West Beit Olam Cemetery Corporation v. Board of Assessors of the Town of Wayland (February 12, 2015)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


WEST BEIT OLAM CEMETERY 		v.		  BOARD OF ASSESSORS OF
CORPORATION 	          	       THE TOWN OF WAYLAND
				   	

Docket No. F325306					  Promulgated: 
								  February 12, 2015
		  		      				
 					
	This is an appeal 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, Board of Assessors of the Town of Wayland ("assessors" or "appellee"), to abate a tax on certain real estate in Wayland, owned by and assessed to West Beit Olam Cemetery Corporation ("West Beit" or "appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2014 ("fiscal year at issue").
	Commissioner Good heard the assessors' Motion to Dismiss For Lack of Jurisdiction ("Motion to Dismiss") and was joined by Chairman Hammond and Commissioners Scharaffa, Rose, and Chmielinksi in the decision for the appellee.
These findings of fact and report are made pursuant to the appellant's request under G.L. c. 58A, § 13 and 831 CMR 1.32.  

	Sander A. Rikleen, Esq. for the appellant.
Mark J. Lanza, Esq. for the appellee.
			         FINDINGS OF FACT AND REPORT

An evidentiary hearing in connection with the Motion to Dismiss was held before the Appellate Tax Board ("Board") on November 25, 2014, at which both parties offered testimony and documents on the issues of: (1) whether the assessors acted on the appellant's Application for Abatement within three months of its filing; and (2) whether the appellant received notice of any such action.  On the basis of the evidence presented at the evidentiary hearing, the Board made the following findings of fact.
On January 1, 2013, the relevant valuation date for the fiscal year at issue, the appellant was the assessed owner of a parcel of real estate located at 59 Old Sudbury Road in Wayland ("subject property").  The subject property is a 1.73-acre parcel of land, improved with a single-family, raised-ranch style residence, which is contiguous to a cemetery in Wayland named Beit Olam Cemetery ("Beit Olam").  The subject property and Beit Olam are owned by the appellant, which is a nonprofit Jewish cemetery corporation organized by the Jewish Cemetery Association of Massachusetts ("JCAM").  
For the fiscal year at issue, the assessors originally valued the subject property at $489,400, and assessed a tax thereon, at the rate of $18.33 per thousand, in the total amount of $9,077.77.  The appellant timely paid the tax due without incurring interest.  On January 31, 2014, the appellant timely filed an Application for Abatement with the assessors, seeking an abatement of the tax on the grounds that the subject property, which has been the subject of previous appeals at the Board, was exempt from tax under G.L. c. 59, § 5, clauses third and twelfth.  
The testimony and documents entered into evidence showed that on March 24, 2014, the assessors voted to grant a partial abatement to the appellant, reducing the assessed value of the subject property to $482,600.  An abatement certificate - State Tax Form 147 - entered into evidence, dated March 28, 2012, reflects the assessors' decision to grant the partial abatement and, in two different places, references the March 24, 2014 vote of the assessors.  For the reasons discussed further below, the Board found that on March 31, 2014, the assessors sent notice ("notice of decision") to the appellant, at its address of record, that they had granted a partial abatement, reducing the assessed value of the subject property by $6,800 to $482,600, resulting in an abatement of $126.51, inclusive of CPA.   A copy of the notice of decision was entered into evidence.  Like the abatement certificate, the notice of decision references the March 24, 2014 vote of the assessors.  
The appellant maintained, on the basis of the documents it offered during the evidentiary hearing, as well as the testimony of Stanley J. Kaplan, the Executive Director of JCAM, that it did not receive the notice of decision from the assessors.  Mr. Kaplan stated that JCAM was particularly interested in the assessors' decision on the abatement application as it had filed previous appeals with the Board in connection with the subject property and, depending on the assessors' decision, it anticipated filing an appeal with the Board for fiscal year 2014.  Mr. Kaplan testified that he was well aware of the strict jurisdictional time limits for filing an appeal with the Board and as a result he made an extra effort to look out for a notice from the assessors.  Nevertheless, he testified that the appellant never received the notice of decision.  
On May 8, 2014, as evidenced by both his sworn affidavit and a copy of the e-mail itself, counsel for the appellant sent an e-mail to counsel for the assessors, stating the following: "I do not believe that WBO/JCAM has received anything from the Assessors on the pending FY 2014 abatement application.  Do you know if they have acted or if they are ignoring the application and letting it be deeded [sic] denied?"
On May 9, 2014, counsel for the assessors responded to this inquiry by replying, in pertinent part: "I don't know what action, if any, the BOA is planning to take on the pending application, but will find out and let you know."   
The appellant filed a Petition Under Formal Procedure ("Petition") with the Board on July 30, 2014.  On its Petition, the appellant stated "On April 30, 2014, the application [for abatement] was deemed denied by inaction of the Board of Assessors." See G.L. c. 58A, § 6; G.L. c. 59, §§ 64 and 65 (providing that if the assessors failed to take action on an application for abatement "prior to the expiration of three months from the date of filing of such application it shall then be deemed to be denied.").    
On September 26, 2014, the assessors filed the Motion to Dismiss, asserting that the appellant had three months from the date of the assessors' March 24, 2014 vote on the abatement application, or until June 24, 2014, to timely file its appeal with the Board.  See G.L. c. 59, §§ 64 and 65.  The appellant did not file its appeal with the Board until July 30, 2014, and accordingly, the assessors argued, the Board was without jurisdiction over this appeal.
The assessors offered the testimony of Ellen Brideau, Director of Assessing for the appellee; Cindy Cincotta, a treasury clerk employed by the Town of Wayland; and Gail Stahl, an accounts payable administrator for the Town of Wayland, along with several documents.   
Ms. Brideau testified that she was present at the March 24, 2014 meeting when the assessors acted on the appellant's abatement application for the fiscal year at issue.  The minutes from that meeting, as well as a memorandum dated March 24, 2014 from Ms. Brideau to the assessors, were introduced into evidence.  These documents together demonstrated that abatements for five unrelated properties were recommended for approval by the assessors on that date, and among them was the subject property.  The signatures of four members of the Board of Assessors, approving the recommended abatements, appear on the memorandum, next to the handwritten date of March 24, 2014.  Ms. Brideau further testified that, on March 31, 2014, the notice of decision was sent to the appellant at its address of record, which was the same address to which the tax bill was mailed and which the appellant provided on its abatement application.  She testified that the appellant's abatement application and the sending of the notice of decision were handled by the assessors in the ordinary course, and the Board found her testimony to be credible.  
As the accounts payable administrator for Wayland, Gail Stahl testified that she is responsible for processing outgoing payments.  Through Ms. Stahl, the assessors offered a print out of a cash disbursements journal, which reflected a check issued to West Beit Olam Cemetery Corp., printed on May 19, 2014, in the amount of $126.51, the exact amount specified in the notice of decision.  Next to this entry in the journal, in a column labeled "invoice det[ai]l/desc[ription], appears the note "14 RE Tax Refund - BOA Vote on 3/24/14."  In addition, a copy of the cancelled check and a copy of a bank deposit slip with the appellant's name and address on it were entered into evidence.  These documents established that the appellant received the check on or after May 19, 2014 and thereafter the appellant deposited the check into its bank account at Century Bank in Newton on May 27, 2014.  
On the basis of the evidence, and as noted above, the Board found that the assessors voted on the appellant's Application for Abatement for the fiscal year at issue on March 24, 2014, and, as required by G.L. c. 59, § 63, sent notice to the appellant of its decision, at its address of record, attention to Stanley J. Kaplan, Executive Director, within ten days of its decision.  Accordingly, the appellant had until three months from the date of the March 24, 2014 vote of the assessors, or until June 24, 2014, to timely file its appeal with the Board.  The appellant did not file its Petition until July 30, 2014, and because it was filed late, the Board did not have jurisdiction to hear and decide this appeal.  
The appellant's arguments and evidence to the contrary were unavailing.  It was the appellant's contention that the May 8th and 9th e-mail exchange between counsel for the appellant and counsel for the appellee, highlighted in bold above, "confirmed that the Board of Assessors had not yet acted on the application for abatement" as of those dates. The Board disagreed.  The e-mail exchange, at most, demonstrated that counsel for the assessors was unaware of the status of the abatement application or the actions of the assessors as of that date.  More importantly, substantial contemporaneous documentary evidence entered into the record showed unequivocally that the assessors voted on the appellant's abatement application on March 24, 2014 and sent notice of their decision promptly thereafter.  
The appellant's argument that it never received the notice of decision was neither credible nor persuasive.  First, under these circumstances, the appellant's bare assertions, without more, were not sufficient to support a finding that it did not receive the notice of decision.  There was no evidence offered, for example, that the notice of decision was returned to the assessors, or that the appellant had been experiencing difficulty with the delivery of its mail, or that it was addressed to an incorrect address.  Moreover, the appellant did receive - and deposit - the refund check stemming from the partial abatement granted by the assessors.  The receipt of this check, which was dated May 19, 2014 and deposited by the appellant on May 27, 2014, should have put the appellant on notice that the assessors had acted on its abatement application, or at least prompted the appellant to renew its previous inquiry.  The appellant still had ample time at that point to seasonably file an appeal with the Board by June 24, 2014, but instead, it assumed that its abatement application had been deemed denied and did not file its appeal until July 30, 2014, more than two months after depositing the refund check.
On the basis of the evidence offered at the evidentiary hearing of the assessors' Motion to Dismiss, the Board found and ruled that the appellant had until June 24, 2014 to timely file its appeal with the Board.  The appeal was not filed until July 30, 2014, and consequently, the Board did not have jurisdiction to hear and decide this appeal.  Accordingly, the Board allowed the assessors' Motion to Dismiss, and issued a decision for the appellee in this appeal.
				  OPINION
General Laws c. 59, § 65 provides that: 
[a] person aggrieved . . . with respect to a tax on property in any municipality may, subject to the same conditions provided for an appeal under section sixty-four, appeal to the appellate tax board by filing a petition with such board within three months after the date of the assessors' decision on an application for abatement as provided in section sixty-three, or within three months after the time when the application for abatement is deemed to be denied as provided in section sixty-four.  
As discussed above, an appeal is deemed denied under G.L. c. 58A, § 6 and G.L. c. 59, § 64 if the assessors fail to act on it prior to the expiration of three months from the date it was filed.  Further, G.L. c. 59, 63 provides that:
[a]ssessors shall, within ten days after their decision on an application for an abatement, send written notice thereof to the applicant. If the assessors fail to take action on such application for a period of three months following the filing thereof, they shall, within ten days after such period, send the applicant written notice of such inaction.
Thus, the statutory scheme generally requires the taxpayer to file an appeal with the Board within three months of the assessors' decision on an abatement application or, if the assessors fail to timely act on an abatement application, within three months of the date of deemed denial.  Assessors are required under G.L. c. 59, § 63 to give notice of their decision on an abatement application, or of their deemed denial, within ten days of the decision or deemed denial date.  
Here, the appellant's arguments were two-fold: (1) that it never received the notice of denial; and, (2) because it never received the notice of denial, the abatement application must have been deemed denied by the assessors on April 30, 2014, giving the appellant until July 30, 2014 to file its appeal with the Board.  The Board rejected these arguments.  
As an initial matter, the appellant failed to establish that it did not receive the notice of decision.  The Board found here, as it has in past appeals, that the appellant's mere assertions that it did not receive the notice were insufficient to establish non-receipt, particularly in light of the countervailing evidence of timely sending of the notice.  See Lily Transportation Corp. v. Assessors of Andover, Mass. ATB Findings of Fact and Reports 1996-173, 177 (finding that taxpayer's affidavit stating that it did not receive the notice of denial, despite following ordinary business routines, without more was not sufficient to establish non-receipt).  
Further, the appellant attempted to parlay its alleged failure to receive the notice of decision into the conclusion that its abatement application was not acted on by the assessors, but instead was deemed denied.  As discussed above, the Board found and ruled that the appellant failed to establish that it did not receive the notice of decision.  Moreover, even assuming arguendo that the appellant did not receive the notice of decision, it did receive, and deposit, the refund check stemming from the partial abatement granted by the assessors.  The receipt of this check should have put the appellant on notice that the assessors had taken action on its abatement application.  Accordingly, the Board rejected the appellant's arguments.  
Because the substantial evidence of record established that the assessors voted on the appellant's abatement application on March 24, 2014, and sent notice of its decision to the appellant within ten days, the Board found and ruled that, pursuant to G.L. c. 59, §§ 64 and 65, the appellant had until June 24, 2014, to timely file its appeal with the Board.  The appellant did not file its appeal until July 30, 2014, and the Board therefore found and ruled that it did not have jurisdiction to hear and decide this appeal. 
"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)). 





 Accordingly, the Board allowed the appellee's Motion to Dismiss and issued a decision for the appellee in this appeal.  

				    THE APPELLATE TAX BOARD


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


A true copy,


Attest: __________________________
	   Clerk of the Board

 This amount includes a Community Preservation Act ("CPA") surcharge of $107.07.  
 See West Beit Olam Cemetery Corporation v. Assessors of Wayland, Mass. ATB Findings of Fact and Reports 2014-857.  

ATB 2015-39