Robert E. Fitzgibbon v. Board of Assessors of the City of Leominster (March 4, 2009)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



ROBERT E. FITZGIBBON		v.	  BOARD OF ASSESSORS OF 
  THE CITY OF LEOMINSTER	

Docket No. F294109				  Promulgated:
		  					  March 4, 2009


	This is an appeal 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 appellee to abate taxes on real estate located in the City of Leominster, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2008.  
	Commissioner Mulhern ("Presiding Commissioner") heard this appeal and, in accordance with G.L. c. 58A, § 1 and 831 CMR 1.20, issued a single-member decision 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.

	Robert E. Fitzgibbon, pro se, for the appellant.
	
	Walter Poirier, assessor, and Christopher Paquette, assessor, for the appellee.



FINDINGS OF FACT AND REPORT

On the basis of the testimony and exhibits offered into evidence at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
	On January 1, 2007, Robert E. Fitzgibbon ("appellant") was the assessed owner of a 6,422 square-foot parcel of real estate located at 7 Winter Street in the City of Leominster ("subject property").  The parcel is improved with a single-family, ranch-style home, which contains approximately 1,120 square feet of finished living area.  The dwelling has a total of five rooms, including three bedrooms and also one full bathroom.  There is a one-car under garage and an unfinished basement.  
For fiscal year 2008, the Board of Assessors of Leominster ("assessors") valued the property at $204,400 and assessed a tax thereon, at the rate of $11.25 per thousand, in the amount of $2,299.50.  Leominster's Collector of Taxes mailed the fiscal year 2008 tax bills on December 31, 2007.  In accordance with G.L. c. 59, § 57C, the appellant paid the tax due without incurring interest.  On January 25, 2008, in accordance with G.L. c. 59, § 59, the appellant timely filed an abatement application with the assessors, which the assessors denied on February 8, 2008.  On March 25, 2008, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear this appeal.
At the hearing of this appeal, the appellant argued that the land component of the subject assessment was too high because the assessors failed to account for the subject property's steep slope and also the close proximity to state routes 12 and 13.  The appellant also argued that the subject property was overvalued in comparison to other ranch-style properties in Leominster.  
In support of his argument, the appellant offered into evidence a self-prepared analysis, which compared the subject property's assessment to the sale prices and assessments of other ranch-style properties in Leominster.  The only information contained in this document was each property's address, the lot size, the alleged sale price, and the properties' assessment.  The appellant failed to offer any other information such as the date of sale, square footage of the finished living areas, neighborhood, age or overall condition.  Moreover, the appellant did not account for any differences between the purported comparables and the subject property. 
In support of their assessment, the assessors relied on the testimony of Walter Poirier, chief assessor for Leominster.  Mr. Poirier offered into evidence a sales-comparison analysis of five ranch-style properties that sold in Leominster during the period April 6, 2006 through December 15, 2006.  These properties ranged in size from 0.17 acres to 0.26 acres, with finished living areas that ranged from 1,080 square feet to 1,313 square feet.  The purportedly comparable properties' sale prices ranged from $225,000 to $260,000.  Mr. Poirier made adjustments to account for differences in overall building condition, the existence of additional structures, and land topography.  The adjusted sale prices ranged from $203,200 to $234,800.
Mr. Poirier also testified that the subject property previously had been given a ten-percent reduction in the land value to account for the subject property's topography.  Based on the evidence of comparable sales and given the assessors' previous adjustment for the subject property's topography, Mr. Poirier concluded that the subject property's assessment of $204,400 represented its fair cash value for fiscal year 2008.    
On the basis of the evidence presented, the Presiding Commissioner found that the appellant did not provide credible affirmative evidence to support his claim that the subject property was overvalued.  The Presiding Commissioner found that the appellant failed to establish comparability between his purported comparable sale/assessment properties and the subject property.  The appellant also failed to account for differences between the purportedly comparable properties and the subject property.  As a result, the Presiding Commissioner found and ruled that the appellant's analysis was flawed and unreliable. 
In contrast, the Presiding Commissioner found that the assessors appropriately adjusted for the subject property's topography and offered credible evidence of comparable sales, which supported the subject property's assessment for fiscal year 2008.   
Accordingly, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of proving that the subject property was overvalued for fiscal year 2008.
OPINION
Assessors are required to assess all real property at its full and fair cash value.  G.L. c. 59, § 38; Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975).  Fair cash value is defined as the price on which a willing seller and a willing buyer will agree if both of them are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1954).
The assessment is presumed valid unless the taxpayer sustains the burden of proving otherwise.  Schlaiker v. Board of Assessors of Great Barrington, 356 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the appellant to make out his right as a matter of law to an abatement of the tax.  Id.  The appellant must show that the assessed valuation of his property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).  
A taxpayer "'may present persuasive evidence of overvaluation either by exposing flaws or errors in the assessors' method of valuation, or by introducing affirmative evidence of value which undermines the assessors' valuation.'"  General Electric Co., 393 Mass. 591, 600 (1984) (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
In the present appeal, the appellant argued that the subject property was overassessed because the assessors failed to account for the subject property's steep slope.  The Presiding Commissioner found and ruled, however, that the assessors had given the appellant a ten-percent reduction in the land value assessment to account for the subject property's topography.
The appellant also tried to show that the subject property was overvalued for fiscal year 2008 by comparing the subject property's assessment to other Leominster properties' assessments and sale prices.  The Presiding Commissioner found, however, that the appellant's analysis was flawed and unreliable.  The Presiding Commissioner found that the appellant failed to establish comparability between the subject property and his purported comparables and also failed to account for differences that existed between the subject property and the chosen comparables.  
Based on the foregoing facts, the Presiding Commissioner found and ruled that the appellant did not meet his burden of proving that the subject property was overvalued for fiscal year 2008.  Accordingly, the Presiding Commissioner issued a decision for the appellee in this appeal.

						APPELLATE TAX BOARD
									
    By:			_____	___		
					  Thomas J. Mulhern, Commissioner

A true copy,

Attest:						__
	       Clerk of the Board

ATB 2009-204