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Law Revision Commission Analysis of Connecticut Validating Acts - SECTION 1  

SECTION 1. Validating Assessment Lists, Taxes, Tax Liens, Tax Rates, and Other Actions Related to Tax Levies.

Subsection (a) validates the assessment lists of any town, city or borough completed prior to the effective date of the validating act where the assessor took, or failed to take certain actions. Subsections (b), (c), and (d) validate similar defects in the tax assessment and levy process.

In lieu of validating, after the fact, the various defects addressed by these subsections, the legislature should enact legislation to clarify that insubstantial procedural irregularities and irregularities that do not substantially effect the taxpayers as a whole are not grounds for invalidating the assessment list itself, the levy as a whole, or the authority to lien property. Moreover, the statute of limitations for any action to invalidate the assessment list or levy should be clarified. Finally, consideration should be given to clarifying the process for individual taxpayers to contest a levy where their rights are affected by a substantive defect. These issues are addressed more specifically in comments following subsection (d) below.

A specific analysis of each subsection follows.

Subsection (a). Validation of Assessment List. Acts by Assessors.

The requirements concerning assessment lists addressed in subsection (a) are generally set out in Chapter 203 of the General Statutes concerning property tax assessment.

Subdivision (1). Subdivision (1) of subsection (a) validates a list where the assessor "[n]eglected to give legal notice requiring all persons therein liable to pay taxes to bring in written or printed lists of the taxable property belonging to them…" It validates a list with respect to which the assessor failed to publish or post the notice required by section 12-40, which specifies:

"The assessors in each town, except as otherwise specially provided by law, shall, on or before the fifteenth day of October annually, post on signposts therein, if any, or at some other exterior place near the office of the town clerk, or publish in a newspaper published in such town or, if no newspaper is published in such town, then in any newspaper published in the state having a general circulation in such town, a notice requiring all persons therein liable to pay taxes to bring in written or printed lists of the taxable property belonging to them on the first day of October in that year."

The requirement that persons file tax lists is subject to numerous exceptions set out in section 12-41, which is, however, only effective if adopted by the municipality. See section 12-41(h). If a person fails to file a required list, the assessor prepares a list for him. Section 12-42.

History and Comment: The validation provision dates back to section 1 of the 1933 act.

This was the first provision of the 1933 Act and originally validated all cases "in which the assessors of any town…have neglected to give legal notice requiring all persons therein liable to pay taxes to bring in written or printed lists of the taxable property belonging to them, as required by law…"

The underlying issue is the effect of an assessor’s failure to give the required notice. That failure ought to give particular taxpayer rights as against the town to not be liable, for example, for any penalty for late payment of taxes due where they did not receive a required notice. However, failure to give that notice would not effect the validity of the assessments generally or the power of the district to levy taxes unless the failure to give notice worked an injustice on all taxpayers generally. In Conzelman v. Bristol, 122 Conn. 218 (1936), at 226, the Connecticut Supreme Court wrote concerning assessor errors as follows:

"It is not always easy to draw the line between those failures in the performance of their full duty by assessors which will invalidate an entire assessment and those which are available only to the individual taxpayer whose property is incorrectly valued. There probably never was a grand list where with reference to certain properties included the assessors did not fail in the strict performance of their duty. To invalidate the entire grand list of a municipality is an act fraught with very serious consequences. A breach of duty by the assessors may be of such a nature as necessarily to affect the entire grand list, such as a failure to obey a mandatory statutory requirement. Thames Mfg. Co. v. Lathrop, 7 Conn. 550; Hartford v. Poindexter, 84 Conn. 121, 130, 79 Atl. 79. On the other hand, an error which affects only the valuation of the property of a particular taxpayer can be adequately remedied by an appeal by him to the board of relief. In order to justify the invalidation of an entire grand list, errors in the method of valuation of individual properties must be such that the levy of a tax upon the grand list would be likely to produce a substantial injustice to the taxpayers of the community as a whole."

The court goes on to consider a claim that failure to give notice of an increase in valuation invalidates the assessment. The court writes:

"The final ground claimed as invalidating the assessment which we shall consider is that the assessors failed to comply with the provision of section 1141 of the General Statutes, requiring them to give written notice of any increase in the valuation of personal property over that stated in the list filed with them by the taxpayer or in the grand list of the preceding year. The giving of such a notice is plainly a provision for the protection of the individual taxpayer the valuation of whose property is in question….Failure to give these notices would not invalidate the grand list as a whole."

This case was decided after 1933 when the legislature passed the initial prototype validating act. At a previous time, legislators may have felt that assessor errors would be more strictly construed. Under such early cases as The Thames Manufacturing Company v. Lathrop, 5 Conn. 550 (1829), and Middletown v. Berlin, 18 Conn. 189 (1846), irregularities by assessors were found to invalidate the assessment list generally. Given the ruling in the Conzelman, however, only a major error in methodology working a general substantial injustice would have the effect of invalidating the list.

Since that is the case, no validating act is necessary for these subsection (a) provisions to validate minor irregularities, insubstantial defects, or defects that affect only individual taxpayers. With respect to errors that do work a substantial injustice, the only proper remedy is to allow such an action, subject to a statute of limitations. The limitation period should be restricted because of the reliance that a taxing district places on its revenue stream.

Note also that section 12-40a requires the training, examination and certification of assessment personnel, a provision initially passed in 1974. That training and certification should have the effect of ensuring that assessment practices are more uniform and that the procedural notice errors validated by this provision do not occur.

Recommendation: Legislation should be enacted for these subsection (a) provisions clarifying the effect of insubstantial defects, which under the Conzelman decision do not invalidate the list. With respect to an error having a substantive effect, the statute should set out a limitation period for any action based on the error challenging the assessment list. Proposed language is set out in section 1(a) of the Commission bill. The proposal sets a short four month period within which an action to invalidate the list may be brought. As noted above, any such action has significant possible consequences for the taxing district and, to avoid damages to the district, should be required to be brought within a timely manner. Section 1(a)(1) of the Commission bill specifically addresses errors under this subdivision (subdivision (1).

Subdivision (2). Subdivision (2) validates a list if the assessor received a list from any person "that is either not sworn to or not signed" by the person giving that list. The section is intended to validate a failure to comply with section 12-49, which specifies:

"The assessors in each town shall require each person giving in a tax list to sign, date and deliver to them a statement upon such list in the following form…:

"I do hereby declare under penalty of false statement that the foregoing list, according to the best of my knowledge, remembrance and belief, is a true statement of all my property liable to taxation. I also declare under penalty of false statement that I have not conveyed or temporarily disposed of any estate for the purpose of evading the laws relating to the assessment and collection of taxes…"

…Any assessor failing to comply with the provisions of this section shall be fined not more than fifty dollars for each offense."

History and Comment: The second clause of section 1 of the 1933 act validated the assessment list "in all cases in which assessors have received, before the first day of November in any year, the list of any person either not sworn to or not signed by the person giving in such list…"

See the discussion under subdivision (1) above. An individual error, under the Conzelman decision, does not invalidate the list generally. Actions based on an error working a substantial injustice should be limited.

Recommendation: Proposed language addressing this subdivision is set out in section 1(a)(2) of the Commission bill.

Subdivision (3). Subdivision (3) validates the list if the assessor received a sworn list after November 1 but neglected "to fill out a list of the property of any such person and to add thereto ten per cent of the valuation thereof."

The subdivision appears intended to validate certain sworn lists received after the November 1 filing deadline set by section 12-42. Under sections 12-42 and 12-53, if any taxable property is not properly reported by list, the property is added to the list by the assessor or board of assessors at the actual valuation as determined from the best available information and a 25% assessment is added thereto. Prior to 1987, sections 12-42 and 12-53 required that 10%, rather than 25%, be added to the valuation. See Public Act 87-245. In other words, subdivision (3) validates an assessor’s waiver of the statutory penalty for failing to file before the November 1 deadline if a sworn list is filed after the deadline. The recited penalty percentage is out of date. (The assessor may also explicitly extend the filing deadline by up to 45 days for good cause under section 12-42.)

History and Comment: See the subdivision (1) discussion above. This provision dates back to section 1 of the 1933 act. The 10% penalty referred to in this provision was revised to 25% by Public Act 87-245. .

Recommendation:. Proposed language is set out in section 1(a)(3) of the Commission bill.

Subdivision (4). Subdivision (4) validates the list if the assessor "[a]dded to the list of any person or corporation making a sworn list of any property owned by such person or corporation and liable to taxation without legally notifying such person or corporation of such addition."

The subdivision validates a failure by the assessor to give the notice required by subsection 12-53(c), which specifies:

"If the assessor or board of assessors of any town adds property to the list of any person or makes out a list for any person not filing a list or increases or decreases the valuation of any taxable property under the provisions of subsection (b), they shall, within thirty days of such hearing or any adjournment thereof give him notice thereof in writing by mailing the same, postage prepaid, to his last-known address and the same shall be held to be sufficient."

History and Comment: See the subdivision (1) discussion above. This provision dates back to section 1 of the 1933 act. The error validated is the error at issue in the Conzelman case, in which such an error was ruled not to invalidate the assessment list.

Recommendation:. Proposed language is set out in section 1(a)(4) of the Commission bill.

Subdivision (5). Subdivision (5) validates the list if the assessor increased the valuation and added the 10% penalty but failed to give notice of the increase, if the owner failed to give a list.

Like subdivision (4), the subdivision validates a failure to give the notice required by subsection 12-53(c) (which is setout in its entirety under subdivision (4) above.) The 10% penalty referred to in subdivision (5) is the penalty specified under section 12-53, which, as noted above, was changed from 10% to 25% by Public Act 87-245.

History and Comment: This provision dates back to section 1 of the 1933 act. See the discussions above.

Recommendation: Proposed language is set out in section 1(a)(5) of the Commission bill.

Subdivision (6). Subdivision (6) validates the list if the assessor did not assess house lots separately as land.

The provision validates an assessor’s failure to comply with a provision of section 12-42, which specifies, in part,

"[Assessors] shall make a separate description and assessment of each parcel of real estate."

History and Comment. This provision dates back to section 1 of the 1933 act. See the subdivision (1) discussion above.

Recommendation: Proposed language is set out in section 1(a)(6) of the Commission bill.

Subdivision (7). Subdivision (7) validates the list if the assessor "[d]id not sign any assessment list or did not sign the assessment list of such town, city or borough collectively, but signed the same individually for districts or societies in such town, city or borough".

The provision validates an assessor’s failure to properly sign the list. The statutes are not clear as to the nature of that signature requirement. Section 12-55(a) provides, in part, that:

"When such lists have been so completed, the assessor or board of assessors shall arrange such lists in alphabetical order and lodge the same, except as otherwise specially provided by law, in the town clerk’s or assessors’ office, on or before the thirty-first day of January, for public inspection. Such assessor or board of assessors shall make an abstract of such lists, including the twenty-five per cent added thereto, shall take and subscribe the oath provided by law, which shall be certified by the officer administering the same and endorsed upon or attached to such abstract, and, except as otherwise specially provided by law, shall lodge such abstract in the town clerk’s office, on or before the thirty-first day of January next after the date prescribed for the filing of such lists, for public inspection. For the grand list of October 1, 2000, and each grand list thereafter, each assessor who signs the grand list of the town shall be certified in accordance with the provisions of section 12-40a…."

Subsection (b) requires that written notice of the assessment increase be given "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." By inference of that language, assessors must sign. Subdivision (7) validates the list even if they failed to sign.

History and Comment: See the subdivision (1) discussion above. This provision dates back to section 1 of the 1933 act.

Recommendation: Proposed language is set out in section 1(a)(7) of the Commission bill.

Subdivision (8). Subdivision (8) validates the list if the assessor "[o]mitted to arrange the assessment lists in alphabetical order, or to lodge the same in the required office on or before the day designated by law, or at all."

This subdivision validates a failure to comply with the provisions of section 12-55 (set out under subdivision (7) above) which require that the list be arranged in alphabetical order and lodged in the town clerk’s or assessors’ office, on or before the thirty-first day of January.

History and Comment: This provision derives from section 1 of the 1933 validating act. Given the Conzelman decision, these insubstantial failings would not invalidate the list provided that the list itself was accessible. See the subdivision (1) discussion above.

Recommendation: Proposed language is set out in section 1(a)(8) of the Commission bill.

Subdivision (9). Subdivision (9) validates the list if the assessor "[d]ecreased valuations after the day on which the assessment list was lodged or was required by law to be lodged in the required office, but before the date on which the abstract of such list was transmitted or was required by law to be transmitted by the town clerk to the Secretary of the Office of Policy and Management".

As noted under subdivisions (7) and (8) above, pursuant to section 12-55, the assessor is to lodge the list in the town clerk’s or assessors’ office before January 31. Under section 12-120, the assessors or board of assessors, on or before the first day of May, annually, is to transmit to the Secretary of the Office of Policy and Management an abstract of the lists. Under a prior version of section 12-120, the responsibility for filing with the Secretary was on the town clerk.

Thus, the section apparently intends to validate the list where a decrease in the valuation is made after the assessment list was lodged with the town clerk, but before the abstract was transmitted to the Secretary of the Office of Policy and Management. However, the language of the section is obsolete. If the provision were retained, it would need to be conformed with the changes made to section 12-120 under which the assessor or board of assessors, rather than the town clerk, have responsibility for transmittal.

History and Comment: This provision first appears in the 1967 validating act, Special Act 67-382. While that makes the specific provision relatively modern, postdating the Conzelman decision, the subdivision (1) discussion above still applies. The list will not be invalidated by an instance where a specific valuation is inappropriately decreased. A substantive error should be addressed by a limitation period.

Recommendation: Proposed language is set out in section 1(a)(9) of the Commission bill.

Subdivision (10). Subdivision (10) validates the list if the assessor "[o]mitted to fill out a list for any person or corporation that failed to return a list as provided by law."

The section validates a list where the assessor failed to comply with section 12-42, which requires the assessors to fill out a list for any person failing to file. See also section 12-53, concerning addition of omitted property to the list.

History and Comment: See the discussion under subdivision (1) above. This provision dates back to section 1 of the 1933 act. It concerns a failure with respect to a particular taxpayer which, under Conzelman, would not invalidate the list.

Recommendation: Proposed language is set out in section 1(a)(10) of the Commission bill.

Subdivision (11). Subdivision (11) validates the list if the assessor "[m]ade an incorrect abstract of the assessment lists."

Subsection (a) of section 12-55, in part, requires that the assessors or board of assessors "make an abstract of such lists…[and] lodge such abstract in the town clerk’s office…"

Subdivision (11) validates the list itself even though the abstract is inaccurate.

History and Comment: See the subdivision (1) discussion above. This provision dates back to section 1 of the 1933 act. An abstract that is inaccurate with respect to a particular taxpayer should not invalidate the list under Conzelman.

Recommendation: Proposed language is set out in section 1(a)(11) of the Commission bill.

Subdivision (12). Subdivision (12) validates the list if the assessor "[o]mitted to compare, sign, return, date or make oath to an abstract of the assessment lists of his or her town… or omitted from such abstract any part of the list of any person".

This validation provision concerns the same section 12-55 provisions noted above, in particular the requirement that the assessors or boards of assessors, after making the abstract, "take and subscribe the oath provided by law, which shall be certified by the officer administering the same and endorsed upon or attached to such abstract…" There does not appear to be an explicit requirement that the assessor compare the list and the abstract, although that would be necessary to ensure the accuracy of the abstract. Any statutory requirement that the abstract be dated is also, at best, inferred. In any case, this subdivision validates a failure to comply with those inferred obligations as well as the explicit obligation that the assessor "subscribe the oath required by law."

History and Comment: See the subdivision (1) discussion above. This provision dates back to section 1 of the 1933 act. While this error may be a substantive defect, it should be addressed by an appropriate limitation period in the same manner as other substantive errors.

Recommendation: Proposed language is set out in section 1(a)(12) of the Commission bill.

Subdivision (13). Subdivision (13) validates the list if the assessor "[d]id not take the oath required by law".

Presumably this provision validates the list if the assessor failed to take the section 12-55 oath (which would be redundant with subdivision (12) above) or any other required oath. See for example section 7-105 requiring assessors to take an oath of office.

History and Comment: See the subdivision (1) discussion above. This provision dates back to section 1 of the 1933 act. Failure to take a required oath, like a failure to sign (discussed under subdivision (12) above), places the integrity of a list, itself, in doubt. The proper remedy is to provide a limited period for challenge based on the error.

Recommendation: Proposed language is set out in section 1(a)(13) of the Commission bill.

Subdivision (14). Subdivision (14) validates the list if the assessor "[f]ailed to return to the school or district clerk the assessment lists of such district assessment."

Section 7-328, concerning assessments for fire, sewer, and other districts, specifies that "the assessor or assessors of the town shall separate property within the district from the other property in the town and shall annually furnish the clerk of the district with a copy of the grand list of all property in the district after it has been completed…" Subdivision (14) appears to intend to validate the assessment list where the assessor failed to return it to the district clerk as required by section 7-328.

The provision is archaic with respect to school districts. Public schools are now financed through municipal budget appropriations (as well as state grants in aid). See sections 10-222 and 10-240. There is no separate assessment for which the assessor would be required to return an assessment list. (Regional districts are also financed through agreement directly through municipal finances.)

The provision does apply to other taxing districts.

History and Comment: See the subdivision (1) discussion above. This provision dates back to section 1 of the 1933 act. Such an irregularity as failing to return the list to a specific district, given that the list would remain a public record subject to scrutiny, is insubstantial and would not invalidate a list.

Recommendation: Proposed language is set out in section 1(a)(14) of the Commission bill.

Subdivision (15). Subdivision (15) validates the list if the assessor "[o]mitted from the assessment list the taxable property of any person or corporation liable to pay taxes."

This is a catch-all provision stating that the list is valid even if the assessor failed to list taxable property, as required, for example, by section 12-42. The provision is similar to subdivision (10). However, subdivision (10) validates the list if the assessor omitted a list for any person or corporation. Subdivision (15) validates the list if the assessor omitted any property from the list.

History and Comment: See the subdivision (1) discussion above. This provision dates back to section 1 of the 1933 act. Such an individual irregularity would not invalidate the list.

Recommendation: Proposed language is set out in section 1(a)(15) of the Commission bill.

Subsection (b). Validation of Assessment List. Acts by Board of Tax Review or Members thereof.

This subsection validates an assessment list completed prior to the effective date of the act where the board of tax review, or a member thereof, failed to meet some legislative requirement. Public Act 95-283, An Act Concerning the Improvement of Process and Administration of the Property Tax, changed the name of the "board of tax review" to the "board of assessment appeals" without the necessary conforming revisions being made in either the 1995 or 1997 validating act.

The basic provisions concerning the board of assessment appeals are set out in chapter 203. The rationale of the Conzelman decision, that an irregularity will not invalidate the assessment list unless a substantial injustice would be produced for taxpayers as a whole, applies to these provisions as well as to subsection (a). Thus these validating provisions are unnecessary to validate routine irregularities. Challenge based on a substantive error affecting taxpayers as a whole should be subject to a strict limitation period. Legislative clarification would be appropriate. More specifically:

Subdivision (1). Subdivision (1) validates the list if "the oath required by law" was not taken. Section 7-105 requires that each person elected or appointed a member of the board of assessment appeals shall be sworn before entering upon the duties of the office. Other statutory oath requirements may be effected by this provision.

History and Comment: This provision dates back to section 1 of the 1933 act when what is now the board of assessment appeals (previously board of tax review) was referred to as the board of relief.

As with respect to the subsection (a) provisions, assessment lists do not need to be routinely validated to protect against a failure to take an oath. Clarifying legislation should be enacted with an appropriate period of limitations for any appropriate challenge.

Recommendation: Proposed language is set out in section 1(b)(1) of the Commission bill.

Subdivision (2). Subdivision (2) validates the list if the board or members "[f]ailed to give notice of the times and places of its meetings as required by law".

This provision validates a failure to comply with section 12-110, which provides:

"(a) The board of assessment appeals in each town shall meet at least once in the month of September, annually, provided any meeting in the month of September shall be for the sole purpose of hearing appeals related to the assessment of motor vehicles, and shall give notice of the time and place of such meetings by posting it at least ten days before the first meeting in the office of the town clerk, and publishing it in some newspaper published therein or, if no newspaper is published in such town, in a newspaper having a general circulation in such town. Such meetings shall be held on business days, which may be Saturdays, the last not later than the last business day in the month of September, on or before which date such board shall complete the duties imposed upon it.

(b) The board of assessment appeals in each town shall meet in the month of March to hear appeals related to the assessment of property. Any such meeting shall be held on business days, which may be Saturdays, the last not later than the last business day in the month of March, on or before which date such board shall complete the duties imposed upon it."

History and Comment: See the subdivision (a)(1) discussion above. This provision dates back to subsection 1 of the 1933 act. Individual taxpayers who were aggrieved by the failure to give notice should be able to appeal their assessment further. However, because the hearings relate to the review of individual rights, the failure to given notice should not, under Conzelman, invalidate the list as a whole. It should also be noted that because of a drafting incongruity, the notice requirements only appear to relate to the September meetings for motor vehicle assessment appeals.

Recommendation: Proposed language is set out in section 1(b)(2) of the Commission bill.

Subdivision (3). Subdivision (3) validates the list if the board "[h]eld its first meeting on some day other than the day provided by law for such meeting."

Section 12-110 specifies periods when the board must meet. Earlier provisions required a meeting in February. The reference in subdivision (3) as to the board’s first meeting presumably now refers to the March meeting required by subsection (b) of section 12-110.

History and Comment: See the subdivision (a)(1) discussion above. This provision dates back to section 1 of the 1933 act.

Recommendation: Proposed language is set out in section 1(b)(3) of the Commission bill.

Subdivision (4). Subdivision (4) validates the list if the board "[a]dded to the list of any person or corporation any item of taxable property actually owned by said person or corporation without giving the notice required by law."

Sections 12-111 and 12-115 authorize the board to add taxable property to the list provided (as stated in section 12-115) "[s]uch board of assessment appeals shall mail to such owner at his last known address, postage paid, within one week after the completion of such supplemental list, a written or printed notice to appear before such board at a stated time and place and show cause why such property should not be in such supplemental lists…" Subsection (4) validates the list notwithstanding the failure to give that notice. This subsection and subsection (5) below are analogous to similar provisions validating notice omissions by the assessor under subsections (a)(10) and (15).

History and Comment: See the subdivision (a)(1) discussion above. This provision dates back to section 1 of the 1933 act. It refers to an irregularity with respect to a particular taxpayer. Under Conzelman, such an irregularity would not invalidate the list as a whole.

Recommendation: Proposed language is set out in section 1(b)(4) of the Commission bill.

Subdivision (5). Subdivision (5) validates the list if the board "[i]ncreased the list of any person or corporation, and added to the assessment list the name of any person or corporation without giving such person or corporation notice thereof, and the amount of such list is not excessive or unjust".

This subdivision is partially redundant with subdivision (4), although it validates the additional element of adding the name of a person to the list who was not previously listed. Subdivision (4), by contrast, refers only to increases to an existing list. Note that subdivision (5) only validates if the amount of the list is not excessive or unjust. As with subdivision (4), however, the provision is validating a failure to comply with sections 12-111 and 12-115.

History and Comment: See the subdivision (a)(1) discussion above. This provision dates back to section 1 of the 1933 act. As with subdivision (4) above, it refers to an irregularity with respect to an individual taxpayer and, under Conzelman, would not invalidate the list as a whole.

Recommendation: Proposed language is set out in section 1(b)(5) of the Commission bill.

Subdivision (6). Subdivision (6) validates the list if the board "[o]mitted to sign any assessment list or abstract thereof after the same has been examined and corrected by said board".

The review did not disclose any explicit requirement that a member of the board sign the assessment list or abstract. If there is such a requirement and no one signs, this provision validates the list nonetheless.

History and Comment: See the subdivision (a)(1) discussion above. This provision dates back to the 1933 act. As with the other irregularities, it should not provide the basis for a challenge unless the failing would work a substantial injustice. Any challenge should be subject to a period of limitations.

Recommendation: Proposed language is set out in section 1(b)(6) of the Commission bill.

Subdivision (7). Subdivision (7) validates the list if the board "[f]ailed to return the assessment list or abstract thereof to the town clerk on or before the fourth Monday of February in any year".

The requirement addressed by the validating act that the assessment list be returned before the fourth Monday of February dates back to when the board met in February under prior versions of section 12-110. With the revisions of Public Act 95-283, the board now meets in March. Since appeals are not considered until March, a requirement that the revised list be returned to the town clerk by the board of assessment appeals before the end of February would not make sense. In short, the validating provision fails to reflect the current statutory requirements and is archaic.

History and Comment: The specific provision (as applicable to the board of relief) dates back to section 1 of the 1933 act. The provision is obsolete.

Recommendation: This provision is obsolete and is not addressed by the Commission bill.

Subsection (c). Validation of taxes imposed prior to effective date of act.

Subsection (c) validates any tax imposed prior to the effective date of the act in any town, city, borough, school district or fire district where certain statutory requirements were not met. The rationale of the Conzelman case applies to tax levies under this subsection as well as to preparations of the assessment list under subsections (a) and (b). The levy as a whole should not be invalid unless it produces a substantial injustice with respect to taxpayers as a whole. Moreover, taxpayers have and should have remedies with respect to unjust levies but rights to challenge the levy as a whole should be subject to a strict limitation of actions.

Note that section 12-159 already validates tax levies for purposes of a tax sale unless the owner did not receive the required notice of sale. That provision specifies:

"No act done or omitted relative to the assessment or collection of a tax, including everything connected therewith, after the vote of the community laying the same, up to and including the final collection thereof or sale of property therefor, shall in any way affect or impair the validity of such tax as assessed, collected or sought to be collected or the validity or such sale, unless the person contesting the validity of such sale shows that the collector neglected to provide notice [of the sale] pursuant to section 12-157…"

The statute also limits in time the right to contest the validity of a collector’s deed. Section 12-159b specifies:

"No action alleging the invalidity of a collector’s deed, substantially, in the form provided in section 12-158, on any grounds other than fraud, shall be brought by any person except within one year from the date the collector’s deed was recorded or within two years from the date of the sale, whichever is longer."

In other words, the General Statutes already recognize and use self-validating provisions and limitation of actions with respect to a particular aspect of tax levies to protect the integrity of the tax collector’s deed. This report, of course, is recommending that such a strategy be adopted generally.

With respect to the subsection (c) provisions, more specifically:

Subdivision (1). Subdivision (1) validates the tax if the "town clerk failed to transmit to the Secretary of the Office of Policy and Management, when required, an abstract of the assessment lists…on or before the first day of April in each year".

The underlying statutory requirement relates to section 12-120, which currently provides:

"The assessor or board of assessors of each town, after the assessment lists have been examined and corrected by the board of assessment appeals, shall, on or before the first day of May, annually, transmit to the Secretary of the Office of Policy and Management an abstract of such lists…"

See also section 12-9. As noted from the text above, the lists are now transmitted by the assessors to OPM with a deadline of May rather than April. Thus the current language of the validating subsection is out of date.

History and Comment: See the subdivision (a)(1) discussion above. The provision dates back to section 1 of the 1933 act which validated a failure of the town clerk, "where required" to transmit an abstract of the lists to the tax commissioner. Because the list remains available to taxpayers, such a failure to transmit the abstract should not invalidate the levy itself under the Conzelman rationale.

Recommendation: Adoption of a general validating provision and limitation of actions with respect to levies would clarify the current standards in this area. Proposed language is set out in section 1(c)(1) of the Commission bill.

Subdivision (2). Subdivision (2) validates the tax if "[t]he proper authorities voted to levy a tax, but omitted to fix the time when such tax should become due, and the tax collector has given notice that the taxes were to become due at a certain time".

The levy of local taxes is generally governed by chapter 204 of the General Statutes. Section 12-122 provides that "[u]pon completion of the work of the board of assessment appeals and of the final assessment list, the town shall levy a tax on such list, payable not later than forty days prior to the end of the fiscal year for which the tax was levied." Subsection (2) appears to validate a levy if it was voted but failed to include the time when the tax was payable in accordance with this statutory requirement as long as the tax collector has given notice as to when those taxes are to become due.

However, under Chapter 110 of the General Statutes, municipalities are now required to adopt the uniform fiscal year by section 7-382. Under section 7-383, the due date of tax levies is set by statute, subject only to limited variations if installments are provided for. The validating provision is therefore archaic.

History and Comment: See the subdivision (a)(1) discussion above. This provision dates back to section 2 of the 1933 act. The kind of error validated here is highly unlikely given that municipalities are required to adhere to a uniform fiscal year with uniform tax due dates.

Recommendation: Proposed language is set out in section 1(c)(2) of the Commission bill.

Subdivision (3). Subdivision (3) validates the tax if "[a] rate bill or a bill for taxes heretofore made for the collection of any tax was not made under the hands of the proper authority according to law."

The making of a rate bill or bill for taxes is governed by section 12-130 which authorizes certain selectmen, committees, or other authorities, as provided by law, to make out and sign rate bills.

Subdivision (3) provides that a failure by the proper authority to make out the rate bill does not invalidate the underlying tax. Note that section 12-130, itself, contains a validating provision which states, "Failure to send out any such bill or statement shall not invalidate the tax."

History and Comment: See the subdivision (a)(1) discussion above. This provision dates back to section 2 of the 1933 act. The Conzelman rationale should apply to such irregularities.

Recommendation: Proposed language is set out in section 1(c)(3) of the Commission bill.

Subdivision (4). Subdivision (4) validates the tax if "[t]he selectmen of any town made their rate bill from the assessment list made and corrected by the assessor and board of tax review and lodged in the town clerk’s office and disregarded any illegal alteration in such list made after such list and abstract were completed and lodged in the town clerk’s office as aforesaid".

Under section 12-130, the selectmen, or other proper authority, are to set the rate bill based on the assessment list. This subsection intends to validate the underlying tax even though the rate bill is based on an illegally altered assessment list.

History and Comment: See the subdivision (a)(1) discussion above. This provision dates back to section 2 of the 1933 act. Such irregularities are subject to the Conzelman rationale where only individual taxpayers are aggrieved. The statute of limitations protects against other untimely challenges.

Recommendation: Proposed language is set out in section 1(c)(4) of the Commission bill.

Subdivision (5). Subdivision (5) validates the tax if "[t]he warrant for the collection of any tax was not signed and attached to the rate bill as provided by law." This subsection seems to refer to a statutory requirement that the rate bill be accompanied by a signed warrant. The underlying tax is validated if this requirement is not met. However, section 12-130 which governs the mailing of rate bills does not contain any requirement that a signed warrant be included. Apparently a former statutory requirement has been deleted, making this provision archaic.

History and Comment: This provision dates back to section 2 of the 1933 act which referred to "all cases in which the warrant for the collection of a tax has not been signed and attached to any rate bill by a justice of the peace". That language also appears to refer to an archaic procedure. In any case, such an irregularity, under Conzelman, would not invalidate the levy itself.

Recommendation: This provision is obsolete is not addressed by the Commission bill.

Subdivision (6). Subdivision (6) validates the tax if "[a] mistake, irregularity or omission occurred in any of the steps preparatory to the issuance of a rate bill or bill for taxes for any tax, or in the preparation or issuance of such a rate bill or bill for taxes, or in the warrant for collection thereof, provided such mistake, irregularity or omission is not shown by the taxpayer to have made his or her tax materially greater and that notice of such bill has been given to the taxpayer."

This omnibus validation provision states that no mistake, irregularity or omission invalidates the underlying tax as long as the taxpayer had notice of the tax and the tax was not made materially greater by the mistake, irregularity, or omission.

History and Comment: See the subdivision (a)(1) discussion above. This provision dates back to section 2 of the 1933 act. As noted elsewhere, the principle that these kind of mistakes and errors should not invalidate the levy generally should be incorporated in the General Statutes as a reflection of state law.

Recommendation: Proposed language is set out in section 1(c)(5) of the Commission bill.

(For background, see also sections 12-111 and 12-112 allowing an appeal to the board of assessment appeals and section 12-129, concerning refund of excess payments.)

Subsection (d). Validating tax lien where certificate to continue filed prior to effective date of act.

Subsection (d) validates "a tax lien of which a certificate to continue has been recorded prior to the effective date of this act in accordance with the procedures and within the time provided by law in the book of tax liens…" if any of a number of defects occurred. Municipal tax liens are governed by chapter 205 of the General Statutes. A tax lien automatically attaches to a taxpayer’s property as an inchoate lien under section 12-172, but that lien automatically expires one year after the tax becomes due. Section 12-173 sets out the process by which a tax collector may continue the lien by recording a continuation certificate. This subsection validates those continued liens notwithstanding certain defects.

These provisions could be more effectively addressed by clarifying in the General Statutes that a continuation statement is effective notwithstanding those defects that are currently validated. The current use of validating provisions, in fact, suggests that the liens are otherwise invalid, raising questions as to their effect with respect to intervening creditors. See also the provision in subsection (1)(j) of the 1997 validating act analyzed below which was enacted to ensure that the validations do not apply to a purchaser without notice. As noted in the introductory commentary, a validation provision that corrects substantive defects that affect vested rights is inappropriate because parties with accrued rights such as intervening creditors have not received proper notice. These validating provisions should be deleted in favor of appropriate validating legislation in the General Statutes. The Commission recommends statutory language specifically validating any continuation certificate "if the recorded certificate is sufficient to place a subsequent purchaser or encumbrancer on notice of the existence and extent of" the lien.

See Section 2 of the Commission bill. More specifically:

Subdivision (1). Subdivision (1) validates the lien if "[t]he assessors failed to set a separate valuation upon separate parcels of real estate upon which such lien is claimed to exist".

The provision validates a tax lien where an assessor failed to comply with a provision of section 12-42, which specifies, in part,

"[Assessors] shall make a separate description and assessment of each parcel of real estate."

An analogous validating provision is set out in subsection (a)(6) of the validating act.

History and comment: This provision dates back to section 3 of the 1933 act. These errors should be addressed by appropriate clarifications in the General Statutes.

Recommendation: Proposed language concerning tax liens is set out in section 2 of Commission bill.

Subdivision (2). Subdivision (2) validates the lien if "[t]he time when a tax lien continued thereby became payable to the tax collector was not correctly stated in such certificate."

Section 12-173 requires that the recorded certificate include "the date or dates when the principal of such tax become due". This subdivision validates the lien even if that date is incorrectly stated.

History and Comment: This provision dates back to section 3 of the 1933 act .

Recommendation: Proposed language concerning tax liens is set out in section 2 of the Commission bill.

Subdivision (3). Subdivision (3) validates the tax lien if "[t]he amount of the tax secured by such lien was or is incorrectly stated therein".

Section 12-173 requires that the certificate contain "the principal of such tax due thereon, the amount of which, with interest, if any, and fees and other charges, is secured by such lien". Subdivision (3) validates the lien even if the amount of tax secured by it is incorrectly stated.

History and Comment: This provision dates back to section 3 of the 1933 act. However, validating a lien where the amount was incorrectly stated poses serious problems with respect to intervening creditors who relied on the lien if the correct amount due is more than the stated amount. This should be addressed by an appropriate provision clarifying the effect of such an error. A blanket validation of the erroneous lien is not appropriate.

Recommendation: Where a notice of the lien incorrectly states the amount subject to the tax lien as less than the amount actually owed by the taxpayer, an intervening purchaser or encumbrancer should be entitled to rely on the stated amount of the lien. Legislation should be enacted clarifying the effect of insubstantial defects and the limitation of actions on challenges to the assessment list. Proposed language set out in section 2 of the Commission bill limits the effect of the lien as to subsequent purchasers and encumbrancers to the amount stated in the lien, or the amount actually due, whichever is less.

Subdivision (4). Subdivision (4) validates the tax lien if "[t]he amount of the tax stated in such lien included property not liable to taxation in the town in which such lien is filed."

This provision purports to validate the tax lien even if the lien is based, in part, on taxes against property that was not liable to taxation in the town of the lien.

History and Comment: This provision dates back to section 3 of the 1933 act. It purports to validate a lien based on a tax that included property that is not liable to taxation. Fully validating such an erroneous lien is inappropriate because the property is not properly subject to liability to the town for the full amount of the tax.

Recommendation: The effect of any such tax lien should be limited by the lesser of the amount stated and the amount actually due. Proposed language is set out in section 2 of Commission bill.

Subdivision (5). Subdivision (5) validates the tax lien if "[s]uch certificate covers several parcels in one item." This provision is similar to subdivision (d)(1). The distinction, perhaps, is that the language concerning tax liens in sections 12-172 and 12-173 refers to "items of real estate" and there is concern that more than one parcel constitutes more than one item. In any case, this subdivision validates any lien covering more than one parcel.

History and Comment: This provision dates back to section 3 of the 1933 act .

Recommendation: Proposed language is set out in sections 1 and 2 of the Commission bill.

Subdivision (6). Subdivision (6) validates the tax lien if "[s]uch certificate does not specify the portion of the tax that is due from the owner of such real estate accrued upon each of such separate parcels." This provision is similar to subdivision (d)(5) above, validating the lien if it covers several parcels and the proportion of lien to parcel is not specified. Arguably the proportions should be spelled out under the section 12-173 requirement that the certificate contain the amount of tax secured by the particular lien. However, it is not clear that a failure to specify the portion of tax due would invalidate the lien.

History and Comment: This provision dates back to section 3 of the 1933 act .

Recommendation: Proposed language is set out in section 2 of the Commission bill.

Subdivision (7). Subdivision (7) validates the tax lien if "[t]he property assessed for taxation was listed in the name of an agent or co-owner instead of the name of the owner or owners of the property according to the land records…"

History and Comment: This provision, as it refers to an agent, dates back to section 3 of the 1933 act. Language referring to the coowner dates from section 3 of the 1937 act.

Recommendation: Proposed language is set out in sections 1 and 2 of the Commission bill. However, as proposed, the continuation certificate is only effective if it would place a title examiner on notice of the lien. If the lien is recorded outside the chain of title, it should not be valid as against a subsequent purchaser who had no means of ascertaining its existence. See the discussion under subdivision (8) below.

Subdivision (8). Subdivision (8) validates the tax lien if "[s]uch certificate was filed in the name of an agent of the owner or in the name of a co-owner…"

History and Comment: This provision, as it refers to an agent, dates back to section 3 of the 1933 act. The reference to a co-owner dates back to section 3 of the 1937 act. The error referred to, erroneously filing the lien under the name of an agent or coowner, ought not to be validated. Filing the lien under the proper name is necessary to give notice to any person searching the records of the interest claimed. This validation would potentially prejudice a third party relying on the interests of record. (Note the principle set out in subsection (j) and see also the comments in the introduction re limitations on validation acts.)

Recommendation: This provision is inappropriate. Such an error should not be validated. The provision is not addressed by the Commission bill.

Subdivision (9). Subdivision (9) validates the tax lien if "[s]uch certificate purports to continue upon all real estate of any person, a lien for the entire tax that was assessed against any person or his property." On its face, there is no error in continuing such a lien. There is, therefore, no need to validate it.

History and Comment: This provision dates back to section 3 of the 1933 act. It serves no purpose.

Recommendation: This provision is unnecessary and is therefore not addressed by the Commission bill.

Subdivision (10). Subdivision (10) validates the tax lien if "[t]he tax collector failed to make demand or levy upon goods and chattels, or failed to file a lien, until after the expiration of his or her term of office."

History and Comment: This provision dates back to section 3 of the 1933 act. It appears to date back to a less formal day. Under current statutes, the term of a tax collector continues until his successor is elected and qualified unless otherwise provided by a specific town ordinance. See section 9-189. It seems highly unlikely that tax collectors are continuing to act after expiration of their term. If this is a problem, it should be addressed by a specific statutory authorization rather than through a validating provision.

Recommendation: This provision is unnecessary and is not addressed by the Commission bill.

Further comment to subsection (d): As a matter of policy, a tax lien ought to be valid if the recorded certificate continuing the lien provides a title examiner with adequate information to protect the interests of subsequent encumbrancers or purchasers. Rather than validate irregular liens in a vacuum, the legislature should validate by statute any lien that provides adequate information on the record. Such an approach would also eliminate the need for subsection (j) which was inserted in 1985 to recognize that defective liens could not be validated with respect to parties who lacked adequate notice.

Such a provision, amending section 12-173, is set out in section 2 of the Commission bill.

Subsection (e). Validating votes and actions setting the tax rate that contained an invalid discount.

This provision states that if the tax rate provided a discount for payment by a certain date, and that discount is ruled invalid, the tax rate itself and the actions setting it nonetheless remain valid.

It is not clear why this provision was felt to be necessary. In any case, due dates of tax levies are now governed by sections 7-382 and 7-383.

History and Comment: This provision dates back to section 11 of the 1933 act. However, given modern practices and the uniform fiscal year, the concerns of this provision are out of date. See for example section 12-130a providing for the training of municipal tax personnel. Absent some indication that invalid discounts are an ongoing problem, this provision is unnecessary.

Recommendation: This provision is unnecessary and is not addressed by the Commission bill.

Subsection (f). Validating obligations and securities given by the tax collector.

This provision states that: "All obligations and securities given by any collector of taxes for the faithful performance of his or her duties shall be legal and binding."

Section 12-136 requires that tax collectors give bonds prior to collecting taxes pursuant to a warrant.

This validating provision, which states that those bonds are valid, is unnecessary.

History and Comment: This provision dates back to section 2 of the 1933 act which contains the following language:

"all obligations and securities given by any collector of taxes for the collection or payment of such taxes or for the faithful performance of his duties shall be legal and binding."

The context of that provision was that the obligations and securities given by the tax collector remained legal and binding even if the collector was enforcing taxes that were the subject of the validating provisions of section 2. A person liable on the bond did not escape liability to the taxing district where the tax collector was obligated to collect a (possibly illegal) tax that later required validation. That context was lost when the validating act was redrafted in 1985. See Special Act 85-47.

In any case, the current provision is meaningless since it merely states the obvious, that legal obligations are legal obligations. (Note also that under the proposed bill, the short limitation period within which to challenge a tax or the underlying assessment protects the district against losses due to collections based on a defective assessment or levy.)

Recommendation: This provision is unnecessary and is not addressed by the Commission bill.

Subsection (g). No validation of omission to lay tax.

Section 12-122 requires towns to levy taxes sufficient to pay the estimated expenses of the town for the current year. Subsection (g) states that nothing in section 1 validates a failure to lay that tax.

History and Comment: This provision dates back to section 2 of the 1933 act. Section 2 of that act generally validated certain irregularities in the levy of the tax. All of those provisions were subject to the provision of this subsection that taxes apparently validated by those provisions were not, in fact, validated if they violated a failure to lay a particular tax. It is not clear in what context this might apply today.

Recommendation: This provision is drafted with respect to the other validating provisions which will no longer be adopted. It is unnecessary in the context of the proposed revision.

Subsection (h). Authorizing correction of assessment lists.

Subsection (h) provides that assessment lists in which any clerical omission or mistake have been made may be corrected by the assessor or the board of tax review in accordance with the subsection’s subdivisions. (The board of tax review was replaced by the board of assessment appeals by Public Act 95-283, as noted above.) The subdivisions provide as follows:

Subdivision (1). Subdivision (1) allows correction provided that if "the correction would result in an increase in the amount of tax due, the correction may not be made until the owner of the property is given notice of the omission or mistake and is given an opportunity to contest the omission or mistake before the board of tax review."

Subdivision (2). Subdivision (2) allows correction provided that "[w]here the clerical omission or mistake is corrected after the board of tax review has completed by law its duties for any given year, no tax may be levied and collected as a result of such correction."

History and Comment to subsection (h): This provision dates back to section 1 of the 1933 act. However it is not a validating provision. It merely authorizes the correction of certain errors on the assessment list. It parallels an existing general statute, section 12-60, and is unnecessary.

Recommendation: This provision is redundant with section 12-60. It is unnecessary and is not addressed by the Commission bill.

Subsection (i). Taxes on validated lists may be collected. This subsection states that taxes imposed according to the assessment lists validated by this section may be levied and collected.

History and Comment: This provision dates back to section 1 of the 1933 act. It states the obvious, that taxes can be levied on the validated assessment lists.

Recommendation: This provision is unnecessary and is not addressed by the Commission bill.

Subsection (j). Lien not validated against purchaser for value without notice. This subsection states that no choate or inchoate lien shall be validated by these provision against a purchaser for value without actual or constructive notice of the lien.

History and Comment: This provision dates from the 1985 validating act, Special Act 85-47. The provision contains an explicit recognition of the limitation on legislative power to retroactively validate where a party would lose substantive vested rights based on that validation. (See the discussion on limits of validation in the introduction above.) The provision might be necessary, for example, to protect a purchaser where this act validated a lien that was filed against an agent or co-owner of the owner out of the chain of title. Imposition of such a lien against the purchaser without notice would be unjust to that purchaser.

Recommendation: The recommendations of this report would delete the lien validating provisions of subsection (d) in favor of an express provision in the general statutes validating any certificate of lien giving sufficient notice to subsequent purchasers or encumbrancers. If those recommendations are adopted this provision is unnecessary. The provision is not otherwise addressed by the Commission bill.

Connecticut Validating Acts - Brief History and Legal Issues

SECTION 1. Validating Assessment Lists, Taxes, Tax Liens, Tax Rates, and Other Actions Related to Tax Levies.

SECTION 2. Validating certain declarations, deeds, and development rights with respect to common interest communities.

SECTIONS 3-10.

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