Peter & Eleftheria Rigopoulos v. Board of Assessors of the Town of Leominster (December 9, 2005)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




PETER & ELEFTHERIA RIGOPOULOS	v.	BOARD OF ASSESSORS OF
							THE TOWN OF LEOMINSTER


Docket No. F272102				Promulgated:
							December 9, 2005
	


	This is an appeal filed under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate taxes assessed on real estate located in the Town of Leominster owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38 for fiscal year 2005.
	Commissioner Rose heard the appeal and was joined in a decision for the appellee by Commissioners Scharaffa and Gorton.  
	These findings of fact and report are promulgated at the request of the appellants pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.

	Peter Rigopoulos, pro se, for the appellants.

	Walter Poirier, assessor, for the appellee.


FINDINGS OF FACT AND REPORT
	On January 1, 2004, Peter and Eleftheria Rigopoulos ("appellants") were the owners of a parcel of real estate, improved with a single-family dwelling, located at 6 Olde Tavern Road, Leominster ("subject property").  For fiscal year 2005, the Board of Assessors of the Town of Leominster ("assessors") valued the property at $500,500 and assessed a real estate tax, at the rate of $12.66 per thousand, in the amount of $6,336.33.  The appellants timely paid the tax.  On January 5, 2004, the appellants timely filed an application for abatement with the assessors.  On January 16, 2004, the assessors denied the appellants' application, and on April 7, 2004, the appellants seasonably filed an appeal with the Appellate Tax Board ("Board").  Based on these facts, the Board found that it had jurisdiction over the subject appeal.
The subject property consists of 2.77 acres of land, which includes 1.77 acres of wetlands, improved with a single-family contemporary ranch-style home containing 2,605 square feet of living space.  The home's exterior is stucco on wood and it has a gable/hip roof covered with asphalt shingles.  The home has a total of seven rooms, including three bedrooms and also has three full bathrooms, including one with a "jet tub."  There is also a 1,647 square-foot garage, a rear wood deck, a semi-finished basement, and an open front porch.  The home has oil heat and central air conditioning; there are hardwood floors on the main level and carpeting in the basement area.  The house was built in 2001, and the appellants purchased the subject property on August 2, 2002, for $505,000.
Mr. Rigopoulos testified that the subject property was in need of many repairs and improvements.  He discussed cracks in the driveway and foundation, settlement cracks in the ceilings, a water leak in the main bathroom, unstable rear deck stairs, and drainage and grading issues.  Mr. Rigopoulos stated that he is trying to resolve the drainage and grading issues with the builder.  He did not indicate whether the claimed deficiencies existed at the time the appellants purchased the subject property.  Although Mr. Rigopoulos suggested that the cost to repair these items would range from $18,000 to $39,000, he offered no documentation to support his assertion.  
Mr. Rigopoulos also offered into evidence a self-prepared assessment analysis of fifteen other purportedly comparable properties located in Leominster.  Of these properties, only four are contemporary ranch-style homes, like the subject property, while the remaining eleven are of varying styles.  The only information offered by the appellants regarding these purportedly comparable properties' was their square-foot living space and respective assessed values.  The appellants failed to offer evidence comparing the properties' neighborhoods, age, quality of construction or overall condition.  Accordingly, the appellants did not establish these properties' comparability to the subject property.  Moreover, the appellants did not suggest any quantitative adjustments to account for differences between the purported comparables and the subject property.  
Lastly, the appellants offered into evidence a self-prepared listing of Leominster properties that Mr. Rigopolous claimed were sold during calendar years 2002, 2003 and 2004.  The only information contained in this document was each property's address, date of sale, sale price and style of home.  The appellants failed to offer any other information such as square footage, lot size, neighborhood, age, or condition, and failed to suggest any quantitative adjustments for differences between these purported comparables and the subject property.  Based on their assessments comparison, sales listing, and testimony regarding purported defects in the subject property, the appellants argued that the subject property was overvalued for fiscal year 2005.  
In support of their assessment, the assessors offered into evidence property record cards for properties located on the same street as the subject property and also on the parallel street, Kendall Hill Road, which the assessors asserted established that the subject property's assessment was consistent with similar properties located in the same neighborhood as the subject property.  
After considering all the testimony and exhibits, the Board found that the appellants did not meet their burden of proving that the subject property was overvalued for fiscal year 2005.  The Board found that the subject property's August 2, 2002 sale price was reflective of its fair cash value on that date and that the appellants failed to prove that the subject property diminished in value since the date of purchase.  Therefore, the Board found that the sale price was the best evidence of the subject property's fair market value as of the date of assessment.  The Board also found that the appellants failed to establish that the claimed defects were not present at the date of purchase and reflected in the sale price.  Moreover, the appellants failed to substantiate the cost estimates for the allegedly necessary repairs.
As for the appellants' assessment analysis, the Board found that although four of the chosen comparables were of the same style as the subject property, the appellants failed to offer other pertinent information necessary to establish comparability between their purported comparables and the subject property.  The appellants also failed to account for differences between the purportedly comparable properties and the subject property.  As a result, the Board determined that the appellants were not able to demonstrate that their property was overvalued in comparison to the cited assessments.  With respect to the appellants' self-prepared sales listing, the Board found that the appellants failed to offer any documentation to verify these transactions and, even assuming the listing was accurate, the appellants failed to establish comparability between these properties and the subject property.   
On this basis, the Board found that the appellants failed to meet their burden of proving that the subject property was overvalued for fiscal year 2005 and issued a decision for the appellee.


OPINION
	General Laws chapter 59 authorizes cities and towns to impose a tax upon all real estate situated within the Commonwealth.  In so doing, the assessors are required to assess the property at its fair cash value.  G.L. c. 59, § 38.  Fair cash value is defined as the price on which a willing seller and a willing buyer in a free and open market will agree if both of them are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).    
	An assessment is presumed valid until the taxpayer sustains its burden of proving otherwise.  Schlaiker v. Board of Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the appellants to make out their right as a matter of law to an abatement of the tax.  Id.  The appellants must show that the assessed valuation of their property was improper.  See Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 691 (1982).  	In appeals before this Board, the appellants "'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. v. Assessors of Lynn, 393 Mass. 591, 600 (1984)(quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
	In the present appeal, the Board found that the appellants did not "expose flaws or errors in the assessors' method of valuation" and did not "present persuasive evidence of overvaluation."  The appellants relied primarily on the assessments of other properties located in Leominster.  See G.L. c. 58A, § 12B.  The appellants, however, failed to establish comparability between the purportedly comparable properties and the subject property.  Further, the appellants failed to make adjustments to account for existing differences between the chosen comparables and the subject property. "Adjustments for differences are made to the price of each comparable property to make that property equivalent to the subject in market appeal on the effective date of the opinion of value."  Appraisal Institute, The Appraisal of Real Estate 430 (12th ed. 1996).  
The appellants also presented to the Board a self-prepared sales listing of properties that purportedly sold during calendar years 2002, 2003 and 2004.  The appellants did not, however, offer any evidence to substantiate the accuracy of the sales' information.  Further, the appellants failed to establish comparability between these properties and the subject property, and failed to adjust for differences that existed.  Id.
Accordingly, the Board considered the information submitted by the appellants, but found that it was not useful for determining the fair cash value of the subject property.  See North American Phillips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 297-299 (1984).
In contrast, the Board noted that "[s]ales of property usually furnish strong evidence of market value, provided they are arm's-length transactions and thus fairly represent what a buyer has been willing to pay for the property to a willing seller."  Foxboro Associates, 385 Mass. at 682.  Sales within a reasonable time of the assessment date contain credible information for determining the fair market value of the property at issue.  See McCabe v. Chelsea, 265 Mass. 494, 496 (1920).  The Board found no evidence to indicate that the sale of the subject property was anything but an arm's-length transaction.  Therefore, the Board found and ruled that the purchase price paid was reflective of the property's fair market value on its sale date.  Moreover, the Board found that the appellants failed to demonstrate that the subject property diminished in value between August 2, 2002, the date of sale, and January 1, 2004, the date of assessment.  Consequently, the Board found that the subject property's sale price was the best evidence of its fair market value as of the assessment date.   
On this basis, the Board found and ruled that the appellants failed to meet their burden of proving that the subject property was overvalued for fiscal year 2005.
	
			THE APPELLATE TAX BOARD


By:  ____________________________________
Anne T. Foley, Chair

     
____________________________________
Frank J. Scharaffa, Commissioner


____________________________________
Donald E. Gorton, III, Commissioner


     ____________________________________
Nancy T. Egan, Commissioner

  
____________________________________
James D. Rose, Commissioner 

A true copy,


Attest:_____________________________
  	    Assistant Clerk of the Board

ATB 2005-675