Neal Gouck v. Board of Assessors of the Town of North Attleboro (May 15, 2009)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

NEAL GOUCK	v.  BOARD OF ASSESSORS OF THE
						    TOWN OF NORTH ATTLEBORO


Docket No. F298204			    Promulgated:
					    May 15, 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 a tax on real estate located in the Town of North Attleboro, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2008.  
Commissioner Mulhern ("Presiding Commissioner") heard the appeal and, in accordance with G.L. c. 58A, § 1A 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.

Neal Gouck, pro se, for the appellant.
John Kraskouskas, assessor, and Deborah Clougherty, assessor, for the appellee.
FINDINGS OF FACT AND REPORT
On January 1, 2007, Neal Gouck (the "appellant") was the assessed owner of a 1.43-acre vacant parcel of real estate located at 188 Reservoir Street in the Town of North Attleboro ("subject property").  The appellant acquired the parcel by gift on December 29, 2006.  As of June 30, 2007, the parcel was improved with a partially completed prefabricated, ranch-style dwelling, which contains a finished living area of 1,918 square feet.  The prefabricated structure is resting on, and its frame is solidly attached to, a poured concrete foundation with a full basement.  The subject dwelling contains a total of five rooms, including two bedrooms as well as two full bathrooms.  The exterior walls of the dwelling are vinyl siding and it has a gable roof with asphalt shingles.  The dwelling is heated by forced hot air by gas and has central air conditioning.  
For fiscal year 2008, the North Attleboro Board of Assessors (the "assessors") originally valued the subject property at $368,500 and assessed a tax at the rate of $9.07 per thousand in the total amount of $3,342.30.  The fiscal year 2008 assessment is broken down as follows:
	Land 								$208,200
Residence	(@ $67.81 per square foot)		$160,300
 
In accordance with G.L. c. 59, § 57C, the appellant paid the tax due without incurring interest.  On January 31, 2008, in accordance with G.L. c. 59, § 59, the appellant timely filed an application for abatement with the assessors.  The assessors denied the abatement application on April 24, 2008.  On July 24, 2008, the assessors reconsidered the appellant's abatement application and granted an abatement of $73,700, reducing the value of the subject property to $294,800.  On the same day, the appellant seasonably filed an appeal with the Appellate Tax Board (the "Board") which listed the original assessed value.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
The appellant first argued that the subject dwelling is a manufactured home exempt from taxation under G.L.     c. 59, § 5, cl. Thirty-sixth ("Clause 36").  In support thereof, the appellant offered into evidence:  a document giving the federal government's definition of a manufactured home; a copy of G.L. c. 140, § 32Q, regarding "manufactured homes and mobile home parks"; a copy of the dwelling's floor-plan; and, photographs of the dwelling's bolting system.  The appellant did not, however, offer evidence to show that the subject property was located in a "manufactured home community" or was subject to the monthly license fee under G.L. c. 140, § 32B, as required under Clause 36.  For the reasons more fully explained in the following Opinion, the Presiding Commissioner found and ruled that the subject dwelling was not a manufactured home located in a manufactured home community and, therefore, was not exempt from taxation under Clause 36.
The appellant further argued, assuming that the structure was tax exempt, that the land portion of the subject assessment was excessive.  He maintained that the subject land should have been valued as "vacant" land.  The appellant attempted to prove his assertion through the introduction of three sales listings of purportedly comparable properties located in North Attleboro.  Comparable number one is a 1.4-acre vacant lot, which was listed for sale at $178,888.  The property was assessed at $211,200, or $150,857 per acre.  Comparable number two is a 1.91-acre parcel, which is listed for sale at $169,900.  This parcel is part of a larger 3.4-acre parcel, which is improved with a single-family dwelling.  The property was assessed at $408,900, with $227,900 allocated to the land, or $67,029 per acre, and $181,000 to the structure.  Finally, comparable number three is a 1.33-acre vacant lot that was listed for sale at $179,900.  The property was assessed at $206,500, or $155,263 per acre.  Based on these property listings, the appellant maintained that the fair cash value of the subject land was $167,000.  
The Presiding Commissioner found that the appellant's evidence was unpersuasive.  First, the Presiding Commissioner found that the properties which the appellant offered were not comparable to the subject property.  Unlike the appellant's purported comparable properties, the subject is improved with a single-family dwelling.  Further, the subject parcel has been cleared, a foundation constructed, and sewer/septic, water and electrical connections have been made to the dwelling.  Accordingly, the subject parcel is not comparable to uncleared parcels where no improvements or utility connections have been made.  Moreover, the listing prices of unsold properties are not reliable indicators of the fair cash value of the subject property.
	Finally, the appellant argued that, if subject to tax, the subject dwelling was overvalued.  The appellant maintained that the dwelling should have been assessed at $111,952, the initial cost of the prefabricated home.  The appellant did not offer any other evidence to support his claim of overvaluation, including sale prices or assessments of similar properties.
	The assessors presented their case-in-chief through the testimony of John Kraskouskas, a member of the North Attleboro Board of Assessors, and also a statement of value report, which included a comparable-assessment analysis.  In their analysis, the assessors cited six ranch-style properties located in North Attleboro.  The properties ranged in size from 0.61 acres to 4.89 acres with land assessment values that ranged from $191,000 to $207,800.  The dwellings ranged in size from 1,482 square feet to 1,715 square feet with building assessment values that ranged from $374,200 to $466,400.  Comparing the gross living areas to the assessed values, the assessors determined per-square-foot values that ranged from $99 to $123.  Allowing reasonable depreciation allowances for older houses and also economies of scale for larger houses, the assessors determined that the subject property, which was assessed at $111 per square foot, was not overvalued for fiscal year 2008.  
The assessors also offered into evidence a comparable-sales analysis of six ranch-style properties in North Attleboro that sold during calendar year 2006 with sale prices that ranged from $312,000 to $449,900.  However, due to the age and size of the properties, the assessors did not rely on these sales.  
	On the basis of the evidence presented, the Presiding Commissioner found that the appellant failed to meet his burden of proving that the subject property was overvalued for the fiscal year at issue.  The appellant offered no comparable sales, comparable assessments, or other valuation evidence from which the Presiding Commissioner could determine that the assessed value of the subject property, as abated, exceeded its fair cash value.  Moreover, the Presiding Commissioner found that the assessors presented sufficient evidence of comparable assessments to support the subject property's fiscal year 2008 assessment, as abated.  
Accordingly, the Presiding Commissioner issued a decision for the appellee in this appeal.

OPINION
"All property, real and personal, situated within the commonwealth . . . shall be subject to taxation."  G.L. c. 59, § 2.  The assessors are required to assess real estate at its fair cash value determined as of the first day of January of each year.  G.L. c. 59, §§ 2A and 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).  Further, "buildings and other things erected on or affixed to land during the period beginning on January second and ending on June thirtieth of the fiscal year . . . shall be deemed part of such property as of January first."  G.L. c. 59, § 2A.  
The appellant has the burden of proving that the subject property has a lower value than that assessed. "'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)). The assessment is presumed valid until the taxpayer sustains its burden of proving otherwise.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245).
In appeals before this Board, 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. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).
A taxpayer does not conclusively establish a right to abatement merely by showing that his land is overvalued. "The tax on a parcel of land and the building thereon is one tax . . . although for statistical purposes they may be valued separately."  Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941).  The question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive. The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921).  See also Carney v. Assessors of Plymouth, Mass. ATB Findings of Fact and Reports 2008-443, 453-54; Koch Family Nominee Trust v. Assessors of Hinsdale, Mass. ATB Findings of Fact and Reports 2007-288, 295-96; Sands v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2006-190, 198.
In the instant appeal, the appellant argued that the land component of the subject assessment was excessive.  In support of his contention, the appellant offered into evidence three sales listings, which included the property's assessed value, of vacant lots for sale in North Attleboro.  However, the Presiding Commissioner found that these vacant parcels were not comparable to the improved subject property and that the listing prices did not provide reliable evidence of the fair cash values of those properties' or the subject property.
The appellant also argued that the subject dwelling was exempt 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)). 
Chapter 59, § 5, Thirty-sixth provides an exemption for "manufactured homes located in manufactured housing communities subject to the monthly license fee provided for under section thirty-two B of chapter one hundred forty."  In the present appeal, the appellant offered no evidence that his home was located in a manufactured housing community or that it was subject to the monthly license fee under G.L. c. 140, § 32B.  Therefore, the appellant failed to prove that the subject dwelling was a manufactured home within the meaning of Clause 36.  Accordingly, the appellant failed to meet his burden of proving that he was entitled to a tax exemption.
Further, in a case analyzing a prior version of  Clause 36, which exempted "mobile homes," the Supreme Judicial Court found and ruled that a mobile home located in a mobile home park and subject to a monthly licensing fee was not exempt from property tax.  Ellis v. Assessors of Achushnet, 358 Mass. 473 (1970).  In Ellis, the taxpayer purchased a "factory built prefabricated home," which was transported to a mobile home park and "solidly attached to [a] poured concrete foundation."  Id. at 474-75.  The Court found that "in almost every practical respect concerning the design, architecture, size, accommodations, durability, permanence, character, and use, the structure looks like and serves the purpose of a conventional home . . . ."  Id. at 475.  Therefore, the Court held that, "this home is identical to any other conventional home which is classified [and taxed] as real estate."  Id.  The Court also observed that granting an exemption to the prefabricated home affixed to a foundation "would create a dual standard of taxation and thus present a serious question as to" the constitutionality of the exemption "in view of the similarity between the mobile home as described in the legislation and the traditional dwelling subject to a real estate tax."  Id. at 477.
Similarly, in the present appeal the appellant's dwelling is affixed to a concrete foundation and is identical to other conventional homes which are classified and taxed as real estate.  At all relevant times, the appellant used and occupied the subject dwelling as his principle place of residence and it served the purpose of a conventional home.  Accordingly, the Presiding Commissioner found and ruled that the appellant's prefabricated home was properly taxable as real estate.
In the alternative, the appellant argued that the subject dwelling should have been assessed at $111,952, the initial cost of the prefabricated home.  
Massachusetts courts and this Board have "generally viewed with disfavor" the use of the a cost approach "except where the special character of the property makes it substantially impossible to arrive at value on the basis of capitalized net earnings or on the basis of comparable sales."  Blakeley v. Assessors of Boston, 391 Mass. 473, 477 (1984).  Further, unlike the commercial contexts where courts and this Board have used the cost approach to value special purpose property, the cost to construct a personal residence, unless checked against market data, will often lead to unreliable evidence of fair market value.  See, e.g., Lyons v. Assessors of Wilbraham, Mass. ATB Findings of Fact and Report, 2004-385, 400; Harbor Dreams, LLC v. Assessors of Hingham, Mass. ATB Findings of Fact and Report, 2004-56, 97.
In the present appeal, the appellant offered no evidence, such as comparable sales or comparable assessments, to support his conclusion that his initial cost of the prefabricated home represented its fair cash value.  Further, it is unclear on this record whether the cost figure the appellant offered included all of the necessary costs of construction for the subject property.  In contrast, the assessors offered into evidence a market-value analysis based on comparable assessment data.  The assessors' analysis amply supported the subject property's fiscal year 2008 assessment, as abated.

On this basis, the Presiding Commissioner ruled that the appellant failed to meet his burden of proving overvaluation and issued a decision for the appellee in this appeal.


THE APPELLATE TAX BOARD



				
                  		By:_______________________________
				  	   Thomas J. Mulhern, Commissioner




A true copy,

Attest:  __________________________________
	    Clerk of the Board

 Pursuant to G.L. c. 59, § 2A, the assessors included the value of the dwelling as of June 30, 2007 in the subject property's fiscal year 2008 assessment. 

	ATB 2009-554