This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

REAL PROPERTY TAXES AND ASSESSMENTS -- Payments (issuance of tax receipts when taxes are paid by mortgagee)

REAL PROPERTY TAX LAW, §986(1)(3): Collecting officers must provide tax receipts to mortgagee banks when taxes are paid from an escrow account. Prior opinions, including 34 Opns St Comp, 1978, p 105 and 25 Opns St Comp, 1969, p 25, superseded. A municipality may adopt a local law for the issuance of tax receipts by the collecting officer to persons not paying the tax and the charging of a fee therefor.

This is in reply to your letter which asks our opinion as to whom a town collecting officer must provide a tax receipt when taxes are paid from a mortgage escrow account. You have also asked whether a collecting officer is required to provide a duplicate receipt to a person who has not paid a tax.

The issuance of tax receipts by town and city collecting officers is governed by section 986(1) of the Real Property Tax Law which states, in part, the following:

"1. .... Where a tax is paid by a mortgagee which is subject to the provisions of section nine-e of the banking law, the receipt or receipts shall be delivered or mailed to such mortgagee. The mortgagee shall forward such receipt or receipts to the mortgagors in accordance with the provisions of section nine-e of the banking law."

Section 9-e of the Banking Law states:

"Every mortgagee of real property improved by a one-to-six family residence located within the state which receives money from a mortgagor for the purpose of payment of real property taxes on such property, shall at least annually provide to the mortgagor any paid bill it has received for the payment of such taxes. Such bill shall be enclosed with a succeeding mortgage statement sent to such mortgagor. This section shall not apply to billings for real property taxes transmitted by computer tape by a city with a population of one million or more persons. For purposes of this section, the term 'mortgagee' shall include every banking organization; insurance company; federal banking corporation licensed to do business in this state; national banking association; federal savings bank or federal savings and loan association; federal credit union; bank, trust company, savings bank, savings and loan association, credit union or insurance corporation organized under the laws of any other state, or any other person, entity or organization which in the regular course of business is a mortgagee of real property improved by a one-to-six family residence located within this state."

Thus, in accordance with the above quoted provisions, a collecting officer must provide a tax receipt or receipts to the "mortgagee", as that term is defined, where taxes have been paid from an escrow account for property improved by a one-to-six family residence, and the mortgagee, in turn, must forward the receipt or receipts to the mortgagor at least annually with a succeeding mortgage statement. This conclusion applies to payments of school taxes as well as town-county taxes (Town Law, §37[1]; 28 Opns St Comp, 1972, p 151; 1975 Atty Gen [Inf Opns] 107).

The provisions of section 986(1) quoted above were added to that statute in 1980 (L 1980, ch 184, effective June 2, 1980). Prior to the amendment, section 986(1) stated only that receipts were to be provided to the "person paying the tax" and made no specific references to mortgagees. In interpreting the provisions of section 986(1) prior to the amendment, we expressed the view that, where taxes are paid by a mortgagee bank, the collecting officer should mail a tax receipt to the bank unless the bank requests that the receipt be mailed to the property owner (25 Opns St Comp, 1969, p 25; 1974 Opns St Comp No. 74-757, unreported; 1977 Opns St Comp No. 77-751, unreported; 34 Opns St Comp, 1978, p 105). Inasmuch as that view is inconsistent with the 1980 amendment to section 986(1) which mandates that a collecting officer shall deliver or mail tax receipts to a mortgagee to be forwarded to mortgagors in accordance with Banking Law, §9-e, the cited opinions, which were issued prior to the amendment, are hereby superseded.

With respect to providing duplicate receipts to persons other than the person paying the tax, section 986 does not require or authorize the issuance of duplicate tax receipts to such persons. Subdivision (3) of section 986, however, states:

" At the time of giving such a receipt the collecting officer shall retain a copy thereof which shall be subject to public inspection and shall be filed with his return to the county treasurer or such officer or board to which he makes his return."

Therefore, a collecting officer must prepare a copy of a tax receipt at the time the receipt is issued and make this copy available for public inspection at his or her office until it is forwarded to the officer or board to which the collector's return is made.

In our opinion, pursuant to the provisions of Real Property Tax Law, §986(3), a person not paying a tax -- that is, any member of the public, is entitled to examine tax receipts at the collector's office between the time of their issuance and the time they are forwarded to the officer or body to which the collector's return is made. Presumably, such a person would also be entitled to request and receive a copy of a receipt or receipts pursuant to the "Freedom of Information Law" (Public Officers Law, §84, et seq.) upon payment of any copying fee. However, you may wish to contact the Committee on Open Government, which is expressly authorized to render advisory opinions regarding the Freedom of Information Law, for its opinion in this regard.

Aside from obtaining copies under the "Freedom of Information Law", we believe that a town may expressly authorize its collecting officers to issue duplicate tax receipts. As noted, section 986 does not require or authorize the issuance of duplicate receipts. However, if it were determined that the issuance of duplicate tax receipts to persons not paying the tax would be desirable, it is our opinion that the governing body of the municipality may adopt a local law authorizing the collecting officer to provide copies to persons other than the person paying the tax and to charge a reasonable fee therefor (Municipal Home Rule Law, §10[1][ii][a][9-a], see 1987 Opns St Comp No. 87-34, p 53). In our view, a local law authorizing the collecting officers to issue duplicate bills could provide that such duplicates shall constitute proof of payment and therefore, would presumably be entitled to more weight than a copy obtained under the Freedom of Information Law.

January 5, 1989
Ann M. Hurley, Receiver of Taxes
Town of Huntington