Wilton Campus 1691, LLC v. Wilton ( 2019 )

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WILTON CAMPUS 1691, LLC v. TOWN OF WILTON
WILTON RIVER PARK 1688, LLC v. TOWN OF WILTON
WILTON RIVER PARK NORTH, LLC v.
TOWN OF WILTON
(AC 40697)
DiPentima, C. J., and Moll and Bishop, Js.
Syllabus
The plaintiff property owners filed six appeals from the decisions of the
Board of Assessment Appeals of the defendant town of Wilton denying
their appeals from the town’s tax assessments of the plaintiffs’ proper-
ties. Pursuant to statute (§ 12-63c [d]), the plaintiffs were required to
provide the assessor with annual income and expense reports regarding
their properties by June 1, 2014. The defendant received those reports
past the deadline but failed to add any late filing penalties, pursuant to
§ 12-63c (d), before taking the oath in signing the grand list on January
1, 2015. Instead, as had been his practice, the assessor imposed late
filing penalties on the plaintiffs retroactively, pursuant to the statute
(§ 12-60) that governs corrections to the grand list due to clerical omis-
sion or mistake, and issued certificates of change for the subject proper-
ties in April, 2015. Thereafter, the plaintiffs appealed to the board, which
denied their appeals, and the plaintiffs appealed to the Superior Court,
where the six appeals were consolidated and tried together. Subse-
quently, the trial court rendered judgments in favor of the defendant,
from which the plaintiffs appealed to this court. The trial court concluded
that although the assessor had violated the statute (§ 12-55 [b]) that
requires the assessor to make any assessment required by law prior to
signing the grand list, the only redress for the assessor’s failure to comply
with the provisions of § 12-55 (b) was to postpone the right of the
plaintiffs to appeal the action to the assessor until the succeeding grand
list, and that the penalty prescribed for in § 12-63c (d) makes no provision
for the removal of the penalty imposed by the legislature, regardless of
the action taken by the assessor. Held:
1. The trial court erred in concluding that although the assessor had no
statutory authority to impose late penalties after the taking the oath,
the plaintiffs were without redress beyond the postponement of the right
to appeal because § 12-63c did not expressly provide for the removal
of the unlawful penalties: pursuant to § 12-55 (b), the imposition of a
late filing penalty constitutes an assessment required by law and, as
such, it must be made by the assessor prior to taking the oath, and,
therefore, because the assessor did not have the statutory authority to
impose the late filing penalties after he took the oath, the late adjust-
ments were invalid and prevented any recovery of taxes based thereon;
moreover, the defendant’s claim that the language in § 12-55 (a), which
does not explicitly reference the penalties under § 12-63c (d) as being
a required penalty that must be included in the grand list, demonstrated
a legislative intent to exclude, by implication, a late penalty under § 12-
63c (d) as a required assessment was unavailing, as § 12-55 (a) governs
the publication of grand lists and specifies what they reflect for public
inspection, whereas § 12-55 (b) governs the timing of when the assessor
shall equalize the assessments of property in the town and make any
assessment omitted by mistake or required by law, and the defendant’s
position was untenable because it assumed that the assessor had the
authority to add § 12-63c (d) late penalties, at any time and for an
indefinite period, after signing the grand list for a particular year, which
would lead to an absurd or unworkable result.
2. The trial court properly concluded that the delayed imposition of the late
filing penalties did not correct a clerical omission or mistake, and,
therefore, § 12-60 did not apply so as to permit the retroactive adjustment
to the assessments on the basis of the late filing penalties; because the
assessor’s omission of the late filing penalties from the 2014 grand list
at the time he signed it was of a deliberate nature, in that the assessor’s
practice had been to assess, pursuant to § 12-60, any late filing penalties
under § 12-63c (d) retroactively, and that at the time the assessor took
the oath on the grand list, he knew that he had received the plaintiffs’
2013 income and expense reports after the June 1, 2014 deadline and
delayed imposition of the late penalties until approximately three months
after he signed the 2014 grand list, the omission, although mistaken,
was deliberate and intentional, not clerical and, therefore, was an error
of substance that could not be corrected under § 12-60.
3. The defendant could not prevail on its claim, raised as an alternative
ground for affirming the judgment, that the plaintiffs were not harmed
by the assessor’s imposition of the late filing penalties because they
were able to seek review of the assessor’s imposition of the penalties
by appealing to the board; because the assessor was without statutory
authority after he signed the grand list to impose the late penalties,
which were null and void, and because the assessor could not collect
a tax on an assessment that was untimely adjusted by the imposition
of late filing penalties, this court could not conclude that the statutorily
unauthorized delay of the imposition of the late filing penalties was a
mere procedural irregularity that, if uncorrected, would result in no
harm to the plaintiffs.
Argued October 15, 2018—officially released August 13, 2019
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 defen-
dant, from which the plaintiffs filed a joint appeal to
this court. Reversed; judgments directed.
Matthew T. Wax-Krell, with whom were Marci Sil-
verman 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).
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 asses-
sor (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 own-
ers2 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 fact3 reflect
the following facts and procedural background. On or
before April 15, 2014, pursuant to § 12-63c (a), the asses-
sor 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 plain-
tiffs 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 prac-
tice has been to assess, pursuant to General Statutes
§ 12-60,6 any late filing penalties under § 12-63c (d) ret-
roactively, 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 pen-
alty (i.e., approximately 10 percent of the original
assessment),8 and the ‘‘current’’ assessment amount
(i.e., the original assessment amount plus the adjust-
ment 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-XX-XXXXXXX-S; Wilton Campus 1691,
LLC v. Wilton, Superior Court, judicial district of New
Britain, Docket No. CV-XX-XXXXXXX-S; Wilton River Park
North, LLC v. Wilton, Superior Court, judicial district
of New Britain, Docket No. CV-XX-XXXXXXX-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-XX-XXXXXXX-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-XX-XXXXXXX-S.
The six appeals filed in the Superior Court were con-
solidated and adjudicated together. The parties submit-
ted memoranda of law regarding the legal issues, as well
as the stipulations of fact, accompanied by stipulated
exhibits with numerous appended exhibits, which fur-
nish 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 omis-
sion or mistake occurred, and the tax shall be levied
and collected according to such corrected assessment.’’
(Emphasis added.) Citing National CSS, Inc. v. Stam-
ford, 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 inten-
tional, the assessor’s delayed imposition of the late fil-
ing 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 subscrib-
ing 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 assess-
ment 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 con-
cluded 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 ben-
efit and protection of the individual taxpayer . . . the
provision is mandatory. . . . If the provision is manda-
tory it must be followed or the assessment will be
invalid. . . . All provisions designed to give [the tax-
payer] an opportunity of a review of the assessment,
whether by the assessors themselves or on appeal from
their conclusions, are exclusively in his interest. [Inter-
nal 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 sign-
ing 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 [per-
cent] 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 alter-
native grounds for affirmance of the trial court’s judg-
ments: (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 cor-
rected 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. Reso-
lution 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 Assess-
ment.’’ Because statutory interpretation involves a ques-
tion of law, our review is plenary. Bell Atlantic NYNEX
Mobile, Inc. v. Commissioner of Revenue Services, 273
Conn. 240, 249, 869 A.2d 611 (2005).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning
[General Statutes] § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.) Dish Network, LLC v. Commissioner
of Revenue Services, 330 Conn. 280, 291, 193 A.3d 538
(2018). ‘‘Moreover, it is well settled that the legislature
is always presumed to have created a harmonious and
consistent body of law . . . . [T]his tenet of statutory
construction . . . requires [this court] to read statutes
together when they relate to the same subject matter
. . . . Accordingly, [i]n determining the meaning of a
statute . . . we look not only at the provision at issue,
but also to the broader statutory scheme to ensure
the coherency of our construction.’’ (Internal quotation
marks omitted.) Felician Sisters of St. Francis of Con-
necticut, Inc. v. Historic District Commission, 284
Conn. 838, 850, 937 A.2d 39 (2008).
I
The plaintiffs claim that the trial court erred in
allowing the assessor to impose late filing penalties
after he signed the 2014 grand list, despite properly
concluding that the assessor was statutorily obligated
to add the late filing penalties prior to signing the grand
list. In response, the defendant makes the fundamental
contention, which it frames as its first alternative
ground for affirmance, that the assessor made no mis-
take in assessing the late filing penalties after signing
the grand list. We agree with the plaintiffs.
The fundamental principle that municipal tax asses-
sors may act only pursuant to statute is well established.
‘‘Municipalities have no powers of taxation except those
expressly given to them by the legislature. . . . Their
powers of taxation can be lawfully exercised only in
strict conformity to the terms by which they were given.
. . . When a taxing statute is being considered, ambigu-
ities are resolved in favor of the taxpayer.’’ (Citations
omitted.) Consolidated Diesel Electric Corp. v. Stam-
ford, 156 Conn. 33, 36, 238 A.2d 410 (1968). Stated differ-
ently, ‘‘strict compliance with the statutory provisions
is a condition precedent to the imposition of a valid
tax.’’ (Internal quotation marks omitted.) Sheridan v.
Killingly, 278 Conn. 252, 264, 897 A.2d 90 (2006); see
also Metropolitan District v. Burlington, 241 Conn.
382, 398, 696 A.2d 969 (1997) (‘‘[i]t is well settled in
Connecticut that tax assessments may only be made in
strict conformity with the taxation statutes’’). ‘‘Before
the broad authority conferred on them by the statutes
is exhausted, assessors have abundant power to correct
omissions or mistakes, clerical or otherwise, indepen-
dently of [§ 12-60]. . . . Once assessors have com-
pleted their duties as prescribed by statute, however,
they have no authority to alter a list except to remedy
a clerical omission or mistake. . . . Evidently the pur-
pose of [§ 12-60] was to give to assessors or board of
relief a limited continuing authority to correct . . .
clerical omission[s] or mistake[s] . . . irrespective of
whether their larger jurisdiction had been terminated.’’
(Citations omitted; internal quotation marks omitted.)
National CSS, Inc. v. Stamford, supra, 195 Conn. 594;
see also Metropolitan District v. Burlington, supra,
398; Empire Estates, Inc. v. Stamford, 147 Conn. 262,
264–65, 159 A.2d 812 (1960) (‘‘The statutes relating to
the assessment of property for taxation and to the duties
of assessors comprise chapter 86 of the 1949 Revision
(General Statutes, c. 203). It is clear from these enact-
ments that 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 asses-
sors have completed their duties as prescribed by stat-
ute, they have no authority to alter a list except to
remedy a clerical omission or mistake.’’ [Citations
omitted.]).
Mindful of these general principles, we turn to the
relevant statutory provisions. We begin with the lan-
guage of § 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 equal-
ize the assessments of property in the town, if neces-
sary, and make any assessment omitted by mistake or
required by law. . . .’’ (Emphasis added.)
The parties do not dispute that the imposition of
the late filing penalties constitutes an ‘‘assessment’’ for
purposes of § 12-55 (b). The question is, therefore,
whether the assessor’s imposition of the late filing pen-
alties was ‘‘required by law.’’ The trial court reasoned
as follows: ‘‘[Section] 12-63c (d) requires that a property
owner who fails to timely submit [income and expense]
information (when provided with a form by the assessor
as stated in subsection (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
act of imposing the 10 [percent] penalty was not discre-
tionary on the part of the assessor; it was mandatory.
See Chamber of Commerce of Greater Waterbury, Inc.
v. Murphy, 179 Conn. 712, 718–19, 427 A.2d 866 (1980).’’
We adopt such reasoning and conclude that the imposi-
tion of the late filing penalties constitutes an ‘‘assess-
ment . . . required by law’’ under § 12-55 (b). As such,
it was required to be made by the assessor ‘‘[p]rior to
taking and subscribing the oath upon the grand list
. . . .’’13
Furthermore, we note that the assessor did not
receive a grand list filing extension for the 2014 grand
list. Pursuant to subsection (a) of General Statutes § 12-
117, which is titled ‘‘Extension of time for completion
of duties of assessors and board of assessment appeals,’’
‘‘[t]he period prescribed by law for the completion of
the duties of any assessor, board of assessors or board
of assessment appeals may, for due cause shown, be
extended by the chief executive officer of the town for
a period not exceeding one month, and in the case of
the board of assessment appeals in any town in the
assessment year in which a revaluation, pursuant to
section 12-62, is required to be effective, such period
shall be extended by said chief executive officer for a
period not exceeding two months. Not later than two
weeks after granting an extension as provided under
this subsection, the chief executive officer shall send
written notice of the extension to the Secretary of the
Office of Policy and Management.’’ ‘‘By providing a par-
ticular method to procure extensions of time for [an
assessor] to complete [his or her] duties, the legislature
must have intended that the time limitations for action
by the [assessor] be mandatory rather than merely
directory. The provisions of § 12-117 delineating the
method by which an extension may be obtained make
little sense if [an assessor] may, without utilizing them,
validly act beyond the time limit otherwise imposed.’’
Albert Bros., Inc. v. Waterbury, 195 Conn. 48, 55, 485
A.2d 1289 (1985). Thus, where an assessor makes an
adjustment to an assessment after its statutory author-
ity has expired, as here, the adjustment is invalid. Id.
In support of its argument that the assessor was not
required to include the § 12-63c (d) late filing penalties
at the time he took the oath on the 2014 grand list,
the defendant relies on § 12-55 (a), which provides in
relevant part: ‘‘On or before the thirty-first day of Janu-
ary of each year, except as otherwise specifically pro-
vided by law, the assessors or board of assessors shall
publish the grand list for their respective towns. Each
such grand list shall contain the assessed values of all
property in the town, reflecting the statutory exemption
or exemptions to which each property or property
owner is entitled, and including, where applicable, any
assessment penalty added in accordance with [General
Statutes §§] 12-41 or 12-57a for the assessment year
commencing on the October first immediately preced-
ing. . . .’’ (Emphasis added.) The defendant argues that
by expressly providing that penalties added pursuant
to §§ 12-41 or 12-57a shall be included in the grand list,
the legislature necessarily meant to exclude penalties
assessed pursuant to § 12-63c (d).
The defendant predicates its argument on the axiom
‘‘expressio unius est exclusio alterius,’’ translated from
Latin to mean ‘‘the expression of one thing is the exclu-
sion of another.’’ ‘‘Although the so-called canons of
statutory construction may at times serve as useful tools
in deciphering legislative meaning, to rely on any one
of them as a compelling factor in the interpretive pro-
cess is problematic, because as Professor Karl Llewel-
lyn persuasively has demonstrated, ‘there are two
opposing canons on almost every point.’ K. Llewellyn,
‘Remarks on the Theory of Appellate Decision and the
Rules or Canons About How Statutes Are to Be Con-
strued,’ 3 Vand. L. Rev. 395, 401 (1950). The so-called
‘canons’ are not that, at least in the sense that any one
of them reliably can be determined to apply or not to
apply in any given case. They are, instead, merely guides
drawn from experience, to be employed or not to be
employed carefully and judiciously, depending on the
circumstances. See F. Frankfurter, ‘Some Reflections
on the Reading of Statutes,’ 47 Colum. L. Rev. 527,
544–45 (1947); see also United Illuminating Co. v. New
Haven, 240 Conn. 422, 455, 692 A.2d 742 (1997). ‘To
permit them to displace the conclusions that careful
interpretation yields . . . would be a disservice to the
legislative process, as well as to the judicial exercise
of interpreting legislative language based upon the
premise that the legislature intends to enact reasonable
public policies.’ United Illuminating Co. v. New Haven,
supra, 455.’’ Burke v. Fleet National Bank, 252 Conn.
1, 23–24, 742 A.2d 293 (1999). Although there are numer-
ous cases in which certain statutory provisions have
been interpreted ‘‘as demonstrating a legislative intent
to exclude, by implication, other possible referents; see,
e.g., State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274
(1982) (statutory itemization demonstrates legislative
intent to exclude unenumerated items);’’ courts should
decline to employ the axiom ‘‘where there is no lan-
guage, legislative history or statutory purpose sug-
gesting . . . such a result.’’ Burke v. Fleet National
Bank, supra, 24. This case is such an instance. The
defendant’s argument in this regard also fails because
it ignores that § 12-55 (a) governs the publication of
grand lists and specifies what they reflect for ‘‘public
inspection.’’ In contrast, § 12-55 (b) governs the timing
of when ‘‘the assessor or board of assessors shall equal-
ize the assessments of property in the town, if neces-
sary, and make any assessment omitted by mistake
or required by law.’’ The defendant’s position is also
untenable because it assumes that the assessor has the
authority to add § 12-63c (d) penalties for a particular
assessment year—at any time and for an indefinite
period—after he signed the grand list for that assess-
ment year.14 Such an interpretation yields an absurd
or unworkable result in violation of General Statutes
§ 1-2z.
Because the assessor did not have the statutory
authority to impose the late filing penalties after he
took the oath on the 2014 grand list, the late adjustments
are invalid and prevent any recovery of taxes based
thereon. See Empire Estates, Inc. v. Stamford, supra,
147 Conn. 264. Accordingly, where the assessor had no
statutory authority to act in the manner challenged, the
trial court erred in its ultimate conclusion that because
§ 12-63c (d) does not expressly provide for the removal
of unlawful penalties, the plaintiffs were without
redress beyond the postponement of the right to appeal.
In sum, in the absence of the applicability of another
statute permitting a later assessment, the assessor was
required to add the late filing penalties ‘‘[p]rior to taking
and subscribing to the oath upon the grand list . . . .’’
General Statutes § 12-55 (b). The assessor’s failure to
do so was fatal to the imposition of late penalties.
II
In addition to its first alternative ground for
affirmance, which we discussed in part I of this opinion,
the defendant claims, pursuant to Practice Book § 63-
4 (a) (1), two additional alternative grounds on which
the trial court’s judgments should be affirmed, namely,
(1) if the assessor made a mistake, it was a clerical
mistake that was corrected pursuant to § 12-60, and (2)
the plaintiffs were not harmed by the assessor’s actions.
We disagree with these alternative grounds for
affirmance and address them in turn.
A
As its second alternative ground for affirmance, the
defendant claims that, even if the assessor’s delayed
imposition of the late filing penalties were deemed a
mistake, then it constitutes a clerical mistake that the
assessor timely corrected pursuant to § 12-60. Although
the defendant concedes that the omission of the late
filing penalties from the 2014 grand list was intentional,
it argues that any purported mistake ‘‘had [only] to do
with the administrative procedure or method chosen
to assess the penalty.’’ (Emphasis added.) The plaintiffs
contend, to the contrary, that the omission of the late
filing penalties from the 2014 grand list at the time it
was signed does not qualify as a clerical omission or
mistake under § 12-60 because the assessor intended
the omission at such time. We agree with the plaintiffs.
Section 12-60 provides in relevant part that ‘‘[a]ny
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 assess-
ment. . . .’’ (Emphasis added.) For purposes of this
statute, ‘‘the adjective ‘clerical’ qualifies ‘mistake’ as
well as ‘omission.’ ’’ Reconstruction Finance Corp. v.
Naugatuck, 136 Conn. 29, 32, 68 A.2d 161 (1949) (con-
struing statutory predecessor to § 12-60).
In at least two decisions, our Supreme Court has
considered, and rejected, the reliance of a municipality
or a taxpayer on § 12-60 (or its statutory predecessor)
to correct a purported ‘‘clerical omission or mistake’’
in an assessment list. Those cases are particularly
instructive. In Reconstruction Finance Corp. v. Nauga-
tuck, supra, 136 Conn. 30, the plaintiff had filed with
the board of assessors of the borough of Naugatuck a
list of the taxable property it owned in the borough on
October 1, 1947, omitting certain machinery that was
exempt from state and municipal taxation at the time
of filing (which occurred prior to November 1, 1947).
On May 25, 1948, the United States Congress enacted
a statutory amendment, to be effective as of midnight
on June 30, 1947, that eliminated the exemption on
which the plaintiff had relied. Id., 30–31. On June 14,
1948, the board of assessors issued a certificate of error,
adding the machinery to the October 1, 1947 tax list of
the plaintiff. Id., 31. On a reservation for advice before
the Supreme Court of Errors, the borough argued that
the addition to the plaintiff’s tax list was ‘‘but the correc-
tion of a clerical error or omission’’ pursuant to a prede-
cessor to § 12-60, namely, General Statutes (1949 Rev.)
§ 1735, which provided: ‘‘Any clerical omission or mis-
take in the assessment of taxes may be at any time
corrected according to the fact by the assessors or
board of tax review, and the tax shall be levied and
collected according to such corrected assessment.’’
Reconstruction Finance Corp. v. Naugatuck, supra, 31–
32. The Supreme Court of Errors disagreed, concluding
that ‘‘[i]t was much more than that, for it concerned
the very substance and extent of the assessment. . . .
‘Clerical’ errors are mentioned to distinguish them from,
and exclude errors of substance, of judgment, or of
law.’’ Id.
In National CSS, Inc. v. Stamford, supra, 195 Conn.
587, our Supreme Court had occasion to revisit the
meaning of the phrase ‘‘clerical omission or mistake’’
in General Statutes (Rev. to 1975) § 12-60.15 In National
CSS, Inc., both the lessor and the lessee of certain
computer equipment listed such equipment as taxable
personal property on the property lists they filed with
the city of Stamford’s tax assessor, which resulted in
double taxation. Id., 588–89. Upon realizing that only
the lessor was obligated under the lease agreement to
pay property taxes on the computer equipment at issue,
the plaintiff lessee demanded a refund of the taxes it
paid on the equipment, which demand was denied by
the city. Id., 588–90. The plaintiff lessee argued in rele-
vant part that it was entitled to a refund under § 12-60.
Id., 592. Our Supreme Court rejected the effort, holding
that ‘‘[w]here an error is of a deliberate nature such
that the party making it at the time actually intended
the result that occurred, it cannot be said to be clerical.
. . . Because the plaintiff’s action in listing the property
and paying the taxes, although mistaken, was deliberate
and intentional, it is not clerical, but can only be charac-
terized as an error of substance.’’ (Citation omitted.)
Id., 596. Therefore, § 12-60 did not apply. Id., 596–97.
Applying the principles articulated in Reconstruction
Finance Corp. v. Naugatuck, supra, 136 Conn. 29, and
National CSS, Inc. v. Stamford, supra, 195 Conn. 587,
to the present case in considering whether the assessor
properly invoked § 12-60 in issuing the certificates of
change, we consider whether the assessor’s delayed
imposition of the late filing penalties corrected a clerical
omission or mistake. By way of review, the parties
stipulated that the assessor’s practice has been to
assess, pursuant to § 12-60, any late filing penalties
under § 12-63c (d) retroactively, i.e., after signing the
grand list for a given year.16 The parties further stipu-
lated that at the time the assessor took the oath on the
2014 grand list, he knew he had received the plaintiffs’
2013 income and expense reports after the June 1, 2014
deadline. Nevertheless, for whatever reason, he delayed
adding the late filing penalties until approximately three
months after he signed the 2014 grand list. On the basis
of the foregoing, we conclude that because the asses-
sor’s omission of the late filing penalties at issue from
the 2014 grand list at the time he signed it was ‘‘of a
deliberate nature such that [the assessor] at the time
actually intended the results that occurred, it cannot
be said to be clerical.’’ National CSS, Inc. v. Stamford,
supra, 596. Because such omission, ‘‘although mistaken,
was deliberate and intentional, it is not clerical, but can
only be characterized as an error of substance.’’ Id.
Accordingly, § 12-60 does not apply.17
In sum, we conclude that the trial court properly
concluded that the delayed imposition of the late filing
penalties did not correct a clerical omission or mistake;
therefore, § 12-60 does not apply so as to permit the
retroactive adjustment to the assessments on the basis
of the late filing penalties. We reject, therefore, the
defendant’s second alternative ground for affirmance.
B
As its final alternative ground for affirmance, the
defendant claims that the judgments should be affirmed
because the plaintiffs were not harmed by the assessor’s
imposition of the late filing penalties. Specifically, the
defendant contends that, because the plaintiffs were
able to seek review of the assessor’s imposition of the
late filing penalties by appealing to the board, the plain-
tiffs have not suffered harm as a result of the timing
of the assessor’s actions, even if late. This argument
warrants little discussion.
In support of its argument, the defendant relies on
Murach v. Planning & Zoning Commission, 196 Conn.
192, 205, 491 A.2d 1058 (1985), for the statement therein
that ‘‘not all procedural irregularities require a
reviewing court to set aside an administrative decision;
material prejudice to the complaining party must be
shown.’’ (Internal quotation marks omitted.) The defen-
dant’s reliance on Murach is entirely misplaced. In Mur-
ach, our Supreme Court affirmed the trial court’s
upholding of a planning and zoning commission’s unani-
mous decision to approve a zone reclassification,
despite the fact that one of the seven voting members
was a statutorily proscribed member of the commission
who was, therefore, disqualified from voting. Id., 194–
95. On appeal, the court reasoned that, because only
five votes were required for passage of the zoning
reclassification and there was no contention that the
disqualified member swayed the commission in its deci-
sion making, the plaintiffs failed to show that the so-
called procedural irregularity resulted in any material
prejudice to them. Id., 205–206.
In contrast, in the present case, the crux of the plain-
tiffs’ arguments on appeal is that, because the assessor
was without the statutory authority to impose the late
filing penalties after he signed the grand list, the late
filing penalties are null and void. Because we agree and
conclude that the assessor may not collect a tax on an
assessment that is untimely adjusted by the imposition
of late filing penalties (i.e., after the assessor signed the
2014 grand list), it can hardly be said that the statutorily
unauthorized delay of the imposition of the late filing
penalties was a mere procedural irregularity, which, if
uncorrected, would result in no harm to the plaintiffs.18
The judgments are reversed and the case is remanded
with direction to render judgments for the plaintiffs.
In this opinion, the other judges concurred.
1
General Statutes § 12-63c provides in relevant part: ‘‘(a) In determining
the present true and actual value in any town of real property used primarily
for purposes of producing rental income, the assessor, which term whenever
used in this section shall include assessor or board of assessors, may require
in the conduct of any appraisal of such property pursuant to the capitalization
of net income method, as provided in [General Statutes §] 12-63b, that the
owner of such property annually submit to the assessor not later than the
first day of June, on a form provided by the assessor not later than forty-
five days before said first day of June, the best available information disclos-
ing the actual rental and rental-related income and operating expenses
applicable to such property. Submission of such information may be required
whether or not the town is conducting a revaluation of all real property
pursuant to [General Statutes §] 12-62. Upon determination that there is
good cause, the assessor may grant an extension of not more than thirty
days to submit such information, if the owner of such property files a request
for an extension with the assessor not later than May first.
***
‘‘(d) Any owner of such real property required to submit information
to the assessor in accordance with subsection (a) of this section for any
assessment year, who fails to submit such information as required under
said subsection (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. Notwithstanding the provisions of this subsection, an assessor or
board of assessment appeals shall waive such penalty if the owner of the
real property required to submit the information is not the owner of such
property on the assessment date for the grand list to which such penalty
is added. Such assessor or board may waive such penalty upon receipt of
such information in any town in which the legislative body adopts an ordi-
nance allowing for such a waiver.’’ (Emphasis added.)
2
The plaintiffs are Wilton River Park 1688, LLC, Wilton Campus 1691,
LLC, and Wilton River Park North, LLC, which own, respectively, the subject
real properties located at 5 River Road, 15 River Road, and 7 Godfrey Place
in Wilton. For ease of reference, we refer to the properties together as the
‘‘subject properties.’’
3
The parties filed stipulations of fact in each of the six respective tax
appeals filed in the Superior Court. With the exception of identifying the
particular plaintiff and the related subject property, the stipulations of fact
are identical.
4
October 26, 2016, is the date of the parties’ stipulations.
5
The assessor did not receive a grand list filing extension for the 2014
grand list.
6
General Statutes § 12-60 provides: ‘‘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 follow-
ing the tax due date relative to which such omission or mistake occurred,
and the tax shall be levied and collected according to such corrected assess-
ment. 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.’’
7
The record does not reflect any explanation for the assessor’s practice.
8
The specific penalties at issue (in the form of increases in assessed
values) are as follows: (1) $1,424,520 for Wilton River Park 1688, LLC; (2)
$2,712,190 for Wilton Campus 1691, LLC; and (3) $159,850 for Wilton River
Park North, LLC.
9
General Statutes § 12-119 provides in relevant part: ‘‘When it is claimed
. . . that a tax laid on property was computed on an assessment which,
under all the circumstances, was manifestly excessive and could not have
been arrived at except by disregarding the provisions of the statutes for
determining the valuation of such property, the owner thereof . . . prior
to the payment of such tax, may, in addition to the other remedies provided
by law, make application for relief to the superior court for the judicial
district in which such town or city is situated. Such application may be
made within one year from the date as of which the property was last
evaluated for purposes of taxation and shall be served and returned in the
same manner as is required in the case of a summons in a civil action, and
the pendency of such application shall not suspend action upon the tax
against the applicant. In all such actions, the Superior Court shall have
power to grant such relief upon such terms and in such manner and form
as to justice and equity appertains, and costs may be taxed at the discretion
of the court. If such assessment is reduced by said court, the applicant
shall be reimbursed by the town or city for any overpayment of taxes in
accordance with the judgment of said court.’’
10
General Statutes § 12-111 provides in relevant part: ‘‘(a) Any person
. . . claiming to be aggrieved by the doings of the assessors of such town
may appeal therefrom to the board of assessment appeals. Such appeal shall
be filed, in writing, on or before February twentieth. The written appeal
shall include, but is not limited to, the property owner’s name, name and
position of the signer, description of the property which is the subject of
the appeal, name and mailing address of the party to be sent all correspon-
dence by the board of assessment appeals, reason for the appeal, appellant’s
estimate of value, signature of property owner, or duly authorized agent of
the property owner, and date of signature. The board shall notify each
aggrieved taxpayer who filed a written appeal in the proper form and in a
timely manner, no later than March first immediately following the assess-
ment date, of the date, time and place of the appeal hearing. Such notice
shall be sent no later than seven calendar days preceding the hearing date
. . . . The board shall determine all appeals for which the board conducts
an appeal hearing and send written notification of the final determination
of such appeals to each such person within one week after such determina-
tion has been made. Such written notification shall include information
describing the property owner’s right to appeal the determination of such
board. Such board may equalize and adjust the grand list of such town and
may increase or decrease the assessment of any taxable property or interest
therein and may add an assessment for property omitted by the assessors
which should be added thereto . . . . When the board increases or
decreases the gross assessment of any taxable real property or interest
therein, the amount of such gross assessment shall be fixed until the assess-
ment year in which the municipality next implements a revaluation of all
real property pursuant to [General Statutes §] 12-62, unless the assessor
increases or decreases the gross assessment of the property to (1) comply
with an order of a court of jurisdiction, (2) reflect an addition for new
construction, (3) reflect a reduction for damage or demolition, or (4) correct
a factual error by issuance of a certificate of correction. Notwithstanding
the provisions of this subsection, if, prior to the next revaluation, the assessor
increases or decreases a gross assessment established by the board for any
other reason, the assessor shall submit a written explanation to the board
setting forth the reason for such increase or decrease. The assessor shall
also append the written explanation to the property card for the real estate
parcel whose gross assessment was increased or decreased.
‘‘(b) If an extension is granted to any assessor or board of assessors
pursuant to [General Statutes §] 12-117, the date by which a taxpayer shall
be required to submit a written request for appeal to the board of assessment
appeals shall be extended to March twentieth and said board shall conduct
hearings regarding such requests during the month of April. The board shall
send notification to the taxpayer of the time and date of an appeal hearing
at least seven calendar days preceding the hearing date, but no later than
the first day of April. If the board elects not to hear an appeal for commercial,
industrial, utility or apartment property described in subsection (a) of this
section, the board shall notify the taxpayer of such decision no later than
the first day of April.’’
11
General Statutes § 12-117a provides in relevant part: ‘‘Any person . . .
claiming to be aggrieved by the action of . . . 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. Such citation shall be signed by the same authority
and such appeal shall be returnable at the same time and served and returned
in the same manner as is required in case of a summons in a civil action.
The authority issuing the citation shall take from the applicant a bond or
recognizance to such town or city, with surety, to prosecute the application
to effect and to comply with and conform to the orders and decrees of the
court in the premises. Any such application shall be a preferred case, to be
heard, unless good cause appears to the contrary, at the first session, by
the court or by a committee appointed by the court. . . . If, during the
pendency of such appeal, a new assessment year begins, the applicant may
amend his application as to any matter therein, including an appeal for such
new year, which is affected by the inception of such new year and such
applicant need not appear before the board of tax review or board of
assessment appeals, as the case may be, to make such amendment effective.
The court shall have power to grant such relief as to justice and equity
appertains, upon such terms and in such manner and form as appear equita-
ble . . . . 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,
less any lien recording fees incurred under [General Statutes §§] 7-34a and
12-176, together with interest and any costs awarded by the court. The
amount to which the assessment is so reduced shall be the assessed value
of such property on the grand lists for succeeding years until the tax assessor
finds that the value of the applicant’s property has increased or decreased.’’
12
We note that this date is an error; it is undisputed that the assessor
imposed the late filing penalties on April 29, 2015. This error has no impact
on our analysis.
13
We note that the foregoing conclusion is in harmony with the language
of § 12-63c (d), which provides that ‘‘[a]ny owner of such real property
required to submit information to the assessor in accordance with subsection
(a) of this section for any assessment year, who fails to submit such informa-
tion as required under said subsection (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.’’ (Emphasis added.)
14
Indeed, at oral argument before this court, the defendant’s counsel
confirmed that it is the defendant’s position that the assessor may impose
§ 12-63c (d) penalties for a particular assessment year, where applicable,
at any time for an indefinite period.
15
General Statutes (Rev. to 1975) § 12-60 provided: ‘‘Any clerical omission
or mistake in the assessment of taxes may be at any time corrected according
to the fact by the assessors or board of tax review, and the tax shall be
levied and collected according to such corrected assessment.’’
16
The trial court’s memorandum of decision states that the assessor
adhered to such practice for over twenty years. The parties do not challenge
that statement on appeal.
17
Moreover, the fact that it has been the assessor’s longtime practice to
assess retroactively any late filing penalties under § 12-63c (d) provides the
defendant no safe harbor. Middletown v. Berlin, 18 Conn. 189, 197 (1846)
(‘‘[a]ssessors are the officers of the law, and must obey the law; and no
direction of the town, nor long continued usage, can justify a departure
from the law’’).
18
Relatedly, we briefly address the trial court’s ultimate conclusion that
‘‘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
grant list.’ ’’ This conclusion was in error because the assessor’s statutory
violation in the present case does not relate to the mere timing of an
assessment increase notice but, rather, the assessor’s failure under § 12-55
(b) to ‘‘make any assessment . . . required by law’’ before ‘‘taking and
subscribing to the oath upon the grand list.’’ At a minimum, the applicability
of § 12-55 (c) assumes that the assessor has otherwise complied with his
or her assessment duties under § 12-55 (b) (i.e., made the assessment at a
time when he or she had the statutory authority to do so).