Supreme Court oral argument

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STEPNEY POND ESTATES, LIMITED v.

TOWN OF MONROE

( SC 16656)

Sullivan, C. J., and Katz, Palmer, Vertefeuille and Zarella, Js.

Argued February 15— officially released June 4, 2002

David O. Chittick, for the appellant ( defendant).

Erskine D. McIntosh, for the appellee ( plaintiff).

Opinion

SULLIVAN, C. J. This appeal arises from a judgment

by the trial court invalidating the imposition of a convey-ance

tax by the defendant, the town of Monroe, on a

sale by the plaintiff, Stepney Pond Estates, Limited,

of land classified as forest land pursuant to General

Statutes § 12- 107d. 1 The defendant claims on appeal

that the trial court improperly concluded that ( 1) it had

jurisdiction under General Statutes § 12- 1192 to hear the

plaintiff’s claim that the imposition of the tax pursuant

to General Statutes § 12- 504a ( b) 3 was illegal; and ( 2)

the transfer of the property to the plaintiff by Richard

T. Zimany and Alexandra T. Zimany, acting as executors

of the property owner’s estate, did not initiate a new

ten year holding period for purposes § 12- 504a ( b) and,

accordingly, that no conveyance tax was due on the

plaintiff’s subsequent sale of the property. The defen-dant

also claims that the trial court improperly rejected

its claim that, pursuant to General Statutes § 12- 494,4 a

conveyance tax of $ 1650 was due on the conveyance

to the plaintiff. We conclude that the trial court properly

determined that it had jurisdiction to hear the plaintiff’s

claim. We also conclude, albeit on different grounds,

that the trial court properly determined that the transfer

to the plaintiff did not initiate a new ten year holding

period. Finally, we conclude that the plaintiff was not

required to pay a conveyance tax on the transaction in

which it acquired the property. Accordingly, we affirm

the judgment of the trial court.

The record reveals the following relevant facts and

procedural history. The land at issue consists of forty-seven

acres out of a sixty- five acre property located

at 362 Hattertown Road in the town of Monroe. On

September 29, 1971, at the request of Alexander Zimany,

the then owner of the property, the state forester classi-fied

the forty- seven acres as forest land pursuant to

§ 12- 107d. Alexander A. Zimany died in 1983, leaving

the entire property to his wife, Dorothy T. Zimany. Doro-thy

T. Zimany died on September 26, 1986, leaving her

entire estate, including the property, to her children,

Richard T. Zimany and Alexandra T. Zimany. The forty-seven

acre tract had been continuously classified as

forest land from the time it was originally classified

until the time of Dorothy T. Zimany’s death.

By an executor’s deed dated December 21, 1990,5

Richard T. Zimany and Alexandra T. Zimany, acting as

executors of their mother’s estate, conveyed the entire

sixty- five acre tract to the plaintiff for no consideration.

The plaintiff corporation had been created by those

individuals for the sole purpose of receiving title to the

property, and they were its sole shareholders.

On February 21, 1991, the defendant’s tax assessor

notified the plaintiff that, if it wished to keep the forest

classification on the property, it would have to notify

the state forester that there had been a change of title.

The plaintiff filed the appropriate forms and, on October

21, 1991, the bureau of forestry issued an amended

certificate, the stated purpose of which was to change

the owner of record from the estate of Alexander A.

Zimany to the plaintiff. The defendant stipulated at trial

that the property had not been declassified at any time

and that the amended certificate of classification was

a continuation of the original certificate issued in 1971.

On December 26, 1991, the defendant, through its tax

assessor, Francis W. Kascak, recorded an assessor’s

lien on the defendant’s land records indicating that the

property had been acquired by the plaintiff on Decem-ber

21, 1990, and classified as forest land on October

1, 1991.6 The tax assessor testified at trial that he

recorded the lien because he did not consider the trans-fer

to the plaintiff to be an exempt transaction under

General Statutes § 12- 504c ( k) 7 and, therefore, he

believed that the transfer initiated a new ten year hold-ing

period for purposes of § 12- 504a ( b). 8

In February, 1996, the plaintiff sold the property to

Jan’s Construction Company for $ 1,500,000. At that

time, pursuant to § 12- 504a ( b) ( 5), the defendant

imposed a conveyance tax in the amount of $ 58,056,

representing 6 percent of the sale price. The plaintiff

paid the tax under protest. The defendant subsequently

discovered that the tax assessor incorrectly had deter-mined

that the plaintiff’s acquisition date had been

October 1, 1991— the date as of which the department

of forestry had changed the name of the title holder on

the classification certification— rather than December

21, 1990— the date that the property was transferred to

the plaintiff. Accordingly, it determined that, pursuant

to § 12- 504a ( b) ( 6), the correct tax rate on the convey-ance

to Jan’s Construction Company should have been

5 percent for property sold within the sixth year of

ownership, rather than the 6 percent previously

assessed. The defendant also determined that, pursuant

to § 12- 494, a conveyance tax of $ 1650 should have been

imposed on the transfer of the property to the plaintiff.

Accordingly, the defendant forwarded a refund check

in the amount of $ 8026 to the plaintiff, representing the

difference between 6 percent and 5 percent of the sale

price, less $ 1650. The plaintiff never negotiated the

check.

On March 8, 1996, the plaintiff, citing the provisions

of § 12- 119, initiated this action, claiming on various

grounds that the imposition of the tax was illegal. The

defendant filed a motion to dismiss on the grounds that,

pursuant to General Statutes § 12- 504d, 9 the exclusive

remedy available to the plaintiff was an appeal pursuant

to General Statutes § § 12- 11110 and 12- 112.11 The trial

court, Ronan, J., denied the motion. The defendant

renewed the motion to dismiss at the time of trial and,

again, the trial court, Gormley J., denied it. A trial was

held on June 4, 2001, and on June 27, 2001, the trial

court issued its decision. The court concluded that,

under Timber Trails Associates v. New Fairfield, 226

Conn. 407, 627 A. 2d 932 ( 1993), the defendant had not

been authorized to declassify the property for purposes

of initiating a new ten year holding period under § 12-

504a ( b) at the time of the transfer to the plaintiff. The

court also stated that, although it was inclined to agree

with the plaintiff’s claim that the transfer fell under

the exception set forth at § 12- 504c ( k) pertaining to

transfers as a result of death, it was not required to

reach that claim in light of its conclusion based on

Timber Trails Associates. Accordingly, the trial court

ruled that, because, for purposes of § 12- 504a ( b), the

date that the plaintiff ‘‘ first caused such land to be . . .

classified’’ was the date that the property originally had

been classified in 1971, the land had not been sold

within ten years of classification and the defendant had

illegally imposed the conveyance tax. The court ordered

the defendant to refund the $ 58,056 to the plaintiff. The

trial court did not directly address the defendant’s claim

that $ 1650 was due pursuant to § 12- 494,12 but implicitly

rejected the claim by ordering a full refund of the

$ 58,056 without a setoff. The defendant appealed to the

Appellate Court, and we granted the plaintiff’s motion

to transfer the appeal to this court pursuant to Practice

Book § 65- 2 and General Statutes § 51- 199 ( c).

The defendant claims on appeal that the trial court

improperly denied its motion to dismiss for lack of

jurisdiction. It also claims that the trial court improperly

relied on this court’s decision in Timber Trails Associ-ates

v. New Fairfield, supra, 226 Conn. 407, in support

of its determination that the sale of the land by the

plaintiff in 1996 was not subject to a conveyance tax

pursuant to § 12- 504a ( b) ( 6) because the defendant had

no authority to declassify the land. Finally, it claims

that the trial court improperly rejected its claim that a

conveyance tax of $ 1650 was due pursuant to § 12- 494

on the transfer of the property to the plaintiff in 1990.

With respect to the defendant’s first claim, we conclude

that the trial court properly determined that it had juris-diction.

With respect to the second claim, we affirm

the judgment of the trial court on the alternate ground

that the transfer to the plaintiff was an excepted transfer

under § 12- 504c ( k). With respect to the third claim, we

conclude that no conveyance tax was due from the

plaintiff pursuant to �� 12- 494.

I

We first address the defendant’s claim that the trial

court had no jurisdiction to hear the plaintiff’s claim

pursuant to § 12- 119 because, under § 12- 504d, the

exclusive remedy for a person aggrieved by the imposi-tion

of a conveyance tax pursuant to § 12- 504a ( b) is

an appeal to the board of assessment appeals pursuant

to § § 12- 111 and 12- 112. We conclude that the trial court

properly determined that it had jurisdiction over the

claim.

‘‘ A determination regarding a trial court’s subject mat-ter

jurisdiction is a question of law. When . . . the trial

court draws conclusions of law, our review is plenary

and we must decide whether its conclusions are legally

and logically correct and find support in the facts that

appear in the record.’’ ( Internal quotation marks omit-ted.)

Doe v. Roe, 246 Conn. 652, 660, 717 A. 2d 706 ( 1998).

‘‘ Subject matter jurisdiction involves the authority of a

court to adjudicate the type of controversy presented

by the action before it. . . . A court does not truly

lack subject matter jurisdiction if it has competence to

entertain the action before it. . . . Once it is deter-mined

that a tribunal has authority or competence to

decide the class of cases to which the action belongs,

the issue of subject matter jurisdiction is resolved in

favor of entertaining the action. . . . It is well estab-lished

that, in determining whether a court has subject

matter jurisdiction, every presumption favoring juris-diction

should be indulged.’’ ( Citations omitted; internal

quotation marks omitted.) Amodio v. Amodio, 247

Conn. 724, 727– 28, 724 A. 2d 1084 ( 1999).

We begin our analysis with a review of the relevant

statutes. Section 12- 504d provides that ‘‘[ a] ny person

aggrieved by the imposition of a tax under the provi-sions

of sections 12- 504a to 12- 504f, inclusive, may

appeal therefrom as provided in sections 12- 111 and

12- 112.’’ Those statutes are contained in chapter 203 of

the General Statutes governing property tax assess-ments.

Section 12- 111 authorizes appeals by persons

‘‘ aggrieved by the doings of the assessors’’ to the board

of assessment appeals. Section 12- 112 sets forth the

time limit on such appeals. In addition to the appeal

authorized by § 12- 111, § 12- 119 provides in relevant

part that ‘‘[ w] hen 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 valua-tion

of such property, the owner thereof . . . may, in

addition to the other remedies provided by law, make

application for relief to the superior court for the judi-cial

district in which such town or city is situated. . . .’’

The defendant claims that the collateral action13

authorized by § 12- 119 relates solely to disputes over

property tax assessments and does not authorize

actions arising out of conveyance tax disputes. It further

contends that, because § 12- 504d specifically provides

for an appellate remedy pursuant to § 12- 111, the plain-tiff

was restricted to that remedy. In support of this

claim, the defendant relies on the principle that ‘‘ where

a statute has established a procedure to redress a partic-

ular wrong a person must follow the specified remedy

and may not institute a proceeding that might have

been permissible in the absence of such a statutory

procedure.’’ ( Internal quotation marks omitted.) Crys-tal

Lake Clean Water Preservation Assn. v. Ellington,

53 Conn. App. 142, 151, 728 A. 2d 1145, cert. denied, 250

Conn. 920, 738 A. 2d 654 ( 1999).

We agree with the defendant that § 12- 119 does not

authorize a challenge to the imposition of a conveyance

tax. Rather, the statute clearly relates to taxes ‘‘ laid on

property.’’ We also recognize that § 12- 504d sets forth

the exclusive appellate remedy for persons aggrieved

by the imposition of a conveyance tax pursuant to § 12-

504a ( b). This court previously has recognized, how-ever,

that when a plaintiff claims that the imposition

of a conveyance tax was invalid in the first instance,

as distinct from claiming that the tax was miscalculated,

a collateral attack on the imposition of the tax under

the common law is permissible even though § 12- 504d

provides an appellate remedy. See McKinney v. Coven-try,

176 Conn. 613, 615, 410 A. 2d 453 ( 1979) ( recognizing

that collateral challenge to imposition of conveyance

tax is permissible in lieu of appeal pursuant to § 12-

504d where plaintiff challenges initial validity of assess-ment).

14 Thus, McKinney recognized an exception to

the principle enunciated in Crystal Lake Clean Water

Preservation Assn. v. Ellington, supra, 53 Conn. App.

151, that statutory remedies are exclusive. Conse-quently,

we must determine: ( 1) whether the trial court

would have had jurisdiction to hear a collateral chal-lenge

to the defendant’s imposition of the conveyance

tax under McKinney; and ( 2) if so, whether the plain-tiff’s

invocation of § 12- 119 deprived the court of juris-diction.

In McKinney, this court considered a collateral chal-lenge

to the imposition of a conveyance tax based on

the plaintiffs’ claim that the tax was unconstitutional.

Specifically, the plaintiffs claimed that the portion of

Public Acts 1972, No. 152 ( P. A. 152), § 1, now codified

with certain amendments as § 12- 504a ( b), providing

for the imposition of a tax when classified land is sold

within a period of ten years ‘‘ from time of initial acquisi-tion

or classification, whichever is earlier,’’ was so

vague as to violate the due process clauses of the state

and federal constitutions. McKinney v. Coventry, supra,

176 Conn. 616. In this case, the plaintiff also challenges

the application of § 12- 504a ( b) to the sale of its property

on constitutional grounds. Specifically, it claims that

the defendant violated the ex post facto clause of the

federal constitution and the due process clauses of both

the federal and the state constitutions. 15 Moreover, as

noted by the trial court, the plaintiff does not claim

that the tax was improperly calculated, but claims that

the defendant disregarded the provisions of § 12- 504c

pertaining to exempt transactions. Accordingly, we con-clude

that the plaintiff’s claim challenges the validity

of the tax in the first instance and, consequently, that the

trial court would have had jurisdiction over a collateral

challenge under McKinney. 16

We now must determine whether the fact that the

plaintiff proceeded under § 12- 119 instead of bringing

a collateral challenge under the common law deprived

the trial court of jurisdiction. In Cohn v. Hartford, 130

Conn. 699, 703, 37 A. 2d 237 ( 1944), we recognized, with

respect to property tax assessments, that, under the

common law, ‘‘ where there was misfeasance or nonfea-sance

by the taxing authorities or the assessment was

arbitrary or so excessive or discriminatory as in itself

to show a disregard of duty,’’ relief could be given in

equity in the absence of statutory authority. We con-cluded,

however, that the predecessor to § 12- 119 ‘‘ was

clearly intended to take the place of the remedy in

equity based on an overvaluation of the property and

as all the relief can be obtained under it which could

be afforded by equity, it precludes a resort to equity

generally in such a case as the one before us.’’ Id., 704;

see also Crystal Lake Clean Water Preservation Assn.

v. Ellington, supra, 53 Conn. App. 150 (‘‘[ i] t is well

settled that § 12- 119 codified the then existing common-law

right and remedy of assumpsit that allowed a tax-payer

to challenge an illegally assessed tax’’) and cases

cited therein. This court also has held that ‘‘ § 12- 119

generally is not a substitute for a timely appeal to a

board of tax review pursuant to [ General Statutes ( Rev.

to 1993) § 12- 111] 17 . . . [ but] requires an allegation

that something more than mere valuation is at issue.’’

( Citations omitted; internal quotation marks omitted.)

Timber Trails Associates v. New Fairfield, supra, 226

Conn. 413 n. 9. Thus, the collateral action authorized by

§ 12- 119 for cases involving property tax assessments

where ‘‘ something more than mere valuation is at issue’’

is the analog to the common- law collateral action recog-nized

in McKinney for cases involving the imposition

of a conveyance tax where something more than the

calculation of the tax is at issue, and the remedies and

relief available under § 12- 119 are the same as those

available under the common law in a challenge to the

imposition of an illegal tax.

To conclude in this case that the fact that the plaintiff

invoked § 12- 119 instead of bringing a common- law

action in equity deprived the trial court of jurisdiction

would be to exalt form over substance. Although the

trial court technically did not have jurisdiction over a

challenge to the imposition of a conveyance tax under

§ 12- 119, the issues, the nature of the proceeding and

the form of relief were precisely the same as they would

have been had the plaintiff characterized its claim as

a common- law action in equity. Accordingly, the plain-tiff

did not reap any procedural advantage or obtain

any remedy or relief in the proceedings under § 12- 119

that it would not have had had it brought a common-law

action in equity under McKinney. Nothing would

be gained by requiring the plaintiff to initiate a new

proceeding that, in all respects except its characteriza-tion

of the claim, would be identical to this one. 18

Accordingly, we conclude that the trial court properly

determined that it had jurisdiction over the plaintiff’s

claim.

II

We next consider the defendant’s claim that the trial

court improperly relied on this court’s decision in Tim-ber

Trails Associates v. New Fairfield, supra, 226 Conn.

407, to conclude that the transfer of the property to the

plaintiff in 1991 did not trigger a new holding period

for purposes of assessing a conveyance tax pursuant

to § 12- 504a ( b). The plaintiff contends, to the contrary,

that the trial court properly applied Timber Trails Asso-ciates

and also raises the following alternate grounds

for affirmance: 19 ( 1) the transfer to the plaintiff was an

exempt transfer under § 12- 504c ( k) relating to transfers

‘‘ as a result of death by devise or otherwise’’; ( 2) the

transfer was an exempt transaction under § 12- 504c ( d)

relating to strawman transactions; ( 3) the transfer from

the plaintiff to Jan’s Construction Company was exempt

under Timber Trails Associates because the transfer

to the plaintiff was not a sale; ( 4) the imposition of

the tax violates the ex post facto clause of the federal

constitution; 20 ( 5) the imposition of the tax violates the

due process clause of the Connecticut constitution; 21

and ( 6) the imposition of the tax was an illegal retroac-tive

application of § 12- 504a ( b). 22 We affirm the judg-ment

of the trial court on the alternate ground that the

transfer of the property to the plaintiff was exempt

under § 12- 504c ( k).

The question of whether the transfer of classified

land under the undisputed factual circumstances of this

case initiated a new ten year holding period for pur-poses

of § 12- 504a ( b) is a question of statutory interpre-tation.

‘‘ The process of statutory interpretation involves

a reasoned search for the intention of the legislature.

. . . In other words, we seek to determine, in a rea-soned

manner, the meaning of the statutory language

as applied to the facts of this case . . . . In seeking to

determine that meaning, we look to the words of the

statute itself, to the legislative history and circum-stances

surrounding its enactment, to the legislative

policy it was designed to implement, and to its relation-ship

to existing legislation and common law principles

governing the same subject matter.’’ ( Citation omitted;

internal quotation marks omitted.) Andersen Con-sulting,

LLP v. Gavin, 255 Conn. 498, 512, 767 A. 2d

692 ( 2001).

In Timber Trails Associates v. New Fairfield, supra,

226 Conn. 410, the defendant towns claimed that the

transfer of a property by a corporation to its sole stock-holder

for no consideration had terminated the proper-ty’s

classification as forest land pursuant to General

Statutes § 12- 504h. 23 Accordingly, the defendants’ asses-sors

assessed a property tax on the land based on its

fair market value rather than its current use value. Id.

The plaintiff property owner challenged the imposition

of the tax pursuant to § 12- 119, and the trial court sus-tained

the appeals, concluding that the defendants did

not have the authority to declassify the land. Id., 410– 11.

The defendants then appealed to this court. Id., 411.

We concluded that, because the property in that case

had been transferred for no consideration, it had not

been ‘‘ ‘ sold by [ the] record owner’ as required by § 12-

504h ( 2).’’ Id., 414. Accordingly, we concluded that the

transfer of the property for no consideration did not

terminate its classification as forest land pursuant to

that statute. Id.

We also rejected the defendants’ argument that the

land had been declassified for purposes of § 12- 504a

( b) pursuant to § 12- 504b, 24 which provides in relevant

part that ‘‘[ u] pon the recording of [ a deed conveying a

property subject to a conveyance tax under § 12- 504a]

and the payment of the required conveyance tax such

land shall be automatically declassified,’’ because the

land had been classified for more than ten years prior

to the transfer and, therefore, the transfer had not been

subject to a conveyance tax. Id., 415. Finally, we noted

that the provision of General Statutes § 12- 504f25 that

‘‘ classification of land shall be deemed personal to the

particular owner who requests such classification and

shall not run with the land’’ related solely to ‘‘ the issu-ance

and recording of certificates identifying property

as forest land for the purpose of the ‘ obligation to pay

the conveyance tax imposed by this chapter.’ ’’ Id., 417.

Because there was no ‘‘ obligation to pay the conveyance

tax’’; General Statutes § 12- 504f; the land was not

declassified under that statute. Thus, in Timber Trails

Associates, this court held that a conveyance declassi-fies

a property only if: ( 1) the conveyance is subject

to a conveyance tax pursuant to § 12- 504a; or ( 2) the

conveyance is a sale or the use is changed pursuant to

§ 12- 504h.

Relying on Timber Trails Associates, the trial court

in this case concluded that the imposition of the convey-ance

tax on the sale by the plaintiff to Jan��s Construction

Company was illegal because the defendant ‘‘ had no

authority to declassify [ the property at the time of the

transfer to the plaintiff] for the purpose of creating a

new ten year recapture period.’’ The court concluded

that the defendant lacked such authority because: ( 1)

the property had been held for more than ten years

before the conveyance to the plaintiff and, therefore,

no conveyance tax was due; and ( 2) the property had

not been sold to the plaintiff.

The defendant argues that Timber Trails Associates

is irrelevant to this case because that case merely held

that when a conveyance of classified land is not subject

to a conveyance tax, the property is not declassified

pursuant to § 12- 504b or § 12- 504f for property tax pur-poses.

The defendant maintains that Timber Trails

Associates did not address the question of whether such

a transfer would initiate a new holding period for pur-poses

of § 12- 504a ( b). We disagree. This court specifi-cally

held in Timber Trails Associates that ‘‘ the

recording of the deed and payment of the conveyance

tax triggers the automatic declassification of the land

pursuant to § 12- 504b’’; id., 415; and that, in the absence

of that triggering event, classification is continuous. We

also held that property is not declassified pursuant to

§ 12- 504f unless a conveyance tax is due. To accept the

defendant’s argument that Timber Trails Associates

is inapplicable would require us to conclude that the

property in this case was declassified at the time of

transfer to the plaintiff for purposes of imposing a con-veyance

tax on the subsequent sale pursuant to § 12-

504a ( b), but was continuously classified for property

tax purposes. Nothing in Timber Trails Associates, the

statutes or their legislative history, however, supports

the view that property may be declassified for one pur-pose

while continuously classified for another purpose.

Having concluded that the trial court properly applied

Timber Trails Associates, however, we are compelled

to acknowledge that our decision in that case is difficult

to reconcile with our determination in McKinney v.

Coventry, supra, 176 Conn. 613, that ‘‘ tacking’’ of suc-cessive

periods of ownership is not permissible. In

McKinney, the plaintiff property owners, on March 13,

1971, purchased land that had been classified annually

as farm land by the previous owner in 1968, 1969 and

1970. The plaintiffs renewed the classification in 1971.

In 1972, the legislature passed P. A. 152, codified in part

and as amended as § 12- 504a ( b). In 1972, the plaintiffs

renewed the classification of the land. On December

28, 1972, they sold the land, and the defendant imposed

a conveyance tax of 9 percent on the basis of its determi-nation

that the plaintiffs had sold the land during their

second year of ownership. Id., 615 n. 2. As previously

noted in this opinion, the plaintiffs challenged the tax

in a collateral action, claiming that provision of P. A.

152, § 1, now codified as amended as § 12- 504a ( b),

imposing a tax when classified farm land is sold ‘‘ within

a period of ten years from time of initial acquisition or

classification, whichever is earlier,’’ was unconstitu-tionally

vague. Id., 616.

This court concluded that the statute was sufficiently

clear to give notice that ‘‘ ‘ tacking’ of successive periods

of ownership was not authorized under its provisions

. . . .’’ Id., 621. This court further concluded that, when

the legislature amended P. A. 152, § 1, to provide that a

conveyance tax would be imposed if the land were

sold within ten years of the ‘‘ time [ the record owner]

acquired title to such land or from the time he first

caused such land to be so classified,’’ instead of within

ten years of the ‘‘ time of initial acquisition or classifica-tion’’;

see Public Acts 1974, No. 74- 343 ( P. A. 74- 343),

§ 1; it ‘‘ removed any possible doubt as to whether ‘ tack-ing’

of successive periods of ownership was permitted

in determining conveyance tax liability.’’ McKinney v.

Coventry, supra, 176 Conn. 621 n. 4, citing the portion

of P. A. 74- 343 amending § 12- 504a. Thus, under McKin-ney,

a property is declassified at the time that it is

‘‘ acquired’’ by the record owner, regardless of whether

the transaction in which it is acquired is subject to a

conveyance tax or constitutes a ‘‘ sale.’’

The inconsistency between our decision in McKinney

and our decision in Timber Trails Associates reflects

inconsistencies within the statutes themselves. See

General Statutes § 12- 504a ( suggesting that property is

declassified when it is ‘‘ acquired’’); General Statutes

§ 12- 504b ( suggesting that property is declassified when

deed subject to conveyance tax is recorded); General

Statutes § 12- 504c ( e) and ( k) ( providing sole excep-tions

to provision of § 12- 504a that property is declassi-fied

at time acquired by record owner); General Statutes

§ 12- 504f ( providing that classification does not run

with land for purposes of obligation to pay conveyance

tax); General Statutes § 12- 504h ( suggesting that land

is declassified only when use is changed or land is

‘‘ sold’’). 26 If McKinney was decided correctly, and, as

suggested by § 12- 504a, land is declassified at the time

it is acquired, then the provision of § 12- 504b that ‘‘ such

land shall be automatically declassified’’ upon the

recording of a deed indicating the payment of a convey-ance

tax would be superfluous. Moreover, if any convey-ance

declassifies property, as suggested by the last

sentence of § 12- 504f, then the filing of a strawman

deed, although exempted from the imposition of a con-veyance

tax under § 12- 504c ( d), would declassify the

land and subject a subsequent sale within ten years of

the deed to a conveyance tax. This seems a harsh and

bizarre result. On the other hand, if Timber Trails Asso-ciates

is correct, and, as suggested by § 12- 504b, a con-veyance

does not declassify land unless a conveyance

tax is due or, as suggested by § 12- 504h, the land is sold

or the use changed, then the provisions of § 12- 504c ( e)

and ( k) relating the record owner’s date of acquisition

back to the previous owner’s date of acquisition would

be superfluous. In light of these inconsistencies, it may

be that the legislature itself should revisit these statutes

and clarify its intention.

Weneed not decide in this case whether our decisions

in McKinney and Timber Trails Associates are recon-cilable

or should be overruled, however, because, for

the following reasons, we agree with the plaintiff’s claim

that the transfer of title by the executors of the estate

of Dorothy T. Zimany to the plaintiff was an exempt

transaction under the provisions of § 12- 504c ( k) per-taining

to ‘‘ property transferred as a result of death by

devise or otherwise . . . .’’

Under General Statutes § 45a- 233 ( c), a testator is

authorized to incorporate into his will the fiduciary

powers set forth in General Statutes § 45a- 234. Those

powers include the power of an executor to ‘‘ transfer

and convey the [ estate] property or any interest therein,

in fee simple absolute or otherwise . . . .’’ General

Statutes § 45a- 234 ( 2). 27 ‘‘[ W] e presume that laws are

enacted in view of existing relevant statutes . . .

because the legislature is presumed to have created a

consistent body of law.’’ ( Citations omitted; internal

quotation marks omitted.) Conway v. Wilton, 238 Conn.

653, 664, 680 A. 2d 242 ( 1996). Consequently, we pre-sume

that, when the legislature enacted § 12- 504c ( k)

in 1972, it was aware that, as a result of the death of

a testator, an executor could be granted power under

the testator’s will to transfer estate property to another

entity on behalf of the estate. 28 Accordingly, we con-clude

that the legislature contemplated that such a

transfer would be excepted from § 12- 504a ( b) as being

a transfer ‘‘ as a result of death by devise or otherwise

. . . .’’ To conclude otherwise merely because a trans-fer

by an executor is not an immediate and automatic

result of a death itself, but, rather, results from the

exercise of a power to act on behalf of the estate vesting

as a result of the death, would be to put too fine a point

on § 12- 504c ( k). 29

In this case, Dorothy T. Zimany’s will provided that

her executors, Richard T. Zimany and Alexandra T.

Zimany, had, ‘‘ in addition to the powers given to them

by the Estates, Powers and Trusts Law of the State of

Connecticut,’’ the power to ‘‘ sell, lease, pledge, mort-gage,

transfer, exchange, convert or otherwise dispose

of, or grant options with respect to any or all property

at any time forming a part of [ her] Estate or any trust

estate in any manner, at any time or times, for any

purposes, for any prices and upon any terms, credits,

and conditions . . . .’’ The executors exercised that

power to transfer the property from the estate of Doro-thy

T. Zimany to the plaintiff by executor’s deed. The

defendant does not claim that that transfer was

improper or should be voided, but claims, as a general

matter, that such transfers do not fall under § 12- 504c

( k). We have concluded, however, that they do.

Accordingly, because the plaintiff’s acquisition of the

classified land fell under § 12- 504c ( k), the date of the

acquisition was, for purposes of § 12- 504a ( b), the date

that Dorothy T. Zimany acquired the land. See General

Statutes § 12- 504c ( k) (‘‘ in such transfer the date of

acquisition or classification of the land for purposes

of sections 12- 504a to 12- 504f, inclusive, whichever is

earlier, shall be the date of acquisition or classification

by the decedent’’). Because Dorothy T. Zimany also

acquired the land in a transfer subject to § 12- 504c ( k),

the date of her acquisition related back to the date that

Alexander Zimany classified the land in 1971. Accord-

ingly, the sale by the plaintiff to Jan’s Construction

Company in February, 1996, was not ‘‘ within a period

of ten years from the time [ it] acquired title to [ the]

land,’’ and the transfer was not subject to the imposition

of a conveyance tax under § 12- 504a ( b).

III

We next address the defendant’s claim that, pursuant

to § 12- 494, a conveyance tax of $ 1650 was due on the

conveyance of the property to the plaintiff in 1990.

The defendant, citing the Superior Court’s decision in

Bjurback v. Commissioner of Revenue Services, 44

Conn. Sup. 354, 690 A. 2d 902 ( 1996), argues that a trans-fer

of property from an estate to a corporation, the sole

shareholders of which are the transferors, is a transfer

for consideration regardless of whether a price is paid.

We reject this claim.

Even if we were to assume that this claim properly

had been preserved; see footnote 12 of this opinion;

General Statutes § 12- 495 provides in relevant part that

‘‘[ t] he tax imposed by this chapter shall be payable by

the person conveying the property upon the recording

of each such deed, instrument or writing. . . .’’ Accord-ingly,

if any conveyance tax had been due, it would

have been properly payable not by the plaintiff, but by

the executors of the estate of Dorothy T. Zimany, who

are not parties to this case.

The judgment is affirmed.

In this opinion the other justices concurred.

1 General Statutes § 12- 107d provides in relevant part: ‘‘( a) An owner of

land may file a written application with the State Forester for its designation

by the State Forester as forest land. When such application has been made,

the State Forester shall examine such application and, if he determines that

it is forest land, he shall issue a triplicate certificate designating it as such,

and file one copy of such certificate in his office, furnish one to the owner

of the land and file one in the office of the assessor of the municipality in

which the land is located.

‘‘( b) When the State Forester finds that it is no longer forest land, he shall

issue a triplicate certificate cancelling his designation of such land as forest

land, and file one copy of such certificate in his office, furnish one to the

owner of the land and file one in the office of such assessor.

‘‘( c) An owner of land designated as forest land by the State Forester may

apply for its classification as forest land on any grand list of a municipality by

filing a written application for such classification with the assessor thereof

not earlier than thirty days before nor later than thirty days after the assess-ment

date and, if the State Forester has not cancelled his designation of

such land as forest land as of a date at or prior to the assessment date such

assessor shall classify such land as forest land and include it as such on

the grand list, provided in a year in which a revaluation of all real property

in accordance with section 12- 62 becomes effective such application may

be filed not later than ninety days after such assessment date in such year.

‘‘( d) An application to the State Forester for designation of land as forest

land shall be made upon a form prescribed by the State Forester and

approved by the Commissioner of Environmental Protection and shall set

forth a description of the land and such other information as the State

Forester may require to aid him in determining whether such land qualifies

for such designation. An application to an assessor for classification of land

as forest land shall be made upon a form prescribed by such assessor and

approved by the Commissioner of Environmental Protection and shall set

forth a description of the land and the date of the issuance by the State

Forester of his certificate designating it as forest land and a statement of

the potential liability for tax under the provisions of sections 12- 504a to 12-

504e, inclusive. . . .’’

2 General Statutes § 12- 119 provides: ‘‘ 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 or any lessee thereof whose lease has been recorded as provided

in section 47- 19 and who is bound under the terms of his lease to pay real

property taxes, 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 overpay-ment

of taxes in accordance with the judgment of said court.’’

3 General Statutes § 12- 504a ( b) provides: ‘‘ Any land which has been classi-fied

by the record owner thereof as farm land pursuant to section 12- 107c

or as forest land pursuant to section 12- 107d, if sold by him within a period

of ten years from the time he acquired title to such land or from the time

he first caused such land to be so classified, whichever is earlier, shall be

subject to a conveyance tax applicable to the total sales price of such land,

which tax shall be in addition to the tax imposed under sections 12- 494 to

12- 504, inclusive. Said conveyance tax shall be at the following rate: ( 1) Ten

per cent of said total sales price if sold within the first year of ownership

by such record owner; ( 2) nine per cent if sold within the second year of

ownership by such record owner; ( 3) eight per cent if sold within the third

year of ownership by such record owner; ( 4) seven per cent if sold within

the fourth year of ownership by such record owner; ( 5) six per cent if sold

within the fifth year of ownership by such record owner; ( 6) five per cent

if sold within the sixth year of ownership by such record owner; ( 7) four

per cent if sold within the seventh year of ownership by such record owner;

( 8) three per cent if sold within the eighth year of ownership by such record

owner; ( 9) two per cent if sold within the ninth year of ownership by such

record owner; and ( 10) one per cent if sold within the tenth year of ownership

by such record owner. No conveyance tax shall be imposed by the provisions

of sections 12- 504a to 12- 504f, inclusive, following the end of the tenth year

of ownership by such record owner.’’

4 General Statutes § 12- 494 provides: ‘‘( a) There is imposed a tax on each

deed, instrument or writing, whereby any lands, tenements or other realty

is granted, assigned, transferred or otherwise conveyed to, or vested in, the

purchaser, or any other person by his direction, when the consideration for

the interest or property conveyed equals or exceeds two thousand dollars,

( 1) subject to the provisions of subsection ( b) of this section, at the rate

of five- tenths of one per cent of the consideration for the interest in real

property conveyed by such deed, instrument or writing, the revenue from

which shall be remitted by the town clerk of the municipality in which

such tax is paid, not later than ten days following receipt thereof, to the

Commissioner of Revenue Services for deposit to the credit of the state

General Fund and ( 2) at the rate of eleven one- hundredths of one per cent

of the consideration for the interest in real property conveyed by such

deed, instrument or writing, which amount shall become part of the general

revenue of the municipality in accordance with section 12- 499.

‘‘( b) The rate of tax imposed under subdivision ( 1) of subsection ( a) of

this section shall, in lieu of the rate under said subdivision ( 1), be imposed

on certain conveyances as follows: ( 1) In the case of any conveyance of

real property which at the time of such conveyance is used for any purpose

other than residential use, except unimproved land, the tax under said

subdivision ( 1) shall be imposed at the rate of one per cent of the consider-ation

for the interest in real property conveyed; and ( 2) in the case of any

conveyance in which the real property conveyed is a residential estate,

including a primary dwelling and any auxiliary housing or structures, for

which the consideration in such conveyance is eight hundred thousand

dollars or more, the tax under said subdivision ( 1) shall be imposed ( A) at

the rate of one- half of one per cent on that portion of such consideration

up to and including the amount of eight hundred thousand dollars and ( B)

at the rate of one per cent on that portion of such consideration in excess

of eight hundred thousand dollars; and ( 3) in the case of any conveyance

in which real property on which mortgage payments have been delinquent

for not less than six months is conveyed to a financial institution or its

subsidiary which holds such a delinquent mortgage on such property, the

tax under said subdivision ( 1) shall be imposed at the rate of one- half of

one per cent of the consideration for the interest in real property conveyed.’’

5 The deed apparently was executed by Alexandra T. Zimany on December

20, 1990, and by Richard T. Zimany on December 21, 1990.

6 On January 19, 1996, the tax assessor recorded a second assessor’s lien

indicating that the property had been acquired on December 26, 1991. He

testified at trial that he could not recall his reasons for filing the second lien.

7 General Statutes § 12- 504c provides: ‘‘ The provisions of section 12- 504a

shall not be applicable to the following: ( a) Transfers of land resulting from

eminent domain proceedings; ( b) mortgage deeds; ( c) deeds to or by the

United States of America, state of Connecticut or any political subdivision

or agency thereof; ( d) strawman deeds and deeds which correct, modify,

supplement or confirm a deed previously recorded; ( e) deeds between hus-band

and wife and parent and child when no consideration is received,

except that a subsequent nonexempt transfer by the grantee in such cases

shall be subject to the provisions of section 12- 504a as it would be if the

grantor were making such nonexempt transfer; ( f) tax deeds; ( g) deeds

releasing any property which is a security for a debt or other obligation;

( h) deeds of partition; ( i) deeds made pursuant to a merger of a corporation;

( j) deeds made by a subsidiary corporation to its parent corporation for no

consideration other than the cancellation or surrender of the capital stock

of such subsidiary; ( k) property transferred as a result of death by devise

or otherwise and in such transfer the date of acquisition or classification

of the land for purposes of sections 12- 504a to 12- 504f, inclusive, whichever

is earlier, shall be the date of acquisition or classification by the decedent;

( l) deeds to any corporation, trust or other entity, of land to be held in

perpetuity for educational, scientific, aesthetic or other equivalent passive

uses, provided such corporation, trust or other entity has received a determi-nation

from the Internal Revenue Service that contributions to it are deduct-ible

under applicable sections of the Internal Revenue Code; ( m) land subject

to a covenant specifically set forth in the deed transferring title to such

land, which covenant is enforceable by the town in which such land is

located, to refrain from selling or developing such land in a manner inconsis-tent

with its classification as farm land pursuant to section 12- 107c, forest

land pursuant to section 12- 107d or open space land pursuant to section

12- 107e for a period of not less than eight years from the date of transfer,

if such covenant is violated the conveyance tax set forth in this chapter

shall be applicable at the rate which would have been applicable at the date

the deed containing the covenant was delivered and, in addition, the town

or any taxpayer therein may commence an action to enforce such covenant;

and ( n) land the development rights to which have been sold to the state

under chapter 422a. If such action is taken by such a taxpayer, the town

shall be served as a necessary party.’’

8 Although the tax assessor determined that the transfer to the plaintiff

was not a transfer ‘‘ as a result of death,’’ and, therefore, that it initiated a

new ten year holding period, the transfer was not subject to a conveyance

tax under § 12- 504a ( b) because the transfer to Dorothy T. Zimany as a

result of her husband’s death was exempt under § 12- 504c ( k). Accordingly,

her holding period related back to the date that the land was originally

classified by her husband in 1971, and the transfer from her estate to the

plaintiff was exempt from the imposition of the conveyance tax as not being

within ten years of the date of acquisition.

9 General Statutes § 12- 504d provides: ‘‘ Any person aggrieved by the impo-sition

of a tax under the provisions of sections 12- 504a to 12- 504f, inclusive,

may appeal therefrom as provided in sections 12- 111 and 12- 112.’’

Although it is not necessary for the resolution of this appeal, we take this

opportunity to review the genealogy of § 12- 504d and the statutory appeal

provisions referred to in that section in order to point out a possible oversight

by the legislature in amending § 12- 504d that may have had an unintended

result. The legislation codified as § 12- 504d was enacted in 1972. See Public

Acts 1972, No. 152, § 4. As originally enacted, the statute authorized appeals

from the imposition of a conveyance tax ‘‘ as provided in sections 12- 111,

12- 112 and 12- 118 . . . .’’ Public Acts 1972, No. 152, § 4. General Statutes

§ § 12- 111 and 12- 112 related, as they do now, to property tax assessments

and § 12- 111 authorized appeals by persons ‘‘ aggrieved by the doings of the

assessors’’ to the board of tax review. General Statutes ( Rev. to 1972) § 12-

118 authorized appeals from the decision of the board of tax review to the

Court of Common Pleas. In 1987, the legislature established the Connecticut

appeals board for property valuation to hear appeals from local boards of

tax review. Public Acts 1987, No. 87- 404, § 7. That legislation was codified

as General Statutes § 12- 121aa. At the same time, the legislature amended

§ 12- 118 to authorize appeals from the appeals board to the Superior Court.

Public Acts 1987, No. 87- 404, § 9. In 1989, the legislature postponed the date

for the appointment of the appeals board from February 1, 1989, to February

1, 1991; Public Acts 1989, No. 89- 231, § 1; and authorized appeals to the

Superior Court from boards of tax review for the assessment year commenc-ing

October 1, 1989. Public Acts 1989, No. 89- 231, § 4. That appeal provision,

as periodically amended to include additional assessment years, was codified

as General Statutes § 12- 117a. In 1995, the legislature repealed both § 12-

121aa and § 12- 118. Public Acts 1995, No. 95- 283, § 67. In 1999, the legislature

deleted the reference to § 12- 118 in § 12- 504d. Public Acts 1999, No. 99- 89, § 8.

It is apparent, therefore, that the legislature originally intended that a

person appealing under the provisions of § 12- 504d would be authorized to

appeal from a decision by the board of tax review under the provisions of

§ 12- 118 as that statute existed in 1972. When the legislature amended § 12-

504d in 1999 to delete the reference to § 12- 118, which, in the interval,

had been amended to provide for appeals from the board of appeals and,

ultimately, repealed, it did not substitute a reference to § 12- 117a, which,

at the time that § 12- 118 was repealed and currently, is the statute authorizing

appeals from a board of tax review to the Superior Court. The legislative

history of Public Acts 1999, No. 99- 89, § 8, indicates that the legislature

understood the deletion of the reference to § 12- 118 in § 12- 504d to be

technical in nature. That characterization would be surprising if the legisla-ture

in fact recognized that § 12- 504d no longer expressly provides for an

appeal from a board of tax review as originally intended.

10 General Statutes § 12- 111 provides in relevant part: ‘‘ Any person, includ-ing

any lessee of real property whose lease has been recorded as provided

in section 47- 19 and who is bound under the terms of a lease to pay real

property taxes and any person to whom title to such property has been

transferred since the assessment date, claiming to be aggrieved by the

doings of the assessors of such town may appeal therefrom to the board

of assessment appeals. . . .’’

11 General Statutes § 12- 112 provides: ‘‘ No appeal from the doings of the

assessors in any town shall be heard or entertained by the board of assess-ment

appeals unless referred to it at one of its meetings during the month

of September in the case of an appeal related to motor vehicle assessment

or unless written appeal is made on or before February twentieth in accor-dance

with the provisions of section 12- 111.’’

12 Although the defendant never formally filed a counterclaim or claimed

a right of setoff, it argued in its trial brief that it was entitled to deduct the

$ 1650 from the refund given to the plaintiff as a result of the assessor’s

miscalculation of the tax due under § 12- 504a ( b).

13 This court in Timber Trails Associates v. New Fairfield, supra, 226

Conn. 412, stated that § 12- 119 ‘‘ expressly provides that an owner may appeal

to the Superior Court . . . .’’ We conclude, however, that the ‘‘ application

for relief’’ authorized by § 12- 119 is a substitute for a common- law action

in equity and, strictly speaking, is not an appeal. See Cohn v. Hartford, 130

Conn. 699, 704, 37 A. 2d 237 ( 1944) ( predecessor to § 12- 119 ‘‘ was clearly

intended to take the place of the remedy in equity’’).

14 In McKinney, this court did not frame the question as a jurisdictional

one, but stated that ‘‘ to prevail [ in their collateral challenge], the plaintiffs

must establish the invalidity of the assessment . . . .’’ McKinney v. Coven-try,

supra, 176 Conn. 615. The cases relied on by this court in McKinney

make it clear, however, that the trial court would have no jurisdiction to

hear a collateral challenge to the imposition of a tax unless the challenge

was to the validity of the tax in the first instance. See Vecchio v. Sewer

Authority, 176 Conn. 497, 500, 408 A. 2d 254 ( 1979); Vaill v. Sewer Commis-sion,

168 Conn. 514, 518– 19, 362 A. 2d 885 ( 1975).

15 The trial court did not reach the defendant’s constitutional claims

because it decided the issue on nonconstitutional grounds.

16 Indeed, at the time the trial court, Gormley J., denied the defendant’s

second motion to dismiss, that court stated, ‘‘ I’m not even sure you had to

go into § 12- 119. I think you could just bring an action directly for refund of

that money if a plaintiff feels that they have been aggrieved by the decision.’’

17 Timber Trails Associates made reference to Public Acts 1991, No. 91-

221, § 4, now codified as General Statutes § 12- 117a. Timber Trails Associ-ates

v. New Fairfield, supra, 226 Conn. 407 n. 9. That statute, however,

governs appeals from a board of tax review to the Superior Court. General

Statutes ( Rev. to 1993) § 12- 111 governs appeals to a board of tax review.

18 We note that one difference between an action under § 12- 119 and an

equitable action under the common law is that, under § 12- 119, a plaintiff

must initiate the action within one year from the date that the property was

last evaluated for purposes of taxation. The only time limitation on bringing

an action in equity is the doctrine of laches. Under the circumstances of

this case, that doctrine would not bar the plaintiff’s claim.

19 Although the plaintiff did not expressly characterize these claims as

alternate grounds for affirmance, it made the claims in its brief and the

defendant had an adequate opportunity to respond. ‘‘ Given the fact that

neither party would be prejudiced by our doing so, we treat [ these claims]

as if [ they] had been properly raised as . . . alternate ground[ s] for

affirmance. See Practice Book § 63- 4.’’ Mannweiler v. LaFlamme, 65 Conn.

App. 26, 34 n. 6, 781 A. 2d 497 ( 2001).

20 Article one, § 10, of the United States constitution provides in relevant

part: ‘‘ No State shall . . . pass any . . . ex post facto Law . . . .’’

21 Article first, § 8, of the constitution of Connecticut provides in relevant

part: ‘‘ No person shall . . . be deprived of life, liberty or property without

due process of law . . . .’’

22 The Appellate Court has considered the retroactivity of § 12- 504a ( a)

in a similar case. See Lathrop v. Board of Tax Review, 18 Conn. App. 608,

559 A. 2d 1160, cert. denied, 212 Conn. 812, 565 A. 2d 536 ( 1989). It concluded

that, when the original classification of the property was before the effective

date of § 12- 504a, and there was a subsequent transfer that otherwise would

have been exempt under § 12- 504c ( k), to allow the exemption would be

an illegal retroactive application of the statute. Id., 611– 12. For the following

reasons, we now overrule that case.

In East Village Associates, Inc. v. Monroe, 173 Conn. 328, 377 A. 2d 1092

( 1977), this court concluded that the then current version of what is now

codified as § 12- 504a ( b) should not be applied retroactively. In that case,

the land in question originally had been classified in 1971, partially as forest

land and partially as farm land. Id., 330. At that time and in 1972, property

owners were required to reapply annually for special classification on or

before October 1 of the relevant year. Id., 330– 31. In 1972, the legislation

now codified as § 12- 504a ( b) was enacted. See P. A. 152. The plaintiff did

not apply for classification that year, apparently to avoid the imposition of

a conveyance tax pursuant to the new statute. Nevertheless, the tax assessor

placed an assessor’s lien on the defendant’s land records, giving notice that

the property was subject to a conveyance tax pursuant to § 12- 504a. East

Village Associates, Inc. v. Monroe, supra, 331. In April, 1973, the plaintiff

conveyed a portion of its land. The town clerk refused to record the deed

until the conveyance tax was paid, and the plaintiff paid under protest. Id.

The plaintiff subsequently sold additional parcels, on which it also paid the

conveyance tax under protest. Id. The Court of Common Pleas determined

that the tax had been improperly imposed retroactively and this court

affirmed that court’s judgment. We rejected the defendant’s argument that

the application was not retroactive because the sale had been after the

effective date of the statute, concluding that ‘‘ both classification and sale

must occur after the effective date of that section to have the tax operate

prospectively.’’ Id., 333. We reasoned that a 1974 amendment providing that

land once classified ‘‘ shall remain so classified without the filing of any new

application subsequent to such classification’’; see Public Acts 1974, No. 74-

343, § 6, now codified as General Statutes § 12- 504h; revealed ‘‘ a legislative

intent to have the tax apply only to landowners who classified their land

with at least constructive notice of the consequence of such action.’’ East

Village Associates, Inc. v. Monroe, supra, 332.

The plaintiff in Lathrop v. Board of Tax Review, supra, 18 Conn. App.

608, had inherited certain land from her husband. At the time of his death

on September 10, 1982, the land was classified as open space and had been

so classified for more than ten years. Id., 609– 10. The opinion does not state

the specific date on which the land was originally classified, but it was

before the effective date of P. A. 152. See id., 613 n. 4. On October 24, 1983,

the plaintiff had the land classified as open space. Id., 610. We assume that

the plaintiff applied for reclassification for the sole purpose of recording

the change in title. The plaintiff sold a portion of the property on September

17, 1986, and the assessor imposed a conveyance tax pursuant to the then

current version of § 12- 504a ( a), which the plaintiff paid under protest. Id.,

610– 11. The plaintiff then appealed to the defendant board of tax review.

The board denied relief, and the plaintiff appealed to the Superior Court.

The trial court granted the defendant’s motion for summary judgment ruling

that ‘‘ a ‘ new [ open space land] classification was begun in [ the plaintiff’s]

name on October 24, 1983,’ ’’ and, therefore, that she could not ‘‘ ‘ utilize [ the

provisions of] General Statutes § 12- 504c ( k) to ‘‘ tack’’ onto the time period

during which her husband held the land as open space.’ ’’ Id., 611. The

Appellate Court affirmed the trial court’s judgment, reasoning that, under

East Village Associates, Inc. v. Monroe, supra, 173 Conn. 328, ‘‘[ b] ecause

the conveyance tax . . . did not apply to land transferred as a result of the

death of a record owner who had classified the land as open space prior

to the effective date of the statute [ because such an application would be

illegally retroactive] . . . the statutory exceptions to that tax statute also

had no application to the transfer by which the plaintiff received the land.’’

( Citation omitted.) Lathrop v. Board of Tax Review, supra, 613 n. 4. Accord-ingly,

the plaintiff’s inheritance of the land under her husband’s will was

not an exempt transaction under § 12- 504c ( k), allowing her to use the

original date of classification as her date of acquisition. Id. The Appellate

Court also concluded that, because the plaintiff had applied for classification

in 1983, § 12- 504a applied to the sale of the land in 1986 and § 12- 504c ( k)

did not apply to that sale because it was not a transfer ‘‘ as a result of death

. . . .’’ Id., 614. Accordingly, the court concluded that the tax properly had

been assessed.

We conclude that the Appellate Court in Lathrop misconstrued our holding

in East Village Associates, Inc. In East Village Associates, Inc., we con-cluded

that the land in question had not been specially classified at the time

that the conveyance tax was imposed. Rather, the defendant had imposed

the conveyance tax on the basis of a classification that the plaintiff deliber-ately

had allowed to lapse under the pre- 1974 version of the statutes in

order to avoid the tax, notice of which it had not had at the time that it

originally applied for classification of the property. In Lathrop, on the other

hand, the property apparently had been continuously classified from the

date of the initial classification up to the time that the plaintiff sold the

property in 1983. Because classification was required to be applied for

annually up to the time of the 1974 legislation now codified as § 12- 504h;

see General Statutes § § 12- 107c, 12- 107d and 12- 107e; it is clear that the

decedent in Lathrop had chosen to continue to classify the property after

the effective date of § 12- 504a with full knowledge of the tax consequences

of that statute. Accordingly, we conclude that the Appellate Court improperly

determined that the application of § 12- 504a, and the exemption from the

application of that statute set forth in § 12- 504c ( k), to the plaintiff’s inheri-tance

of the property would have been retroactive in that case merely

because the initial classification of the property was prior to the effective

date of § 12- 504a.

For purposes of retroactivity analysis, this case is factually indistinguish-able

from Lathrop. We conclude, therefore, that the application of § 12- 504a

et seq. to the transactions at issue in this case is not retroactive.

23 General Statutes § 12- 504h provides: ‘‘ Any land which has been classified

by the record owner as farm land pursuant to section 12- 107c, as forest

land pursuant to section 12- 107d, or as open space land pursuant to section

12- 107e shall remain so classified without the filing of any new application

subsequent to such classification, notwithstanding the provisions of said

sections 12- 107c, 12- 107d and 12- 107e, until either of the following shall

occur: ( 1) The use of such land is changed to a use other than that described

in the application for the existing classification by said record owner, or

( 2) such land is sold by said record owner.’���

24 General Statutes § 12- 504b provides: ‘‘ Said conveyance tax shall be due

and payable by the particular grantor who caused such classification to be

made to the town clerk of the town in which the property is entered upon

the tax list at the time of the recording of his deed or other instrument of

conveyance. Such conveyance tax and the revenues produced thereby shall

become part of the general revenue of such municipality. No deed or other

instrument of conveyance which is subject to tax under sections 12- 504a

to 12- 504f, inclusive, shall be recorded by any town clerk unless the tax

imposed by said sections has been paid. Upon the recording of such deed and

the payment of the required conveyance tax such land shall be automatically

declassified and the assessor shall forthwith record with the town clerk a

certificate setting forth that such land has been declassified. Thereafter,

such land shall be assessed at its fair market value as determined by the

assessor under the provisions of section 12- 63 for all other property, until

such time as a record owner may reclassify such land.’’

25 General Statutes § 12- 504f provides: ‘‘ The tax assessor shall file annually,

not later than sixty days after the assessment date, with the town clerk a

certificate for any land which has been classified as farm land pursuant to

section 12- 107c, as forest land pursuant to section 12- 107d, or as open space

land pursuant to section 12- 107e, which certificate shall set forth the date

of the initial classification and the obligation to pay the conveyance tax

imposed by this chapter. Said certificate shall be recorded in the land records

of such town. Any such classification of land shall be deemed personal to

the particular owner who requests such classification and shall not run with

the land.’’

26 The legislative history of the statutes provides little guidance on how

to reconcile them. The statutes originally were enacted in 1972 to remedy

a situation in which property owners were taking advantage of the lower

property valuation for classified land for property tax purposes, at the

expense of the towns, and then selling the land at a huge profit. See P. A.

152; 15 H. R. Proc., Pt. 4, 1972 Sess., p. 1501, remarks of Representative

James J. Clynes. The legislature subsequently became concerned, however,

that towns were imposing the penalty tax not only on transfers of land by

the owners who initially had classified the land, but also on transfers by

subsequent owners within ten years of the original date of classification.

17 H. R. Proc., Pt. 11, 1974 Sess., pp. 5176– 77, remarks of Representative

Herbert V. Camp. Accordingly, in 1974, the legislature enacted P. A. 74- 343,

which amended § 12- 504a to provide that the ten year holding period would

run from the date that the record owner acquired or classified the property,

whichever was earlier; amended § 12- 504b to provide that the property would

be automatically declassified upon the recording of a deed subject to a

conveyance tax; and amended § 12- 504f to provide that the classification

would be personal to the owner and not run with the land. At the same

time, the legislature enacted the legislation now codified as § 12- 504h in

order to allow a property owner who wishes to classify property to apply

for classification only once rather than annually, as some towns had required.

P. A. 74- 343, § 6; 17 H. R. Proc., Pt. 11, 1974 Sess., p. 5179, remarks of Represen-tative

Gordon M. Vaill. This legislative history does not answer the question

of whether a property should be ( 1) declassified whenever there is a new

record owner, thus providing the new owner with a choice either to classify

the property, reap the benefit of the lower property tax valuation, and

potentially be liable for a conveyance tax or to maintain the property’s

unclassified status; or ( 2) declassified only when a conveyance tax is paid

or the land is sold, and otherwise automatically providing the new owner

with the benefit of the prior owner’s holding period.

27 General Statutes § 45a- 234 provides in relevant part: ‘‘ The following

powers may be incorporated by reference as provided in sections 45a- 233

and 45a- 236 . . . .

‘‘( 2) . . . [ T] o transfer and convey the property or any interest therein,

in fee simple absolute or otherwise free of all trusts. . . .’’

28 We note that ‘‘[ u] pon the death of the owner of real estate, neither the

executor nor the administrator holds title. Ryder v. Lyon, 85 Conn. 245,

252, 82 A. 573 ( 1912). Title immediately descends to the heirs or devisees

of real estate, subject to the right of administration. O’Connor v. Chiascione,

130 Conn. 304, 33 A. 2d 336 ( 1943).’’ ( Internal quotation marks omitted.)

Gallant v. Cavallaro, 50 Conn. App. 132, 137, 717 A. 2d 283 ( 1998), cert.

denied, 528 U. S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d 386 ( 2000). It has been

held, however, that ‘‘ when an administrator takes possession of his or her

decedent’s real estate such possession relates back to the time of decedent’s

death.’’ 34 C. J. S. 110, Executors and Administrators § 282 ( 1998). Accord-ingly,

in such a case the devisees are deemed never to have taken title and,

consequently, an executor exercising his power to transfer property does

not transfer the title from the devisees, but from the estate.

29 The defendant argues, to the contrary, that the phrase ‘‘ transferred as

a result of death by devise or otherwise’’ in § 12- 504c ( k) refers exclusively

to transfers by: ( 1) certificate of devise when the transfer is by will; ( 2)

certificate of descent when the decedent dies intestate; or ( 3) right of survi-vorship

when a joint tenant dies. In the defendant’s view, the statute does

not cover a transfer of estate property by the executors of the estate to a

corporate entity. The defendant cites no legislative history or other authority,

however, in support of its interpretation.