In a previous post we discussed how, absent good cause, a taxpayer’s outright failure to serve its school district with a copy of its Article 7 petition could result in the dismissal of the petition. RPTL Section 708(3) requires that a taxpayer mail a copy of the petition to the superintendent of the school district within 10 days of the date that they serve the petition on the taxing authority. Section 708(3) clearly states that a taxpayer’s “failure to comply…shall result in the dismissal of the petition, unless excused for good cause shown.” In those cases the threshold question will be “can the taxpayer establish good cause for its failure to serve the school district?” If it cannot, then the petition will be dismissed and the school district will be off the hook for refunds.
But what about cases where the school district is served late (i.e., more than 10 days after the petition is served on the taxing authority)? Same result, right? Well, not entirely.
Like the case where a taxpayer fails to serve the school district, if a school district is served late and a motion is made to dismiss the petition based on the taxpayer’s failure to comply with Section 708(3), then the court will look to see if good cause exists for the taxpayer’s untimely service. If good cause cannot be found then the petition will be dismissed. See, e.g., In re First Source Fed. Cr. U. v. Stuhlman, 267 A.D.2d 1026 (4th Dep’t 1999).
The difference in the treatment of late service versus no service, however, can be seen in cases where no motion is made to dismiss the petition. If a taxpayer completely fails to serve the school district with a copy of its petition, the district will not be required to refund any overpaid taxes (see, e.g., Brookview Apartments v. Stuhlman, 278 A.D.2d 825, 826 (4th Dep’t) (2000)). On the other hand, if the school district is served late, but before trial or settlement, then it must intervene and move to dismiss the petition, otherwise its failure to do so will constitute a waiver of the taxpayer’s untimely service and the school district will be required to refund any overpaid taxes as directed by the court. Brookview Apartments, 278 A.D.2d at 826-27. So while service snafus could potentially be fatal to a taxpayer’s property tax assessment challenge, such a result is not always automatic and a school district should be prepared to act on these snafus to protect its budget.
