Seramonte Associates, LLC v. Hamden

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SERAMONTE ASSOCIATES, LLC v. TOWN
OF HAMDEN
(AC 42770)
Bright, C. J., and Alvord and Oliver, Js.
Syllabus
Pursuant to statute (§ 12-63c (a)), the owner of real property used primarily
for the purpose of producing rental income may be required to ‘‘annually
submit to the assessor not later than the first day of June’’ certain rental
income and expense information.
Pursuant further to statute (§ 12-63c (d)), an owner who fails to submit the
information required by § 12-63c (a), shall be subject to a penalty ‘‘equal
to a ten per cent increase in the assessed value of such property for
such assessment year.’’
The plaintiff, an owner of several rental properties in the defendant town
of Hamden, appealed from the judgment of the trial court, which upheld
the decision of the defendant’s Board of Assessment Appeals affirming
a 10 percent penalty imposed by the defendant’s assessor on the tax
assessments of the plaintiff’s properties pursuant to § 12-63c (d), as a
result of the plaintiff’s submission of required tax forms after June 1.
The plaintiff sent the tax forms by first class mail to the assessor on
May 31. It was undisputed that the assessor failed to receive the required
forms by the June 1 deadline set forth in § 12-63c (a). The plaintiff
claimed that the word ‘‘submit’’ as used in § 12-63c (a) was ambiguous
and that the trial court was required, as a matter of law, to rule in its
favor on the basis of the statute’s ambiguity and also claimed that the
imposition of the assessor’s penalty violated the excessive fines clauses
of both the federal and state constitutions. Held:
1. The trial court properly rendered summary judgment in favor of the
defendant on the count of the complaint that alleged that the board
improperly upheld the 10 percent penalty: the plaintiff could not prevail
on its claim that the word ‘‘submit,’’ as used in § 12-63c (a), essentially
means ‘‘to mail,’’ as the word ‘‘submit,’’ when viewed in the context of
other tax statutes, was unambiguous and meant that the assessor must
receive the forms by June 1; the legislature’s decision not to include
the phrase ‘‘or postmarked’’ in § 12-63c (a) was dispositive, meaning
that those forms must be delivered to the assessor’s office by June 1
in order to comply with the statute..
2. The trial court properly granted the defendant’s motion to strike the
plaintiff’s constitutional claims: the excessive fines clause of the eighth
amendment to the United States constitution did not apply to the 10
percent penalty in § 12-63c (d), as that penalty was not punitive within
the meaning of the eighth amendment, and, accordingly, the plaintiff’s
alleged violations of the eighth amendment necessarily failed; moreover,
under the state constitution, the 10 percent penalty in § 12-63c (d) was
not a fine that subjected it to the excessive fines clause and, even if
this court assumed that the clause applied, the court was not persuaded
that the 10 penalty was unconstitutionally excessive under the facts of
the case and controlling Connecticut precedent.
Argued October 15, 2020—officially released February 2, 2021
Procedural History
Appeal from the decision of the defendant’s Board
of Assessment Appeals denying the plaintiff’s appeal of
a penalty imposed by the defendant’s assessor and
added to tax assessments on certain of the plaintiff’s
real properties, and for other relief, brought to the Supe-
rior Court in the judicial district of New Haven, where
the court, S. Richards, J., granted the defendant’s
motions for summary judgment and to strike, and ren-
dered judgment for the defendant, from which the plain-
tiff appealed to this court. Affirmed.
Brenden P. Leydon, for the appellant (plaintiff).
Zachary J. Phillips, with whom was Adam J. Blank,
for the appellee (defendant).
Opinion
OLIVER, J. The plaintiff, Seramonte Associates, LLC,
appeals from the judgment of the trial court granting
summary judgment in favor of the defendant, the town
of Hamden, as to count one of the plaintiff’s complaint
and granting the defendant’s motion to strike the plain-
tiff’s constitutional claims in count two. On appeal, the
plaintiff claims, with respect to count one, that the court
erred in holding that the word ‘‘submit’’ as used in
General Statutes § 12-63c requires that certain tax forms
have to be received by the defendant by June 1, and, with
respect to count two, that the court erred in granting
the defendant’s motion to strike, because the penalty
imposed for the plaintiff’s late submission of the tax
forms amounts to a fine that violates the excessive fines
clauses of the federal and the state constitutions. We
disagree and, accordingly, affirm the judgment of the
trial court.
The following undisputed facts and procedural his-
tory, as set forth by the trial court in its memorandum
of decision and otherwise gleaned from the record, are
relevant to the plaintiff’s claims on appeal. The plaintiff
was the owner of certain parcels of rental property
located in Hamden known as 520 Mix Avenue, 609 Mix
Avenue, and 617 Mix Avenue (properties). On February
1, 2016, the assessor for the defendant assessed those
properties at $15,683,080 for 520 Mix Avenue, $2,927,890
for 609 Mix Avenue, and $10,521,560 for 617 Mix Ave-
nue. Pursuant to § 12-63c (a), the plaintiff was required
to ‘‘submit to the assessor not later than the first day of
June’’ certain tax forms.1 The assessor sent the required
forms to the plaintiff, and the cover letter to those
forms stated: ‘‘It should be clearly understood that if
the attached report is not completed and submitted to
the [a]ssessor’s [o]ffice by June 1, 2016, it will result
in a 10 [percent] penalty being applied to your assess-
ment per [§ 12-63c].’’ Additionally, the cover letter
stated that ‘‘[s]ubmission means this form is physically
in the [a]ssessor’s office by 4:30 on June 1, 2016, faxes,
e-mails and postmarks will not be accepted.’’ The plain-
tiff sent the required forms to the assessor by first class
mail on May 31, 2016, and it is undisputed that the
assessor received them on June 2, 2016. Because the
required forms were not received on or before June 1,
the assessor, pursuant to § 12-63c (d), imposed a 10
percent penalty, amounting to $132,145.16, that was
added to the assessments of the properties.
On September 28, 2016, pursuant to General Statutes
§ 12-119,2 the plaintiff commenced by service of process
an appeal in the Superior Court claiming that the valua-
tion of the properties, which included the 10 percent
penalty, was excessive. Pursuant to General Statutes
§ 12-111,3 the plaintiff also timely appealed to the defen-
dant’s Board of Assessment Appeals (board) the asses-
sor’s imposition of the 10 percent penalty. The plaintiff
appeared before the board on March 2, 2017, and, on
March 21, 2017, the board issued its decision denying
the plaintiff’s appeal.
On February 27, 2017, the plaintiff filed a withdrawal
form in the Superior Court, stating that it was withdraw-
ing its claim insofar as it alleged excessive assessments,
and that it was proceeding with its claim insofar as it
concerned the impropriety of the 10 percent penalty
added to the assessments. On March 27, 2017, the defen-
dant filed a motion for summary judgment, and, on
April 26, 2017, the plaintiff filed a motion for sum-
mary judgment.
On May 1, 2017, the plaintiff filed an amended com-
plaint (operative complaint) to clarify, in part, its Febru-
ary 27, 2017 withdrawal form. In the operative com-
plaint, the plaintiff alleged, in count one, that the board
improperly had upheld the assessor’s imposition of the
10 percent penalty and, in count two, that the penalty
was unconstitutional under the excessive fines clauses
of both the federal and the state constitutions. See U.S.
Const., amend VIII; Conn. Const., art. I, § 8. On July 3,
2017, the defendant filed a motion to strike count two
of the plaintiff’s operative complaint on the ground that
it failed to state a claim on which relief could be granted,
arguing that the excessive fines clauses of both the
federal and the state constitutions do not apply to
tax penalties.
On December 21, 2017, the defendant filed a new
motion for summary judgment as to count one of the
plaintiff’s operative complaint. The defendant argued
that it properly had imposed the 10 percent penalty
pursuant to § 12-63c, because the plaintiff failed to sub-
mit its income and expense report to the defendant by
June 1, 2016. The plaintiff argued in its own motion for
summary judgment that the defendant’s interpretation
of § 12-63c was legally incorrect. On February 5, 2019,
the court denied the plaintiff’s April 26, 2017 motion
for summary judgment, and it granted the defendant’s
December 21, 2017 motion for summary judgment as
to count one of the plaintiff’s operative complaint. In its
memorandum of decision on the motions for summary
judgment, the court recognized that the word ‘‘submit’’
is not defined in § 12-63c, and it reasoned that, because
different dictionary definitions of ‘‘submit’’ could sup-
port either party’s interpretation, the term was ambigu-
ous. The court also determined that the statute’s legisla-
tive history did not clarify the meaning of the word
‘‘submit.’’ The court, however, explained that in MSK
Properties, LLC v. Hartford, Superior Court, judicial
district of New Britain, Docket No. CV-XX-XXXXXXX-S
(July 3, 2017) (64 Conn. L. Rptr. 747, 753–54), the Supe-
rior Court interpreted the language of the statute to
mean that a town must receive the tax forms by June
1. Additionally, the court noted that, ‘‘in interpreting
another tax statute, General Statutes § 12-41 (e) (1),
[the] Superior Court [has] held that ‘file’ [by November
1] as used in that statute, meant that the tax information
had to be received by the town by November 1.’’ See
SBC Internet Services, Inc. v. Bridgeport, Superior
Court, judicial district of Fairfield, Docket No. CV-06-
6000408-S (February 14, 2008) (44 Conn. L. Rptr. 870,
871). Accordingly, the court granted the defendant’s
motion for summary judgment, holding that the word
‘‘submit,’’ as used in § 12-63c, ‘‘means that the town
must receive the tax forms by June 1 of each year.’’
Also on February 5, 2019, in a separate memorandum
of decision, the court granted the defendant’s motion to
strike count two of the plaintiff’s operative complaint,
agreeing with the defendant that the excessive fines
clauses of both the federal and the state constitutions
do not apply to tax penalties. With respect to the federal
constitution, the court held that the tax penalty in § 12-
63c is remedial, rather than punitive, because ‘‘it is
imposed to ensure compliance with the timely payment
of taxes and to deter delinquent payment of taxes,
which could harm the government with additional
expenses of ensuring compliance in collecting those
taxes.’’ Accordingly, because the federal excessive fines
clause applies only to those forfeitures that may be
characterized as ‘‘punitive’’; see United States v.
Viloski, 814 F.3d 104, 109 (2d Cir. 2016), cert. denied,
U.S. , 137 S. Ct. 1223, 197 L. Ed. 2d 462 (2017);
the court held that the federal excessive fines clause
did not apply.
With respect to the state constitution, the court held
that the 10 percent penalty in § 12-63c is not a ‘‘fine’’
within the meaning of the excessive fines clause. The
court relied on the definition of ‘‘fine’’ set forth in Bank-
ers Trust Co. v. Blodgett, 96 Conn. 361, 368, 114 A. 104(1921), aff’d, 260 U.S. 647, 43 S. Ct. 233, 67 L. Ed. 439(1923), in which our Supreme Court stated that ‘‘[a]
fine is a pecuniary punishment imposed by a lawful
tribunal upon a person convicted of crime or misde-
meanor.’’ (Internal quotation marks omitted.) The court
explained that the tax penalty in § 12-63c ‘‘is not punish-
ment imposed due to conviction of a felony or a misde-
meanor. Rather, it is a tool to ensure payment of the
tax and punish evasion or neglect.’’ Accordingly, the
court concluded that the tax penalty is not a violation
of the excessive fines clause of the state constitution.4
The court rendered judgment on the second count of
the plaintiff’s operative complaint on March 18, 2019.
This appeal followed.
I
The plaintiff first challenges the summary judgment
rendered in favor of the defendant as to count one of
its operative complaint and claims that the trial court
erred when it held that the word ‘‘submit’’ as used in
§ 12-63c means that the defendant must receive the tax
forms by June 1 of each year. Specifically, the plaintiff
argues that (1) the ordinary meaning of ‘‘submit’’ is ‘‘to
send,’’ and that, in the tax context, ‘‘timely mailing is
timely filing,’’ (2) the rule of lenity applies to civil penal-
ties for alleged lateness, and, therefore, the statute
should be strictly construed ‘‘and not extended by impli-
cation,’’ and (3) because the court found that the word
‘‘submit’’ was ambiguous, a decision in favor of the
taxpayer was compelled as a matter of law.
The defendant counters that ‘‘submit’’ means present,
file, or formally deliver, arguing that ‘‘[i]n some tax
settings the legislature has intended for the date of
sending to be considered the date of filing or submis-
sion. Crucially, however, when the legislature so
intends, it expresses that intent explicitly by adding
words such as ‘or postmarked’ to the statute.’’ With
respect to the rule of lenity, the defendant argues that
it applies ‘‘only if the statute remains ambiguous after
all sources of legislative intent have been explored . . .
[and that] [w]here, as here, after full resort to the pro-
cess of statutory construction, there is no reasonable
doubt as to the meaning of the statute, [the court] need
not resort to the rule of lenity.’’ Finally, the defendant
argues that ‘‘strict construction neither requires nor
permits the contravention of the true intent and purpose
of the statute as expressed in the language used.’’ The
defendant claims that the statute is not ambiguous and,
therefore, strict construction is inapplicable, arguing
that the ‘‘plaintiff urges a construction that rewrites the
statute and eschews its plain language by adding the
words ‘or [postmarked]’ when the legislature intended
to leave those words out.’’ We agree with the defendant.
We begin with our standard of review. ‘‘The standard
of review of motions for summary judgment is well
settled. Practice Book § 17-49 provides that summary
judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . The party moving for
summary judgment has the burden of showing the
absence of any genuine issue of material fact and that
the party is, therefore, entitled to judgment as a matter
of law. . . .
‘‘On appeal, we must determine whether the legal
conclusions reached by the trial court are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision of the
trial court. . . . Our review of the trial court’s decision
to grant [a moving party’s] motion for summary judg-
ment is plenary.’’ (Internal quotation marks omitted.)
Smigelski v. Dubois, 153 Conn. App. 186, 197, 100 A.3d
954, cert. denied, 314 Conn. 948, 103 A.3d 975 (2014).
Initially, we are called upon to determine the meaning
of the word ‘‘submit’’ in § 12-63c, which presents us
with a question of statutory interpretation. ‘‘[I]ssues of
statutory construction raise questions of law, over
which we exercise plenary review. . . . The process
of statutory interpretation involves the determination
of the meaning of the statutory language as applied to
the facts of the case, including the question of whether
the language does so apply. . . . When construing a
statute, [o]ur fundamental objective is to ascertain and
give effect to the apparent intent of the legislature. . . .
In other words, we seek to determine, in a reasoned
manner, the meaning of the statutory language as
applied to the facts of [the] case, including the question
of whether the language actually does apply. . . . In
seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered.’’ (Internal quotation marks omitted.)
Ugrin v. Cheshire, 307 Conn. 364, 379–80, 54 A.3d
532 (2012).
The text of § 12-63c (a) provides in relevant part: ‘‘In
determining the present true and actual value in any
town of real property used primarily for purposes of
producing rental income, the assessor . . . may
require . . . that the owner of such property annually
submit to the assessor not later than the first day of
June, on a form provided by the assessor . . . the best
available information disclosing the actual rental and
rental-related income and operating expenses applica-
ble to such property.’’
In the present case, the trial court concluded that,
because the statute does not define ‘‘submit’’ and
because dictionary definitions of ‘‘submit’’ could sup-
port either party’s position, the word ‘‘submit,’’ there-
fore, is ambiguous. In making that determination, the
court discussed the statute’s legislative history and cer-
tain Superior Court decisions. Pursuant to § 1-2z, how-
ever, we must consider both the text of a statute and
its relationship to other statutes to determine whether
it is ambiguous. See General Statutes § 1-2z (‘‘[t]he
meaning of a statute shall, in the first instance, be ascer-
tained from the text of the statute itself and its relation-
ship to other statutes’’).
An examination of our tax statutes reveals that our
legislature frequently includes the phrase ‘‘or post-
marked’’ when it intends for the date of mailing to be
considered the date of filing or submission. For exam-
ple, General Statutes § 12-129 provides in relevant part
that ‘‘[a]ny person, firm or corporation who pays any
property tax in excess of the principal of such tax . . .
may make application in writing to the collector of
taxes for the refund of such amount. Such application
shall be delivered or postmarked by the later of [three
events] . . . .’’ (Emphasis added). Similarly, General
Statutes § 12-146 provides in relevant part that ‘‘[n]o
tax or installment thereof shall be construed to be delin-
quent under the provisions of this section if . . . (B)
the envelope containing the amount due as such tax
or installment, as received by the tax collector of the
municipality to which such tax is payable, bears a post-
mark showing a date within the time allowed by statute
for the payment of such tax or installment.’’ (Emphasis
added). General Statutes § 12-41 (e) provides in relevant
part: ‘‘(1) Any person who fails to file a declaration of
personal property on or before the first day of Novem-
ber . . . shall be subject to a penalty equal to twenty-
five per cent of the assessment of such . . . property
. . . and (3) any declaration received by the municipal-
ity to which it is due that is in an envelope bearing a
postmark . . . showing a date within the allowed filing
period shall not be deemed to be delinquent.’’ (Empha-
sis added). Other tax statutes contain similar language.5
Those statutes guide our conclusion that when the
date of mailing is to be considered the date of filing or
submission, our legislature includes language to that
effect in the statute. At oral argument before this court,
however, the plaintiff argued that those statutes are
distinguishable because they use the word ‘‘file’’ as
opposed to ‘‘submit.’’ The plaintiff claims that the word
‘‘submit’’ essentially means ‘‘to mail,’’ and, therefore,
that the tax statutes that include the phrase ‘‘or post-
marked’’ do not compel the conclusion that ‘‘submit,’’
as used in § 12-63c, means that the defendant must
receive the forms by June 1. We disagree.
Our legislature’s use of the word ‘‘file’’ or the word
‘‘submit’’ does not bear on whether the forms to be
filed or submitted must arrive at their destination, or
merely be postmarked, by any certain date. Rather,
the legislature’s decision not to include the phrase ‘‘or
postmarked’’, or other similar language that would
define submit to include mailing, is dispositive. ‘‘[I]t is
well settled that the legislature is always presumed to
have created a harmonious and consistent body of law
. . . . [T]his tenet of statutory construction . . .
requires [this court] to read statutes together when they
relate to the same subject matter . . . . Accordingly,
[i]n determining the meaning of a statute . . . we look
not only at the provision at issue, but also to the broader
statutory scheme to ensure the coherency of our con-
struction.’’ (Internal quotation marks omitted.) Felician
Sisters of St. Francis of Connecticut, Inc. v. Historic
District Commission, 284 Conn. 838, 850, 937 A.2d 39(2008). Accordingly, we conclude that, when viewed in
the context of other tax statutes, all of which appear
in title 12 of the General Statutes, the word ‘‘submit’’
as used in § 12-63c is unambiguous.6 Section 12-63c
provides that the forms must be submitted by June 1,
which means that, in the absence of any language to
the contrary, those forms must be delivered to the asses-
sor’s office by that date in order to comply with the
statute. There is no dispute in this case that the plain-
tiff’s tax forms were not delivered to the defendant’s
assessor by the June 1 deadline.
Therefore, the trial court properly rendered summary
judgment in favor of the defendant as to count one of
the plaintiff’s operative complaint.
II
Next, the plaintiff claims that the trial court improp-
erly granted the defendant’s motion to strike its consti-
tutional claims in count two of the operative complaint
and rendered judgment thereon. Specifically, the plain-
tiff argues that, ‘‘[a]s a matter of proportionality and
fundamental fairness, a penalty of over $130,000 for at
worst being one day late with an ambiguous statutory
time is grossly excessive’’ and, thus, the imposition of
that penalty was a violation of both the federal and the
state constitutions. With respect to the federal constitu-
tion, the plaintiff argues that the penalty was imposed,
in part, to deter the delinquent payment of taxes. Citing
Austin v. United States, 509 U.S. 602, 610, 113 S. Ct.
2801, 125 L. Ed. 2d 488 (1993), the plaintiff claims that
‘‘United States Supreme Court precedent has been clear
that if civil sanctions are even in part serving a deterrent
purpose they are subject to excessive fine analysis.’’
With respect to the state constitution, the plaintiff char-
acterizes the trial court’s decision as hinging on whether
the penalty was imposed due to conviction of a felony
or a misdemeanor. The plaintiff argues that ‘‘[t]his anal-
ysis is incorrect and the Connecticut Supreme Court
itself recognized in 1936 that an excessive ‘fine’ could
include civil penalties.’’ See Second National Bank of
New Haven v. Loftus, 121 Conn. 454, 459–60, 185 A.
423 (1936). We are not persuaded by either of the plain-
tiff’s arguments.
We begin with our standard of review. ‘‘The standard
of review in an appeal from the granting of a motion
to strike is well established. Because a motion to strike
challenges the legal sufficiency of a pleading and, conse-
quently, requires no factual findings by the trial court,
our review . . . is plenary. . . . We take the facts to
be those alleged in the complaint that has been stricken
and we construe the complaint in the manner most
favorable to sustaining its legal sufficiency. . . . Thus,
[i]f facts provable in the complaint would support a
cause of action, the motion to strike must be denied.
. . . [A] motion to strike is essentially a procedural
motion that focuses solely on the pleadings. . . . It is,
therefore, improper for the court to consider material
outside of the pleading that is being challenged by the
motion.’’ (Citation omitted; internal quotation marks
omitted.) Dlugokecki v. Vieira, 98 Conn. App. 252, 256,
907 A.2d 1269, cert. denied, 280 Conn. 951, 912 A.2d
483 (2006). ‘‘For the purpose of ruling upon a motion
to strike, the facts alleged in a complaint, though not
the legal conclusions it may contain, are deemed to be
admitted. . . . A motion to strike is properly granted
if the complaint alleges mere conclusions of law that
are unsupported by the facts alleged.’’ (Citation omitted;
internal quotation marks omitted.) Metcoff v. Lebovics,
123 Conn. App. 512, 516, 2 A.3d 942 (2010).
A
Federal Excessive Fines Clause
In order to determine whether a financial penalty is
unconstitutional under the excessive fines clause of the
eighth amendment to the federal constitution, courts
rely on the two step inquiry established in United States
v. Bajakajian, 524 U.S. 321, 328, 118 S. Ct. 2028, 141
L. Ed. 2d 314 (1998). At the first step, a court must
determine whether the financial penalty constitutes a
punishment and is, thus, a ‘‘ ‘fine’ ’’ within the meaning
of the excessive fines clause. Id., 334. If it is determined
that the penalty constitutes a punishment, the court
then must proceed to the second step of the analysis
and determine whether the challenged forfeiture is
unconstitutionally excessive. Id.With respect to the first step, the trial court, relying
on United States v. Viloski, supra, 814 F.3d 109, noted
that the excessive fines clause ‘‘applies only to those
forfeitures that may be characterized, at least in part,
as ‘punitive’—i.e., forfeitures for which a defendant is
personally liable.’’ ‘‘In contrast, purely ‘remedial’ forfei-
tures—i.e., those in rem forfeitures intended not to pun-
ish the defendant but to compensate the [g]overnment
for a loss or to restore property to its rightful owner—
fall outside the scope of the [e]xcessive [f]ines [c]lause.’’
United States v. Viloski, supra, 109. Additionally, the
trial court explained that ‘‘[a] forfeiture does not consti-
tute ‘punishment’ to the extent that it is remedial, such
as where the amount of forfeiture is rationally related
to the costs of enforcing the law and societal costs of
the proscribed conduct . . . .’’
The plaintiff argues that the penalty in the present
case serves, in part, a deterrent purpose, and that under
Austin v. United States, supra, 509 U.S. 602, a civil
sanction is subject to the excessive fines clause if it is
retributive or has a deterrent purpose. As the defendant
correctly notes, however, that method of analysis was
drawn from United States v. Halper, 490 U.S. 435, 448,
109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), which was
abrogated by Hudson v. United States, 522 U.S. 93, 118
S. Ct. 488, 139 L. Ed. 2d 450 (1997). Indeed, in Dept. of
Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114
S. Ct. 1937, 128 L. Ed. 2d 767 (1994), the United States
Supreme Court held that ‘‘Halper’s method of determin-
ing whether the exaction was remedial or punitive sim-
ply does not work in the case of a tax statute. . . .
Subjecting [the tax] to Halper’s test for civil penalties
is therefore inappropriate.’’ (Citation omitted; internal
quotation marks omitted.) Id., 784. The court noted that
‘‘neither a high rate of taxation nor an obvious deterrent
purpose automatically marks this tax as a form of pun-
ishment.’’ Id., 780. Nevertheless, it concluded that the
tax at issue in that case was punitive. That conclusion,
however, was compelled by the nature of the tax at
issue. Kurth Ranch concerned a Montana statute that
imposed a tax ‘‘on the possession and storage of danger-
ous drugs.’’ Mont. Code Ann. § 15-25-111 (1987). The
court explained that ‘‘this so-called tax is conditioned
on the commission of a crime. That condition is signifi-
cant of penal and prohibitory intent rather than the
gathering of revenue . . . the tax assessment not only
hinges on the commission of a crime, it also is exacted
only after the taxpayer has been arrested for the precise
conduct that gives rise to the tax obligation in the first
place. Persons who have been arrested for possessing
marijuana constitute the entire class of taxpayers sub-
ject to the Montana tax.’’ (Internal quotation marks
omitted.) Dept. of Revenue of Montana v. Kurth Ranch,
supra, 781–82.
The 10 percent tax penalty in the present case lacks
the obvious punitive and penal nature of the tax at issue
in Kurth Ranch. It was not imposed during a criminal
proceeding, and it does not require any conviction for
imposition. Rather, as the trial court stated, ‘‘it is
imposed to ensure compliance with the timely payment
of taxes and to deter delinquent payment of taxes,
which could harm the government with additional
expenses of ensuring compliance in collecting those
taxes.’’ We conclude that the 10 percent penalty in § 12-
63c is not punitive within the meaning of the eighth
amendment to the federal constitution, and, therefore,
it is not subject to the second step of the excessive
fines clause analysis. The trial court properly did not
reach the second step of Bajakajian, and the plaintiff’s
arguments to the contrary fail. Therefore, because the
eighth amendment does not apply, the plaintiff’s alleged
violations of it in count two necessarily fail, and the
granting of the motion to strike those claims in count
two was proper.
B
Connecticut Excessive Fines Clause
Article first, § 8, of the Connecticut constitution pro-
vides that ‘‘[n]o person shall be compelled to give evi-
dence against himself, nor be deprived of life, liberty or
property without due process of law, nor shall excessive
bail be required nor excessive fines imposed. . . .’’ Sim-
ilar to its federal counterpart, Connecticut courts gener-
ally interpret the state constitution’s excessive fines
clause not to apply to tax penalties. See Bankers Trust
Co. v. Blodgett, supra, 96 Conn. 369.
In Bankers Trust Co., our Supreme Court held that
a succession tax was not a ‘‘fine’’ such that it would
be subject to the excessive fines clause. The court stated
that ‘‘[t]he necessities of government give the [s]tate
the right to tax property for such purposes and in such
amounts as it may determine, subject only to such
restrictions as may be imposed by the [c]onstitution,
and with the power to tax must go the power to enforce
collection of the tax by all summary means not contrary
to the [c]onstitution, and one of those means is the
right to impose penalties in order to compel payment
and as a punishment for evasion or neglect of this duty
owed the public.’’ Id., 366. The court then concluded
that the succession tax ‘‘does not impose an excessive
fine in violation of [the excessive fines clause]. The term
penalty in its broadest sense includes all punishment
of whatever kind. . . . A fine is always a penalty, but
a penalty may not always be a fine. . . . A fine is a
pecuniary punishment imposed by a lawful tribunal
upon a person convicted of crime or misdemeanor. . . .
The offense here punished is neither a crime nor a
misdemeanor, and the constitutional provision invoked
has no possible relation to it.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 368. Likewise, in the
present case, late submission of the tax forms required
under § 12-63c is not a crime. Timely and accurate com-
pliance with our taxation statutes is, rather, a duty owed
the public, for which the legislature imposed a penalty
in order to compel compliance and as a punishment
for evasion or neglect of that duty. See PJM & Associ-
ates, LC v. Bridgeport, 292 Conn. 125, 145, 971 A.2d 24(2009). Accordingly, the 10 percent penalty in § 12-63c
is best construed as a penalty and not as a fine.
The plaintiff relies on Second National Bank of New
Haven v. Loftus, supra, 121 Conn. 454, for the proposi-
tion that excessive fines can include civil penalties. In
that case, our Supreme Court quoted Bankers Trust
Co. v. Blodgett, supra, 96 Conn. 368, to define a fine as
a ‘‘pecuniary punishment imposed by a lawful tribunal
upon a person convicted of [a] crime or misdemeanor.’’
(Internal quotation marks omitted.) Second National
Bank of New Haven v. Loftus, supra, 459. It then stated
that ‘‘[t]he meaning of the term [‘fine’] in any connota-
tion may not be extended, at most, further than to
include a pecuniary penalty or forfeiture recoverable
in a civil or criminal action.’’ Id. However, the court
explained that ‘‘the amount of the fine which the legisla-
ture may properly impose depends largely upon the
object designed to be accomplished by the imposition
of the fine, and the widest latitude is to be given to the
discretion and judgment of the legislature in determin-
ing the amount of the fine necessary to accomplish that
object.’’ (Internal quotation marks omitted.) Id., 460 The
court concluded that ‘‘[w]e would be very reluctant to
say that the legislature had exceeded its powers in
imposing excessive penalties, and ought not to do so
except in a very clear case.’’ (Internal quotation marks
omitted.) Id. This is not such a case.
The plaintiff argues that the tax penalty in the present
case is grossly excessive and disproportionate to any
harm the defendant suffered. Our Supreme Court, how-
ever, explicitly addressed that proportionality argument
in PJM & Associates, LC v. Bridgeport, supra, 292 Conn.
145. While interpreting the same statute at issue in the
present case, § 12-63c, our Supreme Court stated that
‘‘[t]he purpose of the penalty [in § 12-63c] is to compel
the submission of information to assist the assessor
in performing his duties. The fact that some property
owners are subjected to a higher penalty than others
is not unreasonable. . . . Finally, with respect to the
magnitude of the penalty, we have stated that penalty
provisions in taxing statutes are quite common and . . .
such provisions, though often attacked as confiscatory,
are almost always upheld by the courts.’’ (Internal quo-
tation marks omitted.) Id. The court noted that it pre-
viously had ‘‘upheld the validity of a statute [that]
resulted in a penalty of $320,000 for a tax payment that
was made one or two days late.’’ (Internal quotation
marks omitted.) Id., quoting Brittany Farms Health
Center, Inc. v. Administrator, Unemployment Com-
pensation Act, 177 Conn. 384, 387, 418 A.2d 52 (1979);
see also Hartford Fire Ins. Co. v. Brown, 164 Conn.
497, 501, 325 A.2d 228 (1973).
We conclude that, under article first, § 8, of the Con-
necticut constitution, the 10 percent penalty in § 12-63c
is not a ‘‘fine’’ that subjects it to our excessive fines
clause. Indeed, we are not persuaded that the 10 percent
penalty would be unconstitutionally excessive under
the facts of this case and controlling Connecticut prece-
dent even if we assume that our excessive fines clause
applied. Accordingly, with respect to the allegations in
count two of the operative complaint that the penalty
was unconstitutional under article first, § 8, of the Con-
necticut constitution, the trial court’s granting of the
defendant’s motion to strike count two was proper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 12-63c provides in relevant part: ‘‘(a) In determining
the present true and actual value in any town of real property used primarily
for purposes of producing rental income, the assessor, which term whenever
used in this section shall include assessor or board of assessors, may require
in the conduct of any appraisal of such property pursuant to the capitalization
of net income method, as provided in section 12-63b, that the owner of such
property annually submit to the assessor not later than the first day of June,
on a form provided by the assessor not later than forty-five days before
said first day of June, the best available information disclosing the actual
rental and rental-related income and operating expenses applicable to such
property. Submission of such information may be required whether or not
the town is conducting a revaluation of all real property pursuant to section
12-62. Upon determination that there is good cause, the assessor may grant
an extension of not more than thirty days to submit such information, if
the owner of such property files a request for an extension with the assessor
not later than May first. . . .
‘‘(c) . . . Any person claiming to be aggrieved by the action of the asses-
sor hereunder may appeal the actions of the assessor to the board of assess-
ment appeals and the Superior Court as otherwise provided in this chapter.
‘‘(d) Any owner of such real property required to submit information
to the assessor in accordance with subsection (a) of this section for any
assessment year, who fails to submit such information as required under
said subsection (a) or who submits information in incomplete or false form
with intent to defraud, shall be subject to a penalty equal to a ten per
cent increase in the assessed value of such property for such assessment
year. . . .’’
2
General Statutes § 12-119 provides in relevant part: ‘‘When it is claimed
that a tax has been laid on property . . . [that] was computed on an assess-
ment 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 and shall be served and returned in the
same manner as is required in the case of a summons in a civil action, and
the pendency of such application shall not suspend action upon the tax
against the applicant. In all such actions, the Superior Court shall have
power to grant such relief upon such terms and in such manner and form
as to justice and equity appertains, and costs may be taxed at the discretion
of the court. If such assessment is reduced by said court, the applicant
shall be reimbursed by the town or city for any overpayment of taxes in
accordance with the judgment of said court.’’
3
General Statutes § 12-111 provides in relevant part: ‘‘(a) Any person . . .
claiming to be aggrieved by the doings of the assessors of such town may
appeal therefrom to the board of assessment appeals. Such appeal shall be
filed, in writing, on or before February twentieth. The written appeal shall
include, but is not limited to, the property owner’s name, name and position
of the signer, description of the property which is the subject of the appeal,
name and mailing address of the party to be sent all correspondence by the
board of assessment appeals, reason for the appeal, appellant’s estimate of
value, signature of property owner, or duly authorized agent of the property
owner, and date of signature. The board shall notify each aggrieved taxpayer
who filed a written appeal in the proper form and in a timely manner, no
later than March first immediately following the assessment date, of the
date, time and place of the appeal hearing. Such notice shall be sent no
later than seven calendar days preceding the hearing date except that the
board may elect not to conduct an appeal hearing for any commercial,
industrial, utility or apartment property with an assessed value greater than
one million dollars. The board shall, not later than March first, notify the
appellant that the board has elected not to conduct an appeal hearing. An
appellant whose appeal will not be heard by the board may appeal directly
to the Superior Court pursuant to section 12-117a. The board shall determine
all appeals for which the board conducts an appeal hearing and send written
notification of the final determination of such appeals to each such person
within one week after such determination has been made. Such written
notification shall include information describing the property owner’s right
to appeal the determination of such board. . . .’’
4
In its memorandum of decision on the defendant’s motion to strike, the
trial court stated: ‘‘Similar to the penalty in Bankers Trust Co., this tax,
although a penalty, is a ‘fine.’ ’’ It is clear, however, on review of the memoran-
dum of decision and its reliance on Bankers Trust Co., that the trial court
intended to conclude that the tax penalty was not a fine within the meaning
of the Connecticut constitution, and that its omission of the word ‘‘not’’
was a scrivener’s error.
5
See, e.g., General Statutes § 12-39aa (a) (1) (‘‘If any return . . . required
to be filed with or any payment required to be made to the Department of
Revenue Services within a prescribed period on or before a prescribed date
under authority of any provision of the general statutes is, after such period
or such date, delivered by United States mail to the Department of Revenue
Services, the date of the United States postmark stamped on the cover in
which such return . . . is mailed shall be deemed to be the date of delivery
or the date of payment . . . .’’ (Emphasis added.)); General Statutes § 12-
42 (a) (‘‘Any person required by law to file an annual declaration of personal
property may request a filing extension with the assessor of the municipality.
Such request shall be made on or before the first day of November in writing.
. . . When the first day of November is a Saturday or Sunday, the declaration
or extension request may be filed or postmarked the next business day
following.’’ (Emphasis added.)).
6
The plaintiff claims that, because the trial court held that the word
‘‘submit’’ was ambiguous, judgment for the taxpayer was compelled as a
matter of law. Because we conclude that ‘‘submit’’ as used in § 12-63c is
unambiguous, the plaintiff’s claim fails. Likewise, we agree with the defen-
dant that the rule of lenity applies only if the statute remains ambiguous
after all sources of legislative intent have been explored. Here, because the
statute is unambiguous in the context of other tax statutes, the rule does
not apply.