26 Conn. App. 545 | Conn. App. Ct. | 1992
This is an appeal by the defendant from the granting of the plaintiff town’s motion for summary judgment on its suit for collection of delinquent real estate taxes pursuant to General Statutes § 12-161.
For the years 1979 and 1980, the plaintiff assessed the taxes due on the parcel jointly against the defendant and Heyman. On November 17,1981, the property assessment was split and the defendant and Heyman each were billed separately for their proportionate shares. On August 31,1985, the town attorney for the plaintiff sent the defendant and Heyman a collection letter for the unpaid taxes, together with a copy of a letter from the tax collector showing what each owed on their respective interests for the tax years 1979 and 1980.
The defendant failed to file a tax appeal concerning either the 1979 or 1980 assessments prior to this collection action, but instead filed a special defense alleging that the transfer of the parcel to the plaintiff as open space was the consideration for the zoning
The defendant opposed the plaintiffs motion for summary judgment on two grounds, claiming that material issues of fact remain to be resolved: (1) whether the taxes were properly assessed against him; and (2) whether he received notice of the taxes due. He claims that these issues are relevant to his defenses that he was not subject to taxes on the parcel and that receipt of notice is an essential element of the assessment process as contemplated by General Statutes § 12-161. The trial court found the defendant’s claims to be without merit and granted summary judgment in favor of the plaintiff. The trial court denied the defendant’s motion to reargue.
The abstract of assessment of real property in the town of Farmington shows that on the first day of October, 1979, and on the first day of October, 1980, a joint assessment was made against the defendant and Hey-man. After the subsequent split of the assessment, however, the plaintiff town brought its collection action against the defendant severally.
The defendant relies on New London v. Miller, 60 Conn. 112, 115, 22 A. 499 (1891), which states: “In an action where the complaint alleged a several assessment and the proof was of a joint one, no valid judgment could be rendered, because it could not follow both.” The defendant claims that because General Statutes § 12-161 mandates that the taxes be “properly assessed,” the question of the joint assessment and the proof of a severed tax bill was a material issue of fact which should have been resolved at a trial.
“Under our rules of practice, any party may move for summary judgment once the pleadings in a case are closed. Practice Book § 379. . . . ‘The judgment
Our Supreme Court has “repeatedly insisted that a taxpayer wishing to contest the legality of its tax assessments must follow prescribed statutory procedures.” Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 422, 521 A.2d 569 (1987). “ ‘Where the General Assembly has established complete, adequate and speedy statutory remedies for alleged tax irregularities, a taxpayer must exhaust them.’ ” Norwich v. Lebanon, 200 Conn. 697, 709, 513 A.2d 77 (1986). “ ‘A taxpayer who has not sought redress in an appropriate manner is foreclosed from continuing litigation outside these statutes.’ ” Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 692, 553 A.2d 1104 (1989), quoting National CSS, Inc. v. Stamford, 195 Conn. 587, 597-98, 489 A.2d 1034 (1985). By failing to contest the assessments of the par
“The claim that the property had been wrongfully or excessively assessed could have been appealed in one of two ways: (1) to the board of tax review and from there, within two months, to the Superior Court pursuant to §§ 12-111 and 12-118; or (2) by direct action to the court within one -year from the date when the property was last evaluated for purposes of taxation pursuant to § 12-119.”
In this case, the defendant never contested the propriety of the assessments until the plaintiff sought to collect the unpaid taxes. Such a course of action is not permitted by the applicable statutes. By his failure to contest the assessment pursuant to the applicable statutes, the defendant waived his right to challenge it because a taxpayer may not assert that an assessment is improper in a collection action under § 12-161. There is no material fact at issue, and the trial court properly granted summary judgment as a matter of law.
Finally, the defendant claims that he did not receive adequate notice pursuant to the applicable statutes. General Statutes § 12-130 (a) provides in pertinent part: “Failure to send out any [rate] bill or statement shall not invalidate the tax.” Because the issue of whether the defendant got formal notice is not an issue of material fact, it would make no difference in the result of the case, and is not a bar to summary judgment. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969); Booth v. Flanagan, 23 Conn. App. 579, 584, 583 A.2d 148 (1990), appeal dismissed, 220 Conn. 453, 599 A.2d 380 (1991).
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 12-161 provides: “collection by suit. All taxes properly assessed shall become a debt due from the person, persons or corporation against whom they are respectively assessed to the town, city, district or community in whose favor they are assessed, and may be, in addition to the other remedies provided by law, recovered by any proper action in the name of the community in whose favor they are assessed.”
General Statutes § 12-111 provides in pertinent part: “appeals to board op tax review. At such meeting any person . . . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to such board of tax review, which shall determine all such appeals and report in writing the final determination of such appeals .... Such board may equalize and adjust the valuations and assessment lists of such town . . . .”
General Statutes (Rev. to 1981) § 12-118 provides in pertinent part: “appeal from board of tax reveiw. Any person . . . claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial dis
General Statutes § 12-119 provides in pertinent part: “remedy when property wrongfully assessed. When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or 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 . . . .”