John J. Giurleo v. Board of Assessors of the Town of Raynham (June 27, 2006)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


JOHN J. GIURLEO 		   v.	BOARD OF ASSESSORS OF
						   	THE TOWN OF RAYNHAM

Docket No. F279379				Promulgated:
							June 27, 2006


This is an appeal 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 a tax on real estate in the Town of Raynham assessed under G.L. c. 59, §§ 11 and 38, for fiscal year 2005.      
Chairman Foley heard the appellee's Motion to Dismiss for failure to comply with an Order of the Appellate Tax Board ("Board").  She was joined in the decision for the appellee by Commissioners Scharaffa, Gorton, Egan, and Rose.  
These findings of fact and report are made at the requests of the appellant and the appellee pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.

John J. Giurleo, pro se for the appellant.

Gordon D. Luciano, Assessor, for the appellee.



FINDINGS OF FACT AND REPORT
On the basis of the uncontroverted facts contained in the pleadings, the Board made the following findings of fact.  The appellant, John J. Giurleo ("Mr. Giurleo") was the assessed owner of a parcel of real estate, improved with a single-family dwelling, located at 200 Wilbur Street in the Town of Raynham ("subject property").  For fiscal year 2005, the Board of Assessors of the Town of Raynham ("assessors") valued the subject property at $242,200 and assessed a real estate tax, at the rate of $10.25 per thousand, in the amount of $2,482.55.  Mr. Giurleo timely paid the tax.  On January 31, 2005, Mr. Giurleo timely filed an application for abatement with the assessors.  
As part of the assessors' evaluation of Mr. Giurleo's application for abatement, one of the assessors, Gordon Luciano ("Mr. Luciano"), attempted to inspect the dwelling on the subject property in April, 2005.  Mr. Giurleo allowed Mr. Luciano to perform only an exterior inspection of the dwelling at that time.  By unanimous vote on April 12, 2005, the assessors denied Mr. Giurleo's application for abatement.  
On April 26, 2005, Mr. Giurleo requested that the assessors reconsider their denial.  The assessors attempted to contact Mr. Giurleo by telephone to request an interior inspection of the dwelling on the subject property, but Mr. Giurleo did not respond to the telephone calls.  On April 28, 2005, Mr. Giurleo went to the assessors' office to schedule a time for the assessors to address his request for consideration.  He denied the assessors' request for an interior inspection at that time.  
The assessors addressed Mr. Giurleo's request for reconsideration at a meeting held on May 3, 2005.  Mr. Giurleo claimed that he offered to produce a sworn statement, photographs, and a viewing of the dwelling through open doors as substitutes for the interior entry inspection.  The assessors denied Mr. Giurleo's request for reconsideration.  On June 10, 2005, Mr. Giurleo seasonably filed his appeal with the Board.  On the basis of all these facts, the Board found it had jurisdiction over this appeal.
On July 27, 2005, the assessors filed a Motion to Dismiss the appeal based on Mr. Giurleo's refusal to allow an interior inspection of the dwelling.  Mr. Giurleo opposed the motion, both in writing and orally at the motion hearing, by maintaining that the assessors had no right to inspect the interior of the subject property and that the exterior inspection he had already permitted, together with a view of the interior through 
"open doors," photographs, and sworn statements, were sufficient.  On August 9, 2005, the Board denied the Motion to Dismiss but rejected Mr. Giurleo's position by ordering an inspection of the subject property within thirty days.  Mr. Giurleo refused to comply with the Board's Order and on August 18, 2005 filed a Motion for Reconsideration of the Board's Order, which restated the arguments he had made in opposition to the July 27, 2005 Motion to Dismiss.  On September 8, 2005, the Board denied the Motion for Reconsideration and upheld the August 9, 2005 Order requiring an interior inspection.  On September 14, 2005, the assessors filed a Motion to Dismiss for Failure to Comply with the Board's Order Dated August 9, 2005.     
For the reasons stated in the following Opinion, the Board allowed the appellee's Motion to Dismiss for Failure to Comply with the Board's Order Dated August 9, 2005 and entered a decision for the appellee in this appeal. 



OPINION
Assessors have a statutory right to inspect property that is the subject of an abatement application (G.L. c. 59, § 61A) or an appeal to the Board (G.L. c. 58A, § 8A).  General Laws c. 59, § 61A provides in pertinent part as follows:
A person applying for an abatement of a tax on real estate or personal property shall, upon request, exhibit to the assessors the property to which the application for abatement relates and if required by said assessors, shall exhibit and identify such property, and further, shall, upon request, furnish under oath such written information as may be reasonably required by the board of assessors to determine the actual fair cash valuation of the property to which the application for abatement relates . . . . 

Pursuant to § 61A, the assessors attempted to inspect the subject property during the pendency of Mr. Giurleo's application for abatement.  Mr. Giurleo refused to allow an interior inspection of his dwelling, contending that the definition of "exhibit" in  § 61A is "not restricted" to interior inspections requiring entry into the property.  Therefore, Mr. Giurleo claimed that he satisfied the provisions of this statute by offering to produce a sworn statement, photographs, and a viewing of the dwelling through open doors as substitutes for the interior entry inspection, because these would have been means to "exhibit" his property.  The assessors subsequently denied his application for abatement, and Mr. Giurleo filed an appeal with the Board.  
The assessors moved to dismiss the appeal based on Mr. Giurleo's failure to allow an interior inspection.  After hearing Mr. Giurleo's position that no interior inspection was required, the Board, pursuant to G.L. c. 58A, § 8A, rejected his argument and ordered that Mr. Giurleo permit an inspection of his residence within thirty days.  Section 8A, which governs discovery procedure before the Board, provides in pertinent part that:
Before the hearing of a petition for the abatement of a tax upon real estate, machinery or other tangible property, the appellant shall permit the appellee personally or by attorneys, experts or other agents, to enter upon such real estate or upon any premises where such personal property is situated and examine and inspect such real estate or personal property, including any property which the appellant claims is exempt from taxation. . . .  In the event the appellant refuses to permit the appellee to inspect said property, the board may dismiss the appeal.

(emphasis added).  
Rather than comply with the Board's Order, Mr. Giurleo chose once again to refuse the assessors access to the interior of his dwelling in order for them to evaluate his abatement claim.  Instead, he filed a Motion to Reconsider
the Board's Order, which added nothing to the argument the Board previously rejected.  Accordingly, the Board denied the Motion to Reconsider.  The Board had the discretion to dismiss Mr. Giurleo's appeal due to his blatant disregard of the Board's Order.  G.L. c. 58A, § 8A.  See also Board of Assessors of Provincetown v. Vara Sorrentino Realty Trust, 369 Mass. 692, 694 (1976) ("In the matter of 'discovery' much must be left to the judgment and discretion of the Appellate Tax Board."); U.A. Columbia Cablevision of Massachusetts, Inc. v. Board of Assessors of the City of Taunton, ATB Findings of Fact and Reports 1987-468, 474-75, aff'd 26 Mass. App. Ct. 1104 (1998) (dismissal of an appeal is "well within the Board's discretion" when a party does not comply with a statutory provision, and the explicit direction of the presiding commissioner, requiring service of a copy of an appeal on the opposing party).  The Board determined, after hearing the parties, that the assessors were entitled to an inspection of the property in order to prepare for the hearing of this appeal.  Such a determination was within the discretion of the Board, as was its decision to dismiss the appeal for failure to comply with its Order.   


Conclusion
It was clear that Mr. Giurleo had no intention of allowing an interior inspection of his property, despite the Board's Order and the explicit provisions of G.L. c. 58A § 8A.  Mr. Giurleo was afforded more than ample opportunity to avoid dismissal by complying with the assessors' numerous requests, and the Board's Order to allow an inspection of his property.  Dismissal of this appeal was consistent with the provisions of § 8A and within the discretion of the Board.  Accordingly, for all of the foregoing reasons the decision was for the appellee.

				THE 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

  The assessors' first Motion to Dismiss was filed on July 15, 2005.  The Board denied the motion on July 26, 2005 because the assessors failed to appear for the motion hearing. 
 On that same date, Mr. Giurleo filed a Motion that the Court Order the Appellee to Allow the Appellant an Interior Inspection of [the assessors'] Office Procedures and Records, which the Board denied.

ATB 2006-449