James and Claudia English v. Board of Assessors of the Town of Winthrop (December 30, 2009)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD


JAMES & CLAUDIA ENGLISH	    v.	   BOARD OF ASSESSORS OF
					         	   THE TOWN OF WINTHROP

Docket No. F297847				   Promulgated:
							   December 30, 2009
			  
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 to abate a tax on real estate in the Town of Winthrop, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2008.  
Commissioner Rose heard the appeal.  Chairman Hammond and Commissioners Scharaffa and Mulhern joined him in the 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.   

James English, pro se, for the appellants.
Patrick Harrig, assessor, for the appellee.
	


FINDING OF FACT AND REPORT
	On January 1, 2007, James and Claudia English ("appellants") were the assessed owners of a 5,488 square-foot parcel of real estate located at 94 Faun Bar Avenue in Winthrop ("subject property").  The subject property is located on a peninsula between Boston Harbor and Broad Sound.  The lot is improved with a two-story, Colonial-style, single-family residence.  Originally built in 1930, the subject dwelling underwent substantial demolition and renovations during calendar years 2004 through 2006.  As of the relevant date of assessment, the subject dwelling contained a total living area of 3,150 square feet with a total of five rooms, including three bedrooms and also two full bathrooms and one one-half bathroom, with a total living area of 3,150 square feet.  The dwelling also includes a full unfinished basement, two rear decks and a one-car under garage.
For fiscal year 2008, the Board of Assessors of Winthrop ("assessors") valued the subject property at $646,200.  The appellants timely paid the taxes due.  On February 1, 2008, in accordance with G.L. c. 59, § 59, the appellants timely filed an Application for Abatement with the assessors, which the assessors denied on April 15, 2008.  On July 11, 2008, in accordance with G.L. c. 58A, § 7 and c. 59, §§ 64 and 65, the appellants seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.
	The appellants argued that their fiscal year 2008 assessment was excessive because the assessors placed too high a value on the land component of their assessment.  In support of their claim, the appellants offered into evidence a map of the immediate area which highlighted six proximate properties also located on Faun Bar Avenue which purportedly had lower per-square-foot land value assessments than the subject property.  The appellants did not, however, offer into evidence the property record cards for their purportedly comparable properties nor did they provide a narrative or descriptive information about the purportedly comparable properties.  Absent such fundamental information, the appellants failed to provide an evidentiary basis for a finding of basic comparability.  The assessors offered no evidence of value but instead rested on the presumed validity of their assessment.
Based on the evidence presented, the Board found and ruled that the appellants failed to meet their burden of proving that the subject property was overvalued for fiscal year 2008.  The Board found that the appellants' evidence lacked sufficient detail to establish comparability between their purportedly comparable properties and the subject property.  Without a showing of basic comparability, the assessed values of the other properties lacked probative force as indications of the value of the subject property.  
Accordingly, the Board found and ruled that the appellants failed to meet their burden of proving that the land and the subject property as a whole was overvalued for the fiscal year at issue and issued a decision for the appellee in this appeal.

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 appellants have 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)).
"At any hearing relative to the assessed fair cash valuation . . . of property, evidence as to the fair cash valuation . . . at which assessors have assessed other property of a comparable nature . . . shall be admissible." G.L. c. 58A, § 12B. "The admissibility under G.L. c. 58A, § 12B, of evidence of assessments imposed on other property claimed to be comparable in nature to the subject property is largely a matter within the discretion of the board."  Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 703 (1972).  The properties used in a comparable assessment analysis must be comparable to the subject property in order to be probative of the fair cash value. Id. 
"The appellant bears the burden of 'establishing the comparability of ... properties [used for comparison] to the subject property.'" Wood v. Assessors of Fall River, Mass. ATB Findings of Fact and Report 2008-213, 225. (Citation omitted.) "Once basic comparability is established, it is then necessary to make adjustments for the differences, looking primarily to the relative quality of the properties, to develop a market indicator of value."  New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981). 
In the present appeal, the appellant relied on the land assessments of six purportedly comparable properties located on the same road as the subject property.  The appellants did not, however, offer into evidence the property record cards for these properties.  Moreover, the appellants failed to provide a narrative or descriptive information about the purportedly comparable properties needed to supply an evidentiary basis for a finding of basic comparability to the subject property. See Wood, Mass. ATB Findings of Fact and Reports at 228. In addition, the appellants' failure to make any adjustment to the data for differences between the purported comparable properties and the subject property rendered their valuation conclusions unreliable.  See Antonino v. Assessors of Shutesbury, Mass. ATB Findings of Fact and Reports 2008-54, 71 ("[R]eliance on unadjusted assessments of assertedly comparable properties . . . was insufficient to justify a value lower than that assessed."). 
A taxpayer "does not conclusively establish a right to an abatement merely by showing that his land or building is overvalued.  'The tax on a parcel of land and the building thereon is one tax . . . although for statistical purposes they may be valued separately.'"  Hinds v. Assessors of Manchester-by-the-Sea, Mass. ATB Findings of Fact and Reports 2006-771, 778 (quoting Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941)).  In abatement proceedings, "the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive. The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921); see also Buckley v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-110, 119; Jernegan v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-39, 49.
In the present appeal, the appellants failed to analyze building and overall assessment data in support of their claim for abatement. Instead, the appellants relied upon purportedly comparative land assessment data alone to prove their right to abatement for the fiscal year at issue.  Accordingly, the Board found that the appellants' comparable assessment analysis was incomplete because it only measured part of, and not the entire, assessment.
Based on the evidence presented, the Board found and ruled that the appellants did not meet their burden of proving that the subject property's overall assessment was excessive.  On this basis, the Board 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

ATB 2009-1302