Mark D. Nelson, Trustee, Kaiser Realty Trust v. Board of Assessors of the Town of Wilmington (June 3, 2014)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



MARK D. NELSON, TRUSTEE		v.	BOARD OF ASSESSORS OF
KAISER REALTY TRUST				THE TOWN OF WILMINGTON


Docket No. F310035				Promulgated:
							June 3, 2014


	This is an appeal originally filed under the informal procedure pursuant to G.L. c. 58A, 7A, and G.L. c. 59, §§ 64 and 65 from the refusal of the Board of Assessors of the Town of Wilmington ("assessors" or "appellee) to abate taxes on certain real estate located in the Town of Wilmington, owned by Mark D. Nelson, Trustee of Kaiser Realty Trust ("appellant") under G.L. c. 59, §§ 11 and 38 for fiscal year 2010 ("fiscal year at issue"). 
	Commissioner Chmielinski heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Rose, Mulhern and Chmielinski joined him in a decision for the appellant. 
	These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Mark Nelson, pro se, for the appellant.
	J. Richard Hucksam, Esq. for the appellee.



FINDINGS OF FACT AND REPORT
On the basis of the testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact. 
On January 1, 2009, the appellant was the owner of a 0.46-acre parcel of real estate improved with a single-family home located at 8 Sharon Street in Wilmington ("subject property").  For assessment purposes, the subject property is identified as Map 6, Lot 27.  For fiscal year 2010, the assessors valued the subject property at $536,800, and assessed a tax thereon at the rate of $11.53 per thousand, in the amount of $6,183.54.  The subject property's land and improvement components were valued at $150,000 and $386,300, respectively.  On January 4, 2010, Wilmington's Collector of Taxes sent out the town's actual real estate notices, which the appellant timely paid on April 16, 2010.  On February 1, 2010, the appellant timely filed an Application for Abatement with the assessors.  The appellant's abatement application was deemed denied on May 1, 2010.  On July 29, 2010, the appellant seasonably filed an appeal with the Board.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal. 
The appellant presented his case-in-chief predominantly through his testimony and that of H. Skip Moynihan, Principle Assessor for Wilmington.  The appellant argued that the subject property was overvalued for the fiscal year at issue because the assessors failed to properly consider the subject dwelling's condition as of June 30, 2009.    
Mr. Moynihan testified that for the fiscal year at issue the assessors valued the subject dwelling as 100% complete because the assessors were not allowed access to
inspect the subject property and, therefore, they used "their best judgment from the street."  Mr. Nelson, however, testified that as of June 30, 2009, the subject dwelling was nothing more than a shell of a home with the roof, exterior framing, siding, and windows in place; the interior was only studs.  In support of his claim that the subject dwelling's construction was not 100% complete as of June 30, 2009, Mr. Nelson offered into evidence the subject property's building permit and the application for certificate of occupancy.  Both these official documents evidenced that municipal inspection sign-offs for the subject dwelling's rough plumbing, electrical, and gas were not executed until mid-September 2009, with final municipal inspection sign-offs executed sometime in October, 2009.  Consequently, little, if any, finish interior carpentry, including drywall and the erection of interior walls, had been completed by June 30, 2009.  Mr. Moynihan acknowledged that the assessors would have quantified this degree of building construction at 50%.  
The assessors offered no affirmative evidence of value and instead rested on the presumed validity of their assessment.    
Based on all of the evidence, and to the extent it is a finding of fact, the Board found that the appellant met his burden of proving that the subject property was overvalued for the fiscal year at issue.  As evidenced by the appellant's building and occupancy permits, his testimony, and Mr. Moynihan's acknowledgements, the Board found that the subject dwelling's construction was only 50% complete as of June 30, 2009.  On this basis, the Board determined that the fair cash value of the subject property for fiscal year 2010 was $343,650, which equals the assessed value of the land coupled with 50% of the dwelling's assessed value.  
Accordingly, the Board decided this appeal for the appellant and granted an abatement in the amount of $2,227.02. 

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).  
	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)). "[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, 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)).  In the present appeal, the appellant offered evidence showing that the assessors' valuation was flawed.  For valuation purposes, the assessors assumed that the subject dwelling's construction was fully complete as of June 30, 2009.  The appellant, however, submitted evidence, including the building permit and occupancy certificate, showing that construction of the subject property was not completed until the fall of 2009.  Additional evidence revealed that the degree of the subject dwelling's completion was quantified at 50% as of June 30, 2009.  Therefore, based on the evidence presented, the Board found and ruled that the appellant met its burden of proving that the subject property's fiscal year 2010 assessment was excessive.
	The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 196, 110 (1971).  The fair cash value of property cannot be proven with "mathematical certainty and must ultimately rest in the realm of opinion, estimate and judgment."  Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 60, 72 (1941).  "The credibility of witnesses, the weight of evidence, and inferences to be drawn from the evidence are matters for the [B]oard."   Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).

On the basis of all the evidence, the Board found and ruled that the appellant met his burden of proving that the subject property was overvalued for fiscal year 2010.  Based on this evidence, the Board reduced by 50% the assessed value of the subject property's dwelling, added it to the assessed value of the subject property's land, and found and ruled that the subject property's fair market value for the fiscal year at issue was $343,150.
Accordingly, the Board decided this appeal for the appellant and granted an abatement in the amount of $2,227.02.
						
					THE APPELLATE TAX BOARD


				By: ________________________________
				    Thomas W. Hammond, Jr., Chairman


A true copy,


Attest: ____________________________
		 Clerk of the Board

 Within thirty days of the service of the appeal, the Town of Wilmington, in accordance with G.L. c. 58A, § 7A, elected to have the appeal heard under the formal procedure. 
 Pursuant to G.L. c. 59, § 57C, "in the event that actual tax bills are not mailed by December thirty-first, then [] there shall be a single actual bill due and payable on May first or thirty days after the date of mailing, whichever is later."  In the present appeal, the actual tax bills were not mailed until January 4, 2014, therefore, the due date for payment of the tax was May 1, 2014.
 The notice of abatement determination states that the abatement application was deemed denied on June 14, 2010. However, an abatement application is deemed denied "[w]henever a board of assessors, before whom an application in writing for the abatement of a tax is pending, fails to act upon said application . . . prior to the expiration of three months from the date of filing of such application." G.L. c. 58A, § 6.  Three months from February 1, 2010 is May 1, 2010. The appellant nonetheless filed his fiscal year 2010 petition timely, because he filed within three months of May 1, 2010. See id.
 Pursuant to G.L. c. 59, § 2A, "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 preceding that to which the tax relates shall be deemed part of such real property as of January first," if a city or town so elects. Wilmington adopted § 2A on April 22, 1995 and, therefore, the assessors were authorized to include construction progress as of June 30, 2009.
 Although the assessors testified that they were denied access to the subject dwelling, there is no indication in the record that they requested access to the property in accordance with either G.L. c. 59, § 61A or G.L. c. 58A, § 8A.

ATB 2014-323