Attilio F. Cardaropoli v. Board of Assessors of the City of Springfield (December 7, 2001)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



ATTILIO F. CARDAROPOLI		v.	BOARD OF ASSESSORS OF
				THE CITY OF SPRINGFIELD

Docket Nos. F254899				Promulgated:
		  F258194      		December 7, 2001
		  F258195
		  F258196

	These are appeals 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 City of Springfield owned by and assessed to the appellant under G.L. c. 59, § 38, for fiscal years 1999 and 2000.    
	Commissioner Gorton heard these appeals on the appellee's motions to dismiss.  He allowed the motions and issued single member decisions for the appellee dismissing all four appeals for lack of jurisdiction in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20.  
On his own motion, the single member reconsidered the decisions involving Docket Numbers F254899 and F258195 and referred these appeals to the full Board for consideration.  After deliberation, the Board issued an Order contemporaneously with the promulgation of these findings denying the motions to dismiss in Docket Numbers F254899 and F258195.  Commissioner Gorton dissented from the Order of denial.
These findings of fact and report are promulgated at the request of the appellant, pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.

 	Attilio Cardaropoli, pro se, for the appellant.
Kathleen Breck, Esq., and Wayman Lee, Esq., for the appellee.

FINDINGS OF FACT AND REPORT
At all relevant times, Attilio Cardaropoli ("appellant") was the owner of the real estate which is the subject of these four appeals.  Prior to a hearing on the merits of the appeals, the City of Springfield Board of Assessors ("Assessors") moved to dismiss these appeals on the ground that the appellant failed to timely file his petitions with the Appellate Tax Board ("Board").  On the basis of the testimony and documentary evidence submitted at the motion hearing, the Board made the following findings of fact.
	On January 1, 1998 and January 1, 1999, the appellant was the assessed owner of a parcel of real estate located at 205 Belmont Avenue, Springfield, Massachusetts.  For fiscal year 1999, the Assessors valued the property at $247,500 and assessed a tax at the rate of $20.65 per thousand, in the amount of $5,110.88.  For fiscal year 2000, the Assessors valued the property at $271,000 and assessed a tax at the rate of $20.80 per thousand in the amount of $5,636.80.  This parcel is the subject of both fiscal year 1999 and 2000 appeals (the "Belmont Avenue appeals").
On January 1, 1999, the appellant was the assessed owner of two other parcels of real estate in Springfield located at 226 Fort Pleasant Avenue and 91 School Street, Springfield, Massachusetts.  For fiscal year 2000, the Assessors valued the properties at $90,300 and $375,200 respectively and assessed taxes at the rate of $20.80 per thousand in the amounts of $1,878.24 and $7,804.16.  
	The following chart summarizes the relevant jurisdictional facts. 

Docket Number	Fiscal
Year	Location	Date AA Filed	Date AA Denied or Deemed Denied	Date of § 63 Notice	Date Petition Filed With Board	
F254899
	1999	205 Belmont	01/25/99	04/25/99	05/06/99	07/28/99	
F258195
	2000	205 Belmont	01/26/00	04/26/00	05/22/00	07/27/00
	
F258196
	2000	226 Ft. Pleasant	01/26/00	04/25/00	05/02/00	07/27/00	
F258194
	2000	91 School	01/26/00	04/26/00	05/02/00	07/27/00	
I.	BELMONT AVENUE APPEALS
With respect to the fiscal year 1999 and 2000 Belmont Avenue appeals (Docket Numbers F254899 and F258195), the Board found that the Assessors failed to act on the appellant's applications for abatement within three months of the filing of the applications.  Accordingly, the applications were deemed denied on April 25, 1999 and April  26, 2000, respectively.  Pursuant to G.L. c. 59, § 63, the Assessors were required to send written notice of their inaction within ten days of the deemed denial dates, in these appeals, May 5, 1999 and May 6, 2000, respectively.  However, the Assessors' notices of deemed denial were dated May 6, 1999 and May 22, 2000, more than ten days after the deemed denial dates for the fiscal year 1999 and 2000 applications for abatement.  Accordingly, the Board found that the Assessors failed to comply with § 63 with regard to the two notices of inaction issued in the Belmont Avenue appeals.
Generally, appeals must be filed with this Board within three months of the deemed denial date, in these appeals, Monday, July 26, 1999 for the fiscal year 1999 Belmont Avenue appeal and Wednesday, July 26, 2000 for the fiscal year 2000 Belmont Avenue appeal.  However, where, as here, the Assessors fail to send written notice of their inaction to a taxpayer within ten days of the deemed denial date, this Board may extend the deadline for filing an appeal by two months.  G.L. c. 59, § 65C.   
In this case, extension of the appeal period by two months results in a filing deadline of September 25, 1999 for the fiscal year 1999 Belmont Avenue appeal and September 26, 2000 for the fiscal year 2000 Belmont Avenue appeal.  The appellant filed his fiscal year 1999 petition on July 28, 1999 and his fiscal year 2000 petition on July 27, 2000, each well within the two month extension period allowed under § 65C.  On reconsideration, the Board determined that the Assessors failed to timely notify the applicant of their inaction on his application for abatement and that by mistake or accident the appellant failed to enter his appeal within three months of the deemed denial date.  Accordingly, the Board determined that   the   appellant's  filing  of  its  petition  within 
the additional two-month period provided by § 65C provided a sufficient basis on the facts of this appeal for the Board to exercise jurisdiction over these appeals.  Therefore, the Board has issued a revised Order in these appeals and has scheduled the Belmont Avenue appeals for a hearing on the merits. 
 
II.	FT. PLEASANT AND SCHOOL STREET APPEALS
With respect to the Ft. Pleasant Street and School Street fiscal year 2000 appeals (Docket Numbers F258196 and F258194), the Board found that the Assessors timely notified the appellant of the respective denial and deemed denial of the abatement applications.  The Board found that the Ft. Pleasant Street application for abatement was denied by vote of the Assessors on April 25, 2000, and that the appellant was timely notified of the denial by notice dated May 2, 2000.  The application for abatement for the School Street property was deemed denied by the Assessors on April 26, 2000.  The appellant was timely notified of the denial by notice dated May 2, 2000. 
The Board found that the last day for filing the Ft. Pleasant Street property petition with the Board was Tuesday, July 25, 2000.  The Board further found that the last day for filing the School Street property's appeal with the Board was Wednesday, July 26, 2000.  The appellant filed the two petitions with the Board on Thursday, July 27, 2000.  Accordingly, the Board found that the Ft. Pleasant Street and the School Street fiscal year 2000 petitions were late, and therefore, the Board was without jurisdiction over these appeals.

OPINION
G.L. c. 59, §§ 64 and 65, provide that a taxpayer who is aggrieved by the Assessors' refusal to abate a tax on real estate may appeal to this Board "within three months after the date of the Assessors' decision on an application for abatement . . . or within three months after the time when the application for abatement is deemed to be denied."  See also Berkshire Gas v. Assessors of Williamstown, 361 Mass. 873 (1972); Boston Penny Savings Bank v. Assessors of Boston, 314 Mass. 599, 600 (1943); Alan Ades v. Assessors of New Bedford, 19 Mass. App. Tax Bd. Rep. 27 (1996).  Applications for abatement are deemed denied at the expiration of three months from the date the application for abatement was filed if the Assessors take no action on the application.  G.L. c. 59, §§ 64 and 65.  "The time limit of three months provided for filing the petition by statute is jurisdictional and a failure to comply with it will result in dismissal of the appeal."  Ades at 28 (citing Cheney v. Inhabitants of Dover 205 Mass. 501 (1910) and Berkshire Gas, 361 Mass. at 873 (1972)).  
The three month jurisdictional appeal period is computed as "three calendar months, measured from (but excluding) the date of the [Assessors' action] . . . [the] three calendar months began at midnight following October 6, 1970, . . . and expired at midnight before January 7, 1971, three complete calendar months."  Berkshire Gas. 361 Mass. at 873. (emphasis added).  Further, if the Assessors do not act on an application for abatement, an appeal must be filed within three months of the date the application is deemed denied.  G.L. c. 59, §§ 64 and 65.  
Pursuant to G.L. c. 59, § 63, the Assessors are required to send written notice to a taxpayer applying for an abatement within ten days of the Assessors' decision on an application or within ten days of the date the application is deemed denied by the Assessors' inaction.  The § 63 notice must advise the applicant of the Assessors' decision on the application (i.e., whether the application is denied or allowed in whole or part) or advise the taxpayer that the Assessors have taken no action on the application.  The notice must also contain the date of decision or the date the application is deemed denied and must advise the applicant of its right to appeal the decision or deemed denial under G.L. c. 59, §§ 64 through 65B.
  
I.	FT. PLEASANT AND SCHOOL STREET APPEALS
Applying these principles to the instant appeals results in the necessary dismissal of the Ft. Pleasant and School Street appeals.  The appellant's application for abatement for the Ft. Pleasant Street property was denied by the Assessors on April 25, 2000.  The Assessors sent notice of the denial to the appellant on May 2, 2000, within ten days of their April 25, 2000 decision.  Accordingly, the last day for filing a petition with the Board for the Ft. Pleasant Street property was on Tuesday, July 25, 2000, three months from the April 25, 2000 decision date.  The appellant's July 27, 2000 filing was therefore two days late.
With respect to the School Street appeal, the appellant's January 26, 2000 application for abatement was deemed denied on April 26, 2000.  The Assessors sent notice of their inaction on May 2, 2000, within ten days of the April 26, 2000 deemed denial date.  Accordingly, the last day for filing a petition with this Board was on Wednesday, July 26, 2000.  The appellant's July 27, 2000 appeal was therefore one day late. 
The Board has only that jurisdiction conferred on it by statute.  Stilson v. Assessors of Gloucester, 385 Mass. 724, 732 (1982).  "Since the remedy of abatement is created by statute, the board lacks jurisdiction over the subject matter of proceedings that are commenced at a later time or prosecuted in a different manner from that prescribed by statute."  Nature Church v. Assessors of Belchertown, 384 Mass. 811, 812 (1981), citing Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 495 (1936).  Adherence to the statutory prerequisites is essential "to prosecution of appeal from refusals to abate taxes."  New Bedford Gas & Edison Light Co. v. Assessors of Dartmouth, 368 Mass. 745, 747 (1975).
Accordingly, because the appellant filed his fiscal year 2000 Ft. Pleasant and School Street appeals beyond the three-month period provided in G.L. c. 59, § 64, the Board has no jurisdiction over these appeals.  See Berkshire Gas, 361 Mass. at 873. 

II.	BELMONT AVENUE APPEALS
The notices of inaction issued by the Assessors for the fiscal years 1999 and 2000 Belmont Avenue appeals violated the express provisions of § 63.  Regarding the fiscal year 1999 appeal, the Assessors sent a notice of inaction on May 6, 1999, eleven days after the application was deemed denied on April 25, 1999.  The Assessors sent notice of inaction for the appellant's fiscal year 2000 appeal on May 22, 2000, some twenty-six days after the application was deemed denied on April 26, 2000.
G.L. c. 59, § 65C provides a remedy to taxpayers when Assessors fail to comply with the requirements of § 63.  Section 65C provides that:
If a person has, by reason of the failure of the board of assessors to act upon an application for abatement, a right of appeal to the appellate tax board under section sixty-five but the board of assessors failed to send written notice of such inaction to the applicant within ten days as provided in section sixty-three and by mistake or accident such person fails to enter such appeal in said board within the time prescribed by section sixty-five, said board, upon petition filed within two months after the appeal should have been entered, and after notice and hearing, and upon terms, may allow such person to enter his appeal.

The appellant filed his petitions with the Board for the Belmont Street properties on July 28, 1999 and July 27, 2000, well within the two-month period allowed for a petition for late entry under G.L. c. 59, § 65C.  The question raised by these appeals, however, is whether the Board has the discretion to exercise jurisdiction over an appeal where the appellant merely files his petition within the two-month period allowed under § 65C without requesting the Board's permission to enter the appeal.
The Board has an established practice to process taxpayer requests to enter an appeal where Assessors fail to timely notify an applicant that his application was deemed denied by the Assessors' inaction.  The taxpayer may file a "petition for late entry" with the Board.  See 830 CMR 1.05.  The Clerk of the Board provides the Assessor with a copy of the petition, schedules a hearing for the petition for late entry, and notifies both the taxpayer and the Assessor of the time and date of the hearing.  Id.  Petitions for late entry are routinely allowed, so long as the Assessors took no action on the application, no timely notice of inaction was sent to the applicant, and the applicant filed his petition for late entry within the two-month additional period provided under § 65C.  Had the appellant in these appeals filed a petition for late entry, rather than a petition, in these appeals, there would be no dispute that the Board had jurisdiction over these appeals.
However, as is the case with a number of taxpayers in the Board's experience, the appellant in this case filed his petition within the two-month § 65C period without first filing a petition for late entry requesting permission to have his appeal entered.  Often, these situations come to light when, as here, the Assessors file a motion to dismiss.  The Board's practice has been to treat the petition filed as a petition for late entry and to treat the motion to dismiss hearing as the hearing of the petition for late entry.  If it is determined that the conditions for allowing a petition for late entry exist, then the Board allows the petition to be entered nunc pro tunc and exercises jurisdiction over the appeal.  The Board, on reconsideration, applied this practice to the present appeals.
The reasons for this less formal practice are several.  First, § 65C is clearly meant to be a remedial statute to provide relief to taxpayers when the Assessors have failed to discharge their statutory duty to notify taxpayers of their action or inaction on applications for abatement.  There is nothing to suggest that such a remedial statute is meant to be construed narrowly.  See, e.g., Boston v. Hospital Transportation Services, Inc., 6 Mass. App. Ct. 198, 201-202 (1978).
Further, familiar rules of statutory construction provide that "'ambiguities in tax statutes are to be resolved in favor of the taxpayer' . . . [a] 'tax statute must be strictly construed' and 'all doubts are to be resolved in favor of the taxpayer.'" Mann v. Assessors of Wareham, 387 Mass. 35, 39 (1982), quoting Xtra, Inc. v. Commissioner of Revenue, 380 Mass. 277, 281 (1980) and Massachusetts Ass'n of Tobacco Distribs. V. State Tax Comm'n, 354 Mass. 85, 89 (1968).  Section 65C speaks of a "petition," the same name given to the document by which taxpayers, including this appellant, appeal to this Board, rather than a motion or other type of request.  See, e.g. G.L. c. 58A, § 7.  It is therefore at least ambiguous whether the "petition" referred to in § 65C refers to a petition filed to commence an appeal.  
In an analogous context, the Massachusetts Appeals Court has held that the Board has the discretion to exercise jurisdiction over an appeal where a taxpayer, despite a statutory requirement to obtain the prior permission of the Board, combined multiple parcels on a single petition without first obtaining the Board's approval.  In Phifer v. Assessors of Cohasset, 28 Mass. App. Ct. 552 (1990), the court construed G.L. c. 58A, § 7A which provided: "No statement under the informal procedure shall relate to an assessment on more than one parcel of real estate, except where the board shall specifically permit otherwise."  The taxpayer in Phifer filed a single informal appeal which included multiple parcels and the Board ruled that it had no jurisdiction over the appeal because the taxpayer failed to obtain the prior permission of the Board to join parcels.  The Appeals Court reversed the Board and held:
The A.T.B. ruled flatly that it had no jurisdiction of the taxpayer's appeal. This constitutes a reversible error of law.  See authorities collect in Commonwealth v. Ramos, 402 Mass. 209, 216 (1988); Tazziz v. Tazziz, 26 Mass. App. Ct. 809, 814 n. 5 (1988).  Here, in acting under a statute designed to simplify (and to reduce the cost of) a review of real estate tax assessments, the error is prejudicial as arbitrary, capricious, and a trap for the unwary and inexperienced in light of the plain language of the statute.  Particularly is this the case where a lay taxpayer is proceeding pro se, perhaps (if not probably) incautiously.

Phifer, 28 Mass. App. Ct. at 555.
	Holding in the present appeals that the Board has no jurisdiction would result in a similar trap for unwary taxpayers.  See also, Becton, Dickinson & Co. v. State Tax Commission, 374 Mass. 230, 233 (1978).  By enacting § 65C, the Legislature clearly intended to provide the Board with jurisdiction to hear appeals brought by taxpayers in the precise position of this appellant, i.e., those taxpayers who received no timely notice of the Assessors' inaction on their application for abatement who then file with the Board within two months after the §§ 64 and 65 appeal period has expired.  To hold that the Board's jurisdiction turns on the fact that the taxpayer filed a "petition" rather than a "petition for late entry" would frustrate the legislative purpose behind § 65C and unduly complicate procedures designed to simplify review of tax assessments.  See Phifer, 28 Mass. App. Ct. at 555; 830 CMR 1.37(1)("Board reserves the right to make hearings and proceedings as informal as possible, to the end that substance and not form shall govern, and that a final determination of all matters before it may be promptly reached").
	Accordingly, the Board ruled that it had jurisdiction over the Belmont Avenue appeals but that it had no jurisdiction over the Ft. Pleasant and School Street appeals.  The Board therefore issued a revised decision for the appellee in Docket Numbers F258196 and F258194 and an Order denying the appellee's Motion to Dismiss in Docket Numbers F254899 and F258195. 
				   APPELLATE TAX BOARD

					By:						
					   Abigail A. Burns, Chairman


A true copy,


Attest:________________________
         Clerk of the Board 


Commissioner Gorton, dissenting:

	After allowing appellee's Motions to Dismiss, I became aware of the Board's "established practice" of allowing late-filed Petitions without receiving a Petition for Late Entry in compliance with 831 CMR § 1.05.  I accordingly referred the decision on the Motions to Dismiss to the full Board, which denied the Motions to Dismiss in the Belmont Avenue appeals.
	I nevertheless adhere to my original decisions, and dissent from the Board's Order.  
	Rule 1.05 of the Rules of Practice and Procedure of the Appellate Tax Board does indeed furnish a remedy which might have been available to the instant appellant.  However, the Rule by its plain terms prescribes a procedure which must be followed before the remedy is triggered.  There is no dispute that appellant's filings fail to provide the required "statement of the circumstances which constitute the accident or mistake upon which the petition for late entry is based."
	Thus, the procedure permitting late entry is irrelevant in the disposition of the pending Motions to Dismiss.  Appellant did not avail himself of the remedy in the very straightforward, common-sense manner the Rule contemplates.  Absent applicability of 831 CMR 1.05, the petitions are untimely and must be dismissed for lack of jurisdiction.
	I respectfully dissent.

     "AA" is an abbreviation for abatement application.
      In the absence of evidence to the contrary, the Board presumes that the date of the notices is the date the notices were sent. 
   When the last day of a filing period falls on a Saturday, Sunday or legal holiday, the filing is still considered timely if it is made on the following business day.  G.L. c. 4, § 9. 

8


ATB 2001-929