amount as 'tax exempt interest income.' The plaintiff did not, however, include the distributions as taxable dividend and interest income on his Connecticut tax return. On March 5, 1991, the defendant sent a tax computation notice to the plaintiff, assessing him $2,968.24 in additional tax, plus interest of $1,298.61. The plaintiff paid the additional tax and interest under protest, and filed a refund claim, pursuant to General Statutes § 12-515 . . . which was received by the defendant on April 1, 1991. On December 19, 1991, the defendant notified the plaintiff that the distributions received by the plaintiff were subject to state taxation. Accordingly, the defendant denied the plaintiff's petition for a refund." Id., 616.
The fund invests in obligations of state and municipal governments that are exempt from federal income taxes. Katz v. Commissioner of Revenue Services, 234 Conn. 614, 615, 662 A.2d 762 (1995).
"The plaintiff appealed to the trial court, claiming that: (1) the defendant's decision denying the request for a refund was invalid because he had failed to act within the ninety-day period required by § 12-515." Katz v. Commissioner of Revenue Services, supra, 234 Conn. 616. "The trial court concluded that the ninety day period was mandatory, but determined that enforcement of the time provision rested with the plaintiff, by way of a mandamus action. The court then concluded that the distributions received by the plaintiff were subject to state taxation, and rendered judgment in favor of the defendant." Id., 616-17.
On appeal, the Connecticut Supreme Court concluded that the ninety-day period in § 12-515 was directory. Katz v. Commissioner of Revenue Services, supra, 234 Conn. 617. The court stated that "[t]he test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words . . . Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply . . . A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision." (Citation omitted, emphasis added, internal quotation marks omitted.) Id., 617.
General Statutes § 12-55(a) states in pertinent part: "The assessor or board of assessors . . . in each case of any increase in valuation of such property above the valuation . . . or in each case of any increase of valuation above the valuation of such property in the last-preceding grand list . . . they shall send written notice by mail of such increase in accordance with subsection (b) of this section, or in accordance with subsection (f) of section 12-62 in the year of a revaluation, including in such notice the valuation prior to and after such increase with respect to each parcel of real property, the valuation of which has been increased, to the last-known address of the person whose valuation is so "changed." The purpose of the assessors notice to the property owner of any increase in assessment, found in § 12-55(b), is for the protection of the individual taxpayer. The Metropolitan District v. Burlington, Superior Court, judicial district of Hartford, Docket No. CV 89 0363708 (February 6, 1996, Aronson, J.) ( 17 Conn. L. Rptr. 45), aff'd, 241 Conn. 382, 696 A.2d 969 (1997), citing Conzelman v. Bristol, 122 Conn. 218, 228, 188 A. 659 (1936). The defendant has ten days to send notice to the property owner from the date of the assessment date in order for the new assessment to take effect on the grand list. See General Statutes § 12-55(b). Failure to send written notice doesn't render the assessment ineffective, it just postpones its effectiveness until the next succeeding grand list. See General Statutes § 12-55(b). Similar to the statutory provision in the Katz case, the notice provision of § 12-55, therefore, is not related to a matter of substance but serves as an inducement to the defendant to send notice to the plaintiff in a timely manner and as a remedy for a property owner whose rightful notice is delayed beyond ten days. See Katz v. Commissioner of Revenue Services, supra, 234 Conn. 618.
General Statutes § 12-62(f) states:
The assessor or board of assessors shall send written notice by mail of each revaluation conducted pursuant to this section to each person whose property was revalued. Such notice shall include information describing the property owner's rights to appeal the valuation of his property, including the manner in which an appeal may be filed with the board of assessment appeals. The written notice shall be mailed no earlier than the assessment date and no later than the tenth calendar day immediately following the date on which the grand list abstract is signed and attested to by the assessor or board of assessors. The assessor or board of assessors may require the revaluation company to send such written notice on behalf of the assessor or board of assessors.
Section 12-55(b) does not contain language indicating that the defendant's decision regarding an increase in the assessment of taxes on the plaintiff's property will be void if more than ten days elapse between the date of assessment and notice of the assessor's decision. To the contrary, by providing that if an assessment increase notice is sent later than the time period prescribed for in § 12-55(b) the increase will become effective on the next succeeding grand list the statute expressly contemplates that some notices to property owners will be given beyond the ten-day time period. See Katz v. Commissioner of Revenue Services, supra, 234 Conn. 618. Therefore, the notice provision of § 12-55(b) is directory, not mandatory.
Turning to the facts of the present appeal, the board's documentation demonstrates that on February 18, 2003, certificates of change were made by the assessor on the properties known as 6-1B-7-0, 6-2-1-0, and 6-3-1-0 for the years 2000 and 2001. The first time Wee Burn received notice of such reassessments, however, was on March 11, 2003, when the Norwalk tax collector sent Wee Burn a "Tax Collector's Demand for Payment" claiming that additional taxes and interest was due on the list of October 1, 2000 and October 1, 2001. Further, the Norwalk tax collector responded to Wee Burn, in writing, on March 12, 2003, indicating that there had been a "clerical error."
The reassessment date for the properties in question was made on February 18, 2003. Under § 12-55(b), however, notice from the Norwalk tax collector should have been given "no earlier than the assessment date and no later than the tenth calendar day immediately following the date on which the grand list abstract is signed and attested to by the assessor or board of assessors." (Emphasis added.) Since the court has no evidence before it showing the date on which the grand list abstract was signed and attested to, there is a genuine issue of material fact as to whether the grand list abstract was signed and attested to. There is also a genuine issue of material fact as to what date the grand list was signed and attested to. Finally, a genuine issue of material fact exists as to whether the notice given by the Norwalk tax collector was sufficient under § 12-55 to warrant the application of the reassessed values to the current grand list as opposed to the next succeeding grand list.
Therefore, Wee Burn's motion for summary judgment is denied as there are questions of material fact and it is not entitled to judgment as a mater of law.
D'ANDREA, J.