Middlesex Retirement System, LLC v. Board of Assessors of the Town of Billerica (October 3, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


MIDDLESEX RETIREMENT		v		BOARD OF ASSESSORS
SYSTEM, LLC						TOWN OF BILLERICA

Docket Nos. F271714    (2004)
	       F281305-06 (2005)
		  F286187-88 (2006)			Promulgated:		
								October 3, 2007


	These are appeals filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65 from the refusal of the Board of Assessors of the Town of Billerica ("assessors"), to abate taxes on certain real estate in the Town of Billerica for fiscal years 2004 through 2006 and certain personal property for fiscal years 2005 and 2006.  
	Chairman Hammond heard these appeals. Commissioners Scharaffa, Egan, Rose and Mulhern joined him in the decisions for the appellee.  
	These findings of fact and report are made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32. 

John M. Lynch, Esq. and Stephen W. DeCourcey, Esq., for the appellant. 
	
Patrick J. Costello, Esq., for the appellee.  

FINDINGS OF FACT AND REPORT
On the basis of the Statement of Agreed Facts and accompanying documents submitted by the parties, the Appellate Tax Board ("Board") made the following findings of fact.  These appeals concern a parcel of land and building located at 25 Linnell Circle in Billerica ("subject real property") and certain personal property located at the subject real property ("subject personal property").  
I.	SUBJECT REAL PROPERTY
The building component of the subject real property is a two-story brick building containing approximately 62,000 square feet that is used for office space ("building").  Middlesex Retirement Systems ("MRS") maintained its offices and conducted its activities in a 14,546 square foot area located on the second floor of the building.  MRS's space amounted to 23.4% of the building area.  A commercial tenant, Harte-Hanks, rented and occupied approximately 29,664 square feet of space in the building, and another tenant, the NAGE Brotherhood of Police Officers, rented and occupied approximately 2,376 square feet of space in the building.  Together, the third-party tenants occupied 56.5% of the building area.  Approximately, 14,000 square feet remained vacant and available for leasing during the fiscal years at issue, with another 1,636 square feet designated as "common area," that was presumably available for use by all of the building's occupants.
MRS was previously known as the Middlesex County Retirement System.  Pursuant to Chapter 48 of the Acts of 1997, Middlesex County was abolished.  Despite the abolition of Middlesex and other counties, the Legislature continued the operation of the counties' regional retirement systems by enacting G.L. c. 34B.   Pursuant to G.L. c. 34B, § 19(e), the regional retirement systems were authorized to purchase or lease property and equipment for the administration and transaction of business for the retirement system.  That statute, however, is silent as to the taxability of any real estate or other property purchased by a retirement system.  
Prior to the abolition of Middlesex County, MRS maintained its offices within the Office of the County Treasurer at the Middlesex County Courthouse.  In July of 2002, MRS entered into a purchase and sale agreement to buy the subject real property from 25 Linnell Limited Partnership ("Linnell LP") for a purchase price of six million dollars.  The purchase and sale agreement was signed on behalf of the seller by Mark Rubin, the manager of MARIC Billerica, LLC, which was the general partner of Linnell LP.  The purchase and sale agreement was signed on behalf of MRS by its trustees and officers, including its Chairman, James E. Fahey, Jr.  
On September 18, 2002, MRS created Middlesex Retirement System, LLC ("MRS, LLC"), a limited liability company organized under the laws of the state of Delaware.  Pursuant to its operating agreement, the purposes of MRS, LLC were to own, acquire, manage, operate, maintain, lease, sell, and otherwise deal with the subject real property and improvements thereto.  MRS, LLC acquired title to the subject real property on September 25, 2002.  On September 26, 2002, a deeds excise tax in the amount of $27,360 was paid in connection with the transfer of the subject real property.  MRS was at all relevant times the manager and sole member of MRS, LLC.  
II.	SUBJECT PERSONAL PROPERTY
The parties stipulated that, in conjunction with its move from the Treasurer's office to the subject real property, MRS acquired personal property in the form of furniture and fixtures for the operation of its offices.  In a letter dated August 20, 2004, from Richard J. Scanlon, Chairman of the assessors, to Ms. Brenda O'Donnell of MRS, the assessors noted that MRS failed to file a Form of List for its personal property for fiscal year 2004, and accordingly, the assessors estimated the value of its personal property at $750,000.  The letter also stated that all businesses located in Billerica were sent packages including State Tax Form 2 (Form of List) in March of 2004 on which to report their personal property.  The letter requested that MRS complete and return the Form of List or an approximation thereof as soon as possible for fiscal year 2005.  
Mr. Scanlon also indicated in the letter that MRS had brought to his attention the fact that it, and not MRS, LLC, owned the personal property at issue.  Mr. Scanlon invited MRS in the letter to furnish proof of this ownership, and indicated that the assessors would consider a personal property tax exemption for fiscal year 2005 if the ownership could be documented.  The parties stipulated that MRS did not file a Form of List for fiscal year 2005 with the assessors in response to the August 20, 2004 letter.  Further, the Board found that MRS did not file a Form of List for fiscal year 2006.
JURISDICTION
A.	FISCAL YEAR 2004
For fiscal year 2004, the appellant timely applied for a statutory exemption for the subject real property on or about March 3, 2003, which the assessors denied on or about May 30, 2003.  The appellant timely filed its Petition with the Board on August 28, 2003.  The actual tax bills for fiscal year 2004 were mailed on or about December 31, 2003, showing an assessed value of the subject real property for fiscal year 2004 of $5,360,000.  
B.	FISCAL YEAR 2005
The assessors valued the subject real property at $5,360,600 for fiscal year 2005, and assessed a tax based on that value in the amount of $128,118.34, which the appellant paid without incurring interest.  On January 31, 2005, the appellant timely filed an Application for Abatement of the tax on the subject real property, which the assessors denied on April 26, 2005. The appellant timely filed its Petition with the Board on July 12, 2005.  
The assessors valued the subject personal property at $675,000 for fiscal year 2005 and assessed a tax based on that value in the amount of $16,132.50, which the appellant
paid without incurring interest.  The appellant timely filed an Application for Abatement of the personal property tax on January 31, 2005, which the assessors denied on April 26, 2005.  The appellant timely filed its Petition with the Board on July 12, 2005.  
C.	FISCAL YEAR 2006
The assessors valued the subject real property at $5,806,300 for fiscal year 2006 and assessed a tax based on that value in the amount of $136,854.49, which the appellant paid without incurring interest.  On January 20, 2006, the appellant timely filed an Application for Abatement of the tax on the subject real property, which the assessors denied on April 13, 2006.  The appellant timely filed its Petition with the Board on July 6, 2006. 
For fiscal year 2006, the appellee assessed the value of the subject personal property at $675,000 and assessed a tax based on that value in the amount of $15,909.75, which the appellant paid without incurring interest.  On January 20, 2006, the appellant filed an Application for Abatement of the tax on the personal property, which the assessors denied on April 13, 2006.  The appellant timely filed its Petition with the Board on July 6, 2006.  Based on these
facts, the Board found it had jurisdiction to hear these appeals. 
IV.	BOARD'S FINDINGS ON MERITS OF EXEMPTION CLAIMS
A.	SUBJECT REAL PROPERTY
On the basis of the uncontroverted evidence of record in these appeals, the Board found and ruled that the appellant failed to meet its burden of proving that the subject real property was exempt from tax.  The Board found and ruled that at all times relevant to these appeals, MRS, LLC, and not MRS or any instrumentality of the commonwealth, was the owner of the subject real property.  Further, for the reasons detailed in the following Opinion, real estate of a retirement system is not exempt from property tax.
B.	SUBJECT PERSON PROPERTY
The Board further found that the appellant failed to meet its burden of proving that the subject personal property was exempt from tax.  First, the Board found that appellant failed to meet its burden of proving that MRS owned the subject personal property.  It appears from the evidence of record that the assessors made at least two requests of the appellant to provide information with respect to its personal property for fiscal year 2005.  A letter dated August 20, 2004 from Richard J. Scanlon, Chairman of the assessors, to Ms. Brenda O'Donnell of MRS, states that all businesses located in Billerica were sent packages including State Tax Form 2 (Form of List) in March of 2004 to report their personal property.  The August 20, 2004 letter requests that MRS complete and return the Form of List or an approximation thereof as soon as possible.  The letter further noted that MRS failed to provide such a list for the fiscal year 2004, and consequently, the assessors estimated the value of its personal property at $750,000.  
Further, Mr. Scanlon indicated in the letter that MRS had brought to his attention that for fiscal year 2005, MRS and not MRS, LLC, owned the subject personal property.  Mr. Scanlon invited MRS in the letter to furnish proof of this ownership, and indicated that the assessors would consider a personal property tax exemption if the ownership could be documented.  
The appellant failed to respond to the assessors request that the appellant file a Form of List for fiscal year 2005 and failed to otherwise document the ownership of the personal property.  With respect to the subject personal property for fiscal year 2006, there is no evidence in the record that the appellant filed a Form of List with the assessors or provided them with any other documentation concerning the ownership of the subject personal property. 
The appellant attempted to prove its ownership of the personal property in these appeals by introducing three documents: (1) MRS's annual statement of its financial condition to the Public Employee Retirement Administration Commission for the year ended December 31, 2003 ("Exhibit Six"); (2) the financial statements of MRS for the years ended December 31, 2001 through December 31, 2003 ("Exhibit Seven"); and (3) an undated document entitled "Middlesex Retirement System (MRS) Notes" ("Exhibit Eight").  
The appellant presumably introduced these exhibits, which make reference to furniture and equipment, to support an inference that MRS owned the subject personal property during the relevant time period.  However, the appellant provided no link between the items referenced in its exhibits and the subject personal property.  The appellant failed to introduce more probative evidence on this point, such as insurance records, receipts, or similar documentation, and failed to offer testimony concerning the
ownership of the subject personal property.  Further, the appellant failed to establish that the items referenced in its exhibits were all or part of the subject personal property.  Accordingly, the Board found and ruled that the appellant failed to meet its burden of proving that MRS owned the subject personal property during the tax years at issue.
Moreover, for the reasons detailed in the following Opinion, the Board found and ruled that the subject personal property is not exempt from tax even if it were owned by MRS.  Accordingly, the Board issued decisions for the appellee in these appeals.

OPINION
The issues to be determined in these appeals are: 1) whether the subject real property is property "of the commonwealth," which is therefore exempt under G.L. c. 59, § 5, cl. 2 ("clause 2"); and 2) whether the appellant met its burden of proving that the personal property in question is exempt under either clause 2 or G.L. c. 59, § 5, cl. 8 ("clause 8").  The Board answered both questions in the negative, and accordingly entered a decision for the appellee.  

THE REAL PROPERTY OF A RETIREMENT SYSTEM IS NOT ENTITLED TO THE EXEMPTION UNDER CLAUSE 2 AND THE SUBJECT REAL PROPERTY IS NOT OWNED BY A RETIREMENT SYSTEM

The appellant argued that the subject real property is exempt from taxation because it is owned in substance by MRS and is therefore exempt as property of the commonwealth.  The Board found and ruled that the appellant is incorrect on both counts.  The real property of a retirement system is not entitled to an exemption under clause 2, and even assuming arguendo that it were, the subject real property is not owned by a retirement system.  
All property in the commonwealth is taxable under G.L. c. 59, § 2 unless expressly exempted by statutory provision.  Clause 2, on which the appellant based its argument, specifically exempts property "of the commonwealth" from taxation.  However, proper statutory interpretation relies on reading all of the words of a statute as a whole, rather than mere excerpts.  See Dupee v. Commissioner, 423 Mass. 617, 620 (1996) ("statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language.").  Moreover, a statute must be read so as to give effect to all of its words.  RHI Holdings, Inc.  v. Commissioner of Revenue, 51 Mass. App. Ct. 681, 685 (2001), quoting International Org. of Masters, Mates & Pilots v. Martha's Vineyard & Nantucket S.S. Authy., 392 Mass. 811, 813 (1984) ("Wherever possible, we give meaning to each word in the legislation [at issue]; no word in a statute should be considered superfluous.").  See also Chatam Corp. v. State Tax Commission, 362 Mass. 216, 219 (1972) (stating that every word in a legislative enactment, including a tax statute, is to be given force and effect).  Reading G.L. c. 59, § 5 and related statutes as a whole and giving effect to all of their words, the Board held that clause 2 does not exempt the real property of a retirement system.  
General Laws c. 59, § 5 is lengthy and its clauses contain numerous provisions of varying scope and breadth with respect to the property exempted by each clause.  At times, those clauses employ language which is quite broad.  For example, clause one exempts "property owned by the United States," clause two exempts "property of the commonwealth," and clause 14 exempts "any real or personal property" of a water company.  Other clauses are narrower and more specific.  For example, clause eight exempts only the "personal property of any retirement association exempted by section nineteen of chapter thirty-two." (emphasis added).  
Clearly, when the Legislature intended to exempt both the real and personal property of a particular entity or class of organizations, it did so.  See, e.g., RCN-BecoCom, LLC, v. Commissioner of Revenue, 443 Mass. 198, 203 (2005) (rejecting argument that statute required an "exclusivity test" because "t]he Legislature is quite capable of saying 'exclusive' when it means 'exclusive.'"). It is, therefore, telling that clause eight specifically exempts only certain personal property of a retirement association.  Accordingly, the legislative intent not to exempt the real property of a retirement system is clear from the plain language of the statute.  
Moreover, if the appellant's contention that the real property of a retirement system is exempted by virtue of the exemption granted to all "property of the commonwealth" under clause two, the language of clause eight specifically exempting certain personal property of a retirement system would be rendered superfluous, as such property would already be exempt under clause two.  The rules of proper statutory construction prevent such an interpretation of the statute.  International Org. of Masters, Mates & Pilots at 813.  Accordingly, the Board found and ruled that the clear and unambiguous language of the statute does not exempt the real property of a retirement system, but rather exempts only certain personal property of a retirement system.
Moreover, even assuming arguendo that clause two exempts the real property of a retirement system, the Board found and ruled that the subject real property was not exempted by this provision because it was not owned by a retirement system.  As the parties stipulated, the subject real property was owned by MRS, LLC during all of the fiscal years at issue.  The appellant argued that because MRS is the sole shareholder of the LLC, it is in substance the owner of the subject property.  However, this argument is without merit.  
First and foremost, the substance-over-form argument is not compelling when invoked by the entity which chooses the form, as highlighted by a pair of recent decisions.  In RCN-BecoCom, Inc. v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2003-410, aff'd 443 Mass. 198 (2005), the Board strictly construed an exemption that expressly applied to corporations and ruled that the exemption was not available to partnerships or limited liability companies, as the taxpayer had argued.
By its plain and unambiguous language, the exemption applies to corporations, not to partnerships or LLC's, like [the taxpayer].  Exemptions to tax are narrowly construed.  'An exemption is a matter of special favor or grace and to be recognized only where the property falls clearly and unmistakably within the express words of a legislative command.'  Southeastern Sand & Gravel, Inc. v. Commissioner of Revenue, 384 Mass. 794, 796 (1981) (quoting Children's Hospital Medical Center v. Assessors of Boston, Mass. 35, 43 (1967).  When a taxpayer voluntarily adopts a form of ownership that is not in technical compliance with the exemption requirements, the Court has held that the exemption does not apply.

Id. at 462-63, citing Kirby v. Board of Assessors of Medford, 350 Mass. 386, 390-91 (1966).  Similarly, the Board ruled that the exemption available to property held by charitable organizations under G.L. c. 59, § 5, cl. 3 did not apply to three skilled nursing home care facilities, which operated as limited liability companies.  The Board held that the "[a]ppellants chose this form of ownership for whatever benefits they thought they could achieve; they must, however, live with the burdens of that ownership."  CFM Buckley/ North, LLC. v. Board of Assessors of Greenfield, Mass. ATB Findings of Fact and Reports 2007-220, 235, citing RCN at 207.  In the instant appeals, MRS chose to organize MRS, LLC and to transfer to it ownership of the subject real property.  
Moreover, the Board noted that a deeds excise in the amount of $27,360 was paid upon the transfer of the property.  General Laws c. 64D, § 1 specifically exempts from the deeds excise "any instrument or writing given to secure a debt or to any deed, instrument or writing to which the commonwealth, a city or town of the commonwealth, or the United States or any of their agencies are a party." G.L. c. 64D, § 1.  The appellant apparently conceded at the time of the transfer that it was not an instrumentality of the commonwealth.  
While the record is devoid of reasons for the transfer of the subject real property to MRS, LLC, beyond the appellant's explanation that it was done on the advice of counsel, the appellant presumably wished to avail itself of the insulation from liability and other benefits derived from operating as a limited liability company.  Having chosen this form of ownership, the appellant cannot also avail itself of the tax benefits afforded to instrumentalities of the commonwealth.  Accordingly, the Board found and ruled that the subject real property was not property owned by the commonwealth, but rather was owned by MRS, LLC, and therefore, was not exempt under clause 2.  
The appellant argued in the alternative that even if the subject real property were subject to taxation, the portion of the building used by MRS to conduct its operations should be exempt as it is put to an exempt-use.  As stipulated by the parties, approximately 23.4% of the building space was occupied by MRS, 56.5% was leased to private tenants, and the remainder was vacant space available for rent or designated common area.  
In support of its argument, the appellant cited G.L. c. 34B, § 19, which authorizes a regional retirement board to "purchase or lease property, facilities and equipment and employ any such personnel necessary for the proper administration and transaction of business of the retirement system."  The appellant argued that the statute specifically authorizes MRS to engage in the activity of purchasing or leasing the building, and evidences no legislative intent to subject that activity to taxation.  
The appellant is correct in arguing that G.L. c. 34B, § 19 granted MRS the authority to purchase and lease the subject real property.  However, the Board is not persuaded that the Legislature's silence on the taxability of such business activity within G.L. c. 34B, § 19 creates a real estate tax exemption.  The Legislature made its intent on the taxability of the property of retirement systems perfectly clear in clause 8, as well as in G.L. c. 32, § 19, which states in relevant part "[t]he funds of each [retirement] system established under the provisions of sections one to twenty-eight inclusive, so far as they are invested in personal property, shall be exempt from taxation."  G.L. c. 62, § 19.  (emphasis added).  The Legislature saw fit in not one but two separate instances to specifically exempt only certain personal property of retirement systems, and its intent to deliberately exclude the real property of retirement systems from exemption can be inferred from this omission.  See County of Middlesex v. Newton, 13 Mass. App. Ct. 538, 542, app. denied, 386 Mass. 1104 (1982) ("a statutory expression of one thing is an implied exclusion of other things omitted from the statute.").  This familiar principle of interpretation has historically been applied by Massachusetts courts.  See, e.g, General Electric Co. v. Commonwealth, 329 Mass. 661, 664 (1953) (holding that a statute that provided for payment of only "legal costs" with judgment "indicates intention to . . . exclude by implication" payment of interest.).  Moreover, the maxim that "a statutory expression of one thing is an implied exclusion of other things" should "have special application to the analysis of tax laws."  See County of Middlesex, 13 Mass. App. Ct. at 542-43.  Accordingly, the Board found and ruled that only certain personal property of a regional retirement system, and not its real estate, is exempt from tax.  Therefore, the appellant's argument that at least the portion of the subject real property occupied and used by MRS for its business activities should be exempt is without merit.   
Finally, the appellant cited G.L. c. 59, § 2B in support of its argument that the value of the entire property was not taxable to the appellant.  G.L. c. 59, § 2B provides in relevant part:
Except as otherwise provided in section  three E, real estate owned in fee or otherwise held in trust for the benefit of the United States, the commonwealth, or a county, city or town, or any instrumentality thereof, if used in connection with a business conducted for profit or leased or occupied for other than public purposes, shall for the privilege of such use, lease or occupancy, be valued, classified, assessed and tax annually as  of January first to the user, lessee or  occupant in the same manner and to the same extent as if such user, lessee or occupant were the owner thereof in fee.

The appellant argued that the portions of the building occupied by Harte-Hanks and NAGE should be valued and assessed directly to those tenants, and not to MRS, LLC.  However, the Board found and ruled that G.L. c. 59, § 2B does not apply to the instant matter, because the subject real property was not "owned in fee or otherwise held in trust for the benefit of the United States, the commonwealth, or a county, city, or town, or any instrumentality thereo[f]."  As discussed above, the subject real property was owned by a non-governmental entity, a limited liability company.  Even if it could be argued that MRS, LLC held the property in trust for MRS, it cannot be argued that such property was held in trust for a county or instrumentality thereof, as Middlesex county had been abolished several years prior to the fiscal years at issue.  Therefore, the Board found and ruled that G.L. c. 59, § 2B does not apply to the instant appeals.
THE APPELLANT FAILED TO MEET ITS BURDEN OF PROVING THAT THE SUBJECT PERSONAL PROPERTY WAS EXEMPT. 

Also at issue in these appeals is the appellee's assessment of tax on the subject personal property for fiscal years 2005 and 2006.  The appellant contends that MRS, and not MRS, LLC, owned the subject personal property, and that the subject personal property was exempt as property "of the commonwealth" under clause 2.  
	It is well settled that the burden of proof is on the party seeking an abatement.  "'The burden of proof is upon the petitioner to make out its right as [a] matter of law to [an] abatement of the tax.'" Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974), quoting  Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922).  Further, an even greater burden rests on a party claiming an exemption from taxation.  "'Exemption from taxation is a matter of special favor or grace.  It will be recognized only where the property falls clearly and unmistakably within the express words of a legislative command.'"  New England Legal Foundation v. City of Boston, 423 Mass. 602, 609 (1996) quoting Massachusetts Medical Soc'y v. Assessors of Boston, 340 Mass. 327, 331. (1960). The scant evidence introduced by the appellant did not sustain this burden.    
First, as detailed in the Board's findings above, the appellant failed to meet its burden of proving that it owned the subject personal property during the periods at issue.  It is clear from the record that the appellant, despite requests to do so, never furnished the assessors with a Form of List or other documentation concerning the ownership of the subject personal property.  The documents that the appellant submitted into the record in these appeals, in the absence of testimony or supporting documentation, do not establish MRS's ownership of the subject personal property.  In fact, appellant's failure to offer such testimony or supporting documentation to prove its ownership of the subject personal property during the years at issue casts further doubt on MRS's claim that it owned the subject property.  See Automobile Insurers Bureau v. Commissioner of Insurance, 430 Mass. 285, 291 (1999) ("In appropriate circumstances, a fact finder in a civil dispute may draw a negative inference from the failure of the party with the burden of proof to call a witness or produce information within the party's control which would shed light on the party's position on a material issue.")  
Further, as discussed in the context of the appellant's exemption claim for the subject real estate, the fact that the Legislature has enacted a specific property tax exemption under clause 8 undercuts the notion that the appellant's property is exempt under clause 2.  Accordingly, the subject personal property is exempt, if at all, under clause 8.
Clause 8 provides a tax exemption for the "[p]ersonal property of any retirement association exempted by section nineteen of chapter thirty-two."  G.L. c. 32, § 19 exempts the funds of retirement systems and the rights to certain annuity, pension or retirement allowances from such systems; it does not exempt the retirement association itself.  Accordingly, clause 8 can only be read to exempt from local property tax the personal property referenced in G.L. c. 32, § 19.
The language of § 19 makes it clear that furniture, fixtures, office equipment, and similar personal property do not fall within the ambit of its exemption provisions.  First, § 19 provides that the funds of each system "established under sections one to twenty-eight" are exempt from tax.  MRS, however, was established under a separate chapter, G.L. c. 34B, § 19, and not under G.L. c. 32, §§ 1-28.  
Further, G.L. c. 32, § 19 exempts from taxation funds "invested" in personal property and "rights" of members in an annuity, pension or retirement allowance.  It cannot reasonably be argued that money spent on items such as furniture and office equipment used in the administrative function of the system is "invested" for purposes of § 19.  Rather, the clear intent of this provision is to exempt from tax the funds from which the retirement system will pay benefits to its members and the rights to those benefits held by the members.  
	Accordingly, the Board ruled that the subject personal property is not exempted by G.L. c. 32, § 19 and, therefore, not exempt under clause 8.

CONCLUSION
For the reasons discussed in the above Opinion, the Board found and ruled that the subject real and personal property were not exempt under clause 2 or clause 8 as either the property of the commonwealth or of a retirement system.  Additionally, the Board found and ruled that the appellant failed to meet its burden of proving that MRS rather than MRS, LLC owned the subject real and personal property.  Accordingly, the Board issued its decisions in favor of the appellee.  
		
					   THE APPELLATE TAX BOARD


				By:	_________________________________
					 Thomas W. Hammond Jr., Chairman


A true copy,

Attest: ____________________________  
	       Clerk of the Board

				
				

 The appellant initially filed an abatement application for its fiscal year 2004 real estate tax on or about January 14, 2003.  The assessors denied that application as premature on or about February 14, 2003, and the appellant did not appeal that denial.  The appellant filed another abatement application on January 23, 2004.  By letter dated February 10, 2004, the assessors informed the appellant that the application for fiscal year 2004 had been denied.  No further appeal was filed with respect to that application; however, no appeal was necessary because the appellant had already secured its appeal rights by filing its Petition with the Board on August 28, 2003.  

 Unlike the charitable exemption under G.L. c. 59, § 5, cl. 3, which requires the filing of a "Form ABC" and a copy of "Form PC" with the assessors, the exemption under G.L. c. 59, § 5, cl. 2, which the appellant has asserted in these appeals, requires no additional jurisdictional documents to be filed.  
 A number of statutes address the circumstance of a taxpayer's failure to file a Form of List: G.L. c. 59, § 29 provides that all persons subject to taxation in a city or town must file a list with the assessors containing information concerning their personal property subject to taxation;  G.L. c. 59, § 36 allows the assessors to estimate the value of such personal property, "according to their best information and belief" in the event that a person fails to provide a list; G.L. c. 59, § 37 provides that such estimate is conclusive as to the valuation of the personal property unless the taxpayer can show a reasonable excuse for his failure to provide the list; G.L. c. 59, §§ 61 and 64 provide that no abatement is available to a taxpayer who fails to file a Form of List unless the failure was due to reasonable cause or the tax exceeds by fifty percent the amount that would have been assessed if the list had been timely filed.  Because the appellant here is pursuing an exemption, and not an overvaluation, claim, these provisions do not impact the Board's jurisdiction to grant an abatement in these appeals; however, the appellant's failure to file the Forms of List is relevant to the question of whether it has established ownership of the subject personal property.

ATB 2007-1146