Schwarz Family Irrevocable Trust v. Board of Assessors of the Town of Stoughton (June 19, 2002)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



SCHWARZ FAMILY 			v.	BOARD OF ASSESSORS OF
IRREVOCABLE TRUST				THE TOWN OF STOUGHTON


Docket No. F259144				Promulgated:
							June 19, 2002



	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 real estate taxes assessed under G.L. c. 59, § 38, for fiscal year 2001.
	Commissioner Gorton heard the appeal and, in accordance with G.L. c. 58A, § 1, 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.

	Donald M. Schwarz, pro se, for the appellant.
	Leonard Kopelman, Esq., for the appellee.







FINDINGS OF FACT AND REPORT
	On January 1, 2000, the Schwarz Family Irrevocable Trust ("appellant"), Donald M. Schwarz, Trustee, was the assessed owner of a parcel of real estate located at 92 Benson Road in Stoughton ("subject property").  The parcel contains approximately 2.2 acres of land improved with a single-family residence.  The dwelling is a "ranch" style home, built in 1959, and has three bedrooms, one bath and a fully finished basement.  The total gross living area is 1,984 square feet.  There is also a wooden deck with approximately 168 square feet of space.  For fiscal year 2001, the Board of Assessors of the Town of Stoughton ("Assessors") valued the land at $97,500 and the dwelling at $76,800, for a total assessment of $174,300.  They assessed a tax thereon at the rate of $16.05 in the amount of $2,797.52.  The appellant timely paid the taxes due.
On October 30, 2000, the appellant timely filed an application for abatement with the Assessors.  By notice dated December 7, 2000, the Assessors notified the appellant that it had been granted a partial abatement, reducing the total assessed value of the subject property to $145,400.  On March 6, 2001, the appellant filed a Complaint for Abatement of Taxes with the Norfolk County Commissioners.  Subsequently, on April 11, 2001, in accordance with G.L. c. 59, § 64, the Assessors elected to transfer the petition to the Appellate Tax Board ("Board").  On this basis the Board found that it had jurisdiction over the subject appeal.
The appellant argues that the subject property is overvalued because a majority of the property, approximately 1.87 acres, is unusable "wetlands."  The appellant argued that this portion of the subject property should not be classified and taxed as either "residential" or "open space," but instead should carry some unique classification of "private."  The appellant did not, however, offer any evidence, or even an argument, to suggest a valuation for this so-called "private" portion of the property.  Furthermore, the appellant did not offer an opinion of value or any evidence to support the claim that the subject property was overvalued.
In support of the assessed value, the Assessors offered into evidence sales of four properties which the Assessors considered to be comparable to the subject property. 


The following table summarizes the information relative to these sales transactions.
		
Location	Lot Size (acres)	Sale Date	Sale Price	
73 Davis Road	.362	04-23-99	$172,500	
52 Lelland Road	.349	08-08-99	$160,000	
 6 Janice Road	.172	09-24-99	$160,500	
79 Lelland Road	.351	11-01-99	$154,000	

Like the subject property, all four of the comparable properties are improved with a three-bedroom, one-bath "ranch" style home.  All four sold for more than the assessed value, as abated, of the subject property. 
Based on the evidence presented, the presiding member found and ruled that the appellant did not sustain his burden of proving that the subject property was overvalued for fiscal year 2001.  The presiding member found and ruled that the portion of the subject property not classified as "wetlands," approximately .33 acres, was comparable in size to the four sales presented by the appellee.  Yet, all four of these properties sold within eight months of the assessment date for more than the assessed value of the subject property.  Accordingly, the presiding member found and ruled that the subject property was not over-assessed for fiscal year 2001 and issued a decision for the appellee.
OPINION
	Assessors are required to assess all real property at its full and fair cash value.  G.L. c. 59, § 28; Coomey v. Assessors of Sandwich, 376 Mass. 836, 837 (1975).  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 (1954).
An assessment of a parcel of real estate is presumed valid until the taxpayer sustains his 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 appellant to make out his right as a matter of law to an abatement of the tax.  Id.  The appellant must show, through credible and persuasive evidence, that the assessed valuation of its property exceed the property's fair cash value.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).
In the present appeal, the appellant presented no evidence of value for the subject property.  Instead, the appellant simply argued that since portions of the subject property are deemed "wetlands," the Assessors overvalued the subject property.  However, as the presiding member found and ruled, the comparables offered by the Assessors supported the assessed valuation of the subject property.  Furthermore, contrary to the appellant's contention, the burden of proof lies with the appellant to prove that the property is overvalued, not with the assessors to prove the assessment.  See, e.g., Schlaiker, supra. In the present appeal, the presiding member found that the appellant failed to meet that burden of proof.
Accordingly, the presiding member issued a decision for the appellee.

					    APPELLATE TAX BOARD

					By:							
					    Donald E. Gorton, III, Member


A true copy,

Attest:					
	    Clerk of the Board

ATB 2002-308