Lease & Rental Management Corp. v. Board of Assessors of the Town of Andover, Et Al., Edward F. Hines, Jr. v. Board of Assessors of the Town of Andover (July 21, 2004)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


LEASE & RENTAL MANAGEMENT CORP.	v.	BOARD OF ASSESSORS OF THE
				TOWN OF ANDOVER, ET AL.

EDWARD F. HINES, JR.		v.	BOARD OF ASSESSORS OF THE
							TOWN OF ANDOVER

Docket Nos. F245584, F245585		
F255352-F255357, F255359, 
F255362, F255363, F255379, 
F255629, 169481-84 (consolidated) 	Promulgated:
							July 21, 2004

	These are consolidated appeals under the formal procedure, pursuant to G.L. c. 60A, § 2, from the refusal of the appellees to abate motor vehicle excises assessed to the appellants under G.L. c. 60A, § 1 for fiscal year 1989.
	Commissioner Gorton heard these appeals. Commissioners Scharaffa, Egan, and Rose joined him in the decision for the appellants.
	These findings of fact and report are made pursuant to requests by the appellants and the appellees under G.L. c. 58A, § 13, and 831 CMR 1.32.


	Edward F. Hines, Jr., Esq., Jerry Canada, Esq., Kathleen A. Burdette, Esq., and Kevin J. Lesinski, Esq., for the appellants.

Thomas J. Urbelis, Esq., John W. Fieldsteel, Esq., Jacqueline L. Allen, Esq., Ellen Hutchinson, Esq., and William H. Solomon, Esq., for the appellees.


FINDINGS OF FACT AND REPORT
On the basis of the testimony and exhibits introduced in the hearing of these consolidated appeals, the Appellate Tax Board ("Board") made the following findings of fact. 
A.	APPELLANTS
Appellant Lease and Rental Management Corporation ("LRM") was at all material times a corporation having a principal place of business in Andover, Massachusetts.  Its business consisted of leasing motor vehicles to both individuals and businesses.  LRM has appealed motor vehicle excises for fiscal year 1989 assessed to it by the Boards of Assessors ("assessors") of fifteen municipalities in which LRM "customarily kept" certain vehicles.  
Appellant Edward F. Hines, Jr. ("Hines") was at all material times an individual residing in the Town of Andover.  Hines has appealed the motor vehicle excise assessed to him by the Assessors of Andover ("Andover") for fiscal year 1989.  
Because all of these appeals raise the fundamental issue of the appropriate rate to be used for the fiscal year 1989 motor vehicle excise, the Board allowed the motion of the parties to consolidate these appeals.
B.	FACTUAL BACKGROUND OF PRESENT APPEALS
LRM was assessed and paid motor vehicle excises to 247 cities and towns in the Commonwealth for fiscal year 1989.  Although it paid the excises assessed, LRM maintained that the tax rate of $25.00 per thousand dollars of value used by the municipalities to assess the motor vehicle excise was incorrect.  
Accordingly, on August 7, 1990, LRM filed abatement applications with each of these 247 cities and towns.  Each application was accompanied by a cover letter stating, in pertinent part, "the applicant hereby consents in writing to the failure of the assessors to act on this abatement application within three months of the date of its filing."  
Seventy-nine cities and towns chose to deny LRM's applications for abatement.  On November 6, 1990, LRM filed petitions with this Board with respect to the seventy-nine denials.  The present appellees took no action on LRM's applications and were not parties to the appeals filed on November 6, 1990.
The parties to the 1990 petitions determined that the most efficient method for determining the merits of LRM's abatement claim was to pursue a "test case."  The parties chose as the test case an appeal brought by an affiliate of LRM, Executive Auto Lease ("EAL"), against the Town of Mansfield.  On April 8, 1994, the Board ruled, pursuant to 831 CMR 1.33 ("Rule 33 Order"), that EAL was entitled to an abatement equal to the average state rate as determined under G.L. c. 63, § 58.  Pursuant to the Board's Rule 33 Order, the parties submitted an agreed-upon calculation of the abatement due and the Board adopted the calculations by decision dated December 13, 1994.
On the basis of the Board's decision in the Mansfield appeal, LRM and its affiliate sent letters to numerous municipalities seeking to settle the remaining pending abatement claims.  Between 1995 and 1999, LRM and EAL settled seventy-four of these cases with various municipalities.
Those cities and towns that decided not to settle their appeals with LRM took the position that LRM could not pursue the appeals because they were not timely filed.  The municipalities argued that LRM could not "unilaterally consent" to an extension of time for the assessors to act and that, therefore, the applications had been "deemed
denied" three months from their filing, with petitions due at the Board three months after the deemed denial date. 
 LRM filed appeals with respect to four of the towns that raised the timeliness issue: Cohasset, Stoneham, Lynnfield, and Arlington.  In response, these four towns moved to dismiss the appeals on the basis of this issue and the parties agreed to pursue one appeal, involving Cohasset, as a test case.  After a hearing, the Board ruled that LRM failed to satisfy its burden of proving that it had actually filed an application for abatement with the Cohasset Assessors.  Accordingly, the Board dismissed the appeal on June 11, 1998.
 
C.	JURISDICTION OVER PRESENT APPEALS
Validity of "Unilateral Consent"
After the Cohasset decision, LRM determined that sufficient evidence of filing existed in a number of the remaining cities and towns.  Accordingly, on December 15, 1999, LRM sent a letter to the assessors of these municipalities, stating that LRM was withdrawing its consent to an extension of time for the assessors to act.  On that same date, Hines sent an identical letter to the Assessors of Andover.  Two weeks later, on December 29,
1999, LRM and Hines filed appeals of these deemed denials with this Board.  These appeals, together with appeals already pending for Stoneham and Arlington, constitute the present consolidated appeals.
On the basis of the evidence of record, the Board found that LRM and Hines timely filed, on August 27, 1990, applications for abatement of the fiscal year 1989 motor vehicle excises with the thirteen boards of assessors that are the appellees in these appeals.  On that same date, each of the appellees received a letter from LRM, and Andover received a letter from Hines, which stated in pertinent part:
Pursuant to Section 64 of Chapter 59 of the General Laws of the Commonwealth, the applicant hereby consents in writing to the failure of the assessors to act on this abatement application within three months of the date of its filing.

For the reasons explained in the Opinion below, the Board found and ruled that these letters constituted a valid written extension so that the applications were not "deemed denied." 
Accordingly, the Board found and ruled that the applications for abatement filed with the appellees were not "deemed denied" until December 15, 1999, when the appellants withdrew their consent to extend the time for the assessors to act on their applications.  Therefore, the appellants' petitions filed with this Board just two weeks after the deemed denial were timely.  For all of the foregoing reasons, the Board found and ruled that it had jurisdiction over all appeals in which the appellees had taken no action on the appellants' applications for abatement. 
Jurisdictional Arguments Advanced by Andover
Andover raised a number of additional jurisdictional arguments that, in some cases, also applied to other appellees.  Specifically, these arguments raised legal issues concerning the content of the applications for abatement; the number of appellants that may be included in a single petition with this Board; the subject matter jurisdiction of the Board; and whether the appellees granted a partial abatement long before the appellants withdrew their consent to extend the time for the assessors to act on their applications.  The Board finds the following facts in reference to these issues.
a.	Content of Applications for Abatement
	In some instances, including its application to the Andover, LRM filed a single application for abatement that appended a list of vehicles to which the disputed excise related.  Andover argued that a separate application was required for each vehicle owned by LRM and that, therefore, an application that appended a list of vehicles was jurisdictionally defective.
As explained in the Opinion below, there is no statutory requirement mandating that a taxpayer file a separate application for abatement with respect to each vehicle it owned.  The appellees were free to act on all or part of the applications by granting abatements for some vehicles and not for others.  The fact that LRM chose an efficient procedure, not prohibited by statute, to appeal the excise imposed on, in the case of Andover, hundreds of vehicles, does not raise a jurisdictional defect to its appeal.
Andover also raised as a jurisdictional bar to the appeals LRM's failure to provide certain information requested on the form application for abatement.  In its applications to Andover, LRM failed to provide the following information requested on the application form: each vehicle's date of registration; the date of issuance of the excise bill for each vehicle; the "type" of each vehicle; and the number of cylinders or rated capacity of each vehicle.  
As more fully explained in the Opinion below, the assessors cannot, by the adoption of a particular form approved by the commissioner, require more information on an application for abatement than is required by statute.  Although certainly useful to the assessors in their decision-making process, the information is not required by the operative statute and is accessible by other means.  The application put the assessors on notice of the claim being raised, properly identified the applicant, and sufficiently identified the relevant property to which the excise related.  Nothing more is statutorily required for a valid abatement application.
Finally, the assessors maintained that the applications were void because they were not properly "subscribed." The applications contained the handwritten name of "Michael R. Cook," president of LRM, as the signatory.  Mr. Cook did not sign his own name on the application.  Rather, he authorized and instructed one of LRM's employees to sign on his behalf.  For the reasons explained more fully in the Opinion below, the failure of Mr. Cook to personally sign the abatement application does not render the application void.
b.	Petitions Filed by Two Appellants
	In its petition naming Andover as appellee, LRM listed itself and its affiliate, EAL, as appellants.  Andover argued that including two appellants in a single petition rendered the petition defective and therefore, the Board was required to dismiss the appeal.  As discussed in the Opinion below, to the extent that listing two affiliated entities as appellants may have been improper, it does not rise to the level of a jurisdictional defect requiring dismissal of the appeal.
c.	Subject Matter Jurisdiction of the Board
The appellants challenge the motor vehicle excise solely on the ground of the proper rate to be applied.  They have not challenged the valuation of their respective vehicles for the year at issue.  Andover maintained that the Board has jurisdiction over only the issue of valuation and that, therefore, it is without subject matter jurisdiction to decide the validity of the motor vehicle excise where the applicable rate alone is challenged.  For the reasons detailed in the Opinion below, the Board ruled that it had jurisdiction to hear and decide the issue of whether the appellants were "aggrieved by the excise assessed" and, therefore, entitled to an abatement.
d.	Partial Abatement on Certain Vehicles 
Andover argued that the multi-vehicle or "bulk" application for abatement at issue in these appeals was invalid because it had already acted on a number of individual abatement requests filed by LRM regarding certain vehicles that were also included in the "bulk" application.  Alternatively, Andover argued that its action with respect to these vehicles constituted action on the "bulk" application, thereby rendering LRM's consent irrelevant.
	LRM's witness testified that because of clerical errors, a number of vehicles appeared on the abatement application for which LRM had already received an abatement.  He also acknowledged that certain vehicles that LRM did not own were incorrectly listed due to an incorrect tax bill number.  The witness further testified that LRM agreed to withdraw any claim for abatement with respect to those vehicles which it either did not own or for which it had already received an abatement.  
There was no evidence introduced to support a finding that Andover took any action on the "bulk" application filed on August 27, 1990.  Rather, the evidence supports the Board's finding that any abatements granted were in connection with separately filed applications listing one vehicle.  The fact that LRM listed some vehicles on both the "bulk" and individual applications does not render the "bulk" application void, at least with respect to those vehicles not previously included in an abatement application.  Because LRM has withdrawn its abatement claim for any vehicle for which Andover had already granted an abatement, there is no issue as to whether the assessors' action on individual abatement applications prevents further consideration of the excise on those vehicles.  Accordingly, the Board found that the assessors took no action on the August 27, 1990 application for abatement and that it has jurisdiction to hear and decide appellant's appeal with respect to those vehicles for which no abatement had previously been granted.
	D.	VALIDITY OF RATE UNDER G.L. c. 60A, § 1
	The appellees used a uniform rate of $25 per thousand dollars of vehicle value in the assessment of the motor vehicle excise for fiscal year 1989.  The appellants argued that the operative statute, G.L. c. 60A, § 1, requires the assessors to use a rate equal to the "average state rate for the calendar year, as determined in the manner provided under section fifty-eight of chapter sixty-three" and that the $25 rate can only be used if the "average state rate" exceeds $25.
	The appellees argued that the calculation of an average state rate for the calendar year, as determined under G.L. c. 63, § 58, cannot be made, because § 58 calculates average state rates for a fiscal year, based on the average of the rates for the prior three fiscal years.  The argument follows that because the calculation contemplated by G.L. c. 60A, § 1 is an impossibility, the $25 rate is the only one that could be used.
	The average state rates for the three fiscal years prior to fiscal year 1989 were as follows:
		Fiscal Year 1986			$18.07
		Fiscal Year 1987			$14.89
		Fiscal Year 1988			$13.53

Based on these figures, the average state rate for fiscal year 1989, as calculated under G.L. c. 63, § 58, is the sum of these rates, $46.49, divided by three, or $15.50 per thousand.
	For the reasons explained in the Opinion which follows, the Board ruled that G.L. c. 60A, § 1 incorporates by reference the average state rate calculated under G.L. c. 63, § 58 and is the appropriate rate to use for the calendar year auto excise imposed under § 1.
	On the basis of the foregoing, the Board issued decisions for the appellants in these appeals.


OPINION
	These appeals raise a number of jurisdictional and substantive issues that the Board addresses as follows.
JURISDICTION
1.	Validity of "Unilateral Consent"
Appellants filed applications for abatement with the appellees on August 27, 1990, together with a cover letter which consenting to the assessors' failure to act within three months of filing.  Both G.L. c. 59, § 64 and G.L. c. 58A, § 6, provide in pertinent part:
Whenever a board of assessors, before which an application in writing for the abatement of a tax is or shall be pending, fails to act upon said application, except with the written consent of the applicant, prior to the expiration of three months from the date of filing of such application it shall then be deemed to be denied and the assessors shall have no further authority to act thereon. 

(emphasis added). 
	The assessors argue that a "consent" can only be given in response to the assessors' request for additional time.  Therefore, the taxpayer cannot, in the assessors' view, consent to the assessors taking more than three months to act on an application without the assessors first having requested additional time.  For the following reasons, the Board ruled that the appellants' consent validly extended the time within which the assessors had to act on the abatement applications.
	Neither G.L. c. 59, § 64 nor G.L. c. 58A, § 6 explicitly requires the assessors to take any action to extend the three-month period within which they otherwise must act.  Instead, all that is required is the written consent of the applicant.  Had the Legislature intended to require such action by the assessors, it easily could have done so. See, e.g., G.L. c. 62C, § 27 (providing that the period of limitations for making assessments of state taxes may be extended where the "commissioner and the taxpayer consent in writing").  
	The absence of a provision requiring such action on the part of the assessors leaves only the argument that the word "consent" implies a prior request for permission.  However, the operative statute makes no mention of any assessor request, either oral or written.  In fact, G.L. c. 58A, § 6 provides, in the context of an extension of the time for the commissioner of revenue to act on an abatement application, that the applicant consents not to a request or other action by the commissioner but rather to the "failure of the commissioner to act" on an application.  Accordingly, the appellees' argument that a "consent" can only be given in response to a request or action by them is belied by language in the same § 6 which governs consents to the assessors' failure to timely act on an abatement application.
	Interpretation of statutory language based on inferences drawn from words or phrases that purport to require an applicant's strict adherence to an inferred requirement are not favored.  "This is particularly true when such an inference would subject taxpayers to additional risks of losing their rights to prosecute applications for abatement beyond those to which they are subjected by express or necessarily implied statutory requirements." Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 313 (1941).  Moreover, tax laws are to be construed and interpreted "so as to be susceptible of easy comprehension and not likely to become pitfalls for the unwary." Id. (quoting Hemenway v. Milton, 217 Mass. 230, 233.)
	The Board's interpretation of these provisions neither places the assessors at any unfair disadvantage nor results in the "doomsday" scenario envisioned by the assessors of unlimited appeal periods.  The fact remains that the present appellees had the option to act on the applications at any time, as seventy-nine other boards of assessors had done, by denying appellants' applications.  However, they chose to do nothing with respect to the applications, thereby extending the "deemed denial" date until either the assessors acted or the appellants withdrew their consent.  With consent withdrawn prior to any action by the assessors, the three-month appeal period began on the date of withdrawal.  Because the appellants filed their appeals with this Board well within three months of this withdrawal, the Board has jurisdiction over these appeals.
	2.	FORM OF APPLICATION FOR ABATEMENT
	As grounds for dismissal, the assessors raise a number of perceived jurisdictional defects in the appellants' applications for abatement as grounds for dismissal.  Prior to addressing each individual ground, a review of the general requirements of an application for abatement will reveal the deficiencies in the assessors' arguments.
G.L. c. 59, § 59 provides in pertinent part:
A person upon whom a tax has been assessed . . . may . . . apply in writing to the assessors, on a form approved by the commissioner, for an abatement thereof.

An abatement application is a "notice" by which "information" is given to the assessors "in reference to a possible pecuniary liability."  Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 312 (1941) (quoting Shawmut Mills v. Assessors of Fall River, 271 Mass. 358, 361 (1930)). The application is not, in its nature, the presentation of evidence.  Rather, it serves merely as "notice of the taxpayer's assertion that he objects to the assessors' action."  Children's Hospital Medical Center v. Assessors of Boston, 393 Mass. 266, 268 (1984).  Accordingly, all that is required to be included in an application for abatement for it to be jurisdictionally sufficient is "such information as will adequately inform the assessors that a claim for abatement of a tax upon [property] therein referred to is being made by a person entitled to apply for such abatement, with a 'sufficient description of the particular [property] as to which an abatement is requested.'" Prudential Insurance Co., 310 Mass. at 313.
	Finally, in the absence of statutory language mandating the form or content of an application for abatement, statutory interpretations creating jurisdictional bars to a taxpayer's right to prosecute abatement claims are not favored.  Id.; Hemenway, 217 Mass. at 233.
	Against this backdrop of general principles, the Board rules as follows on the assessors' individual arguments.


a.	Multiple Vehicles on one Application
In some instances, LRM filed a bulk application for abatement of tax assessed on a number of vehicles, consisting of a single application with an appended list of various vehicles.  Andover argued that a separate application for abatement was required for each vehicle and that an application that purported to seek abatement of tax for a number of vehicles was jurisdictionally defective.
There is, however, no statutory requirement that appellant file a separate application for abatement of motor vehicle excise with respect to each vehicle.  In fact, § 59 is silent on the issue.  If the Legislature intended that only a single vehicle be included on an abatement application, it could easily have done so. See, e.g., G.L. c. 58A, §§ 7 and 7A ("No petition shall relate to an assessment on more than one parcel of real estate, except where the board shall specifically permit otherwise.").  In the absence of specific language barring the inclusion of multiple vehicles on a single application for abatement, the Board will not create a jurisdictional requirement that the Legislature has not chosen to enact.
	The appended list of vehicles adequately informed the assessors that a claim for abatement of the motor vehicle excise assessed on each of the listed vehicles was being made by the appellant, and provided a "sufficient description" of the vehicles "as to which an abatement is requested."  Prudential Insurance Co., 310 Mass. at 313.  Accordingly, appending a list of vehicles to an application for abatement did not render the application defective so as to deprive the Board of jurisdiction over the subject appeals.
	b.	Failure to Provide Certain Requested Information
	In some instances, LRM failed to provide certain information requested on the application for abatement form.  For example, on its application filed with Andover, LRM failed to provide the following information concerning the vehicles: each vehicle's date of registration; the date of issuance of the excise bill for each vehicle; the "type" of each vehicle; and the number of cylinders or rated capacity of each vehicle.  The assessors argued that failure to provide this information, which was requested on the form approved by the commissioner of revenue, rendered the application jurisdictionally defective.
	However, the assessors cannot "under the guise of [requiring] a form for an application impose upon the taxpayer an obligation to furnish information not required by the statute expressly or by implication."  Children's Hospital, 393 Mass. at 268 (quoting Prudential Life Insurance Co., 310 Mass. at 308).  If the assessors desired more information than was furnished on the application, they could request it under the provisions of G.L. c. 59, §  61A.  Children's Hospital, 393 Mass. at 268.  Although it might be administratively convenient to request the information at the time the application is received, such "administrative convenience cannot rise to the level of a jurisdictional prerequisite, in the absence of statutory language to that effect."  Id. at 269.
	The information provided by LRM in its applications for abatement adequately informed the assessors that a claim for abatement of the motor vehicle excise assessed on the listed vehicles was being made by the appellant, with a "sufficient description" of the vehicles "as to which an abatement is requested."  Prudential Insurance Co., 310 Mass. at 313.  Accordingly, the appellant's failure to provide the additional information requested on the form application did not render the application defective so as to deprive the Board of jurisdiction over the subject appeals.
	c.	Applications not Properly "Subscribed"
	In some instances, the applications for abatement contained the handwritten name of "Michael R. Cook," LRM's president, as signatory.  Mr. Cook authorized one of LRM's employees to sign his name on the abatement application.  The assessors maintained that Mr. Cook's failure to personally sign the abatement applications rendered the applications void.
	There is no statutory requirement that applications for abatement be signed.  G.L. c. 59, § 59: 
does not, in terms, require that an application be 'signed,' . . . Doubtless a 'signature' by or in behalf of an applicant for abatement would be a natural incident of such an application, but apparently the Legislature did not regard a 'signature' in any particular form -- if at all -- as essential to an application if, without a 'signature,' an application received from a proper source was sufficient 'adequately [to] inform' the assessors 'in writing' as to the identity of the person applying for an abatement. 

Assessors of Boston v. Neal, 311 Mass. 192, 198-199 (1942).  Even if the statutory requirement that the application for abatement be "in writing," together with the presence of a signature line on the approved form, connote the requirement of a signature, there is no requirement that the application be signed in the handwriting of the applicant.  Id. at 201-02 (ruling that typewritten names of applicants on an application for abatement were sufficient).  
	Accordingly, the subject applications for abatement are not jurisdictionally defective because an employee signed on behalf of LRM's president.   
	3.	MISCELLANEOUS PROCEDURAL ISSUES

	In addition to the foregoing, the assessors raised three additional procedural issues regarding the Board's jurisdiction over these appeals.  The Board rejected each of these arguments as follows.
	a.	Petitions Listing Two Appellants
	In some instances, petitions filed with this Board named two appellants, LRM and its affiliate, EAL.  The assessors argued that inclusion of two taxpayers on a single petition rendered the petition defective, thereby requiring the dismissal of the appeals.
	At most, appellees' argument supports a ruling that one of the appellants, not the petition itself, should be dismissed.  LRM is clearly a "person aggrieved by the refusal of the assessors to abate" the motor vehicle excise, a fact not contested by the assessors.  See G.L. c. 59, § 64.  As such, LRM is entitled to prosecute these appeals.  
	b.	Subject Matter Jurisdiction Over Rate
	The appellees argued that because the appellant only challenged the motor vehicle excise rate, and not the valuation of the vehicles, the Board did not have subject matter jurisdiction over these appeals.
	Generally, the Board does not have jurisdiction over the validity of the tax rate in the context of real and personal property taxation, except in a challenge to the classification of property where different rates are used for different classes of property.  The rationale behind this limitation stems from the fact that an appeal to the Board, in the context of local property taxation, is from the denial of an application for abatement filed under G.L. c. 59, § 59, which provides that the assessors may grant an abatement only where an applicant is taxed "at more than his just proportion or upon an improper classification, or upon an assessment of any of his property in excess of its fair cash value."  
	However, a taxpayer challenging a motor vehicle excise does not apply for an abatement to the assessors under § 59.  Rather, an independent mechanism for challenging a motor vehicle excise is found in G.L. c. 60A, § 2.  Section 2, in addition to providing a different timing mechanism from that found in § 59, also does not limit the grounds for a challenge to the three § 59 bases.  Instead, § 2 provides that: 
the owner, if aggrieved by the excise assessed, may on or before December thirty-first of the year next succeeding the year to which the excise relates . . . apply for an abatement to the board of assessors.

	The excise is comprised of two components: the rate and the value of the vehicle.  As a result, because § 2 does not limit the issues or components of the excise that may be challenged, both the assessors and the Board have subject matter jurisdiction to determine whether either component of the excise is excessive.
	c.	Partial Abatement on Certain Vehicles
Andover argued that it previously granted LRM abatements on certain vehicles that also appeared on the list of vehicles appended to the abatement application filed in connection with the present appeal.  Andover therefore argued that the "bulk" application for abatement was invalid, because it had already acted on a number of other abatement requests concerning certain vehicles included in the bulk application.  Arguing in the alternative, Andover maintained that its decision with respect to these vehicles constituted an action on the bulk application, thereby rendering the appellant's consent irrelevant.
	On the basis of the evidence introduced at the hearing, the Board found that any abatements granted were in connection with separately filed abatement applications regarding individual vehicles.  The fact that appellant may have filed individual abatement applications for particular vehicles prior to the filing of the bulk application does not render void the bulk application.  Appellant has withdrawn all claims for further abatement on those vehicles for which the assessors previously granted an abatement, thereby nullifying the issue as to whether the assessors' action on individual abatement applications prevents further consideration of the excise on those vehicles.  Accordingly, the Board found that the assessors took no action on the August 27, 1990 application for abatement and ruled that it had jurisdiction to hear and decide appellant's appeal with respect to those vehicles for which no abatement had previously been granted.
	B.	VALIDITY OF RATE UNDER G.L. c. 60A, § 1
	For the tax year at issue, G.L. c. 60A, § 1 provided in pertinent part:
there shall be assessed and levied in each calendar year on every motor vehicle and trailer registered under chapter ninety, for the privilege of such registration, an excise measured by the value thereof, as hereinafter defined and determined, at the average state rate for the calendar year, as determined in the manner provided under section fifty-eight of chapter sixty-three, except that no rate fixed hereunder shall be in excess of twenty-five dollars per thousand of valuation . . . [emphasis added]

	The rate determined under G.L. c. 63, § 58, to which § 1 refers, is calculated as follows:
the average of the annual rates for the three years preceding that in which such assessment is laid, said annual rates to be determined by an apportionment of the whole amount of money to be raised by taxation upon property in the commonwealth during each of the said three years, as returned by the assessors of the several towns under section forty-seven of chapter fifty-nine, upon the aggregate valuation of all towns for each of the said three years, as returned under said section forty-seven.

	The principle issue raised in these appeals is how the rate under § 58, which is calculated based on a fiscal year running from July 1 to June 30, can be used for the calendar year rate under § 1.  Both parties seem to agree that it is impossible to elicit the intended rate by reconciling these two statutes.  The appellants argue that the impossibility of such reconciliation renders the statute impermissibly vague, resulting in a denial of due process.  The assessors urge the Board to "excise" the offensive language in § 1, highlighted above, to leave only the $25.00 reference.
	However, established principles of statutory construction cut against the alternatives offered by the parties, as well as the premise upon which each is based.  First, "statutes are to be construed so as to avoid an unconstitutional result or the likelihood thereof."  Adamowicz v. Ipswich, 395 Mass. 757, 763-64 (1985).  Second, a "construction of a statute that would lead to an absurd or unreasonable conclusion is not to be adopted where its language is fairly susceptible to a construction leading to a logical and sensible result."  
McCarthy v. Woburn Housing Authority, 341 Mass. 539, 542 (1960) (quoting Bell v. Treasurer of Cambridge, 310 Mass. 484, 489 (1941)); see also Manning v. Boston Redevelopment Authority, 400 Mass. 444, 453 (1987).  In addition, statutes should not be construed in such a way as to make a nullity of pertinent provisions.  See, e.g., Insurance Rating Bd. v. Commissioner of Insurance, 356 Mass. 184, 189 (1969).  Further, "[n]one of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning."  Commissioner v. Wood's Hole Martha's Vineyard & Nantucket Steamship Authority, 352 Mass. 617, 618 (1967).  Finally, purportedly conflicting provisions must, if possible, be reconciled so that they may be read in a manner that is harmonious and consistent with the legislative design.  See Peters v. Michienzi, 385 Mass. 533 (1982).
	With these principles in mind, the Board analyzed the operative statutes and determined that they can be read together harmoniously in a way that renders all of their words operative and produces a sensible result.  Focusing on the provision of § 1, which provides that the rate to be applied to determine the motor vehicle excise is the
"average state rate for the calendar year, as determined in the manner provided under section fifty-eight of chapter sixty-three," the Board determined that the plain meaning of § 1 required that the rate calculated under § 58 be incorporated by reference into § 1 for use as the motor vehicle excise rate for the calendar year.  Accordingly, even though the § 58 rate is an average of rates for the prior three fiscal years, it is incorporated into § 1 as the appropriate rate to use for the calendar year motor vehicle excise imposed under § 1.
	Substantial evidence existed as to the average state rate for the three fiscal years prior to fiscal year 1989 as well as the figures upon which those rates were calculated, the total assessed value of all property subject to tax, and the total tax levy for each of those years.  On the basis of this evidence, the average state rate for each of those years, and the average rate for the three prior fiscal years, was calculated.  Pursuant to the Board's interpretation of § 1, this three-year average fiscal rate was adopted for use as the calendar rate from which the motor vehicle excise was calculated.
 


 
	On the basis of the foregoing, the Board found and ruled that the appropriate motor vehicle excise rate for calendar year 1989 was $15.50.  Accordingly, the Board issued decisions for both of the appellants in these appeals.

					APPELLATE TAX BOARD

				By: 							
				    Donald E. Gorton, III, Member



A true copy,


Attest:______________________
	    Clerk of the Board

 The other appellees in these consolidated appeals are the Boards of Assessors of the following cities and towns:  Arlington, Holyoke, Natick, Needham, North Attleboro, Pembroke, Pittsfield, Randolph, Springfield, Stoneham, Walpole, and Watertown.
 The term "appellees" as used in these findings will refer to one or more of the several appellees in these appeals.
 The Lynnfield case was later withdrawn because the parties reached a settlement.
 The average state rates were calculated based on evidence, also uncontroverted, of the total assessed value of property in the Commonwealth and the total tax levy for the relevant years.  The following table shows these figures and the resulting rates.

	Fiscal	      Total Assessed	     Total Tax	      Rate/
       Year	          Value	    	  __   Levy	_          $1,000__
	1986		$183,189,192,597	  $3,309,379,113	     $18.07
	1987		$237,510,684,878	  $3,536,290,756	     $14.89
	1988		$281,161,115,821	  $3,804,783,678	     $13.53
 It is unclear from the record whether LRM filed a motion to dismiss EAL as an appellant, despite indicating an intention to do so in one of its memoranda. To the extent that it has not filed such a motion, the Board, on its own motion, dismissed EAL as an appellant.
 Calendar year 1989 was the last year in which G.L. c. 60A, § 1 provided for the calculation at issue in these appeals.  St. 1989, c. 653, § 42, effective as of January, 1990, amended § 1 and provided a uniform rate of $25.00.  Accordingly, the issue raised in these appeals will not recur for years after 1989.
 G.L. c. 59, § 47 was repealed by St. 1969, c. 532, § 2.  However, § 58 was not repealed and the figures used to calculate the apportionment and the rates referred to in § 58 were available and submitted as evidence in these appeals.
 Were the Board to agree that the calculation of the rate was impossible, the $25.00 ceiling would not, as appellees contend, offer a substitute rate for the excise.  Manifestly, the provision for a $25.00 rate applies only if the statutory formula operates to produce a result in excess of that cap.  There is no basis in the statutory language for treating $25.00 as a fallback tax rate.  On the contrary, impossibility in fixing a rate would likely render a tax void for vagueness under standards of due process.  See Weissinger v. Boswell, 330 F.Supp. 615, 624-25 (M.D. Ala. 1971)("Due process requires of a statute a reasonable degree of certainty and definiteness - a requirement that applies with special force to a taxing statute.").  Accord Big Mama Rag, Inc. v. United States, 631 F.2d 1030, 1035 (D.C. Cir. 1980).  See also Fire Cos. Bldg. Corp. v. Commissioner, 54 F.2d 488, 489 (2nd Cir. 1931)(Hand, J.)(impossibility in finding a rate suggests "no tax can be collected at all.").

ATB 2004-263