Hisham N. Ashkouri v. Board of Assessors of the City of Newton (November 12, 2013)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD


HISHAM N. ASHKOURI               v.	   BOARD OF ASSESSORS OF
                       THE CITY OF NEWTON

Docket Nos. F314452, F314453,              Promulgated:
		  F314454 			        November 12, 2013


	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 City of Newton ("assessors" or "appellee") to abate taxes on certain real estate located in the City of Newton owned by and assessed to Hisham N. Ashkouri, Trustee of the Unit One Realty Trust ("appellant"), under G.L. c. 59, §§ 11 and 38, for the fiscal year 2011 ("fiscal year at issue").
	Commissioner Rose ("Presiding Commissioner") heard the appeals and issued single-member decisions for the appellee in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20.
 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.
Hisham N. Ashkouri, pro se, for the appellant.

Angela Buchanan Smagula, Esq. for the appellee.
FINDINGS OF FACT AND REPORT
On the basis of testimony and documents offered into evidence at the hearing of these appeals, the Presiding Commissioner made the following findings of fact. 
On January 1, 2010, the appellant was the assessed owner of three office condominium units -- Units 1, 3 and 5 -- located at 1185 Washington Street in West Newton (collectively, "subject properties").  For the fiscal year at issue, the assessors valued the subject properties as follows:  Unit 1 at $118,400.00; Unit 3 at $215,000.00; and Unit 5 at $206,600.00.  The subject taxes were assessed at the commercial real estate tax rate of $20.89 per thousand, in the total amounts of: Unit 1 at $2,498.11; Unit 3 at $4,536.26; and Unit 5 at $4,359.03.  The appellant did not timely pay the taxes due and thus incurred interest on all three assessments.  On March 16, 2011, the appellant timely filed an Application for Abatement with the assessors for each of the subject properties for the tax year at issue.  On April 28, 2011, the assessors granted partial abatements of: $27,700.00 for Unit 1; $75,900.00 for Unit 3; and $76,000.00 for Unit 5.  After abatements, the tax assessments were as follows:  $1,894.73 for Unit 1; $2,905.80 for Unit 3; and $2,728.23 for Unit 5.  On May 25, 2011, the appellant seasonably filed appeals with the Appellate Tax Board ("Board").  Accordingly, pursuant to the foregoing facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide these appeals.
The subject properties are office condominium units located within an office condominium complex known as Washington West Condominium, which is situated at 1185 Washington Street.  The office condominium complex was built in 1987.  The sizes of the subject properties are:  470 square feet for Unit 1; 959 square feet for Unit 3; and 743 square feet for Unit 5.  For Units 3 and 5, the interiors include carpeted floors, plaster interior walls and plaster ceilings.  Heating is provided by forced hot air.  Other amenities include central air conditioning and above-average plumbing.  For Unit 1, the interior includes carpeted floors and drywall/sheetrock interior walls.  Heating is provided by an electric heat pump.  For all units, the exteriors are stucco/masonry with a flat roof structure.    
The appellant advanced several contentions.  He argued that the subject assessments did not account for the declining economy and for the fact that the units were vacant (Unit 1) or partially vacant (Units 3 and 5) during the tax year at issue.  The appellant next argued that the subject assessments were not proportional to the sizes of the units.  As a point of reference, the appellant used Unit 8 which, at 1244 square feet, is the largest of the four units that the appellant owned within the condominium complex.  Unit 1 has 37.78% the area of Unit 8 but its assessment was 58.77% of Unit 8's assessment.  Similarly, Unit 3 has 77% the area of Unit 8 but its assessment was 99.27% of Unit 8's assessment, while Unit 5 has 59.72% the area of Unit 8 but its assessment was 95.80% of Unit 8's assessment.
The appellee submitted the requisite jurisdictional documents as well as the property record cards for the subject properties and an aerial photograph of 1185 Washington Street.  
The appellant did not submit any evidence of sales or assessments of comparable properties other than Unit 8.  The appellant offered no credible evidence on which to base a determination of the subject properties' fair cash values. Moreover, the Board rejected the appellant's argument that the subject properties were overvalued, simply because they did not reflect a proportional relationship between the square footage of each individual unit as compared with the assessment of Unit 8.  It is a familiar principle of valuation that as square footage increases, the unit value decrease.  See Appraisal Institute, The Appraisal of Real Estate 212 (13th ed., 2008).  Accordingly, without more, the appellant's value-per-square-foot analysis was not persuasive evidence of overvaluation. Therefore, the Presiding Commissioner found and ruled that the appellant did not meet its burden of proving fair market values less than the assessments for the corresponding subject properties.  Accordingly, the Presiding Commissioner issued decisions for the appellee in the instant appeals.

OPINION
The assessors are required to assess real estate 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 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).  The appellant has the burden of proving that the property has a lower value than that assessed.  "[T]he board is entitled to ‛presume that the valuation made by the assessors [is] valid unless the taxpayers . . . prov[e] the contrary.'"  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974)).  
In appeals before this Board, taxpayers "‛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. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  In the instant appeals, the appellant attempted to expose flaws in the assessors' method of valuation by contending that the subject assessments did not adequately account for the state of the economy, particularly considering that the subject properties were either vacant or partially vacant during the tax year at issue.  However, the appellant offered no evidence -- either sales or assessments of comparable properties or expert opinion or other documentary evidence -- to support this contention.  Without any supporting evidence, the appellant's claim was merely a bare assertion that contained neither probative nor credible evidence of the subject properties' fair market values and thus failed to meet his burden of proving fair market values for the subject properties that were less than their assessed values.  See, e.g., Carney v. Assessors of Framingham, Mass. ATB Findings of Fact and Reports 2012-768, 774.
Moreover, the appellant's assertion that the subject assessments were not reflective of their fair market values because they were not proportional to the assessment of Unit 8 -- based solely on a comparison of the square footages of the units -- was unfounded.  Fair market values are dependent on many factors, not merely square footage; in fact, the relationship between unit value and square footage is inverse.  As stated in the Appraisal Institute, The Appraisal of Real Estate 212 (13th ed., 2008): "Generally as size increases, unit prices decrease.  Conversely, as size decreases, unit prices increase."  The Presiding Commissioner thus found and ruled that the appellant's analysis of the subject properties' assessments based on their comparison with Unit 8's assessment was not probative of the subject properties' fair market values. 
"'The burden of proof is upon the [appellant] to make out its right as a matter of law to abatement of the tax.'"  Schlaiker, 365 Mass. at 245 (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)).  The appellant must show that it has complied with the statutory prerequisites to its appeal, Cohen v. Assessors of Boston, 344 Mass. 268, 271 (1962), and that the assessed valuation of its property was improper.  See Foxboro Assoc. v. Assessors of Foxborough, 385 Mass. 679, 691 (1982).  The assessment is presumed valid until the taxpayer sustains its burden of proving otherwise.  Schlaiker, 365 Mass. at 245.  The Presiding Commissioner ruled here that the appellant failed to meet his burden of proving that the subject properties were overvalued for the fiscal year at issue.
Accordingly, the Presiding Commissioner issued decisions for the appellee in the instant appeals. 
 
   						THE APPELLATE TAX BOARD


By: _______________________________
    James D. Rose, Commissioner



A true copy,


Attest: _________________________
    Clerk of the Board
                                                                                                                                                                                                                                       

 Although Mr. Ashkouri filed the Petition under his name, it is clear from the record that the intended appellant was Mr. Ashkouri as Trustee of the Unit One Realty Trust and not Mr. Ashkouri in his individual capacity.
 G.L. c. 59, § 64 provides:  "If the tax due for the full fiscal year on a parcel of real estate is more than $3,000, said tax shall not be abated unless the full amount of said tax due has been paid without the incurring of any interest charges on any part of said tax."  Accordingly, because the subject taxes were less than $3,000, the incurring of interest was not a jurisdictional defect.

 Although the appellant contested the assessment on Unit 8, that unit is not at issue in this appeal, because the appellant did not pay the assessed taxes timely and the assessment exceeded $3,000.00.  G.L. c. 59, § 64.

ATB 2013-1130