Maggiacomo v. DiVincenzo

• Decision Date: 23 January 1980
• Docket Number: Nos. 78-297-A,s. 78-297-A
• Parties: Edward L. MAGGIACOMO et ux. v. Armando DiVINCENZO, Tax Assessor of the City of Cranston. ppeal, 78-387-Appeal.
• Court: Rhode Island Supreme Court

Page 1332

410 A.2d 1332

122 R.I. 615

Edward L. MAGGIACOMO et ux. v. Armando DiVINCENZO, Tax Assessor of the City of Cranston.

Nos. 78-297-Appeal, 78-387-Appeal.

Supreme Court of Rhode Island.

Jan. 23, 1980.

[122 R.I. 622] Joseph T. Feeley, Providence, for plaintiffs.

Jeremiah S. Jeremiah, Jr., City Sol., Cranston, John D. Biafore, Asst. City Sol., Providence, for defendant.

OPINION

KELLEHER, Justice.

Armando DiVincenzo is the tax assessor for the city of Cranston. He is before us on a consolidated appeal that revolves around certain actions taken by him as assessor during the years 1977 and 1978. His conduct during 1977 was challenged by a class action commenced by the plaintiffs, Edward and Ingeborg Maggiacomo, on their own behalf and that of all taxpayers similarly situated. When DiVincenzo repeated in 1978 what he had done in 1977, the plaintiffs instituted a second class action. However, they abandoned the class-action aspects of this particular suit and ultimately sought relief solely for themselves. Subsequently, the plaintiffs' motion for a summary judgment in each suit was granted. Hereinafter, we shall refer to the plaintiffs as "the taxpayers" and the defendant, DiVincenzo, as "the assessor."

The factual background giving rise to this controversy is undisputed. On May 16, 1977, the Cranston City Council, acting pursuant to the powers granted it by G.L. 1956 (1970 Reenactment) § 44-5-1 and sec. 6.11 of the Cranston City Charter, adopted a resolution that levied a tax on all ratable real estate and tangible personal property located within the city. This resolution authorized the assessor to set a tax rate that could generate revenues of not less than $24,775,928.48 and not more than $25,000,000. Once the resolution passed, the assessor set a tax rate of $67 per $1,000 of assessed valuation. The potential tax revenue that might be realized by this rate would have exceeded the council's $25,000,000 maximum by $915,417.06.

A year later history repeated itself. The city council by its resolution of May 15, 1978, directed the assessor to fix a tax rate that could generate revenue of at least $28,798,173.95 but no more than $28,850,000. Ever vigilant in his duties and true to his custom, the assessor fixed a rate that might have generated approximately $1,250,000 more than the $28,850,000 maximum established by the council.

In Superior Court the assessor conceded that, in setting the tax rate, he had factored into his calculations a "collection ratio" that made allowance for anticipated uncollectible taxes. He further revealed that without a cushion for the uncollectibles, the 1977 rate would have been $64.59 instead of $67 per $1,000 of assessed valuation. The 1978 tax rate was set at $76.95 per $1,000 of assessed valuation, whereas if the assessor had deleted the "collection ratio" factor, the rate would have been reduced by $3.25. The assessor admitted that ever since assuming office, he had set a tax rate that contained an allowance for the uncollectible taxes. He justified this practice by arguing that even though he lacked the power to levy a tax, he had the duty to set a rate high enough to guarantee that the tax collector would receive an amount at least equal to the minimum sum authorized by each levy.

The taxpayers, on the other hand, claim that when the assessor set a rate which could yield a return in excess of the maximum specified in the levy, he was usurping the power of the council, specifically, its power to levy a tax. The various justices of the Superior Court who considered the taxpayers' motions for summary judgment found this argument most persuasive. The assessor is now before us attempting to point out where the trial justices erred.

The taxpayers sought relief from the inclusion of the cushion for uncollectibles by filing a petition in compliance with the terms of G.L. 1956 (1970 Reenactment) § 44-5-26, that in its pertinent part allows "(a)ny person aggrieved on any ground whatsoever by any assessment of taxes against him in any city or town * * *" to seek redress in the Superior Court. Before us the assessor, as he did in the Superior Court, focuses his attention on that portion of § 44-5-26 which speaks about "any assessment of taxes." According to the assessor, when the Legislature alluded to the "assessment of taxes," it was affording judicial relief only to those who were complaining about the valuation placed on their property by the assessor. The taxpayers, on the other hand, take the position that "assessment of taxes" encompasses within it the entire statutory method of imposing municipal taxes, including the assessor's duty to set a rate that will comply with the council's mandate.

At the outset, we acknowledge the earlier pronouncements of this court regarding statutory construction. Based upon these guidelines, our task is to glean the legislative intent from a consideration of this legislation in its entirety. Narragansett Electric Co. v. Harsch, 117 R.I. 395, 402, 368 A.2d 1194, 1199 (1977), Citing Mason v. Bowerman Bros., Inc., 95 R.I. 425, 431, 187 A.2d 772, 776 (1963). Furthermore, we are mindful of this court's mandate that "taxing statutes are to be strictly construed" with doubts resolved in favor of the taxpayer. Van Alen v. Stein, R.I., 376 A.2d 1383, 1389 (1977); Potowomut Golf Club, Inc. v. Norberg, 114 R.I. 589, 592, 337 A.2d 226, 227 (1975).

Turning now to chapter 5 of title 44, we find that the words "assess" and "assessment" are used somewhat imprecisely. ¹ In addition, there is general recognition that the term "assessment" may be used in a narrow sense to mean the value placed upon property for the purpose of taxation by an official appointed for that purpose, or in its broader sense to include within its context all those steps involved in the imposition of a tax on property. Philadelphia, Baltimore and Washington R. R. v. Mayor and Council, 30 Del.Ch. 213, 221, 57 A.2d 759, 764 (1948); Commercial National Bank v. Board of County Commissioners, 201 Kan. 280, 284-85, 440 [122 R.I. 619] P.2d 634, 637-38 (1968); State ex rel. Halferty v. Kansas City Power & Light Co., 346 Mo. 1069, 1078, 145 S.W.2d 116, 120-21 (1940); Moore v. Johnson Service Co., W.Va., 219 S.E.2d 315, 319-20, 322 (1975); Prentice v. Ashland County, 56 Wis. 345, 347, 14 N.W. 297, 298 (1882). Furthermore, we are still impressed by the relevance of Professor Cooley's sagacious observation: "Assessment proper includes valuation but valuation alone is not the assessment but instead only its most important element." 3 Cooley, The Law of Taxation § 1044 at 2114 (4th ed. 1924).

Parenthetically, we would point out that the word "valuation" never appears in the pertinent portion of § 44-5-26 and that the word "assessment" is used in juxtaposition to "taxes." Having in mind that the term "assessment" as used in our taxing statutes carries with it a variety of meanings and noting also the statutory language before us, to wit, "(a)ny person aggrieved on any ground whatsoever by any assessment of taxes * * *," we have no hesitancy in holding that within the context of § 44-5-26 the term "assessment" refers to the entire plan or statutory scheme for the imposition and collection of taxes, including the calculation of the rate.

We turn next to the assessor's contention that his application of a collection ratio to the levy ordered by the city council neither violated any express or implied rule of law nor represented an arbitrary abuse of discretion. On the contrary, he contends with great vigor that his rate-setting activities were necessarily implied from sec. 6.11 of the Cranston City Charter. ² We think otherwise.

The obvious purpose of sec. 6.11 is to effectuate the collection of tax revenue needed to satisfy the financial demands that are delineated in the city's operating budget. The assessor is obligated to set a rate that will bring in the minimum but in no event exceed the maximum amount called for in the levy resolution. The assessor's concern for the uncollectibles is commendable, but Cranston's charter specifically provides for this concern. Section 6.02 requires the assessor to provide the director of finance with an estimate of the funds to be realized from taxation, "taking into account the probable rate of tax delinquency and other factors affecting tax collection" so that the director may prepare a preliminary estimate of the cost...