author: Katz, J.

text:
    Lucy Davis v. City of Norwich et al.
    (15066)
    Peters, C. J., and Berdon, Norcott, Katz and Palmer, Js.
    Argued January 3
    decision released February 28, 1995

      Richard S. Bartlett, for the appellants (named defendant et al.).

      Carolyn A. Signorelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant Second Injury Fund).
   Katz, J.

The dispositive issue in this appeal is whether the failure by the named defendant, the city of Norwich, timely to file a notice of its intent to transfer to the defendant second injury fund (fund) its liability for its employee’s claim for disability compensation prevents it from later transferring a claim by the employee’s widow for death benefits. We conclude that it does.

The following facts are undisputed. On March 24, 1984, Leo Davis (decedent) suffered a myocardial infarction that arose during and in the course of his employment as a firefighter with Norwich. As a result of the infarction, the decedent was unable to continue working and on May 2, 1985, he retired from his employment with Norwich. Norwich paid workers’ compensation benefits to the decedent at various times between March 24, 1984, and May 2, 1985, and on a continuous basis from May 2, 1985, until February 25, 1988. At no time did Norwich provide the fund with any notice of its intent to transfer the benefits pursuant to General Statutes (Rev. to 1983) § 31-349. Accordingly, the claim was not transferred to the fund, and Norwich remained liable for the payment of the decedent’s disability benefits.

On February 25,1988, the decedent died as a result of an acute myocardial infarction, arteriosclerotic heart disease and hypertension. The decedent’s treating physician stated that it was highly probable that the decedent’s death was attributable to the 1984 infarction, which in turn had been caused by a preexisting impairment comprised of hypertension, presumed hyperlipidemia and coronary artery disease. Thereafter, on May 16, 1989, Lucy Davis, the decedent’s widow (widow) was awarded dependent’s benefits pursuant to General Statutes (Rev. to 1987) § 31-306. On May 22, 1989, Norwich filed a notice with the fund indicating its intention to transfer its liability for the widow’s benefits under § 31-349. The parties agree that, apart from the issue of timeliness, the claim complied with the notice requirements and met the medical qualifications for transfer under § 31-349. They disagree, however, about whether Norwich’s undisputed failure to file a notice of its intent to transfer to the fund the decedent’s disability claim ninety days before the expiration of the 104 weeks of disability precluded it from transferring the widow’s death benefits claim.

Norwich argues that § 31-349 provides for two distinct and separate claims, one for disability and one for death benefits. According to Norwich, an employer may transfer either or both claims to the fund and must incur a separate 104 week period of liability for each claim. Therefore, Norwich contends that notice of its intent to transfer the death benefits claim to the fund was timely because it furnished notice of that claim to the fund ninety days before the expiration of the first 104 weeks of liability for that distinct claim as required by the statute.

The fund contends that § 31-349 contemplates a single 104 week period of employer liability for any injury regardless of whether the initial claim is for disability, death or a combination of both. Therefore, the fund argues that because the second injury occurred on March 24,1984, and benefits were payable continuously from May 2, 1985, Norwich should have given notice ninety days before the expiration of the 104 week period after the decedent’s 1984 heart attack. Accordingly, it contends that Norwich’s notice of May 22, 1989, of its intent to transfer the death benefits claim was untimely.

After hearings held on March 6, 1992, and July 17, 1992, the workers’ compensation commission ordered the fund to assume liability for the death benefits claim. The fund appealed the commission’s decision to the compensation review board, which reversed the commission’s determination and concluded that because there is only one 104 week period of employer liability for the purposes of § 31-349, the employer has a single opportunity to transfer its liability for benefits to the fund. Because Norwich did not file a notice of its intent to transfer the decedent’s disability benefits claim to the fund after the decedent’s 1984 infarction, the notice to transfer the widow’s 1989 death benefits claim was untimely. Norwich appealed from the decision of the compensation review board to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We agree with the compensation review board’s conclusion and, accordingly, affirm the judgment.

We first look to the controlling statute, § 31-349. Statutory construction is a question of law and therefore our review is plenary. North Haven v. Planning & Zoning Commission, 220 Conn. 556, 561, 600 A.2d 1004 (1991). It is well established that “[although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board.” Civardi v. Norwich, 231 Conn. 287, 298-99, 649 A.2d 523 (1994). A state agency is not entitled, however, to special deference when its “determination of a question of law has not previously been subject to judicial scrutiny.” Dept. of Administrative Services v. Employees’ Review Board, 226 Conn. 670, 679, 628 A.2d 957 (1993). Therefore, although we agree with the compensation review board’s conclusion, we do not accord special weight to its construction of § 31-349.

Section 31-349 provides for shared liability for disability and death benefits compensation. In the case of “an employee who has previously incurred ... [a] permanent physical impairment, [and who] incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone . . . [the employer is responsible for paying the injured employee] compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability.” General Statutes (Rev. to 1983) § 31-349. Thereafter, if proper notice is filed with the fund ninety days before the expiration of the 104 week period, liability for compensation may be transferred to the custodian of the fund. Separately, § 31-349 provides that “[i]f the subsequent injury . . . result[s]in the death of the employee, and it shall be determined that either the injury or death would not have occurred except for such preexisting permanent physical impairment, the employer or his insurance carrier shall . . . pay death benefits as may be due for the first one hundred four weeks.” Again, if proper notice is filed with the fund ninety days before the expiration of the 104 week period, liability for death benefits may be transferred to the custodian of the fund.

We conclude that there are at least two possible interpretations of the language of § 31-349. The statute could be interpreted to require the employer to incur a single 104 week period of liability per injury for a transferable claim beginning with the onset of liability for either disability compensation or death benefits. An alternative interpretation would be that the statute includes two separate and distinct possible claims that may be transferred to the fund: one claim for disability compensation and one claim for death benefits. Such an interpretation would recognize that the two claims are discussed separately in the statute and that each claim depends on different criteria to show the appropriateness of the transfer to the fund.

When we interpret a statute, we search for an effective construction that reasonably accords with the legislature’s intent. Bartholomew v. Schweizer, 217 Conn. 671, 675-76, 587 A.2d 1014 (1991). Because the statutory language is susceptible to more than one plausible interpretation, we look to the statute’s legislative history and the purpose the statute is to serve to ascertain and give effect to the intent of the legislature. Mercado v. Commissioner of Income Maintenance, 222 Conn. 69, 74, 607 A.2d 1142 (1992).

We begin our analysis with a discussion of the fund’s history and the purpose underlying its enactment. The Workers’ Compensation Act (act) initially was interpreted to require an employer to assume total liability for any work related injury suffered by an employee even if the severity of such an injury had been aggravated by a preexisting disability. See, e.g., Fair v. Hartford, Rubber Works Co., 95 Conn. 350, 111 A. 193 (1920), superseded by statute as stated in Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 357, 349 A.2d 847 (1974). Employers therefore hesitated to hire handicapped persons because if a previously injured or disabled employee were then injured on the job, the employer would be required to compensate the employee for the entire resulting disability even though the severity of the second injury might have been attributable substantially to the preexisting condition.

In response, the legislature amended the act to permit employers “to condition the employment of handicapped workers on their written waiver of any future compensation attributable to their physical defects.” Jacques v. H. O. Penn Machinery Co., supra, 166 Conn. 356-57. This protected employers, but left handicapped employees vulnerable to total loss of income if they ever became completely disabled due to a second injury. Id.

Thereafter, in 1945, the legislature established the fund, primarily to encourage the employment of persons with an existing disability and, at the same time, to provide adequate workers’ compensation benefits for them. Civardi v. Norwich, supra, 231 Conn. 293; Hernandez v. Gerber Group, 222 Conn. 78, 82, 608 A.2d 87 (1992); Jacques v. H. O. Penn Machinery Co., supra, 166 Conn. 355. Additionally, by creating the fund, the legislature intended to “relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment”; (internal quotation marks omitted) Civardi v. Norwich, supra, 293, quoting Hernandez v. Gerber Group, supra, 82; Plesz v. United Technologies Corp., 174 Conn. 181, 185, 384 A.2d 363 (1978); Jacques v. H. O. Penn Machinery Co., supra, 356; 2 A. Larson, Workmen’s Compensation Law (1994) § 59.31 (a), p. 10-492.399 and § 59.34 (a) (1), p. 10-528; especially considering that “the combined effect of a successive injury to someone with a preexisting disability can far exceed the combined allowances for each injury existing separately.” Civardi v. Norwich, supra, 294.

In 1967, the legislature amended § 31-349 to include, inter alia, the present limitation of the employer’s liability to 104 weeks. Public Acts 1967, No. 842, § 20. This allocation of liability was intended to charge the employer only with an approximation of those benefits attributable solely to the second, employment related injury. By charging the employer with a predetermined period of 104 weeks of liability, the legislature sought to eliminate the administrative problems inherent in a case-by-case apportionment process. A. Larson, supra, § 59-34 (b), p. 10-553.

In 1971, the legislature added the following notice provision: “As a condition precedent to the liability of the second injury fund, the employer . . . must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. . . .” Public Acts 1971, No. 447, § 1. “ ‘The object of the ninety-day statutory notice is to enable the fund to be apprised promptly of such a claim being made, to obtain a copy of the agreement or award and to have immediate access to all medical reports. Such information is essential to enable the fund to assess promptly its alleged liability and to establish immediately its financial reserves. A further objective is to give the fund a reasonable period of time within which to investigate the claim and to prepare to meet it.’ ” Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 392, 618 A.2d 1340 (1993) (construing notice requirements of § 31-349 to require strict compliance), quoting Plesz v. United Technologies Corp., supra, 174 Conn. 188.

We are persuaded, in light of the legislative history and the purpose of the statute, that the most reasonable construction of § 31-349 is that the 104 week period runs from the time the employee is disabled as a result of the second injury, and that the fund is liable for any combination of disability compensation and death benefits only if the employer gives the fund notice of the second injury at least ninety days before the expiration of that 104 week period. See Jones v. Mansfield Training School, 220 Conn. 721, 726, 601 A.2d 507 (1992) (“[i]f there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable”).

First, the ninety day notice requirement was included to give the fund a timely opportunity to evaluate any claim. Vaillancourt v. New Britain Machine/Litton, supra, 224 Conn. 392. If we were to accept Norwich’s construction and conclude that the statute includes two separate and distinct claims, an employer who had not transferred a disability compensation claim to the fund would have a second opportunity to transfer liability for death benefits. This opportunity could arise many years after the occurrence of the second injury, as it did in this case, and the fund’s ability to evaluate properly such a stale claim would be difficult, if not impossible. Such a construction would defeat the purpose of the notice requirement and foreclose the opportunity for a relevant inquiry into the second claim.

Although in this case Norwich failed to transfer the disability benefits claim within the window following the decedent’s March, 1984 infarction, our conclusion also affects employers that properly transfer disability claims to the fund under § 31-349 after paying the first 104 weeks of disability benefits. If the second injury were later to result in death and a subsequent claim for death benefits were to be made regarding the same injury, Norwich’s interpretation would require an employer to repeat the statutory procedure in order to transfer a death benefits claim to the fund. In addition to assuming liability for an additional 104 weeks for death benefits, an employer would again be required to give proper notice to the fund and demonstrate the cause of death, potentially many years after liability for the disability benefits had been transferred to the fund. Consequently, this construction would require employers to maintain records for an indeterminate amount of time after each disability compensation claim had been transferred to the fund. This tortured construction would undermine the statutory purpose of administrative simplicity. See A. Larson, supra, § 59.34 (b), p. 10-553. Therefore, we decline to interpret § 31-349 to require an employer to assume liability for 208 weeks of compensation any time an employee with a preexisting injury or disability suffers a second injury and later predeceases a dependent who claims death benefits.

Our decision acknowledges that the legislature has implicitly determined that any compensation that must be paid after the initial 104 weeks is attributable to the preexisting injury or the aggravated result of the preexisting condition and the second injury combined. See A. Larson, supra, §§ 59.31 (a) and 59.34 (a)(1). The 104 week period constitutes the following allocation of liability by the legislature: (1) 104 weeks of benefits are allocated to the second, work related injury and are therefore the employer’s responsibility; and (2) any benefits paid after the initial 104 week period are attributable to the preexisting injury, are not the employer’s responsibility and may be transferred to the fund. Id. Norwich’s contention that the employer may be liable for up to 208 weeks of compensation benefits undermines the legislature’s assessment and charges the employer with liability for benefits attributable to the preexisting injury contrary to the legislature’s intent.

Finally, we have repeatedly cautioned that “[pjayment of an award from a special fund such as the second injury . . . fund, which was established, inter alia, to assist in the payment of compensation awarded to handicapped and disadvantaged workers . . . should be made only in accordance with express statutory authority . . . .” (Citations omitted; internal quotation marks omitted.) Civardi v. Norwich, supra, 231 Conn. 294. There is no express authority to transfer death benefits to the fund separately and in addition to disability compensation. Nor is there explicit authority to transfer death benefits to the fund in lieu of compliance with the stated notice provisions when a second injury previously has resulted in an employer’s liability for disability compensation. In light of these considerations, we have regularly required strict compliance with the notice provisions of § 31-349. See Vaillancourt v. New Britain Machine/Litton, supra, 224 Conn. 396; Plesz v. United Technologies Corp., supra, 174 Conn. 188; Kiernan v. Roadway Express, Inc., 15 Conn. App. 625, 630-31, 545 A.2d 1158, cert. denied, 210 Conn. 801, 553 A.2d 615 (1988).

We conclude therefore that § 31-349 requires an employer to assume liability for benefits only during a single 104 week period for any employee who sustains a compensable second injury for which the benefits are properly transferred to the fund. Further, we conclude that an employer must give notice to the fund of any transferable claim ninety days before the termination of that 104 week period and that an employer has only one opportunity to transfer to the fund its liability for benefits incurred because of a second injury. Because Norwich did not notify the fund of its intent to transfer the decedent’s disability compensation claim, we conclude that Norwich’s notice of its intent to transfer the widow’s death benefits claim, four years after the second injury had occurred, was untimely.

The judgment of the compensation review board is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1983) § 31-349 provides: “compensation for SECOND DISABILITY. PAYMENT OF INSURANCE COVERAGE FOR TOTALLY INCAPACITATED PERSONS. The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. Failure on the part of the employer or the carrier to comply does not relieve the employer or carrier of its obligation to continue furnishing benefits under the provisions of this chapter. In the event the custodian shall reject the claim of the employer and its insurer, the question shall be submitted to the commissioner having jurisdiction, as promptly as possible, and the employer or carrier shall continue furnishing benefits until the outcome is finally decided, and if the employer or carrier prevails all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or carrier by the second injury fund. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation and medical bills have been paid for the one-hundred-four-week period, and indicating thereon the date the custodian was notified of the pending case. Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. If the subsequent injury of such an employee resulting from an accident arising out of and in the course of his employment shall result in the death of the employee, and it shall be determined that either the injury or death would not have occurred except for such preexisting permanent physical impairment, the employer or his insurance carrier shall, in the first instance, pay the funeral expense described in this chapter, and shall pay death benefits as may be due for the first one hundred four weeks. Ninety days prior to the expiration of the one-hundred-four-week period, the employer or his insurance carrier shall notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation has been paid for the one-hundred-four-week period, and indicating thereon the date that the custodian was notified of the pending case. Thereafter all responsibility for compensation shall be with the custodian of the second injury fund. Employees shall not be denied any of the benefits provided by any provisions of this chapter by reason of the execution of an acknowledgment of physical defect, but the benefits specified in this chapter which would be payable except for the execution of such acknowledgment shall be paid entirely out of the second injury fund. Claims for such benefits shall be filed with the commissioner, who shall refer such claims to the custodian of the second injury fund as specified above. The custodian of the second injury fund may make payment by way of final settlement in any matter concerning the fund, subject to the approval of the commissioner, when it is for the best interests of the injured employee. In any case where workers’ compensation payments to an individual for total incapacity under the provisions of section 31-307 continue for more than one hundred four weeks, the cost of accident and health insurance or life insurance coverage required under section 31-284b shall be paid out of the second injury fund after the one hundred fourth week. Employers shall notify the custodian of the second injury fund within sixty days of the expiration of the one-hundred-four-week period that such coverage is required.”

       General Statutes (Rev. to 1987) § 31-306 provides in pertinent part:
      “death resulting from accident or occupational disease, dependents. compensation, (a) The following-described persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee and are referred to hereinafter as presumptive defendants: (1) A wife upon a husband with whom she lives at the time of his injury or from whom she receives support regularly ....
      “(b) Compensation shall be paid on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows:
      “(1) There shall be paid the sum of three thousand dollars for burial expenses. If there is no one wholly or partially dependent upon the deceased employee, the burial expenses of three thousand dollars shall be paid to the person who assumes the responsibility of paying the funeral expenses.
      “(2) To those wholly dependent upon the deceased employee at the time of his injury, a weekly compensation equal to sixty-six and two-thirds per cent of the average weekly earnings of the deceased at the time of injury but in no case more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred or less than twenty dollars weekly. In the case of an occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease. . . .
      “(3) If the surviving spouse is the sole presumptive dependent, compensation shall be paid until death or remarriage if such should occur. ...”

       For purposes of clarification, we note that Norwich seeks relief under General Statutes (Rev. to 1987) § 31-349, the effective statute at the time of the decedent’s death. The portions of the statute pertinent to this case are substantively identical to General Statutes (Rev. to 1983) § 31-349 and the parties do not argue that they are distinguishable. Because our analysis assumes that the second injury occurred in 1984; see footnote 4; we apply General Statutes (Rev. to 1983) § 31-349 to this case.

       We assume that the decedent’s disability claim for the 1984 infarction was transferable as a second injury to the fund but for the failure of Norwich to file proper notice of that claim. The compensation review board apparently made the same assumption and the fund explicitly assumes that the disability claim was transferable. According to § 31-349, the employer has the burden to show that it is in compliance with the statute and entitled to transfer the widow’s death benefits to the fund. General Statutes (Rev. to 1983) § 31-349. In this case, the transferability of the first claim determines whether notice of the widow’s death benefits claim was timely. Therefore, Norwich had the burden to show that the 1984 claim was not transferable. The record is devoid of evidence that would indicate the disability claim was not transferable. Rather, a letter from the decedent’s treating physician indicates that the 1984 infarction was the result of a preexisting condition.

       In order to transfer a disability compensation claim, the employer must show that the disability is “materially and substantially greater than that which would have resulted from the second injury alone.” General Statutes (Rev. to 1983) § 31-349. In contrast, pursuant to § 31-349 death benefits may be transferred if the employer shows that “death would not have occurred except for [the] preexisting . . . impairment . . . .”

       If an employer were to seek to transfer to the fund a later claim for death benefits, it would have to show that ‘ ‘death would not have occurred except for [the] preexisting . . . impairment . . . .” General Statutes (Rev. to 1983) § 31-349. The employer would be required, therefore, to maintain all information pertaining to the preexisting injury, and because it would be impossible to predict which disability claims might subsequently result in death benefits claims, the employer would be forced to maintain files on all disability claims that were transferred to the fund.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Foodways National, Inc. v. Allan A. Crystal, Commissioner of Revenue Services
    (15037)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.
    Argued January 5
    decision released February 28, 1995

      Richard W. Tomeo, with whom was Linda L. Morkan, for the appellant (plaintiff).

      Richard K. Greenberg, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Peters, C. J.

In this tax appeal, the dispositive issue is whether, pursuant to General Statutes (Rev. to 1993) § 12-218 (b), a multistate corporation’s payments for warehouse space should be taken into account in determining the fraction of corporate net income apportioned to Connecticut. The plaintiff, Foodways National, Inc. (Foodways), appealed to the Superior Court, pursuant to General Statutes (Rev. to 1989) § 12-237, from a decision of the defendant, Allan A. Crystal, the commissioner of revenue services (commissioner), in which the commissioner had assessed an additional corporate business tax against Foodways for the tax years 1985 and 1986. The trial court rendered judgment for the commissioner. Foodways then filed an appeal with the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The parties stipulated to the relevant facts. Foodways is a multistate corporation that is incorporated in Delaware and has its principal place of business in Idaho. It is engaged in the business of processing and distributing prepared frozen food products throughout the country. It entered into contracts for warehouse space with public refrigerated warehouses around the country in order to preserve its products while making them available for distribution.

The warehouse storage contracts did not afford Food-ways control over any specific part of the warehouse premises but instead entitled it to a stated number of cubic feet of storage space. In return for Foodways’ promise to maintain a certain average monthly level of inventory of its products in storage at the warehouse, the warehouse agreed to reserve the necessary floor space. Foodways paid a stated “rate” per gross hundredweight of the products that it had stored in the warehouse. In addition, Foodways paid the warehouse separate fees for handling, including a commitment by the warehouse to load rail cars and trucks in accordance with schedules provided by Foodways.

During the tax years 1985 and 1986, Foodways conducted sufficient business in Connecticut to be subject to the Connecticut corporation business tax. In filing its tax returns, Foodways calculated the amount of its income to be allocated to Connecticut pursuant to § 12-218 (b) by including, as “gross rents,” the amounts it had paid for warehouse fees but not the amounts it had paid for handling costs. The commissioner issued a corporate business tax assessment against Foodways, which, after Foodways’ unsuccessful protest of the assessment, was found to be $124,199.26 plus interest of $106,793.08 for a total amount of $230,992.34. With regard to all Connecticut taxpayers, the commissioner has consistently taken the position that “[wjarehouse storage fees are not considered a rent expense under the definition of [§ 12-218].”

The trial court upheld the validity of the commissioner’s assessment. Despite the definition of “gross rents” in § 12-218 (b) as “money . . . payable . . . by the taxpayer . . . for the use or possession of the property,” the court ruled that fees paid for warehouse space do not qualify for inclusion within the property factor unless the taxpayer has rented property that is tangible. Characterizing the transactions between Foodways and the warehouses as bailments rather than as leases, the court concluded that the warehouse contracts did not involve the rental of tangible property. On that basis, the court held that Foodways’ warehouse fees could not be included within the property factor of the apportionment statute. The court also rejected Foodways’ alternate claim that the commissioner could not rely on his interpretation of the statute on a case-by-case basis but was required, instead, to implement his interpretation through the promulgation of a regulation.

Foodways has raised three issues on this appeal. It argues that the trial court: (1) used an incorrect standard of construction in its analysis of § 12-218; (2) misapplied § 12-218 in the circumstances of this case; and (3) improperly permitted the commissioner to rely on an interpretation of § 12-218 for which the commissioner had not promulgated a regulation. Because we agree with Foodways’ first two claims, the judgment of the trial court must be reversed. We therefore need not consider Foodways’ third claim.

I

The basic contours of the state’s exercise 'of its taxing power with respect to multistate corporations are not at issue. The underlying tax is the Connecticut corporation business tax; General Statutes c. 208; which is “in the nature of an excise tax levied against domestic and foreign corporations alike, for the privilege of doing business in a corporate capacity within this State.” (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Tax Commissioner, 178 Conn. 243, 247, 423 A.2d 883 (1979). “Section 12-214 (a), which imposes the corporation business tax, provides that the tax is ‘to be measured by the entire net income . . . from business transacted within the state during the income year,’ while § 12-218 provides a measure to determine the taxable net income of multistate corporations to be apportioned to this state. Altray Co. v. Groppo, [224 Conn. 426, 432-33, 619 A.2d 443 (1993)]; Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, [202 Conn. 583, 589-91, 522 A.2d 771 (1987)]; Schlumberger Technology Corporation v. Dubno, [202 Conn. 412, 415-16, 521 A.2d 569 (1987)].” Kelly-Springfield Tire Co. v. Bajorski, 228 Conn. 137, 142, 635 A.2d 771 (1993). Within the constraints that the commerce clause and the due process clause of the United States constitution impose on state tax powers, § 12-218 serves to quantify the presence of a multistate corporation in this state and elsewhere. See id., 143; Altray Co. v. Groppo, supra, 434.

In construing § 12-218, we have consistently held that apportionment of a multistate corporation’s taxable income between other states and Connecticut involves the imposition of a tax rather than the availability of an exemption. Accordingly, any ambiguity in the application of § 12-218 must be resolved in favor of the taxpayer and against the commissioner. Kelly-Springfield Tire Co. v. Bajorski, supra, 228 Conn. 143; Altray Co. v. Groppo, supra, 224 Conn. 435.

The trial court questioned the validity of this principle of construction in light of the possibility that different multistate corporate taxpayers might find it in their interest to advocate different constructions of § 12-218 depending on the nature of their business in Connecticut and elsewhere. On the present record, however, such a consideration is purely speculative. Foodways has sought a construction of “gross rents” which, according to the stipulation between the parties, the commissioner has consistently rejected. There is, therefore, no discernible reason to fear that resolution of this ambiguity in § 12-218 in accordance with our well established principles creates a risk of inconsistent interpretations of the statute.

II

The property factor is one of the three factors that, under § 12-218 (b), must be calculated for the purpose of allocating the income of a multistate corporation to this state. The property factor requires the taxpayer to compute the value of “tangible property” in Connecticut that is “held and owned by the taxpayer” or “rented to the taxpayer,” and then to compare that value to the value of all tangible property that is held and owned by, or rented to, the taxpayer. In conjunction with rentals to the taxpayer, § 12-218 (b) defines “gross rents” as “the actual sum of money or other consideration payable, directly or indirectly, by the taxpayer or for its benefit for the use or possession of the property, excluding royalties, but including interest, taxes, insurance, repairs or any other amount required to be paid by the terms of a lease or other arrangement.”

The trial court agreed with Foodways that the warehouse space that is the subject of the warehouse contracts in this case could, in some circumstances, qualify as “tangible property” within the meaning of § 12-218 (b). The court nonetheless concluded that the warehouse fees paid by Foodways were not rental payments under § 12-218 (b) because, in the absence of control over a specific part of the warehouse premises, Foodways was merely a bailor and, in that capacity, had not rented any “tangible property.”

The specific issue raised by this appeal, therefore, is whether § 12-218 (b) includes, as rental payments, fees that a taxpayer has agreed to pay to a warehouse that commits itself to make available a specific amount of space rather than a specific location for the space. As a matter of statutory construction, this issue requires us to reconcile the prefatory language of § 12-218 (b) that the property factor measures “the value of tangible property rented to the taxpayer” with the subsection’s subsequent capacious definition of “gross rents” to include payments for “the use or possession of the property” pursuant to “the terms of a lease or other arrangement.”

On its face, the statutory definition of “gross rents” includes Foodways’ warehouse storage fees. Foodways is paying for the “use” of space, and such “use,” under the statute, need not arise out of a possessory interest. Foodways’ contracts are “arrangements,” and such “arrangements,” under the statute, need not take the form of leases.

The force of this facial analysis of § 12-218 (b) is not diminished by the fact that the contracts between Food-ways and its warehouses have some of the features of a bailment. Although Foodways’ warehouse storage contracts resemble bailments because the contracts do not reserve specific space to Foodways, the contracts nonetheless have the essential characteristics of rental arrangements with respect to the fees that Foodways pays for storage, because these fees do not include handling costs associated with the storage of Foodways’ products. For tax purposes, it is significant that, unlike ordinary contracts of bailment, Foodways’ contracts “unbundle” storage fees from handling fees. There is no automatic carryover from the common law attributes of a bailment, which were largely designed to allocate risks of loss, to the implications of such a business relationship for the apportionment of a multistate corporation’s income to this state. See McKesson & Robbins, Inc. v. Walsh, 132 Conn. 158, 162-63, 42 A.2d 841 (1945). The storage contracts between Foodways and its warehouses fall literally within the definition of rental arrangements contained in § 12-218 (b).

The commissioner argues, nonetheless, that the express language of the statutory definition of “gross rents” must be limited in accordance with the statutory requirement that the taxpayer’s payments qualify as “tangible property rented to the taxpayer.” Undesignated space, the state maintains, cannot be “tangible property.” The commissioner, however, cites no text, legislative history or policy that supports his interpretation. Indeed, contrary to the commissioner’s argument, the text of § 12-218 suggests that the legislature may have used the term “tangible property” not to distinguish between definite space and undesignated space, but to distinguish tangible property from “intangible assets” such as stocks, bonds, bank accounts and the like. Such a distinction arguably is reflected in the fact that, in describing the receipts factor, § 12-218 lists “intangible assets” and “tangible property” separately. Moreover, while there may be a policy reason for excluding intangible assets from the property factor— that such assets often cannot be said to be located in a particular state; see J. Warren, “Income Taxes: Principles of Formulary Apportionment,” Tax Management Multistate Tax Portfolio Series § 1150.05.B (1994)— that policy reason does not apply to warehouse space, which, even if undesignated, is located in a particular state. The best that can be said for the commissioner’s argument is that the juxtaposition of the various phrases used by the legislature in describing the property factor creates an ambiguity about the meaning of the “use” of property by an “arrangement” that is not a lease. Such an ambiguity must, however, be resolved in favor of the taxpayer, Foodways. See part I of this opinion.

We note finally that a construction of § 12-218 (b) to include warehouse storage fees as rental payments is consistent with the view taken in other jurisdictions. The parties have cited no judicial decision that is directly on point and we have found none. Regulations issued elsewhere, however, support the result that we have reached. We have recognized that § 12-218 to a significant extent parallels the Uniform Division of Income for Tax Purposes Act (UDITPA); Texaco, Inc. v. Groppo, 215 Conn. 134, 141-42 n.6, 574 A.2d 1293 (1990); Schlumberger Technology Corp. v. Dubno, supra, 202 Conn. 417 n.5; and regulations published pursuant to UDITPA treat payments for the use of warehouse storage space as rental payments. Multistate Tax Commission Regs. IV.ll.(b) [.30] (3) and example (ii), 2 CCH Multistate Corporate Income Tax Guide f8274. Taxing authorities in several jurisdictions that have adopted UDITPA have specifically promulgated conforming regulations as well.

The judgment is reversed and the case is remanded with direction to sustain the appeal.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1993) § 12-218 provides in relevant part: “apportionment of net income. Any taxpayer which is taxable both within and without this state shall apportion its net income as provided in this section. . . . The net income of the taxpayer shall be apportioned as follows . . . (b) when derived from the manufacture, sale or use of tangible personal or real property, the portion thereof attributable to business within the state shall be determined by means of an apportionment fraction to be computed as the sum of the property factor, the payroll factor and twice the receipts factor, divided by four. The first of these fractions, the property factor, shall represent that part of the average monthly net book value of the total tangible property held and owned by the taxpayer during the income year which is held within the state, without deduction on account of any encumbrance thereon, and the value of tangible property rented to the taxpayer computed by multiplying the gross rents payable during the income year or period by eight. For the purpose of this section, gross rents shall be the actual sum of money or other consideration payable, directly or indirectly, by the taxpayer or for its benefit for the use or possession of the property, excluding royalties, but including interest, taxes, insurance, repairs or any other amount required to be paid by the terms of a lease or other arrangement .... The second fraction, the payroll factor, shall represent the part of the total wages, salaries and other compensation to employees paid by the taxpayer during the income year which was paid in this state .... The third fraction, the receipts factor, shall represent the part of the taxpayer’s gross receipts from sales or other sources during the income year, computed according to the method of accounting used in the computation of its entire net income, which is assignable to the state, and excluding any gross receipts attributable to an international banking facility as defined in section 12-217, but including receipts from sales of tangible property if the property is delivered or shipped to a purchaser within this state . . . receipts from services performed within the state, rentals and royalties from properties situated within the state, royalties from the use of patents or copyrights within the state, interest managed or controlled within the state, net gains from the sale or other disposition of intangible assets managed or controlled within the state, net gains from the sale or other disposition of tangible assets situated within the state and all other receipts earned within the state . . . .”

       General Statutes (Rev. to 1989) § 12-237 provides in relevant part:
      “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.”
      A tax appeal pursuant to § 12-237 entitles a taxpayer to a trial de novo. See Practice Book § 4095 (b); Kelly-Springfield Tire Co. v. Bajorski, 228 Conn. 137, 141, 635 A.2d 771 (1993); Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 588, 522 A.2d 771 (1987); Schlumberger Technology Corp. v. Dubno, 202 Conn. 412, 421, 521 A.2d 569 (1987).

       Although the actual contracting party was an affiliated company, Ore-Ida Foods, Inc., that company’s contracts were for the benefit of Food-ways. The parties stipulated at trial that the identity of the contracting party is inconsequential in this case. For analytic simplicity, we therefore refer to Foodways as the party entering into the warehouse contracts and as the party paying the warehouse fees.

       General Statutes § 12-214 provides in relevant part: “imposition of TAX. (a) Every . . . company carrying on, or having the right to carry on, business in this state . . . shall pay, annually, a tax or excise upon its franchise for the privilege of carrying on or doing business, owning or leasing property within the state in a corporate capacity . . . such tax to be measured by the entire net income as herein defined received by such corporation or association from business transacted within the state during the income year . . . .”

        Zweeres v. Thibault, 112 Vt. 264, 23 A.2d 529 (1942), on which the trial court relied to the contrary, neither reflected a contractual division of fees nor did it consider the tax consequences of a bailment.

       The commissioner cites Alconox, Inc. v. New York State Tax Commission, 114 App. Div. 2d 575, 494 N.Y.S.2d 432 (1985), but that case arose under a regulation expressly excluding “amounts payable for storage, provided such amounts are payable for space not designated and not under the control of the taxpayer . . . .” 20 New York Corp. Income Regs. § 4-3.2 (c) (3), New York Tax Reports K9-749.

       Except for Alabama, which has adopted UDITPA by adoption of the Multistate Tax Compact; Ala. Code § 40-27-1 (1993); the statutory provisions in these states, like our § 12-218 (b), define the property factor to include property that is rented to the taxpayer. Cal. Rev. and Tax. Code § 25129 (West 1993); Ill. Rev. Stat. c. 35, 1304 (1) (1993); Idaho Code § 63-3027 (j) (1993).

       Ala. Regs. § 810-3-31.-02. (5) (a) (V) II B; California Code Regs, tit. 18, § 25130 (b) (3) (B); Ill. Regs. § 100.3350 (3) (B) (ii); Idaho Regs. § 27,4.11.b.iii. (b) Ex. 2.


text:
    Richard Pauker et al. v. Linda Roig et al.
    (14984)
    Peters, C. J., and Berdon, Norcott, Katz and Palmer, Js.

      Argued January 3
    decison released February 28, 1995

      Lawrence P. Weisman, with whom, on the brief, was Andrew R. Tarskis, for the appellants (plaintiffs).

      Christopher J. Jarboe, for the appellees (defendants).
   Peters, C. J.

In this tax appeal, the only issue is whether it is proper to revalue and reassess real property once a subdivision of the property has been approved and recorded, even though the conditions attached to the subdivision approval have not yet been fulfilled. The plaintiffs, Richard and Joyce Pauker (taxpayers), filed an amended complaint pursuant to General Statutes § 12-119, alleging that the defendants, Linda Roig, the tax assessor of the town of Weston, and the town of Weston had grossly overvalued the taxpayers’ property. Both parties moved for summary judgment. The trial court denied the motion of the taxpayers and granted the motion of the defendants for summary judgment. The taxpayers appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The facts are undisputed. The taxpayers, as trustees, owned three contiguous parcels of land in Weston that consist of approximately eighty-two acres. On July 22,1991, the Weston planning and zoning commission approved the taxpayers’ application for a subdivision of the three parcels into twenty-nine lots, with roads and dedicated open space. The subdivision approval allowed the taxpayers to proceed with development in two phases, a first phase comprising seven lots, and a second phase comprising the remaining twenty-two lots. Construction of phase I began promptly. Under the terms of the subdivision approval, however, before construction could begin on phase II, the taxpayers were required to comply with specified conditions including engineering studies and plans for dealing with drainage concerns. Despite the costs and delays associated with the required performance of these conditions, the taxpayers did not appeal the validity of the subdivision approval. On August 29, 1991, the taxpayers recorded subdivision maps on the Weston land records for the entire subdivision project.

After the recordation of the subdivision maps, the tax assessor prepared new field cards for the 1991 grand list for each of the lots in the approved subdivision. Written notice of the assessments was sent to the taxpayers. The taxpayers appealed only the assessments on lots eight through twenty-nine (phase II) of the subdivision. The board of tax review reduced the assessment on these lots from $4,009,760 to $3,007,320. The present record does not disclose whether the taxpayers took an appeal from the decision of the board of tax review.

Instead, the taxpayers initiated a plenary action, pursuant to § 12-119, in which they claimed that their tax assessments are so manifestly excessive as to be illegal. They maintained that the defendants had exceeded their authority by undertaking an interim revaluation of the taxpayers’ property simply because the subdivision approval had been granted and recorded. In the view of the taxpayers, until they have actually fulfilled the conditions incorporated in the subdivision approval, their property should not be revalued and reassessed. The trial court disagreed with the taxpayers’ contention in light of the provisions of General Statutes § 12-42, which requires separate assessments of separate lots, and General Statutes § 12-55, which authorizes reassessments “required by law.”

In their appeal, the taxpayers renew their argument that the conditional approval of their subdivision application does not justify an immediate revaluation and reassessment of their property as individual building lots because, until the conditions are satisfied, the property cannot be further developed and the lots cannot be sold. We agree with the trial court that this argument is unpersuasive.

The principles that govern a complaint filed pursuant to § 12-119 are not in dispute. In contrast to § 12-117a, which allows a taxpayer to challenge the assessor’s valuation of his property, § 12-119 allows a taxpayer “to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was ‘manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property . . . .’ (Emphasis added.) Our case law makes clear that a claim that an assessment is ‘excessive’ is not enough to support an action under this statute. Instead, § 12-119 requires an allegation that something more than mere valuation is at issue.” Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 339-40, 597 A.2d 326 (1991); accord Connecticut Light & Power Co. v. Oxford, 101 Conn. 383, 392, 126 A. 1 (1924).

To fit their claim for relief within § 12-119, the taxpayers have advanced three arguments. They maintain that the reassessment of their property was illegal because: (1) the conditional subdivision approval conferred no immediate benefit upon their property and a reassessment on that basis was manifestly excessive; (2) reassessment of their property violated General Statutes (Rev. to 1991) § 12-62, which expressly provides for ten year revaluations of real property and has been judicially construed to preclude interim revaluations and reassessments; and (3) the onerous nature of the conditions attached to the subdivision approval, and their nonfulfillment at the time of the revaluation, distinguish this case from Fyber Properties Killingworth Ltd. Partnership v. Shanoff 228 Conn. 476, 636 A.2d 834 (1994) (Fyber Properties), in which conditional subdivision approval was held to authorize revaluation and reassessment.

The taxpayers’ first claim warrants little discussion. As a matter of fact, they have advanced no evidence in support of their contention that subdivision approval, per se, confers no benefit that enhances the value of their property. It is too late to raise a factual question now, when all the parties agreed at trial that there were no factual disputes in this case. As a matter of law, they cannot raise such a claim under § 12-119, which requires a showing that an assessment is both manifestly excessive and illegal. Disagreements about the measurement of a benefit to real property do not make an assessment illegal.

The taxpayers’ second claim rests on a series of cases in which this court has construed General Statutes §§ 12-62 and 12-64 to manifest the intent of the legislature that the “true and actual valuation” of real property that is required by § 12-64 is ordinarily accomplished by the ten year revaluation that is required by § 12-62. The taxpayers cite several cases in which we held, accordingly, that assessors need not undertake an interim revaluation on the ground of market fluctuations, at least in the absence of a showing of the destruction or expansion of the property, a substantial change in its use or zoning classification, or a decision by the taxpayer to go out of business. Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 435-39, 525 A.2d 91 (1987); Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 629, 438 A.2d 782 (1981) (Uniroyal II). The taxpayers in,this case maintain that these precedents demonstrate that the revaluation and reassessment of their property violated § 12-64.

The taxpayers’ reliance on the case law under § 12-64 is flawed, however, in a number of important respects. The taxpayers assume that a subdivision approval is not so substantial a change in the property’s use or zoning classification as would warrant an interim revaluation under Ralston Purina Co. and Uniroyal II. They assume further that these cases limit the power of assessors to undertake an interim revaluation. They assume finally that the authority exercised by the defendants in this case was an interim revaluation rather than an original valuation of building lots that had no prior existence. These assumptions are of doubtful validity.

We need not decide today whether subdivision approvals fall within the exceptional circumstances hypothetically identified in Ralston Purina Co. and Uniroyal II, because those cases provide little guidance for the issue before us. Ralston Purina Co. and Uniroyal II held only that tax assessors ordinarily are not statutorily required under § 12-64 to undertake interim revaluations. These cases did not address the extent to which tax assessors might invoke other statutes in support of the authority to undertake an interim revaluation, should they decide to do so. We recognized this distinction between mandated and permissive revaluations in 84 Century Ltd. Partnership v. Board of Tax Review, 207 Conn. 250, 251, 260-62, 541 A.2d 478 (1988), in which we concluded that, although tax assessors cannot be required to make an interim revaluation of property, they may do so in accordance with § 12-55, which authorizes assessors to equalize the tax lists.

Our decision in 84 Century Ltd. Partnership furnishes a persuasive analogy for this case, in which the defendants based their revaluation of the taxpayers’ property on §§ 12-42 and 12-55. We have construed § 12-42 to require tax assessors to make “a separate description of, and valuation for, each parcel of real estate.” Empire Estates, Inc. v. Stamford, 147 Conn. 262, 265, 159 A.2d 812 (1960); State v. Erickson, 104 Conn. 542, 547, 133 A. 683 (1926). Once the taxpayers’ subdivision map for twenty-nine lots had been fled on the town records, the tax assessor could no longer tax their property on the basis of three larger parcels of land that had ceased to have any legal existence. “If assessors fail to list real estate in separate parcels, they may be compelled to do so by mandamus.” Empire Estates, Inc. v. Stamford, supra, 265. These cases furnish considerable support for the defendants’ contention that the tax assessments in this case should be viewed as having arisen out of an original valuation rather than a revaluation of the taxpayers’ property. Whether §§ 12-42 and 12-55 require original assessments or authorize reassessments has, however, no special significance for present purposes. However characterized, the statutes clearly establish the legality of the tax assessor’s exercise of her authority in this case.

The taxpayers’ final argument is that their case falls within the exception contemplated by Fyber Properties, supra, 228 Conn. 483, in which we recently held that, as a general rule, subdivision approval, rather than recording of a subdivision map, furnishes an appropriate occasion for the revaluation and reassessment of real property. In Fyber Properties, we relied on our analysis of the applicable real property statutes to conclude that “[t]he legislature has . . . indicated that, in the subdivision of property, the focal point is the date of approval.” Id. We declined to decide, however, “the date upon which a property becomes taxable as a subdivision if the approval has been appealed, or if conditions imposed upon an approval have not been fully satisfied before the assessment date.” Id., 481.

In light of the considerations adduced in Fyber Properties and the authorities cited earlier in this opinion, we now conclude that we can discern a bright-line rule underlying our taxing and real property statutes with regard to subdivision approvals. Absent an appeal challenging its validity, the approval of a subdivision authorizes a tax assessor to tax the property as subdivided lots rather than as the undifferentiated parcel or parcels that preceded the approval. The authority to tax subdivided lots in such a manner means that taxpayers have no basis for challenging such a revaluation under § 12-119. To the extent that conditional approvals deprive taxpayers of immediate economic returns from their investment, such conditional approvals raise issues only of valuation, which properly may be addressed only by appeals under § 12-117a.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 12-119 provides: “remedy when property wrongfully assessed. When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the superior court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

       The taxpayers had the right to file such an appeal pursuant to General Statutes § 12-117a. See footnote 5.

       General Statutes § 12-42 provides: “time for giving in tax list; penalty for failure to file. Each resident of any town liable to give in a list and pay taxes therein shall, except as otherwise specially provided by law, on or before the first day of November, annually, give in his list, made as prescribed by law, making a separate description of each parcel of real estate. When reference can be made to a map on file in the town clerk’s office, such reference shall be a sufficient description. If he fails to file such list, the assessors shall fill out a list for him, putting therein all property which they have reason to believe is owned by him, liable to taxation, at the percentage of its actual valuation, as determined by the assessors in accordance with the provisions of sections 12-64 and 12-71, from the best information they can obtain, and add thereto twenty-five per cent of such assessment and in such list they shall make a separate description and assessment of each parcel of real estate. When the first day of November is Sunday, the list may be made out on the day following.”

       General Statutes § 12-55 provides in relevant part: “lists; notice OF INCREASE; PUBLIC inspection; ABSTRACTS, (a) When the lists of any town have been so received or made by the assessor or board of assessors, they shall equalize the same, if necessary, and make any assessment omitted by mistake or required by law.”

       General Statutes § 12-117a provides: “APPEALS from DECISIONS OF BOARDS OF TAX REVIEW CONCERNING ASSESSMENT LISTS FOR ASSESSMENT YEARS commencing October 1,1989, TO OCTOBER 1,1992. Notwithstanding the provisions of sections 12-118, 12-121aa and 12-121bb, 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 Ms lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, or October 1, 1994, 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. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the applicant a bond or recognizance to such town or city, with surety, to prosecute the application to effect and to comply with and conform to the orders and decrees of the court in the premises. Any such application shall be a preferred case, to be heard, unless good cause appears to the contrary, at the first session, by the court or by a committee appointed by the court, and the pendency of such application shall not suspend an action by such town or city to collect not more than seventy-five percent of the tax so assessed or not more than ninety per cent of such tax with respect to any real property for which the assessed value is five hundred thousand dollars or more, and upon which such appeal is taken. If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review to make such amendment effective. 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. If the 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.”
      Prior to October 1, 1988, appeals from decisions of local boards of tax review were governed by General Statutes § 12-118. Section 12-118 now provides for appeals to the Superior Court from decisions of the Connecticut appeals board for property valuation.

       General Statutes (Rev. to 1991) § 12-62 provides in relevant part: “periodic revaluation of real estate. ... (a) Commencing October 1, 1991, the assessors of all towns, consolidated towns and cities and consolidated towns and boroughs shall, no later than ten years following the effective date of the last preceding revaluation of all real property and every ten years thereafter, revalue all of the real estate in their respective municipalities for assessment purposes . . . .”

       General Statutes § 12-64 provides in relevant part: “real estate liable to taxation. ... (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 valuation, to be determined by the assessors . . . .”

       At oral argument, this court was informed that the lots in phase II that are the subject of this litigation overlap the three preexisting parcels that comprise the taxpayers’ real property.