William B. Rice Eventide Home, Inc. v. Board of Assessors of the City of Quincy (June 30, 2006)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

WILLIAM B. RICE EVENTIDE     v.	BOARD OF ASSESSORS OF 
HOME, INC. 					THE CITY OF QUINCY

Docket Nos. F277089,			Promulgated:
		  F277169-70			June 30, 2006


	These are appeals 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 taxes on certain real estate in the City of Quincy owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38 for fiscal years 2004 and 2005.  
	Commissioner Rose heard these appeals.  He was joined by Chairman Foley and Commissioners Scharaffa, Gorton, and Egan in dismissing Docket No. F277089 for lack of jurisdiction, in the decision for the appellee in Docket No. F277169, and in the decision for the appellant in Docket No. F277170.  
	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.  

	Paul N. Barbadoro, Esq. and Susan M. Molinari, Esq. for the appellant.

	Robert Quinn, Esq. for the appellee.  
FINDINGS OF FACT AND REPORT
On the basis of testimony and exhibits entered into evidence at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact.  At all times relevant to these appeals, the appellant, the William B. Rice Eventide Home, Inc. ("Eventide" or the "appellant") was a charitable corporation organized pursuant to G.L. c. 180.  Eventide operated a skilled nursing facility on its property located at 215 Adams Street in the City of Quincy, Massachusetts ("215 Adams Street").  In May 2004, two nominee realty trusts purchased two parcels of land, one located at 191 Adams Street, which contained a single-family residential home, and one at 205 Adams Street, which was vacant land.  These two parcels, which were contiguous with 215 Adams Street, were taxed as one parcel, and are thus referred to herein collectively as "191 Adams Street."   
For the fiscal years at issue, the appellant claimed that it occupied 191 Adams Street and 215 Adams Street (the "subject properties") in furtherance of its charitable purposes and that, therefore, the subject properties were exempt from real estate taxes.  The appellee, the Board of Assessors of the City of Quincy (the "assessors"), reversed their long-standing treatment of 215 Adams Street as tax exempt.  The assessors also taxed the newly-acquired 191 Adams Street parcels, contending that these parcels were not owned by Eventide, and Eventide had failed to demonstrate to the assessors that it was the beneficiary of the two nominee trusts that purchased the parcels.  The assessors also contended that the parcels were not being used in furtherance of Eventide's charitable purposes.  
1.  Jurisdiction.
	
     a.  Fiscal year 2004 appeal.

Eventide timely filed Form 3ABC and Form PC for fiscal year 2004 with the assessors.  On or about June 14, 2004, Eventide received a fiscal year 2004 tax bill for 215 Adams Street.  This was the first property tax bill from the City of Quincy ("City") that Eventide had received in its nearly eighty years of operation.  The City mailed its fiscal year 2004 property tax bills on or about December 30, 2003.  The City did not issue a tax bill to Eventide in December.  However, the City issued an omitted assessment to Eventide in June, 2004, labeled "OMITTED BILL 6/14/04."  
Eventide did not appeal its charitable exemption status directly to the Board.  Instead, Eventide filed an application for abatement with the assessors on or about July 15, 2004.  The assessors took no action on Eventide's application for abatement, and therefore, the application for abatement was deemed denied on or about October 15, 2004.  On November 26, 2004, Eventide filed its appeal for fiscal year 2004 with the Board.  The fiscal year 2004 tax as reflected on the "OMITTED BILL 6/14/04" was $105,992.81.  As of September 13, 2005, the date of the hearing of this appeal, the appellant had made no tax payments for fiscal year 2004.  
For the reasons more fully described in the following Opinion, the Board has no jurisdiction over the appeal for fiscal year 2004 because the appellant failed to timely pay the tax assessed without incurring interest.  Accordingly, the Board dismissed the appeal and issued a decision for the appellee in Docket No. F277089.
 Fiscal year 2005 appeals.
Eventide timely filed Form 3ABC and Form PC with the assessors for fiscal year 2005.  On or about January 3, 2005, Eventide received a 2005 tax bill for 215 Adams Street.  At this time, the assessors also issued the 2005 tax bill for 191 Adams Street to Joyce Haglund ("Ms. Haglund"), the administrator for Eventide.  The 2005 tax bill listed Ms. Haglund as "trustee" and was mailed to her attention at 215 Adams Street.  Eventide appealed these assessments directly to the Board pursuant to G.L. c. 59, § 5B, seeking an abatement based on its eligibility for a charitable exemption for each of the subject properties.  Eventide filed its appeals for fiscal year 2005 on January 27, 2005.  On the basis of these facts, the Board found it had jurisdiction over the appeals for fiscal year 2005. 

2.  Eventide's entitlement to charitable exemptions
    for the subject properties for fiscal year 2005. 

  215 Adams Street's qualification for a      
charitable exemption.

Eventide was incorporated on or about March 21, 1924, and was at all material times the record owner of real estate located at 215 Adams Street.  The appellant's articles of incorporation, dated March 21, 1924, state that Eventide was formed for the purposes of "establishing and maintaining a Home in Quincy, Massachusetts, for the permanent care of such elderly deserving men and women as may be admitted under the existing rules and regulations, and to create a fund therefor."  The mission of Eventide, as adopted by its Board of Directors, was "to provide a unique life-care retirement community for residents of Quincy and surrounding towns" and to "provide[] supportive services in a home-like atmosphere which allows the residents to maintain independent lives with dignity" and "further provide[] individualized and caring, medical and custodial services for the residents as the need arises."  Eventide qualified as a charitable organization under the federal Internal Revenue Code ("Code") § 501(c)(3) and as a charitable organization under Massachusetts G.L. c. 180. 
Eventide operated a sixty-bed skilled nursing facility at 215 Adams Street.  Ms. Haglund testified that most of Eventide's residents were from Quincy, but Eventide has accepted residents from many other surrounding communities and from communities as far away as Maine.  She further testified that Eventide was open to most, if not all, individuals that applied:  "We don't typically deny applications.  More often, we are unable to provide a room for someone because of our size and the fact that we're full."  Ms. Haglund testified that, in addition to maintaining its wait list according to the dates of applications, Eventide's selection process also took into account a potential resident's condition and the features of the available room:  
It's not exactly a cross-off-the-top list because our rooms are all unique, and we kind of need to assess as every room comes up.  It may, for example, share a bathroom with a male, and so your mother may not want to do that.  Or, for example, if it's an applicant that has dementia, I may not feel comfortable putting them in a room that's right next to a stairwell if they have a tendency to get up confused in the middle of the night or something like that.  If it's somebody with a very fragile heart condition, I wouldn't want to put them at some length from the nurse's station.  They'd need to be in a room somewhat close to staff.

She further testified that there were no selection requirements, financial or otherwise, that limited a potential resident's admission, so long as Eventide could meet their personal and medical needs.  
Paula O'Connor ("Ms. O'Connor"), the director of nurses at Eventide, further testified that Eventide could not provide some services, including routine ventilator treatments and dialysis treatments, and an applicant's need for a treatment that Eventide could not provide would affect their eligibility.  However, she also testified that Eventide's residents were not capable of living independently.  The average age of the Eventide residents was 93, and several residents were over the age of 100.  She testified that Eventide's staff provided assistance with activities of daily living ("ADLs") including bathing, dressing, grooming, and toileting, as well as "instrumental ADLs" like housekeeping, shopping, and laundry.       
As part of its intake procedure, Eventide requested financial information, but Ms. Haglund testified that this information was used only for purposes of setting Eventide's budget, not to screen and eliminate potential residents.  She explained that Eventide subsidized the therapies and services offered to its residents, including those residents receiving Medicaid, when the services were not fully covered by insurance.  Ms. Haglund and Ms. O'Connor both testified that Eventide provided enhanced services at its own cost, consisting of activities like discussion groups, musical programs and games to stimulate the residents, and an enhanced "home-cooked" food program for the residents.  Ms. Haglund also testified that Eventide recognized the importance to the residents' quality of life for their families and friends to remain involved in their lives, and therefore, Eventide hosted numerous events that families and friends were encouraged to attend, including family picnics, at no cost to the residents or their families.  
Robert Dwyer ("Mr. Dwyer"), a member of the Eventide board of directors, testified that for fiscal years 2004 and 2005, Eventide operated at a loss of $701,520 and $255,516, respectively.  These deficits resulting from therapies and activities for the residents were paid from Eventide's endowment.  Ms. Haglund testified that Eventide spent in excess of $100,000 per year on activities for its residents.  When asked why Eventide made so many extra expenditures for enhanced therapies and services for its residents, Ms. Haglund testified, "[b]ecause we're a charitable home and we're charged with taking care of our residents," and that the residents ultimately benefited from the enhanced programs: "They live longer, and they thrive, more than residents of other homes at the same age."  Ms. Haglund asserted that these activities substantially enhanced the quality of life of Eventide's residents, and therefore resulted in fewer hospitalizations for the residents.  Eventide submitted into evidence the Commonwealth of Massachusetts Office of Medicaid statistics which demonstrated that during the period from October 1, 2003 through June 30, 2004, Eventide had zero hospitalizations for "preventable" conditions which Medicaid monitors, including congestive heart failure, kidney or urinary tract infections, dehydration, and chronic obstructive pulmonary disease.  The industry average during that same period was 4.63 hospitalizations per facility for all four conditions. 
Ms. Haglund testified that between 61-66% of Eventide's residents were receiving Medicaid at the time of the hearing of these appeals.  She further testified that for fiscal years 2004 and 2005, Eventide subsidized its Medicaid residents in the amount of $73.36 per day and $58.72 per day, respectively.  Ms. Haglund stated that no residents at Eventide were denied admission or transferred to another facility for an inability to pay.   
Ms. Haglund also testified that Eventide provided and hosted many community outreach programs at no cost to the community.  Community programs included blood pressure screenings and seminars on elder issues, including a fall prevention workshop, which were advertised to the community.  Eventide also created and distributed a resource guide to all Quincy residents over the age of 65.  The guides cost Eventide approximately $63,000 to produce and distribute when Eventide originally produced them about five years prior to the hearing, and Eventide was still distributing the guides to Quincy residents during the tax years at issue.  Eventide also encouraged the community to visit the facility by hosting speakers, including Quincy Mayor Phelan, hosting local organizations, including local Girl Scout troops, and allowing individuals to hike or bicycle along its walking trails.  Eventide did not post "no trespassing" signs or employ any security guards to discourage the use of its outdoor property.
The Board found that Eventide's intake procedure and admissions criteria, which were intended to match potential residents to certain rooms based on their locations within the facility, had the effect of better serving potential residents and were not designed to deny them entry.  Moreover, Eventide's endowment bore deficits to pay for expenditures which greatly enhanced the quality of life of the elderly residents.  The fact that Eventide's population was comprised of about two-thirds Medicaid patients and that Eventide generously supplemented therapies and services available to all of its residents, including its Medicaid residents, indicated that Eventide's services were available to a broad segment of the population and not just those who could afford its services.  Eventide's outreach programs, including its free seminars on elder issues, free blood pressure screenings, the publication and distribution of its free resource guide, and the availability of its facilities and grounds to the community, further indicated that Eventide made its resources available to the community.  On the basis of these findings, the Board thus found that Eventide's services benefited a significantly broad segment of the population.   
Furthermore, the average age of Eventide's residents was 93, with several residents over the age of 100, and all the residents required assistance with various ADLs and "instrumental ADLs."  The Board found that, in the absence of the care provided by Eventide, the residents would require publicly-assisted hospitalization or transfer to another skilled nursing facility.  The Board thus found that Eventide's elderly residents were unable to live independently.  The Board also found that Eventide's rate of zero hospitalizations for "preventable" conditions, well below the industry average, was proof of the care which Eventide provided to its elderly residents.  The Board thus found that Eventide's provision of enhanced therapies and services to its residents, including the many family-friendly activities, had the ultimate effect of preventing expensive, publicly-assisted hospitalizations for the residents.  On the basis of these findings, the Board thus found that Eventide relieved a burden of government by caring for the community's elderly citizens.
Having found that Eventide met its burden of proving that its skilled nursing services were available to a sufficiently large segment of the elderly population and that it provided relief of a burden to government to care for the elderly, the Board found that the appellant was entitled to an exemption for 215 Adams Street for fiscal year 2005.  The Board accordingly issued a decision for the appellant in Docket No. F277170.
191 Adams Street's qualification for a charitable exemption.

Ms. Haglund testified that 191 Adams Street was purchased on May 7, 2004 with funds from Eventide's endowment by two nominee realty trusts, (1) the Barnside Realty Trust, with John Caravan, Eventide's treasurer, as trustee; and (2) the 205 Adams Street Trust, with Ms. Haglund as trustee.  She testified that Eventide was the sole beneficiary of these trusts.  Ms. Haglund further testified that the purpose of purchasing 191 Adams Street was "to support the operations" of Eventide.  
According to Ms. Haglund, Eventide organized a Building and Development Committee to research the best possible use of the property "to expand and further the mission" of Eventide.  She testified that 191 Adams Street was currently being used for "storage, some parking, and we have meetings over there occasionally."  Ms. Haglund posited that a possible use for 191 Adams Street would be to house Eventide's headquarters.  However, she admitted that zoning was an issue that required resolution before any such plans could be implemented because 191 Adams Street was located in a single-family residence zone.  As of the hearing of these appeals, Eventide had made no applications to the City for a zoning variance, nor had any conversations with City officials been scheduled to attempt to resolve this issue.  When asked by the Presiding Commissioner about the progress of zoning variance applications, Ms. Haglund explained that Eventide had not wanted to approach City officials until the committee had made solid plans for using 191 Adams Street, and as of the hearing, this issue was still undetermined: "We are sort of in the process of determining what we're going to use that property for."  
The Board found that Ms. Haglund's testimony, as well as the lack of applications to the City for zoning variances, revealed that Eventide's board of directors had made no specific plans for the use of 191 Adams Street.  The Board also found that Eventide failed to take action in preparation for removing any of its charitable functions to 191 Adams Street.  For the reasons explained in the Opinion, the Board found that Eventide's lack of specific plans for the use of 191 Adams Street and its failure to make plans for removal of any of its charitable functions to 191 Adams Street was fatal to its eligibility for a charitable exemption.  The Board accordingly issued a decision for the appellee in Docket No. F277169. 


OPINION
General Laws c. 59, § 5, Third, ("Clause Third") provides an exemption for:
real estate owned by or held in trust for a charitable organization and occupied by it or its officers for the purposes for which it is organized or by another charitable organization or organizations or its or their officers for the purpose of such other charitable organization or organizations.

The issue presented by these appeals was whether Eventide was entitled to a charitable exemption for each of the subject properties.  The Board found and ruled that for fiscal year 2005, Eventide was entitled to an exemption for 215 Adams Street, but not for 191 Adams Street.  The Board did not reach the merits in the appeal for fiscal year 2004 because it lacked jurisdiction over that appeal.  The Board's analysis follows. 

Jurisdiction.

 The Board lacked jurisdiction over the fiscal 
   year 2004 appeal.

When a city issues a tax bill which treats as taxable real estate which the appellant claims is exempt under Clause Third, the appellant has two options: (1) apply to the assessors for an abatement under G.L. c. 59, § 59    ("§ 59"); or (2) appeal directly to the Board under G.L. c. 59, § 5B ("§ 5B") for a ruling on the property's eligibility for a charitable exemption.  Trustees of Reservations v. Assessors of Windsor, ATB Findings of Fact and Reports 1991-225 ("Trustees of Reservations").  
Eventide sought abatement of its fiscal year 2004 tax by filing an application for abatement with the assessors on or about July 15, 2004.  The appellant maintained that no direct appeal to the Board under § 5B was available to it because Eventide received its fiscal year 2004 bill on or about June 14, 2004, more than three months after the date of mailing of the City's 2004 bills.  The appellant then argued, based on its reading of the Board's decision in Trustees of Reservations, that it did not need to comply with the filing and payment provisions of G.L. c. 59, §§ 59-65D:  "Having reviewed the pertinent statutes and cases, the board concludes that in enacting Section 5B, the Legislature authorized appeals from denials of charitable exemptions without compliance with the jurisdictional requirements imposed on appeals brought under G.L. c. 59, ss. 64 and 65 . . . ."  Trustees of Reservations, ATB Findings of Fact and Reports 1991 at 232.  By way of analogy with Trustees of Reservations, Eventide concluded that it should also be permitted to appeal to the Board under § 59 without compliance with any of the jurisdictional requirements of G.L. c. 59, §§ 59-65D, including those requirements pertaining to payment of the tax.    
The appellant's argument is flawed for several reasons.  First, there is nothing in § 5B or the cases construing it indicating that the § 5B remedy is not available to a taxpayer receiving an omitted assessment.  Section 5B requires an appellant to file an appeal to the Board within three months of "a determination of the board of assessors as to the eligibility or noneligibility of a corporation or trust for the exemption granted pursuant to the clause third of section five."  Without addressing the efficacy of the fiscal year 2004 tax bill under G.L. c. 59, § 75, the Board found that June 14, 2004, the date of "OMITTED BILL 6/14/04" was the date of the assessors' determination as to the eligibility of 215 Adams Street for a Clause Third exemption.  See Samson Foundation Charitable Trust v. Board of Assessors of the City of Springfield, ATB Findings of Fact and Reports 2004-150, 158 ("Samson Foundation") ("The 'determination' of the assessors which the charitable entity appeals under § 5B is the issuance of a tax bill which includes the property which the entity claims is exempt under Clause Third.") (citing Trustees of Reservation, ATB Findings of Fact and Reports 1991 at 235-237).  Accordingly, Eventide could have filed a § 5B appeal directly to the Board within three months of the City's issuance of "OMITTED BILL 6/14/04."  
However, Eventide instead chose to file an application for abatement with the assessors on or about July 15, 2004.  Therefore, Eventide did not appeal directly to the Board pursuant to § 5B but instead filed its appeal pursuant to the procedures in § 59 from the "refusal of the assessors to abate a tax."  "[B]ecause the appellant appealed to the Board from the 'refusal of the assessors to abate a tax,' it necessarily invoked G.L. c. 59, §§ 64 and 65," which sections require an appellant to pay the tax due for the fiscal year without incurring interest if the tax at issue exceeds $3,000.  Samson Foundation, ATB Findings of Fact and Reports 2004 at 156.  In the instant appeal, the tax for fiscal year 2004 exceeded $3,000 and no payments were made as of the date of the hearing of these appeals.  The jurisdictional principles discussed in Trustees of Reservations cannot be extended to appeals filed under § 59 to excuse noncompliance with the provisions of G.L. c. 59, §§ 59-65D.  See Samson Foundation, ATB Findings of Fact and Reports 2004 at 157-58.  The Board thus ruled that the appellant's failure to pay the tax assessed, as required under G.L. c. 59, § 64, deprived the Board of jurisdiction to hear and decide this appeal from the assessors' refusal to abate the tax.   
Moreover, even if Eventide's appeal to the Board could somehow be construed as a direct appeal under § 5B, the appeal was filed after the expiration of the statutory deadline under § 5B.  Eventide filed its fiscal year 2004 appeal on November 26, 2004.  The assessors' "determination" under § 5B was June 14, 2004, the date reflected in Eventide's "OMITTED BILL 6/14/04."  See Samson Foundation, ATB Findings of Fact and Reports 2004 at 158.  Eventide's § 5B appeal to the Board was therefore due on September 14, 2004.  Accordingly, its November 26, 2004 appeal was filed beyond the due date under § 5B.  
The Board found that the appellant failed to prosecute its appeal properly under either of the alternative remedies provided under § 59 or § 5B.  Accordingly, the Board had no jurisdiction over Docket No. F277089.  
 The Board had jurisdiction over the  
   appeals for fiscal year 2005.

Clause Third provides that a charitable organization shall not be exempt unless it first provides to the assessors "the list, statements and affidavit required by section twenty-nine" (Form 3ABC) and "a true copy of the report for such year required by section eight F of chapter twelve to be filed with the division of public charities in the department of the attorney general" (Form PC).  Id.  See also Children's Hospital Medical Center v. Assessors of Boston, 388 Mass. 832, 837 (1983)(finding that timely filing of Form 3ABC and Form PC are jurisdictional prerequisites to action by assessors and review by the Board).  In the instant appeals, the assessors conceded, and the Board found, that the appellant timely filed its Forms 3ABC and its Forms PC for the fiscal years at issue.  The Board thus found and ruled that it had jurisdiction over Dockets No. F277169 and F277170.

Eventide's entitlement to charitable exemptions for the subject properties for fiscal year 2005. 

215 Adams Street qualified for a   charitable exemption.

Clause Third provides an exemption for "[r]eal estate owned by or held in trust for a charitable organization and occupied by it or its officers for the purposes for which it is organized."  "A corporation claiming that its property is exempt under § 5, Third, has the burden of proving that it comes within the exemption, and that it is in fact operated as a public charity."  Town of Norwood v. Norwood Civic Association, 340 Mass. 518, 525 (1960) (citing American Inst. For Economic Research v. Assessors of Great Barrington, 324 Mass. 509, 512-14 (1949)).  "The mere fact that the organization claiming exemption has been organized as a charitable corporation does not automatically mean that it is entitled to an exemption for its property. . . .  Rather, the organization 'must prove that it is in fact so conducted that in actual operation it is a public charity.'"  Western Massachusetts Lifecare Corp. v. Board of Assessors of Springfield, 434 Mass. 96, 102 (2001) ("Western Massachusetts Lifecare") (quoting Jacob's Pillow Dance Festival, Inc. v. Assessors of Becket, 320 Mass. 311, 313 (1946)).  
The organization bears the burden of proving that its occupation of the property is in furtherance of the charitable purposes for which it was organized.  See Board of Assessors of Hamilton v. Iron Rail Fund of Girls Club of America, Inc., 367  Mass. 301, 306 (1975).  The Supreme Judicial Court has ruled that the term "occupied" in the Clause Third exemption: 
means something more than that which results from simple ownership and possession.  It signifies an active appropriation to the immediate uses of the charitable cause for which the owner was organized.  The extent of the use, although entitled to consideration, is not decisive.  But the nature of the occupation must be such as to contribute immediately to the promotion of the charity and physically to participate in the forwarding of its beneficient objects.
  
Babcock v. Leopold Morse Home for Infirm Hebrews & Orphanage, 225 Mass. 418, 421 (1917)(other citations omitted).  
Eventide's articles of organization and its mission statement clearly indicate that it was organized to provide a skilled nursing facility to care for elderly residents of the community.  The Appeals Court has found that "the operation of a nursing home for the elderly and the infirm is the work of a charitable corporation."  H-C Health Services, Inc. v. Board of Assessors of South Hadley, 42 Mass. App. Ct. 596 (1997) ("H-C Health Services").  However, in determining whether an organization is in fact occupying property in furtherance of its charitable purpose, a court must also consider whether the organization's benefits are readily available to a sufficiently inclusive segment of the population.  Charging a fee for services will not necessarily preclude charitable exemption, but "the organization's services must still be accessible to a sufficiently large and indefinite class of beneficiaries in order to be treated as a charitable organization."  Western Massachusetts Lifecare, 434 Mass. at 105.  It is necessary that "the persons who are to benefit are of a sufficiently large or indefinite class so that the community is benefited by its operations."  Harvard Community Health Plan, Inc. v. Assessors of Cambridge, 384 Mass. 536, 543 (1981) (citing Children's Hospital Medical Center v. Board of Assessors of Boston, 353 Mass. 35, 44 (1967), Assessors of Boston v. Garland School of Home Making, 296 Mass. 378, 388-89 (1937), and 4 A. Scott, Trusts at 2897-2898 (3d ed. 1967)).  
Several cases have ruled that a facility serving the elderly must be affordable to limited-income elders to be recognized as charitable.  For example, in affirming the Board's ruling that a nursing home was charitable, the Appeals Court in H-C Health Services specifically noted that "[t]he population at the nursing home [was] predominantly Medicaid patients."  H-C Health Services, 42 Mass. App. Ct. at 597.  In finding another nursing home to be charitable, the Board in Fairview Extended Care Services v. Board of Assessors of Danvers, ATB Findings of Fact and Reports 1997-800, 805 ("Fairview"), emphasized that the residents "were predominantly Medicaid patients, representing 65%-70% of the population."  Conversely, in affirming the Board's denial of a charitable exemption to an elderly retirement community corporation, the Supreme Judicial Court in Western Massachusetts Lifecare focused on the stringent selection requirements which limited the availability of the organization's services to a select portion of the community's elderly population:
The benefits of Reeds Landing are limited to those who pass its stringent health and financial requirements, requirements that make most of the elderly population ineligible for admission.  The class of elderly persons who can pay an entrance fee of $100,000 to $300,000 and have, from their remaining assets, monthly income of $2,000 to $7,000 is a limited one, not a class that has been "drawn from a large segment of society or all walks of life."
      
434 Mass. at 104 (quoting New England Legal Foundation v. City of Boston, 423 Mass. 602, 612 (1996) ("New England Legal Foundation")).  See also, Jewish Geriatric Services, Inc. et al. v. Board of Assessors of the Town of Longmeadow, ATB Findings of Fact and Reports 2002-337, 366, aff'd, 61 Mass. App. Ct. 73 (2004) ("Jewish Geriatric Services") ("The slim showing of actual subsidies being awarded demonstrated that the screening processes successfully narrowed the pool of applicants to an impermissibly small portion of the elderly community."); Kings Daughters & Sons Home, et al. v. Board of Assessors of the Town of Wrentham, ATB Findings of Fact and Reports 2002-427, 457 (ruling that Pond Home Community did not lessen any burden of government, because the residents enjoyed good health and had significant assets and income).
In this appeal, Eventide's acceptance of Medicaid supplements indicated that Eventide provided a service for recipients who could not otherwise afford the service.  Eventide's population of between 61-66% Medicaid patients, about two-thirds of its residents, placed Eventide squarely within the same category as nursing homes previously found to be charitable.  See H-C Health Services, 42 Mass. App. Ct. at 597.  Moreover, Eventide operated at a deficit of $701,520 for fiscal year 2004 and $255,516 for fiscal year 2005 in order to provide its residents the many services and activities that greatly enhanced their quality of life.  As Ms. Haglund testified, Eventide's endowment bore these deficits "[b]ecause we're a charitable home and we're charged with taking care of our residents."  The Board thus found and ruled that Eventide benefited a significantly large segment of the population by providing nursing care to a class of elderly citizens drawn from "all walks of life."  New England Legal Foundation, 423 Mass. at 612.  The Board's ruling was further supported by Eventide's provision of services to the community at large, including its publication at no cost of the extensive directory for elderly Quincy residents, its free seminars on elder issues and free blood pressure screenings, and the availability of its facilities and property to the community.
Additionally, a charitable organization must "'lessen[] any burden government would be under any obligation to assume.'"  Western Massachusetts Lifecare, 434 Mass. at 105 (quoting Boston Chamber of Commerce v. Assessors of Boston, 315 Mass. 712, 717 (1944)).  Private organizations can operate in the furtherance of a charitable purpose when they "perform activities which advance the public good, thereby relieving the burdens of government to do so."  Sturdy Memorial Foundation v. Board of Assessors of the Town of North Attleborough, ATB Findings of Fact and Reports 2002-203, 218, aff'd, 60 Mass. App. Ct. 573 (2004) ("Sturdy Memorial Foundation")(citing Molly Varnum Chapter DAR v. City of Lowell, 204 Mass. 487 (1909)).  "However, to the extent that a[n] [] organization is conducting a business for profit, it is not relieving government of a burden and, accordingly, its business is not charitable."  Sturdy Memorial Foundation, ATB Findings of Fact and Reports at 218 (citing Hairenik Association, Inc. v. City of Boston, 313 Mass. 274, 279 (1943)).       
In these appeals, the Board found that Eventide, a skilled nursing facility whose population's average age was 93, serviced a segment of the population that otherwise would have required a government-provided alternative means of care, including care provided by another skilled nursing facility or even by a hospital.  In fact, as indicated by its rate of zero hospitalizations for "preventable" conditions, the care provided by Eventide relieved government of the burden to provide costly hospital care.  See Fairview, ATB Findings of Fact and Reports at 810 (finding that the use of property as a nursing home alleviated a burden of government).  Contra Western Massachusetts Lifecare, 434 Mass. at 106 (denying exemption to a continuing care retirement community whose residents "enjoy[ed] sufficient good health to live independently").  The Board thus found and ruled that Eventide relieved government of the burden of providing alternative nursing care or more expensive publicly-assisted hospital care to the Eventide residents.  
Moreover, Eventide supplemented the therapies required by its elderly residents, of whom between 61-66% received Medicaid supplements, indicating that non-government alternative means of care, like expensive at-home services or assisted living facilities, were not options for Eventide's residents.  This appeal is thus distinguishable from Western Massachusetts Lifecare and Jewish Geriatric Services, involving high-priced continuing care and assisted living communities housing physically and financially independent elderly residents who would not have depended upon government assistance for their care.   
On the basis of all these facts, the Board found and ruled that Eventide was entitled to an exemption for the 215 Adams Street property for fiscal year 2005.  The Board accordingly issued a decision for the appellant in Docket No. F277170.
191 Adams Street did not qualify for a charitable exemption.

To qualify for a charitable exemption under Clause Third, the appellant must demonstrate that the property "is used directly for the fulfillment of its charitable purposes."  Boston Symphony Orchestra v. Board of Assessors of the City of Boston, 294 Mass. 248, 255 (1936) (citing Burr v. Boston, 208 Mass. 537, 543 (1911)).  Clause Third contains a "relocation" provision as follows: "real estate purchased by a charitable organization with the purpose of removal thereto, until such removal, but not for more than two years after such purchase . . . ."  However, under Clause Third, the relevant date for determining whether property is entitled to a charitable exemption for any given fiscal year is July first of the taxable year.  "It is the use of the property at [that] time . . . which determines whether it is exempt."  Trustees of Amherst College v. Assessors of Amherst, 193 Mass. 168, 178 (1906).  Therefore, the "relocation" provision does not create an automatic grace period for a charitable corporation that purchases property without material plans for its usage; instead, the corporation must establish that as of July first of the relevant tax year, it had the requisite intent for removal to the property within two years of its purchase.  See Mt. Auburn Hospital v. Board of Assessors of the Town of Watertown, ATB Findings of Fact and Reports 2000-441, 462 ("Mt. Auburn Hospital").
In Mt. Auburn Hospital, the property at issue was a parcel which a charitable organization, a hospital, had purchased to effectuate its plan to relocate "part of its outpatient services, which was in furtherance of its charitable purpose for which it was organized."  Id. at 453.  In 1990, approximately one year prior to its purchase of the parcel, the appellant there formed a task force "to evaluate the appellant's needs with respect to its physical plant and facilities."  Id. at 450.  By the spring of 1991, the task force recommended that the appellant acquire additional facilities, preferably at nearby locations, "to alleviate pressing space constraints at its existing facility."  Id.  In furtherance of this plan, the appellant purchased the property in September, 1991, and took specific, concrete steps to implement usage of the property:  
Almost immediately after purchasing the subject property, the appellant formed a Project Coordinating Committee ("Committee") to formulate site-specific plans for removing some of the appellant's outpatient services to the subject.  The Committee was composed of senior hospital administrators and staff, health care consultants, and development professionals, including architects, engineers, developers, urban planners, and traffic consultants.  The appellant spent over $550,000 over three years for related studies performed by the development professionals.  At all relevant times, the Committee conducted its weekly meetings at the subject property.

Id. at 451.  
The Board there found that as of July first of the relevant tax year, the appellant had a plan "to use a portion of the building for the relocation of part of its outpatient services, which was in furtherance of its charitable purpose for which it was organized."  Id. at 453.  Accordingly, "the Board ruled that the appellant's plan to remove part of its charitable services to the subject property brought the property within [the Clause Third exemption]."  Id. at 462.
In contrast with the appellant in Mt. Auburn Hospital, Eventide failed to establish that, as of July 1, 2004, or even by the date of the hearing of these appeals, it had a specific intent to utilize the 191 Adams Street property in furtherance of its charitable purpose.  As of the date of the hearing, Eventide had organized a Building and Development Committee.  However, Ms. Haglund's testimony that the appellant was "sort of in the process of determining what we're going to use that property for" revealed that Eventide's intentions with respect to the parcel were nebulous at best.  Furthermore, the appellant had taken no actions toward creating plans for removal of any services to 191 Adams Street, such as filing applications for zoning variances with the City.  Therefore the property was restricted to its current zoning as a single family residence.  
Moreover, unlike the appellants in Mt. Auburn Hospital, the appellant in the instant appeal failed to demonstrate a regular and consistent use of 191 Adams Street.  Ms. Haglund's testimony that the property was being used for some medical record storage gave no indication to the regularity and extent of the property's usage for that function, or whether the property actually was used for storage on July 1, 2004.  The appellant also failed to establish that the meetings at the subject property were more than sporadic.  
The Board found and ruled that the lack of sufficient action toward creating specific plans and the lack of evidence establishing an actual use of 191 Adams Street was fatal to its eligibility under the Clause Third exemption.  Accordingly, the Board ruled that 191 Adams Street did not qualify for a charitable exemption for fiscal year 2005.

Conclusion
The Board lacked jurisdiction over the appeal for fiscal year 2004.  Accordingly, the Board dismissed the appeal and issued a decision for the appellee in Docket No. F277089.
The Board ruled that the appellant occupied 215 Adams Street in furtherance of its charitable purpose and, therefore, qualified for the charitable exemption for 215 Adams Street for fiscal year 2005.  Accordingly, the Board issued a decision for the appellant in Docket No. F277170. 
The Board ruled that the appellant did not meet its burden of proving a specific intent to remove part of its charitable services to the 191 Adams Street parcels within the statutorily mandated period of time.  The Board thus issued a decision for the appellee in Docket No. F277169.

						APPELLATE TAX BOARD

				By:	___________________________________
					Anne T. Foley, Chairman


					___________________________________
					Frank J. Scharaffa, Commissioner


					___________________________________
					Donald E. Gorton, III, Commissioner


					___________________________________
					Nancy T. Egan, Commissioner


					___________________________________
					James D. Rose, Commissioner


A true copy,
Attest:	____________________________
		Assistant Clerk of the Board

 See infra, pages 19-20, for an explanation of Forms 3ABC and Forms PC.
 The assessors sent to the appellant a Property Tax Abatement Denial Notice, dated October 14, 2004, stating that the application for abatement was deemed denied on October 14, 2005.  However, pursuant to G.L. c. 59, § 64, an application for abatement filed with the assessors is deemed denied three months from its filing.  Three months following July 15, 2004 is October 15, 2004.
  G.L. c. 59, § 64 alternatively authorizes the taxpayer to pay a minimum of the average of the three preceding tax years' assessments.  However, "a year in which no tax was due shall not be used on computing such sum and if no tax was due in any of the three next three preceding years, the sum shall be the full amount of said tax due . . . ."  Therefore, Eventide was required to pay the full amount of the tax due for fiscal year 2004, since the fiscal year 2004 was the first tax bill it had received.
 The appellant purchased 191 Adams Street on May 7, 2004, subsequent to the timely filing of its Form 3ABC and Form PC for fiscal year 2004.  Therefore, 191 Adams Street was not listed on the Form 3ABC and Form PC for fiscal year 2004.  The assessors did not challenge the Form 3ABC or Form PC as insufficient.  The Board has previously ruled that "the corporation's failure to include property acquired after the relevant date for filing the Form 3ABC will not deprive the Board of jurisdiction."  Healthtrax Int'l et al. v. Board of Assessors of the Town of Hanover and South Shore YMCA, ATB Findings of Fact and Reports 2001-366, 386, aff'd, 56 Mass. App. Ct. 1116 (2002).  
 "[T]he residents of a nursing home are not lawful tenants and, accordingly, they are not considered the occupants of the property for purposes of G.L. c. 59, § 5, Third."  Jewish Geriatric Services, Inc. et al. v. Board of Assessors of the Town of Longmeadow, ATB Findings of Fact and Reports 2002-337, 355, aff'd, 61 Mass. App. Ct. 73 (2004) (citing H-C Health Services, Inc. v. Board of Assessors of South Hadley, 42 Mass. App. Ct. 596 (1997)).  The Board thus found and ruled that Eventide, and not the individual resident, was the lawful occupant of 215 Adams Street.  

ATB 2006-457