author: Peters, C. J. Shea, J.,

text:
    Ralston Purina Company et al. v. Board of Tax Review of the Town of Franklin Swiss-American Spawn, Inc. v. Board of Tax Review of the Town of Franklin
    (12782)
    (12783)
    Peters, C. J., Healey, Shea, Hull and L. Dorsey, Js.

      Argued March 5
    decision released May 5, 1987

      Palmer A. McGee, Jr., with whom was J. Rene Frechette, for the appellant (defendant in both cases).

      Milton L. Jacobson, with whom was Karen K. Lamb, for the appellees (plaintiffs in each case).
   Peters, C. J.

The dispositive issue in this combined appeal is whether a municipality is required under General Statutes § 12-62 to adjust property tax assessments during interim years between decennial revaluations of real property to account for fluctuations in property values resulting solely from changes in market conditions. The plaintiffs in the first case, Ralston Purina Company (Ralston Purina) and Franklin Mushroom Farms, Inc. (Franklin Mushroom), and the plaintiff in the second case, Swiss-American Spawn, Inc. (Swiss-American), appealed separately to the Superior Court pursuant to General Statutes § 12-118 from the refusal of the defendant, the board of tax review of the town of Franklin (board), to reduce the October 1,1982 tax assessments on their real property and personal property located in that town. In challenging the defendant’s refusal to adjust their tax assessments, the plaintiffs claimed that the fair market value of their property had declined substantially since the last decennial revaluation conducted by the town on October 1,1979, as evidenced by the subsequent sale of the property in 1983 at a price significantly below its assessed value. Since 1979, however, the assessments of their property had not been changed to reflect that decline in its fair market value. The plaintiffs therefore requested that their assessments be reduced and that the town’s grand list be amended accordingly. After a joint trial of the two appeals, the trial court, Hendel, J., sustained the appeals of the plaintiffs in both cases and ordered a reduction in the assessed value of their respective properties. The defendant then filed in this court separate appeals from those judgments. We find error in the ruling by the trial court that the defendant is required, as a matter of law, to adjust the plaintiffs’ tax assessments in the interim period between decennial revaluations of real property.

The record reveals the following underlying facts. In 1977, Ralston Purina acquired approximately 202 acres of land in Franklin. From 1977 to 1979, it constructed and equipped on that site a special purpose building complex designed as a mushroom farm. During that same period, Ralston Purina and Swiss-American jointly constructed and equipped a spawn production facility, located approximately one quarter of a mile from the mushroom farm and designed to produce spawn, a protein product used to grow mushrooms. Ralston Purina commenced operation of the mushroom farm in 1979.

As required by General Statutes § 12-62, the assessors of the town of Franklin conducted in 1979, a ten year revaluation of all real property located in the town, and revised the town’s grand list as of October 1,1979. That grand list indicated that the Ralston Purina property was valued, as of October 1,1979, at an actual value of $11,836,698 and an assessed value of $8,285,689. These valuations were based primarily on data submitted by Ralston Purina to the town’s assessors.

Apart from some minor adjustments resulting from tax benefits authorized by statute, additions to the mushroom farm complex, and the depreciation of personal property, both the actual value and the assessed value of the Ralston Purina property remained the same on the October 1,1980,1981,1982,1983 and 1984 grand lists. Neither Ralston Purina nor Swiss-American, however, has ever challenged the valuation of their respective properties as of the October 1, 1979, 1980 and 1981 assessment dates. Thus, the plaintiffs in these appeals challenge only their tax assessments on October 1, 1982, 1983 and 1984.

Due to increased competition from out-of-state mushroom growers, Ralston Purina faced mounting losses in its mushroom business in 1981 and 1982, and decided in 1982 to sell the Franklin mushroom farm. Shortly after announcing publicly its intention to sell the mushroom business, Ralston Purina received and accepted an offer of $2 million from a group of local investors. Those investors subsequently organized Franklin Mushroom Farms, Inc., a plaintiff in this appeal. The sale was completed on February 9, 1983, when Ralston Purina conveyed to Franklin Mushroom the real estate for $1,265,000 and the farm machinery for $435,000.® Upon conveyance of the real estate, Franklin Mushroom assumed and agreed to pay the taxes assessed on the property.

The plaintiffs filed with the defendant two separate petitions for correction of the assessed value of their respective properties as of October 1, 1982. Furthermore, Ralston Purina and Franklin Mushroom appeared before the defendant and claimed that, for assessment purposes, the fair market value of the mushroom farm should have been reduced to the purchase price paid by Franklin Mushroom for the property in February, 1983. The board denied both petitions, and the plaintiffs appealed to the Superior Court pursuant to General Statutes § 12-118.

In response to the appeal of the plaintiffs Ralston Purina and Franklin Mushroom, the defendant moved for summary judgment, alleging that there was no genuine issue of material fact, and that, as a matter of law, the plaintiffs were bound by the assessments of their property as of the 1979 decennial revaluation. The plaintiffs responded that the assessments on their real and personal property were excessive and did not reflect the “true market value” of that property on October 1, 1982, and October 1, 1983. The trial court, Vasington, J., denied that motion, relying upon General Statutes § 12-63, which provides in part that “[t]he present true and actual value of all other property shall be deemed by all assessors and boards of tax review to be the fair market value . . . .” The court concluded, therefore, that there was a genuine issue of material fact as to the “present and true actual value of the plaintiffs property” on the assessment dates in question and that the issue could only be resolved at trial.

Shortly thereafter, the trial court, Hendel, J., tried the two appeals together. In its memorandum of decision, the court did not discuss whether the plaintiffs in either case were actually entitled to an interim adjustment of their property assessments, adopting the implicit conclusion of the trial court, Vasington, J., that the defendant was in fact obligated to make the requested adjustments. The court focused instead on selecting and applying the appropriate methods for valuation of the plaintiffs’ property. In the appeal by Ralston Purina and Franklin Mushroom, the court found that the mushroom farm operation had been unsuccessful since its inception, principally because of “the influx of fresh mushrooms into the northeastern United States Market area from numerous small mushroom growers located in Pennsylvania.” The court further determined that Ralston Purina’s decision to sell the farm was a “normal business decision to divest an unprofitable operation made in the ordinary course of business,” and that it had not acted “under compulsion” in accepting the $2 million offer by the organizers of Franklin Mushroom, even though it had earlier attempted to sell the mushroom facility for $4 million. Applying the sales comparison valuation method, the court concluded that the actual value of the Ralston Purina property was $3 million and its assessed value was $2,100,000 as of October 1,1982,1983 and 1984. In the second appeal, the court determined that it was appropriate to value the spawn production facility at “its cost less physical, functional and economic depreciation and obsolescence,” and concluded that the actual value of the property was $255,000 and its assessed value was $178,500, as of October 1, 1982, 1983 and 1984. The court therefore rendered judgment for the plaintiffs in both cases and ordered the defendant to adjust their tax assessments accordingly.

On appeal from these judgments, the defendant contends that: (1) as a matter of law, it is not obligated to reduce the tax assessments of the mushroom farm or the spawn production facility in the interim years between decennial revaluations simply because that property declined in value as a result of changes in market conditions in the mushroom industry; (2) it likewise is not required to reduce the tax assessment of the mushroom farm merely because that property was sold in 1983 at a price below its assessed value as of the 1979 decennial revaluation; (3) the trial court improperly relied on Ralston Purina’s sale of the mushroom farm in determining the value of that property; and (4) the trial court erred in refusing to admit into evidence Ralston Purina’s answers to the defendant’s interrogatories. We will address jointly the defendant’s first two claims of error. Because we resolve those claims in favor of the defendant, we need not address its third and fourth claims.

In its first two claims of error, the defendant essentially argues that as a matter of law, under General Statutes § 12-62, it is not obligated to adjust the plaintiffs’ property tax assessments during interim years between decennial revaluations of real property to account for fluctuations in property values resulting solely from changes in market conditions in the mushroom industry. According to the defendant, it may be required to conduct such interim revaluations of real property in certain limited circumstances, but this case does not present such circumstances. We agree.

As noted above, the plaintiffs have brought this appeal under § 12-118, which conditions relief upon proof of failure to comply with § 12-64. Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 627, 438 A.2d 782 (1981); Kays, Inc. v. Board of Tax Review, 170 Conn. 477, 481, 365 A.2d 1207 (1976); Lerner Shops of Connecticut, Inc. v. Waterbury, 151 Conn. 79, 86, 193 A.2d 472 (1963). Section 12-64, which establishes the procedure for taxation of real property in Connecticut, provides that all nonexempt real estate “shall be liable to taxation at a uniform percentage of its present true and actual valuation ... to be determined by the assessors.” It then sets forth a three step procedure for carrying out the statute’s mandate: “(a) The fair value of property as of the assessment date must be determined, (b) A percent, not exceeding 100 percent, of the fair value, must be determined by the assessing authority for uniform application to all property within the town, (c) The assessment value, i.e., the value for the purpose of taxation, for any given piece of property in the town, must be ascertained by applying the determined uniform percent to its fair value as of the assessment date.” Lerner Shops of Connecticut, Inc. v. Waterbury, supra, 85; General Statutes § 12-64; Uniroyal, Inc. v. Board of Tax Review, supra, 623. In the present case, the plaintiffs allege that the defendant failed to comply with § 12-64 in that the defendant assessed their property on October 1, 1982, 1983 and 1984 on the basis of its fair market value as of 1979, rather than assessing it on the basis of its fair market value on those particular assessment dates. The plaintiffs contend that they are therefore entitled, under both statutory law and recent case law, to an interim adjustment of their assessments for the tax years in question.

The defendant resolutely denies that the plaintiffs are entitled to such an adjustment, relying principally upon the language of § 12-62, and this court’s interpretation of that statute in Uniroyal, Inc. v. Board of Tax Review, supra (Uniroyal II). See also Uniroyal, Inc. v. Board of Tax Review, 174 Conn. 380, 389 A.2d 734 (1978) (Uniroyal I). General Statutes § 12-62 (a) provides in part that “[c]ommencing October 1, 1978, the assessors of all towns, consolidated towns and cities and consolidated towns and boroughs shall, no later than ten years following the last preceding revaluation of all real property and every ten years after such revaluation, view all of the real estate of their respective municipalities, and shall revalue the same for assessment . . . . ” The defendant argues that, in light of the municipality’s obligation to revalue property only once every ten years pursuant to § 12-62, the “present and actual value” of the plaintiffs’ property for assessment purposes is its actual value as of the town’s 1979 decennial revaluation, regardless of any subsequent fluctuations in its fair market value due to economic changes in the mushroom industry. Uniroyal II, supra, 629; see General Statutes § 12-64; O’Brien v. Board of Tax Review, 169 Conn. 129, 136, 362 A.2d 914 (1975); Schnier v. Ives, 162 Conn. 171, 177, 293 A.2d 1 (1972); Somers v. Meriden, 119 Conn. 5, 13, 174 A. 184 (1934). Furthermore, although the defendant concedes that, under certain circumstances, such as the destruction or expansion of property, a substantial change in its use or zoning classification, or a decision by the taxpayer to go out of business, it would be required to conduct an interim revaluation of property, it contends that none of those circumstances exists in the present case.

The plaintiffs argue, on the other hand, that § 12-62, by its express terms, requires the revaluation of real property at least once every ten years, but in no way precludes further revaluation during interim years in circumstances such as those presented here. In support of this argument, the plaintiffs place great emphasis upon the express language of § 12-64, which provides that all nonexempt real property shall be taxed at its “present true and actual valuation.” The “present and true actual value” of property is defined in § 12-63 as the “fair market value thereof and not its value at a forced or auction sale.” Under the plaintiffs’ interpretation of these statutes, the “present true and actual” value of their property, on which their tax assessments should have been based, is the price at which the Ralston Purina property was sold in February, 1983. The plaintiffs further contend that the defendant is not merely authorized, but is in fact required to adjust their assessments pursuant to § 12-55, which states in part that “assessors may increase or decrease the valuation of property as named in . . . the last-preceding grand list.” Although § 12-55 appears to be permissive, rather than mandatory, the plaintiffs maintain that, read in context with §§ 12-62 through 12-64, it actually mandates that municipal assessors value property based upon its fair market value during the tax year in question, not as of the last decennial revaluation.

Concededly, none of these statutes that establish procedures for valuing and assessing property expressly addresses the issue of whether assessors are required to conduct interim revaluations of property to account for the effect of changes in market conditions. The plaintiffs’ reading of the statutes, standing alone, is therefore as plausible as the defendant’s interpretation. As the defendant correctly points out, however, the plaintiffs’ argument directly contradicts our interpretation of § 12-62 in Uniroyal II.

We held in Uniroyal II that the decennial revaluation of real property mandated by § 12-62 is the exclusive remedy provided by the legislature “for variations in the effect of market conditions on different parcels . . . .” Uniroyal II, supra, 629. Indeed, the procedure established in § 12-62 reflects the legislative judgment that the remedy of revaluation “need only be available once each decade,” rather than any time property values fluctuate in response to market conditions. Uniroyal II, supra; see Kays, Inc. v. Board of Tax Review, supra, 480; Bassett v. Rose, 141 Conn. 129, 134-35, 104 A.2d 212 (1954). The plaintiffs’ reliance upon § 12-64 is therefore misplaced because § 12-64, in contrast to § 12-62, “is concerned with the manner of taxation, not the frequency of valuation, and it does not purport to require assessors to be updated on their valuations at all times.” Kays, Inc. v. Board of Tax Review, supra; Uniroyal II, supra, 629.

The legislature is vested with broad powers of taxation and may prescribe the conditions and methods of assessment, levy and collection of taxes. Uniroyal II, supra, 626; Bassett v. Rose, supra, 133-34. In our view, the legislature properly exercised that power in enacting § 12-62, which is based upon the legislature’s awareness that, even though property values may fluctuate within a ten year period, it is neither realistic nor necessarily desirable to require more frequent property revaluations. Uniroyal II, supra, 629-30; Kays, Inc. v. Board of Tax Review, supra. The legislature thus deliberately fashioned an assessment scheme designed to require assessors to base property valuations upon more reliable, long term market trends: “Tax assessors are required to recognize and act on the principle that the true value of a fixed asset such as real estate is fairly constant and must be gauged, not by conditions temporary and extraordinary, but by those prevailing over a period of time, and the assessors, in listing values of property for taxation, may, to a certain extent, disregard excesses of a boom as well as the despair of a depression. Alfred J. Sweet, Inc. v. Auburn, 134 Me. 28, 32, 180 A. 803 [1935].” Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 677-78, 154 A.2d 608 (1959); Uniroyal II, supra, 628.

Unless the plaintiffs can provide a convincing rationale for our departure from the interpretation of § 12-62 in Uniroyal II, we are bound by that interpretation. O’Connor v. O’Connor, 201 Conn. 632, 639, 519 A.2d 13 (1986); State v. Castonguay, 194 Conn. 416, 435, 481 A.2d 56 (1984); Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955). On the present record, we are not persuaded of the need to reexamine our interpretation of § 12-62 as mandating general revaluations of real property only once every decade. Uniroyal II, supra, 629. To the contrary, we presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation. Herald Publishing Co. v. Bill, supra, 63; Forman Schools, Inc. v. Litchfield, 134 Conn. 1, 6, 54 A.2d 710 (1947); Cashman v. McTernan School, Inc., 130 Conn. 401, 408, 34 A.2d 874 (1943); Coombs v. Darling, 116 Conn. 643, 646, 166 A. 70 (1933). Since the legislature has not amended § 12-62 subsequent to our decision in Uniroyal II, we can discern no reason now to amend that statute judicially so as to alter the apparent intent of its drafters to preclude, as a general rule, interim revaluations of real property. Burwell v. Board of Selectmen, 178 Conn. 509, 518, 423 A.2d 156 (1979); Dental Commission v. Tru-Fit Plastics, Inc., 159 Conn. 362, 365, 269 A.2d 265 (1970); Herald Publishing Co. v. Bill, supra; State v. Nelson, 126 Conn. 412, 418, 11 A.2d 856 (1940).

The plaintiffs do not mount a frontal attack on Uniroyal II but instead attempt to distinguish it. The plaintiffs in Uniroyal II sought an interim adjustment of their tax assessments because they were allegedly bearing a disproportionately high burden of the taxes in their municipality. Uniroyal II, supra, 623. By contrast, the plaintiffs here do not allege that they have been forced to bear a disproportionate tax burden, but claim only that the fair market value of their property has declined in the interim period between decennial revaluations. In the context of this case, however, this distinction has no significance. Although the plaintiffs here rely upon different grounds in challenging their tax assessments, they seek the same relief requested by the plaintiffs and denied by this court in Uniroyal II, an interim revaluation of their property. As we concluded in Uniroyal II, supra, 629, the legislature, in § 12-62, has precluded such interim revaluations except in unusual circumstances, which did not exist in that case and likewise do not exist here. The plaintiffs presently before us are therefore no more entitled to an interim adjustment of their tax assessments than were the plaintiffs in Uniroyal II.

The principal basis for the plaintiffs’ claim that they are entitled to an interim reduction in their tax assessments is that dramatic economic changes in the mushroom industry have caused the fair market value of their property to decline since 1979. Specifically, the trial court found that these changes in market conditions were initially triggered by an increase in imports of canned mushrooms and processed mushrooms from the Far East, which, in turn, caused a decline in the demand for fresh mushrooms produced by Pennsylvania mushroom growers. Consequently, Pennsylvania mushroom growers shipped their fresh mushrooms into the market previously served by the Franklin Mushroom farm. According to the trial court, these circumstances contributed, in large part, to the unprofitability of the mushroom farm and ultimately led to Ralston Purina’s decision to sell the farm in 1982. The farm was then sold in 1983 for $2 million, a figure well below its assessed value of $7,103,430. Despite the plaintiffs’ claims to the contrary, however, this apparent variation between the 1979 fair market value of the property and its fair market value during the tax years in question, attributable solely to changes in market conditions, is a “permissible variation under the legislative scheme for assessment.” UniroyalII, supra. Under the circumstances of this case, therefore, the defendant is not obligated to conduct an interim revaluation of the plaintiffs’ property. Rather, in light of our holding in Uniroyal II, the only remedy available to the plaintiffs is that provided by the legislature in § 12-62, the general revaluation of real property required only once every decade.

There is error, the judgments of the trial court are set aside and the cases are remanded with direction to render judgments for the defendant in both cases. In this opinion Healey, Hull and L. Dorsey, Js., concurred.

Shea, J.,

dissenting. I disagree with the conclusion reached by the majority that the mandate of General Statutes § 12-64 that property “shall be liable to taxation at a uniform percentage of its present true and actual valuation” (emphasis added) must be satisfied only once in ten years, when the decennial revaluation for all real estate within a town required by General Statutes § 12-62 occurs. The provision of General Statutes § 12-55 that the assessors “shall equalize” the annually filed tax lists of a town, “if necessary,” and authorizing them, in order to enable them to fulfill this duty, to “increase or decrease the valuation of property as named in any of such lists or in the last-preceding grand list” would serve little purpose if yearly adjustments of individual property values were not contemplated when special circumstances pertaining only to one property result in a substantial change in its value.

The majority opinion does not dispute the finding of the trial court, Hendel, J., that the plaintiffs property suffered a decline in value from $11,836,698 in 1979 to $3,000,000 in 1982. This reduction of more than two-thirds resulted from circumstances uniquely concerning the plaintiffs’ property and not affecting other property in the town. The duty imposed by § 12-55 on the assessors to “equalize” assessments on the grand list was, therefore, activated for the tax years 1982 through 1984 and required a corresponding reduction in the assessment of the plaintiffs’ property. A similar duty to “equalize and adjust the valuations and assessment lists” was imposed upon the defendant board of tax review by General Statutes § 12-111.

The statutorily mandated duty to equalize assessments, of course, is not invoked where economic conditions, such as a widespread depression or inflation, have resulted in an increase or decrease in value of substantially all properties within a town. General fluctuations in property values have no disparate impact upon individual taxpayers because they result in assessment deviations from “present true and actual value” that affect all properties alike. Under such circumstances the proportion of the tax burden borne by each taxpayer remains the same.

In Uniroyal, Inc. v. Board of Tax Review, 382 Conn. 619, 627-28, 438 A.2d 782 (1981), upon which the majority opinion primarily relies as justification for ignoring the statutory criterion of “present true and actual value” as the basis for assessments, this court was concerned with the effect upon property values of the inflation that had occurred since the preceding revaluation date. The proper conclusion was reached that such a condition presented no occasion for adjustment of the assessment of any individual taxpayer because no disproportionate tax burden could follow from a general increase in property values within a town. Id., 628-29. The reference in Uniroyal to the “excesses of a boom as well as the despair of a depression,” in addition to the factual context of the case, make it clear that the court was considering only such general market conditions in the remark relied upon by the majority that “the remedy for variations in the effect of market conditions on different parcels is set forth in General Statutes § 12-62,” decennial revaluation. In my view, therefore, Uniroyal is not decisive of the question before us of whether a substantial decline in the value of one property resulting from market conditions or other forces not affecting other properties warrants an assessment adjustment pursuant to the duty to equalize values on the grand list imposed on the assessors by § 12-55 and on the defendant board by § 12-111.

As the majority opinion notes, the defendant board of tax review has conceded that certain circumstances, “such as the destruction or expansion of property, a substantial change in the use or zoning classification, or a decision by the taxpayer to go out of business,” would require an interim revaluation of the affected property. It is difficult to comprehend why a decline in the market for a product, which, as in the present case, may have an equally severe impact upon the value of the property used in its production, should be excluded from this list of situations warranting relief. Although in this instance the taxpayer has not gone out of business, despite the disproportionate tax burden to be borne, the holding of the majority that a substantial decline in the value of a taxpayer’s property resulting from market conditions affecting a single industry justifies a tax adjustment only at ten year intervals is likely to be a significant factor in making such a decision.

“Any circumstances indicating that a disproportionate share of the tax burden is being thrust upon a taxpayer would warrant judicial intervention.” Chamber of Commerce of Greater Waterbury, Inc. v. Waterbury, 184 Conn. 333, 336, 439 A.2d 1047 (1981). Because a substantial decline in the value of the property of one taxpayer that does not affect others, whether occasioned by market conditions or other forces, must inevitably result in his bearing a disproportionate share of the tax burden, I conclude that the duty to equalize assessments imposed by § 12-55 required the reduction in the plaintiffs’ assessments ordered by the trial court and that the judgment should be affirmed.

       General Statutes § 12-62 provides in relevant part: “periodic REVALUATION OF real estate, (a) Commencing October 1, 1978, the assessors of all towns, consolidated towns and cities and consolidated towns and boroughs shall, no later than ten years following the last preceding revaluation of all real property and every ten years after each such revaluation, view all of the real estate of their respective municipalities, and shall revalue the same for assessment and, in the performance of these duties, except in any municipality where there is a single assessor, at least two of the assessors shall act together, and all valuations shall be separately approved by a majority of the assessors.”

       General Statutes § 12-118 provides in relevant part: “appeal FROM BOARD of tax review. Any person, including any lessee of real property 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, claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . . The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. lithe assessment made by the board of tax review is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and costs, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and costs. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and costs. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”
      By amendments to the complaints in each case, the appeals were extended to include the October 1,1983 and October 1, 1984 assessment dates. The plaintiff Ralston Purina Company had filed in the Superior Court a motion requesting that Franklin Mushroom Farms, Inc., be made a party plaintiff in that appeal. The trial court, Goldberg, J., granted that motion on October 25, 1983.

       The complex used as a mushroom farm contained approximately 346,000 square feet and the spawn production facility contained approximately 20,856 square feet. Shortly after the completion of the spawn facility, Ralston Purina sold its one half interest in the facility to Swiss-American, which eventually closed the facility in April, 1983. The plant has not been used since that time and to date remains vacant.

       The property was assessed as of October 1, 1979, at 70 percent of its actual value, which is the uniform percentage applied throughout the town in determining the assessed value of property. See General Statutes §§ 12-63 and 12-64. Due to an error in the calculation of Ralston Purina’s construction costs, however, the property was in fact assessed at 51 percent of its actual value.
      The actual values and assessed values of the Ralston Purina property during the relevant tax years are as follows:

       The assessors of the town of Franklin valued the mushroom farm properties as of October 1, 1982, at án actual value of $10,147,755 and an assessed value of $7,103,430. They valued the spawn facility as of that date at an actual value of $1,193,890 and an assessed value of $835,735. After Swiss-American ceased operations at the facility in April, 1983, the assessors reduced the actual value of the spawn facility as of October 1, 1983, to $975,600 and the assessed value to $682,925. The assessors further reduced the value of the spawn facility personal property as of October 1,1984, to an actual value of $357,690 and an assessed value of $250,360.
      We note that Swiss-American made no claim, either in its written brief or at oral argument before this court, that the cessation of operations at the spawn facility in 1983 constituted a substantial change in use requiring that the property be reassessed for tax purposes. We therefore need not address in this appeal the issue of whether such a change in the use of property would require the assessor of a town to conduct an interim revaluation of the property.

       The record contains a discrepancy as to the actual purchase price of the property. In denying the defendant’s motion for summary judgment, the trial court, Vasington, J., found that on February 9, 1983, Ralston Purina conveyed to Franklin Mushroom the real estate for $1,265,000 and farm machinery for $435,000. Subsequently, the trial court, Hendel, J., found that Ralston Purina had accepted Franklin Mushroom’s offer of $2 million to purchase the assets of the mushroom farm. For purposes of these appeals, we will assume that the Ralston. Purina property was sold for $2 million.

       On the first day of trial, the defendant moved orally for a finding that the plaintiffs in both cases were not aggrieved. See General Statutes § 12-118. The trial court, Hendel, J., orally denied that motion on the ground that the prior ruling of the trial court, Vasington, J., denying the defendant’s motion for summary judgment constituted the law of the case.

       These figures reflect the combined value of the land, buildings and improvements, and personal property.

       These figures reflect the combined value of the land, and buildings and improvements. The trial court did not adjust the value of the personal property because Swiss-American offered no evidence at trial regarding the value of that property.

       General Statutes § 12-64 provides in relevant part: “BEAL estate liable TO TAXATION. EASEMENTS IN AIR SPACE. SEPARATE ASSESSMENT OF THE INTEREST OF A LESSEE. CONDITIONS UNDER WHICH LESSEE OF STATE-OWNED property is subject to tax. (a) All the following-mentioned property, not exempted, shall be set in the list of the town where it is situated and, except as otherwise provided by law, shall be liable to taxation at a uniform percentage of its present true and actual valuation, not exceeding one hundred per cent of such valuations, to be determined by the assessors . . . .”

       For purposes of assessing the value of property, the terms actual valuation, market value, actual value, fair market value, market price and fair value are synonymous. Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 623 n.3, 438 A.2d 782 (1981); Bridgeport Gas Co. v. Stratford, 153 Conn. 333, 335, 216 A.2d 439 (1966).

       “[General Statutes] Sec. 12-63. rule of valuation. The present true and actual value of land 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 shall be based upon its current use without regard to neighborhood land use of a more intensive nature, provided in no event shall the present true and actual value of open space land be less than it would be if such open space land comprised a part of a tract or tracts of land classified as farm land pursuant to section 12-107c. The present true and actual value of all other property shall be deemed by all assessors and boards of tax review to be the fair market value thereof and not its value at a forced or auction sale.”

       General Statutes § 12-55 provides in relevant part: “lists; notice of increase; PUBLIC INSPECTION; abstracts. When the lists of any town have been so received or made by the assessors, they shall equalize the same, if necessary, and make any assessment omitted by mistake or required by law. The assessors may increase or decrease the valuation of property as named in any of such lists or in the last-preceding grand list, but, in each case of any increase in valuation of such property above the valuation, if any, stated by the person filing such list or in each case of any increase of valuation above the valuation of such property in the last-preceding grand list, they shall send written notice by mail of such increase, including in such notice the valuation prior to and after such increase with respect to each parcel of real property or any improvement thereon, the valuation of which has been increased, to the last-known address of the person whose list or valuation is so changed.”

       A professional manual containing guidelines for tax assessors states that the purpose of the decennial revaluation is “to secure a more equitable distribution of the tax burden, to bring the assessment level up-to-date, and to modernize assessment procedures.” Handbook for Connecticut Assessors (Connecticut Association of Assessing Officers, Office of Policy and Management of the State of Connecticut and Institute of Public Service of the University of Connecticut, 1984 Ed.) p. 84. Although this statement of purpose is in no way binding upon us, it does indicate that decennial revaluation figures might well become outdated during the interim period, but that necessary adjustments will be made only once every ten years.

       We note that an argument could be made that general revaluations of property should be conducted more often than once every ten years. It is within the prerogative of the legislature, however, to determine the optimal frequency of such revaluations. Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 629, 438 A.2d 782 (1981); Bassett v. Rose, 141 Conn. 129, 135, 104 A.2d 212 (1954).

       The plaintiffs argue, secondarily, that the mushroom farm and the spawn facility are single purpose properties, specially designed and constructed for growing mushrooms, and located in a district zoned for residential use. Since these facilities cannot readily be converted for use in other industries, the value of the property is inextricably tied to the economic viability of the mushroom industry. In the plaintiffs’ view, this fact further entitles them to an interim adjustment of their tax assessments. The plaintiffs offer no authority, however, for the proposition that the limited versatility and marketability of property has any bearing on a taxpayer’s right to such an interim adjustment.

       The plaintiffs made no claim that these cases present the special circumstances described by the defendant as requiring an interim revaluation of property.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Edward Douglas
    (12945)
    Peters, C. J., Healey, Santaniello, Callahan and Hull, Js.
    Argued March 3
    decision released May 5, 1987

      Jon C. Blue, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Edward Douglas, was charged in an information with attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (4). The charges arose from the attempt of a lone black male to rob the South Green branch of the Connecticut National Bank in Hartford on May 1, 1984. The defendant pleaded not guilty to the charge, electing a jury trial. On April 26, 1985, he was found guilty as charged, and was subsequently sentenced by the trial court to a two year term of imprisonment, the execution of which was suspended, and he was placed on probation for two years and ordered to perform 400 hours of community service. The defendant’s motion for a new trial was denied, and he thereafter filed an appeal to the Appellate Court which was later transferred to this court pursuant to Practice Book § 3004A (now § 4023).

On appeal, the defendant claims that the trial court: (1) erred in ruling that he could not present the expert opinion testimony of a physical anthropologist who analyzed photographs taken by the bank’s surveillance cameras; (2) erred in excluding from evidence photographic exhibits, prepared by the expert witness, which juxtaposed photographs of the defendant with the surveillance photographs; and (3) violated his federal and state constitutional rights to present a defense. We find no error.

I

The only contested issue at trial was identification. The facts relevant to this issue are as follows: Employees of the South Green branch of the Connecticut National Bank testified that the robber entered the bank shortly before the 3 p.m. closing time. He requested information from two tellers, both of whom directed him to a customer service representative. After talking briefly to the customer service representative, the robber returned to the teller to whom he had initially spoken and handed him a note, requesting $12,000 in one hundred dollar bills. The note also threatened that the robber had a gun and that he would start shooting if an alarm were activated. The teller told the robber that he could not comply with his request because “he did not have that kind of money.” The robber persisted, but eventually left the bank empty-handed without further incident.

During the robbery attempt, the bank’s surveillance cameras continually took photographs of the robber while he was at the teller’s window. During the investigation of the robbery, the negatives from the surveillance cameras were turned over to the authorities and developed. As a result, shortly thereafter, the defendant was identified, apprehended, and arrested.

At the trial, three tellers and the customer service representative, all of whom were working in the bank the afternoon of the robbery, testified as part of the state’s case-in-chief. The two tellers who had spoken to the robber each made in-court identifications of the defendant. The other teller and the customer service representative testified as to what had occurred, but they could not identify the defendant at trial. The state also introduced into evidence several photographs of the robber that had been taken by the bank’s surveillance cameras the afternoon of the attempted robbery. Subsequent to the introduction of the surveillance photographs, the state called six acquaintances of the defendant to testify, all of whom identified him as the person depicted in the bank surveillance photographs. Among the witnesses were his former girl friend and her mother, with whom the defendant had been residing at the time of the attempted robbery. In his defense, the accused proffered an alibi and testified that he was not the person depicted in the surveillance photographs. He also called to testify his mother, his current roommate and two acquaintances, all of whom opined that the defendant was not the man shown in the surveillance photographs.

The defendant then attempted to have qualified as an expert witness on the issue of identification, Alan Mann, a “physical anthropologist.” Mann was an associate professor of anthropology at the University of Pennsylvania, where he taught biological anthropology. He also had been, for almost ten years, a consulting forensic anthropologist for the medical examiner in Philadelphia, specializing in the examination and identification of fragmentary human skeletal remains. A primary area of Mann’s research, study and expertise was, in his words, “those minor differences in nose shape, in shape of skeletal features and features that might be minor but, in essence, distinguish us all as individuals and different from anybody else.”

At a lengthy hearing outside the presence of the jury, the defendant made an offer of proof concerning the admissibility of Mann’s testimony. See State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986). At the outset of that hearing, defense counsel informed the trial court that Mann had recently taken photographs of the defendant, that he would compare the photographs he had taken with the bank surveillance photographs and point out “certain distinctions” between the persons depicted. Defense counsel also told the trial court that Mann would express an opinion that the defendant was not the person shown in the bank surveillance photographs.

At the hearing, Mann testified as to the methodology he had used to photograph the defendant and said he believed his methods enabled him to duplicate, as nearly as possible, the conditions under which the surveillance photographs had been taken. He stated that to obtain that result he had gone to the branch bank where the crime had occurred and had observed the lighting, photographed the interior, calculated the angles of the surveillance cameras, and measured the distance between the surveillance cameras and the location where the robber had stood. He further testified that, thereafter, at another location, he had the defendant assume, as closely as possible, the various positions of the person shown in the bank surveillance photographs. He then took a number of photographs of the defendant from, what he determined to be, the angle and distance of the surveillance cameras. After cropping some of the photographs he had taken, and juxtaposing them with the surveillance photographs, he secured them with tape, and compared and analyzed them as to minute physical features: “the shape of his mouth, the size and extent of his nasal area, the shape and size of his jaw area, the size of his brow arches.” As a result of his examination of the photographs, Mann testified that he was convinced the defendant was not the individual depicted in the bank surveillance photographs, and that he could render an opinion to that effect with reasonable scientific certainty. The state objected.

It was brought out during the hearing that the bank surveillance photographs had been taken under fluorescent lighting with a 16mm camera, while Mann’s comparison photographs were taken outside in natural light using a 35mm camera with a 50mm lens. It was further revealed that, when Mann measured the angle of the surveillance cameras, he had assumed the cameras had not been moved since the date of the robbery because they were bolted to the wall; he did not, however, have any direct knowledge to that effect. Also, Mann was not aware of the make of the lens or the quality of film used in the surveillance cameras. On being questioned by the trial court, Mann conceded that in taking photographs of a subject, for the purpose of comparing minute physical features with those of a subject depicted in an existing photograph, differences in the type of camera and lens used, the quality of film, the position of the subject, lighting conditions and camera angle are all variables which could affect his ability to make an accurate comparison.

At the conclusion of the hearing, the trial court ruled that neither Mann’s opinion nor the photographs he had taken and juxtaposed with the surveillance photographs were admissible in evidence. It based its ruling primarily on two factors: that it had not been established that the two sets of photographs had been taken under substantially similar conditions, and that an expertise in photography, which Mann did not possess, was required for the comparison and analysis of the photographs. We agree.

“The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. State v. Girolamo, 197 Conn. 201, 214, 496 A.2d 948 (1985); State v. Biller, 190 Conn. 594, 617, 462 A.2d 987 (1983).” State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); State v. Asherman, 193 Conn. 695, 716, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Biller, supra; State v. Wilson, 180 Conn. 481, 489-90, 429 A.2d 931 (1980); Going v. Pagani, 172 Conn 29, 35, 372 A.2d 516 (1976); State v. Elliott, 8 Conn. App. 566, 572, 513 A.2d 1285, cert. denied, 201 Conn. 813, 517 A.2d 630 (1986). “In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.” State v. Asherman, supra. The essential facts on which an expert opinion is based are an important consideration in determining the admissibility of his opinion. See Berndston v. Annino, 177 Conn. 41, 46, 411 A.2d 36 (1979); Sears v. Curtis, 147 Conn. 311, 314-15, 160 A.2d 742 (1960). “Where the factual basis of an opinion is challenged the question before the court is whether the uncertainties in the essential facts on which the opinion is predicated are such as to make an opinion based on them without substantial value.” State v. Asherman, supra, 716-17. That question is one of fact for the trial court. Liskiewicz v. LeBlanc, 5 Conn. App. 136, 141, 497 A.2d 86 (1985).

It is manifest that there was a good deal of variation between the conditions under which Mann photographed the defendant and those under which the bank surveillance photographs were taken. Mann testified, however, that he had recreated the bank conditions as nearly as possible and that any differences were inconsequential or compensated for and would not affect his ability to render a valid opinion. The trial court was not required to, nor obviously did it, credit Mann’s testimony in that regard. See New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 69, 459 A.2d 999 (1983).

Furthermore, in order to be admissible, the proffered expert’s knowledge must be directly applicable to the matter specifically in issue. State v. Biller, supra; Going v. Pagani, supra; Siladi v. McNamara, 164 Conn. 510, 513-14, 325 A.2d 277 (1973). Although Mann testified that he had taken two courses in photography as a graduate student, used photography in his work and taught a course in scientific photography, the trial court was not compelled to conclude that he possessed the requisite expertise to compare and analyze the two sets of photographs. In explaining its ruling in this regard the trial court stated, “[essentially, the expertise that we’re talking about that is required for that type of analysis is not necessarily that of an anthropologist. In fact, the expertise that is required is a person who is an expert in photography, photography analysis, et cetera. Those qualifications, of course . . . have not been met.”

We cannot conclude, therefore, that the trial court abused its wide discretion or misconstrued the law when it determined that the different conditions under which Mann took the photographs, for comparison with the surveillance photographs, provided a flawed predicate for his opinion. Nor can we conclude that the trial court abused the wide discretion accorded it in evaluating the qualifications of an expert witness when it found that Mann, although an expert in anthropology, lacked the requisite expertise in photography to analyze the allegedly minute distinctions in physical features in the two sets of photographs. See Sears v. Curtis, supra, 314.

II

The defendant next claims that even if Mann’s opinion was inadmissible the trial court erred when it excluded the exhibits Mann had prepared. These exhibits juxtaposed the photographs he had taken of the defendant with those taken by the bank surveillance cameras. The purpose of the defendant’s offer was to allow the jury to compare the photographs side by side and to examine the images depicted therein for dissimilarities. The trial court ruled that, because they were taken under different conditions, to allow Mann’s photographs to be presented in such a fashion would be “misleading” and “prejudicial” to the state. We agree. Whether photographs “show proportions and relations sufficiently to be of value as evidence in the trial of a cause, is a preliminary question to be decided by the court, and as to which its decision can rarely be reviewed.” Harris v. Ansonia, 73 Conn. 359, 364, 47 A. 672 (1900); Livingstone v. New Haven, 125 Conn. 123, 128, 3 A.2d 836 (1939); Voltz v. Orange Volunteer Fire Assn., Inc., 118 Conn. 307, 311-12, 172 A.2d 220 (1934).

III

The defendant finally claims that the rulings of the trial court excluding Mann’s opinion and the juxtaposed photographs deprived him of his federal and state constitutional rights to obtain and present witnesses to establish a defense. We disagree. Not every evidentiary ruling adverse to a defendant is constitutional error. State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). The defendant has put a constitutional tag on a non-constitutional evidentiary ruling. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). The right to call witnesses in his defense does not give the defendant the right to present any witness’ testimony or evidence he chooses. In the exercise of his sixth amendment right to compulsory process “the accused, as required of the State, must comply with the established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Kemp, 199 Conn. 473, 479, 507 A.2d 1387 (1986).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-49. criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a), it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       “[General Statutes] Sec. 53a-134. robbery in the first degree: class B felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       Practice Book § 3004A (now § 4023) provides: “The supreme court may transfer to itself a cause in the appellate court. Except for any matter brought pursuant to its original jurisdiction under the constitution, the supreme court may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1,1983, to the appellate court. The court to which a cause is transferred has jurisdiction.
      “There shall be no fee on such transfer. The chief clerk of the supreme court shall notify all parties and the clerk of the trial court that the appeal has been transferred. A case so transferred shall be entered upon the docket of the court to which it has been transferred and the chief clerk shall require the parties to take such steps as may be necessary to make the appeal conform to the rules of the court to which it has been transferred.”

       The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

       Article first, § 8, of the Connecticut constitution provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence 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. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”


author: Shea, J.

text:
    Golf Digest/Tennis, Inc. v. Orest T. Dubno, Commissioner of Revenue Services
    (12979)
    Peters, C. J., Healey, Shea, Santaniello and Schaller, Js.

      Argued March 10
    decision released May 12, 1987

      Charles H. Lenore, with whom were Robert S. Tobin, pro hac vice, and, on the brief, Kenneth E. Werner and William G. DeLana, for the appellant (plaintiff).

      Paul M. Scimonelli, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Shea, J.

The sole issue in this case, which comes to us by way of reservation, is whether General Statutes § 12-217 authorizes the surviving corporation in a merger or consolidation to deduct from its income the operating loss carryover of the merged or consolidated corporation. The plaintiff, Golf Digest/Tennis, Inc., appealed to the Superior Court from a decision of the defendant commissioner of revenue services holding that the plaintiff had improperly claimed operating loss carryovers in the tax returns it had filed for the years 1980 and 1981. The trial court ordered a reservation upon stipulated facts to determine the propriety of the defendant’s assessment of additional corporation business taxes against the plaintiff. In responding to the first reserved question, which is the only question we need address, we conclude that § 12-217 does not authorize the surviving corporation to deduct the operating loss carryovers of the merged or consolidated corporation for the tax years involved in this case.

The parties stipulated to the following facts. The plaintiff was formed on November 21,1979, under the laws of Delaware, as a corporation into which two Illinois corporations, Golf Digest, Inc., and Tennis Features, Inc., would be consolidated. Because Golf Digest and Tennis Features were each qualified to do business in Connecticut in 1979, both were subject to our corporation business tax. General Statutes §§ 12-213 through 12-242i. In that year Tennis Features recognized a net operating loss for the purpose of the federal tax law of $801,147, of which $540,858 was allocated to Connecticut. See General Statutes § 12-218. On December 31, 1979, Golf Digest and Tennis Features were consolidated into the plaintiff. In 1980 and 1981, Tennis Features, as a division of the plaintiff, continued to operate at a loss.

Relying upon General Statutes § 12-217, which allows a net operating loss of a particular “income year” to be “deductible as an operating loss carry-over in each of the five income years following such loss year,” the plaintiff, in its tax returns for 1980 and 1981, claimed operating loss carryovers of $85,643 and $455,215, respectively, based on the 1979 operating loss of Tennis Features apportioned to Connecticut. After examining these returns, the defendant assessed additional taxes against the plaintiff of $7806.83 and $22,954.34 for 1980 and 1981, respectively, construing § 12-217 not to authorize the deduction by the plaintiff, the surviving corporation, of operating loss carryovers attributable to Tennis Features, the consolidated corporation.

The plaintiff paid the disputed amount of $30,661.17, and then requested a hearing before the defendant commissioner. See General Statutes § 12-236. When the defendant affirmed his assessment and concomitantly denied the plaintiffs requests for correction, the plaintiff appealed to the Superior Court, pursuant to General Statutes § 12-237. In that court, the parties jointly requested that the case be reserved to the Appellate Court for advice on the stated questions of law. See footnote 1, supra. The trial court granted this request, and, after transfer of the appeal to this court, the present proceedings ensued.

We note preliminarily that the parties have stipulated that, for federal tax purposes, the carryover of the 1979 operating loss of Tennis Features was available to the plaintiff for the years in question under § 381 of the Internal Revenue Code of 1954. The stipulation describes the consolidation into the plaintiff as a tax-free reorganization as defined in § 368 (a) (1) (A) of the code. Section 381 expressly provides, inter alia, that, in such a tax-free reorganization, a corporation that acquires the assets of another corporation shall succeed to and take into account the net operating loss carryovers of the distributor or transferor corporation. We further note that it is undisputed that § 12-217 of our General Statutes would authorize Tennis Features itself, had it retained its separate corporate identity, to deduct its 1979 operating loss as a carryover in each of the five subsequent years.

Unlike § 381 of the Internal Revenue Code of 1954, § 12-217 does not specifically address the question of the ability of a surviving corporation to deduct as a carryover the net operating losses attributable to a. consolidated corporation. Because our corporation business tax, including § 12-217, refers to federal tax law in several instances, the plaintiff argues that, in construing § 12-217, we ought to adhere to our established reliance upon federal tax principles. See Skaarup Shipping Corporation v. Commissioner, 199 Conn. 346, 351, 507 A.2d 988 (1986); The B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 7, 490 A.2d 991 (1985); Woodruff v. Tax Commissioner, 185 Conn. 186, 191, 440 A.2d 854 (1981).

The plaintiff cites the decision by the Supreme Court of Ohio in Gulf Oil Corporation v. Lindley, 61 Ohio St. 2d 23, 398 N.E.2d 790 (1980), in support of its proposition that § 381 is the applicable federal rule impliedly incorporated in § 12-217. Interpreting a statute analogous to § 12-217; see Ohio Rev. Code Ann. § 5733.04; the Ohio court addressed the issue of whether a taxpayer succeeds to the net operating losses of its former subsidiaries that have merged into the taxpayer. A related Ohio statute provided that a taxpayer’s method of accounting must be the same as its method of accounting for federal income tax purposes. See Ohio Rev. Code Ann. § 5733.031 (B). The court in Gulf Oil Corporation v. Lindley, supra, 29, stated: “We are persuaded that Sections 381 (a) and (c) prescribe a method of accounting for a net operating loss following corporate acquisitions. These provisions do not create a new deduction; rather, corporations are entitled to deduct net operating loss carryovers under Section 172 of the Internal Revenue Code and [Ohio Rev. Code Ann. §] 5733.04 (I) (1). Section 381 merely fills a gap in Ohio law.”

We reject the notion that § 381 represents merely a method of accounting that must be used to fill a gap in the carryover provisions of § 12-217. Sections 446 through 472 of the Internal Revenue Code discuss methods of accounting, which include the cash receipts or disbursements, accrual, installment, and completed contract methods. Corporations are ordinarily authorized to use their regular accounting method, unless such method does not clearly reflect income. See B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders (4th Ed. 1979) § 1.01, p. 1-4. While the accurate reporting of income is the raison d’etre of the federal provisions regarding accounting methods, § 381 was enacted to provide a comprehensive set of rules for the preservation of tax attributes. “The drafters hoped to protect taxpayers against the loss of favorable tax attributes, as well as to prevent the avoidance of unfavorable ones by paper reorganizations.” B. Bittker & J. Eustice, supra, § 16.10, p. 16-16. Indeed, rather than itself representing a method of accounting, § 381 provides that the acquiring corporation in a corporate reorganization shall succeed to the method of accounting used by the distributor or transferor corporation. See I.R.C. § 381 (c) (4). Thus, despite the pronouncement of the Gulf Oil Corporation court, § 381 appears to be a substantive provision that creates legal rights apart from those set forth in the operating loss carryover provisions of § 172 of the Internal Revenue Code.

Relying upon federal tax principles in attempting to resolve the issue before us does not necessitate finding a wholesale incorporation into § 12-217 of the rules embodied in § 381 of the code. More instructive would be an examination of the federal resolution of that issue under the Internal Revenue Code of 1939, which, like our current corporation business tax, provided no express governing provision. In Libson Shops, Inc. v. Koehler, 353 U.S. 382, 386-87, 77 S. Ct. 990, 1 L. Ed. 2d 924, reh. denied, 354 U.S. 943, 77 S. Ct. 1390, 1 L. Ed. 2d 1542 (1957), the United States Supreme Court discerned no indication in the legislative history of the general carryover provisions as they existed under the 1939 code “that these provisions were designed to permit the averaging of the pre-merger losses of one business with the post-merger income of some other business which had been operated and taxed separately before the merger.” Concluding that the income against which a carryover is claimed must have been produced “by substantially the same businesses which incurred the losses”; id., 390; the Libson court affirmed the denial of the claimed carryover deduction because the business units that had the pre-merger losses continued to have losses after the merger.

As we have stated, the parties stipulated to the fact that Tennis Features, as a division of the plaintiff, continued to operate at a loss in 1980 and 1981. The income against which the plaintiff claimed a carryover for those years was therefore not produced by substantially the same business unit that had suffered the preconsolidation losses. Thus, even if we were to construe § 12-217 as incorporating the principle set forth in Libson, the circumstances of the present case would preclude an application of that principle favorable to the plaintiff for the 1980 and 1981 tax years.

We next examine the history and language of § 12-217. The original predecessor of § 12-217, which was enacted as part of the Corporation Business Tax Act of 1935, c. 66b, § 419c, provided that, “[i]n arriving at net income as defined in section 417c, whether or not the taxpayer is taxable under the federal corporation net income tax, there shall be deducted from gross income, (A) all items deductible under the federal corporation net income tax law effective and in force on the last day of the income year except (1) federal taxes on income or profits, losses of prior years . . . . ” See generally W. T. Grant Co. v. McLaughlin, 129 Conn. 663, 664, 30 A.2d 921 (1943). Section 12-217 retains the exclusion from deductible items of losses of prior years, notwithstanding any availability of such a deduction under federal tax law. See 26 U.S.C. § 172. Our General Assembly, however, in 1973, amended § 12-217 to include a provision allowing the operating loss carryover deduction. That provision reads in part: “Notwithstanding anything in this section to the contrary, (1) any excess of the deductions provided in this section for any income year commencing on or after January 1,1973, over the gross income for such year or the amount of such excess apportioned to this state under the provisions of section 12-218, shall be an operating loss of such income year and shall be deductible as an operating loss carry-over in each of the five income years following such loss year . . . . ”

Section 12-217 provides both that “no deduction shall be allowed for . . . losses of other calendar or fiscal years,” and, nevertheless, that the operating loss of a particular income year shall be deductible as an operating loss carryover in each of the five subsequent income years. “[W]e have uniformly adhered to the view that deductions from otherwise taxable income are a matter of legislative grace and hence are strictly construed against the taxpayer.” Skaarup Shipping Corporation v. Commissioner, supra, 352; see Harper v. Tax Commissioner, 199 Conn. 133, 142, 506 A.2d 93 (1986); The B. F. Goodrich Co. v. Dubno, supra, 8-9. In order to prevail in light of this rule of construction, the plaintiff must establish that § 12-217 clearly and unambiguously authorizes a surviving corporation to claim a deduction for the operating losses that had been incurred by an acquired corporation prior to the consolidation. This the plaintiff cannot do, and therefore it is unable to claim the deduction. Accord Fall River Canning Co. v. Department of Taxation, 3 Wis. 2d 632, 637-38, 89 N.W.2d 203 (1958). As we have stated, “[although corporations would be further benefited by greater availability of loss carryover deductions, that is a consideration for the legislature, not for the courts.” The B. F. Goodrich Co. v. Dubno, supra, 9.

The first question that was reserved to this court stated the issue as follows: “For purposes of the Connecticut Corporation Business Tax, is the surviving corporation in a merger or consolidation entitled to the same treatment under General Statutes § 12-217 with respect to operating loss carryovers of the merged or consolidated corporation as would be accorded to such surviving corporation under the federal corporation net income tax law with respect to the net operating loss carryovers of the merged or consolidated corporation?” For the reasons stated above, our answer to this reserved question is “no.”

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       Three questions of law have been reserved for our advice: “(A) For purposes of the Connecticut Corporation Business Tax, is the surviving corporation in a merger or consolidation entitled to the same treatment under General Statutes § 12-217 with respect to operating loss carryovers of the merged or consolidated corporation as would be accorded to such surviving corporation under the federal corporation net income tax law with respect to the net operating loss carryovers of the merged or consolidated corporation? (B) For purposes of the Connecticut Corporation Business Tax, can the surviving corporation resulting from a merger or consolidation deduct from its income, under General Statutes § 12-217, the operating loss carryover of the merged or consolidated corporation if there is a continuity of business enterprise between the corporations? [and] (C) For purposes of the Connecticut Corporation Business Tax, is the deduction for operating loss carryovers under General Statutes § 12-217 available only to the entity which incurred the operating loss?”
      Because we view the third question essentially to be an alternative phrasing of the issue presented by the first, we shall not separately address the third question. In footnote 4, infra, we explain why we need not fully consider the second question.

       “[General Statutes (Rev. to 1981)] Sec. 12-217. deductions prom gross income. In arriving at net income as defined in section 12-213, whether or not the taxpayer is taxable under the federal corporation net income tax, there shall be deducted from gross income, (A) all items deductible under the federal corporation net income tax law effective and in force on the last day of the income year . . . except no deduction shall be allowed for (1) federal taxes on income or profits, losses of other calendar or fiscal years, retroactive to include all calendar or fiscal years beginning after January 1, 1935, interest received from federal, state and local government securities, if any such deductions are allowed by the federal government, and (2) interest paid during the income year, other than sixty per cent of interest as defined in section 12-213 paid by state banks and trust companies, national banks, mutual savings banks, and savings and loan associations, doing business in this state, in the income year beginning in 1971 and 1972, seventy per cent of such interest in the income year beginning in 1973, eighty per cent of such interest in the income year beginning in 1974, ninety per cent of such interest in the income year beginning in 1975 and one hundred per cent of such interest in each income year thereafter, and ninety per cent of interest paid by all other taxpayers subject to this chapter in the income year beginning in 1973, and one hundred per cent of such interest paid in each income year thereafter. Notwithstanding anything in this section to the contrary, (1) any excess of the deductions provided in this section for any income year commencing on or after January 1, 1973, over the gross income for such year or the amount of such excess allocated and apportioned to this state under the provisions of section 12-218, shall be an operating loss of such income year and shall be deductible as an operating loss carryover in each of the five income years following such loss year, provided the portion of such operating loss which may be deducted as an operating loss carryover in any income year following such loss year shall be limited to the lesser of (a) any net income greater than zero of such income year following such loss year, or in the case of a company entitled to allocate and apportion its net income under the provisions of section 12-218, the amount of such net income which is allocated and apportioned to this state pursuant thereto, or (b) the excess, if any, of such operating loss over the total of such net income for each of any prior income years following such loss year, such net income of each of such prior income years following such loss year for such purposes being computed without regard to any operating loss carryover from such loss year allowed by this sentence and being regarded as not less than zero, and provided, further, the operating loss of any income year shall be deducted in any subsequent year, to the extent available therefor, before the operating loss of any subsequent income year is deducted, and (2) any net capital loss, as defined in the federal corporation net income tax law effective and in force on the last day of the income year, for any income year commencing on or after January 1,1973, shall be allowed as a capital loss carryover to reduce, but not below zero, any net capital gain, as so defined, in each of the five following income years, in order of sequence, to the extent not exhausted by the net capital gain of any of the preceding of such five following income years, and (3) any net capital losses allowed and carried forward from prior years to income years beginning on or after January 1, 1973, for federal income tax purposes by companies entitled to a deduction for dividends paid under the federal corporation net income tax law other than companies subject to the gross earnings taxes imposed under chapters 211 and 212, shall be allowed as a capital loss carryover. ...”

       “[General Statutes] Sec. 12-237. appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under the provisions of this part may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court. . . . Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the treasurer to pay the amount of such relief, with interest at the rate of six per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which may be denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       The inapplicability of the Libson test for the tax years 1980 and 1981, while not ending our effort to construe General Statutes § 12-217 in answering the first reserved question, is dispositive in respect to the second reserved question. Libson Shops, Inc. v. Koehler, 353 U.S. 382, 77 S. Ct. 990, 1 L. Ed. 2d 924 (1957); see footnote 1, supra. Although the plaintiff conceded in oral argument that an affirmative answer by us to the second question would not support its claims for carryover deductions for 1980 and 1981, which are the only claims at issue in this case, the plaintiff urges us nevertheless to decide whether § 12-217 incorporates the Libson test. Such a determination, the plaintiff asserts, will inform its litigation choices with respect to the tax returns it filed for the years subsequent to 1981, when Tennis Features did earn taxable income apportioned to Connecticut. We respond, however, that Practice Book § 4147 (formerly § 3133) provides in part that this court “will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.” Because the second reserved question is not reasonably certain to enter into the decision of this case, and because we do not give advisory opinions; see Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987); we decline to address the second reserved question.

       We note that § 12-217-1 of the Regulations of Connecticut State Agencies, which became effective July 21, 1982, provides: “carryovers, (a) The operating loss carryover provisions are applicable only to a company which was subject to the tax imposed under chapter 208 in, and filed the annual return required to be made for, the year in which the operating loss occurred.
      “(b) The capital loss carryover provisions are applicable only to a company which was subject to the tax imposed under chapter 208 in, and filed the annual return required to be made for, the year in which the capital loss occurred.”
      Because § 12-217-1 was in effect neither during the tax years 1980 and 1981 nor at the time the plaintiff filed its tax returns for those years, this regulation has no bearing on the decision of this case. See General Statutes § 1-1 (u).


author: Peters, C. J.

text:
    State of Connecticut v. Jessie Garrison
    (12731)
    Peters, C. J., Healey, Callahan, Borden and Fracasse, Js.
    Argued April 2
    decision released May 12, 1987

      Timothy H. Everett, with whom, on the brief, were Stuart Friedman and Theodore Baldwin-LeClair, legal interns, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark and Warren Maxwell, assistant state’s attorneys, for the appellee (state).
   Peters, C. J.

The basic issue in this appeal is the sufficiency of the evidence to support the conviction of the defendant, Jessie Garrison, after a trial to the court, of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55 (a) (1) and 53a-55a (a). When this case was first appealed one year ago, we remanded for further articulation by the trial court of its reasons for rejecting the two defenses on which the defendant had relied, self-defense under General Statutes § 53a-19 and defense of premises under General Statutes § 53a-20. State v. Garrison, 199 Conn. 383, 507 A.2d 467 (1986) (Garrison I). In light of the supplemental memorandum subsequently-filed by the trial court, the defendant now renews his appeal from the judgment against him. We find no error.

The underlying facts that led to the charges against the defendant are undisputed. As reported in Garrison I, supra, 385-86, and in the trial court’s three memoranda of decision, the defendant, on January 2, 1982, was visiting at his sister’s Hartford apartment, when the victim, Jeremiah Sharp, arrived on the premises. The victim had been living with the defendant’s sister intermittently for the past four years, and had his clothes in the apartment, but they had recently quarreled anew. The victim arrived intoxicated, and immediately got into an argument with the defendant’s sister, which the defendant tried to stop. The defendant’s sister went to her bedroom, but the argument continued between the defendant and the victim, with the defendant urging the victim to leave.

In the course of the argument between the defendant and the victim, the victim reached inside his jacket and the defendant noticed that the victim had a pistol in his waistband. Although the victim was the larger man, the defendant was younger, alert and sober, while the victim was drunk, staggering and not in full control of himself. The defendant disarmed the victim by removing the pistol from his waistband. The victim then armed himself with a steak knife and advanced toward the defendant with the knife held high. The defendant backed up, and fired a shot, hitting the victim in the left ankle. Instead of backing up further into an adjacent room, the defendant fired a second shot which caused a fatal injury to the victim.

On these facts, the defendant moved for a judgment of acquittal of manslaughter for three reasons. He urged the trial court to conclude that the state had failed to prove beyond a reasonable doubt that: (1) the defendant knew he could avoid using deadly physical force with complete safety by retreating; General Statutes § 53a-19; (2) the defendant was not acting to prevent an attempt by a criminal trespasser to commit a crime of violence on the premises; General Statutes § 53a-20; and (3) the defendant had the requisite intent to cause serious physical injury. The trial court denied this motion and found the defendant guilty as charged. On appeal, the defendant continues to maintain that the state did not meet its burden of proof on the first two of these claims of justification, self-defense and defense of premises. We will address these claims separately. We find neither to be persuasive.

I

A person is justified in using deadly physical force, under the self-defense statute, § 53a-19 (a), only when he reasonably believes such force to be necessary because he “reasonably believes that [his attacker] is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” Even then, under § 53a-19 (b), with exceptions not applicable here, “a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety ... by retreating . . . .” As we noted in Garrison I, supra, 387, § 53a-19 “presents a question of fact about what the defendant himself reasonably believed about his exposure to jeopardy under the circumstances. State v. DeJesus, 194 Conn. 376, 389, 481 A.2d 1277 (1984); State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982).”

Viewing the evidence from this perspective, the defendant maintains that the trial court was in error in its conclusion that his use of deadly physical force was not justified. The trial court determined that “[t]he defendant could not have reasonably believed the use of deadly physical force was necessary if he reasonably believed he could have disarmed the decedent.” The court relied on the defendant’s prior disarming of the victim of his pistol, and on the defendant’s sobriety and alertness in contrast to the victim’s staggering inebriation, in further concluding that “the defendant could have thrown the decedent off balance, disarmed him of his knife, and avoided the use of deadly physical force.” Therefore, according to the court, the defendant’s use of force was excessive. The defendant criticizes these conclusions because they are not based on a finding that the defendant himself knew or believed that he might have been able to avoid using deadly force by disarming his attacker.

The state replies that the trial court was entitled, as the trier of fact, to make a determination about the circumstances as they appeared to the defendant. Such a determination required the court to draw inferences from the facts that had been placed in evidence. State v. Gabriel, 192 Conn. 405, 425, 473 A.2d 300 (1984); State v. Scielzo, 190 Conn. 191, 198-99, 460 A.2d 951 (1983); State v. Iasevoli, 188 Conn. 325, 332-33, 449 A.2d 996 (1982). Inferentially, the court could find that the defendant in fact knew that he could have disarmed the victim and that the defendant was therefore unreasonable in believing that deadly force was necessary. Accordingly, his use of such deadly force was unjustified.

The difficulty with the state’s reply is that the trial court did not make the precise finding upon which the state would have us rely. The court found that the defendant could have disarmed the victim without expressly finding that the defendant knew or believed he could have done so.

We need not decide how to resolve this difficulty because the court was explicit in its alternate finding with regard to the applicability of the defense of self-defense. Under § 53a-19 (b), the use of deadly force that might otherwise have been justifiable is not warranted if someone “knows that he can avoid the necessity of using such force with complete safety . . . byretreating . . . .” The trial court expressly found that the defendant in this case “knew he could retreat with complete safety.” The court based this finding on the defendant’s familiarity with his sister’s apartment, which he had frequently visited, and on the defendant’s position, at the time of the shooting, near the doorway to an adjacent room. Despite the defendant’s claims to the contrary, these were findings that the trial court could appropriately make to sustain its conclusion that the state had met its burden of proof with respect to justification as a matter of self-defense. State v. Braxton, 196 Conn. 685, 691-92, 495 A.2d 273 (1985); State v. Martin, 195 Conn. 166, 173-74, 487 A.2d 177 (1985).

II

Justification for the use of deadly force may also be found in the provisions of § 53a-20 dealing with defense of premises. The defendant in this case relied on that portion of § 53a-20 which permits the use of deadly force by a person who is privileged to be on the premises and who “reasonably believes [such force] is necessary to prevent an attempt by the [criminal] trespasser to commit arson or any crime of violence . . . .’’In order for this section to apply in this case, the defendant would have had to be privileged to be on the premises, and the trial court so found. In addition, the victim Sharp would have had to be a criminal trespasser. The court concluded, to the contrary, that the victim was not on the premises as a criminal trespasser.

The court’s conclusion that the victim was not a criminal trespasser was based upon its factual findings about the nature of the relationship between the victim and the defendant’s sister. Noting that the victim and the defendant’s sister had lived together in her apartment on and off for approximately four years, the court found that their relationship had been marked by a long history of periodic quarrels and reunions: “That the decedent’s visit was to be reinstated or to remove his belongings was standard procedure.” After breaking up a heated argument between his sister and the victim, the defendant himself asked the victim to leave and come back another time. In light of these circumstances, the court concluded that the victim’s conduct did not constitute criminal trespass, which requires, at a minimum, that a person enter or remain on the premises of another person, “knowing that he is not licensed or privileged to do so.” General Statutes §§ 53a-107, 53a-108, 53a-109.

The defendant maintains that this conclusion is in error because, despite the couple’s protracted and stormy relationship, the defendant’s sister had the legal right to protect herself and her apartment from the violence threatened by the victim. Thurman v. Torrington, 595 F. Sup. 1521, 1528 (D. Conn. 1984). That right does not come into issue, however, unless it is exercised in some manifest fashion. As the defendant acknowledges in his brief, the trial court apparently decided that the defendant’s sister had “cried wolf’ too often in the past to give credibility to her actions on the day in question. The court did not find that, because of the history of the couple’s relationship, she lacked the authority to change it for the future. Instead, the court found that, in view of this history and her own intoxication, her order to the victim to leave was simply a part of the couple’s ongoing relationship.

The actor’s knowledge that he is not privileged or licensed to enter or to remain on the premises is a requirement of criminal trespass. State v. Martin, 35 Conn. Sup. 555, 563-64, 398 A.2d 1197 (1978); 2 Model Penal Code and Commentaries (1980) § 221.2, comment 2 (a). Bearing in mind this requirement of scienter, we conclude that the trial court’s determination that the victim was not a criminal trespasser finds support in the subordinate facts that it found.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-55 (a) (1) provides: “manslaughter in the first degree: class b felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”
      “[General Statutes] Sec. 53a-55a. manslaughter in the first degree with a firearm: class b felony: one year not suspendable. (a) A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       General Statutes § 53a-19 provides in relevant part: “USE OF physical force in defense OF PERSON, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.”

       “[General Statutes] Sec. 53a-20. use of physical force in defense OF PREMISES. A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes it is necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises; but he may use deadly physical force under such circumstances only (1) in defense of a person as prescribed in section 53a-19, or (2) when he reasonably believes it is necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or (3) to the extent that he reasonably believes it necessary to prevent or terminate an unlawful entry by force into his dwelling as defined in section 53a-100 or place of work, and for the sole purpose of such prevention or termination.”

       The remand for articulation directed the trial court “to file a supplemental memorandum of decision answering the following questions and articulating the factual basis for its answers: (1) Was the defendant’s use of force excessive because he reasonably believed that he could have disarmed the decedent? (2) Was the defendant’s use of force excessive because he knew that he could retreat with complete safety? (3) Was the decedent on the premises as a criminal trespasser? (4) Was the defendant a person privileged to be in or upon the premises?” State v. Garrison, 199 Conn. 383, 389, 507 A.2d 467 (1986).

       The defendant also argues that, had he retreated, he might have jeopardized the safety of other occupants of the apartment. As the state correctly points out, this argument comes too late, having never been raised before the trial court or in the defendant’s original appeal brief in this court. In any event, the defendant has pointed to no evidence that the victim posed a threat to others in the apartment.

       “[General Statutes] Sec. 53a-107. criminal trespass in the first degree: class a misdemeanor, (a) A person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person; or (2) such person enters or remains in a building or any other premises in violation of a restraining order issued by the superior court.
      “(b) Criminal trespass in the first degree is a class A misdemeanor.”
      “[General Statutes] Sec. 53a-108. criminal trespass in the second degree: class b misdemeanor, (a) A person is guilty of criminal trespass in the second degree when, knowing that he is not licensed or privileged to do so, he enters or remains in a building.
      “(b) Criminal trespass in the second degree is a class B misdemeanor.”
      “[General Statutes] Sec. 53a-109. criminal trespass in the third degree: class c misdemeanor, (a) A person is guilty of criminal trespass in the third degree when (1) knowing that he is not licensed or privileged to do so, he enters or remains in premises which are posted in a manner prescribed by law or reasonably likely to come to the attention of intruders, or fenced or otherwise enclosed in a manner designed to exclude intruders, or which belong to the state and are appurtenant to any state institution; or (2) knowing that he is not licensed or privileged to do so, he enters or remains in any premises for the purpose of hunting, trapping or fishing.
      “(b) Criminal trespass in the third degree is a class C misdemeanor.”