Stephanie Spinosa d/b/a Gourmet Decisions v. Board of Assessors of the Town of Wellesley (August 6, 2009)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD



STEPHANIE SPINOSA		   v.	BOARD OF ASSESSORS OF
d/b/a GOURMET DECISIONS      		THE TOWN OF WELLESLEY


Docket No. F294337			    	Promulgated:
						August 6, 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 taxes on certain personal property located in the Town of Wellesley, owned by and assessed to the appellant under G.L. c. 59, §§ 2 and 18, for fiscal year 2008.  
Commissioner Egan heard the appeal, and Commissioners Scharaffa, Rose and Mulhern joined her in a decision for the appellee. Chairman Hammond took no part in the deliberation or decision of this appeal.  
	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.

	Dennis R. Brown, Esq. for the appellant.
	James A. Goodhue, Esq. for the appellee.  

			  FINDINGS OF FACT AND REPORT
On the basis of the evidence offered into the record in the hearing of this appeal, the Appellate Tax Board ("Board") made the following Findings of Fact.  On January 1, 2007, Stephanie Spinosa d/b/a Gourmet Decisions ("Ms. Spinosa" or "appellant"), was the owner of certain restaurant equipment ("subject property") located at 57 Washington Street in the Town of Wellesley.  Prior to June 13, 2007, the appellant used the subject property in the operation of her restaurant known as Gourmet Decisions, which is no longer in operation.  The appellant sold the subject property on June 13, 2007.  
	The Board of Assessors of the Town of Wellesley ("assessors" or "appellee") valued the property at $10,000 and assessed to the appellant a tax thereon, at the rate of $9.18 per $1,000, in the amount of $91.80.  The appellant paid the tax, with interest in the amount of $2.39, on January 7, 2008.  On that same date, the appellant timely filed an Application for Abatement with the assessors, which they denied on January 23, 2008.  
	The appellant timely filed her Petition with the Board on April 16, 2008.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.
	There are no facts in dispute in the instant appeal.  The appellant's sole contention was that she was not liable for the tax at issue because she did not own the subject property at any time during the fiscal year at issue, which ran from July 1, 2007 through June 30, 2008.  The undisputed facts show that the appellant sold the subject property on June 13, 2007.  However, because the appellant owned the subject property on January 1, 2007, the Board found and ruled that she was the owner of the subject property on the relevant assessment date and that the assessors therefore properly assessed the tax at issue to her. 
	Accordingly, the Board issued a decision for the appellee in this appeal.
	
				    OPINION
	General Laws chapter 59, section 18, states, in relevant part: "All tangible personal property, including that of persons not inhabitants of the commonwealth, except ships and vessels, shall, unless exempted by section five, be taxed to the owner in the town where it is situated on January first."  Though each taxable fiscal year begins on July first and ends on June thirtieth, by statute, the relevant date for the determination of ownership with respect to tangible personal property is the first day of January preceding the fiscal year.  

The property tax is not, like an income tax and some excise taxes, assessed for a definite period of time, but as of a fixed date recurring annually, unless the legislature makes a change. The questions of ownership, of exemption, and of domicile all relate to the date when the status of the property is ascertained for the current year.  The assessment, of course, may be made at a later date, but it must be levied on the person who was owner on January first. 

p. nichols, taxation in massachusetts 276 (3d ed. 1938) (internal citations omitted).  Because it was undisputed that the appellant owned the subject property on January 1, 2007, the Board found and ruled that the assessors properly assessed to her the tax at issue.
	The appellant's argument that she was not liable for the tax because she did not own the subject property at any time during the fiscal year at issue ignores the plain, unambiguous language of the statute, which states that personal property shall be "taxed to the owner in the town where it is situated on January first."  G.L. c. 59, § 18.  There is no support in the statute for the appellant's assertion that the relevant date for the determination of ownership of non-exempt, tangible personal property is July first.  Rather, it is clear from the statutory scheme that when the Legislature intended for the operative date with respect to any provision to be July first, it was perfectly able to say so.
	For example, G.L. c. 59, § 18 provides that "[s]hips and vessels, except those used in or designed for use in carrying trade or commercial fishing, shall be taxed to the owner as of July first in the town where it is habitually moored or docked, otherwise where it is principally situated during the calendar year."  Similarly, G.L. c. 59, § 5, which exempts certain types of property from tax, provides, in relevant part "[t]he following property shall be exempt from taxation and the date of determination as to age, ownership or other qualifying factors required by any clause shall be July first of each year."  G.L. c. 59, § 5.  
"The primary source of the insight into the intent of the Legislature is the language of the statute." International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983).  In G.L. c. 59, § 18, with respect to the taxation of tangible personal property, the Legislature set January first as the relevant date for the determination of ownership of tangible personal property.  Had the Legislature intended to make July first the relevant date for the determination of ownership of such property, it could have done so.  See Anderson Street Associates v. City of Boston & another, 442 Mass. 812, 817 (2004) ("Had the Legislature intended G.L. c. 121A to guarantee tax concessions to be permanent, it could have included statutory language to that effect.  It has done so elsewhere."); Commissioner of Revenue v. Cargill, Inc., 429 Mass. 79, 82 (1999) ("Had the Legislature intended to limit the credit in the manner advocated by the commissioner, it easily could have done so.")  Accordingly, the Board found and ruled that the relevant date for the determination of the ownership of the subject property for the fiscal year at issue was January 1, 2007. 
"'The burden of proof is upon the petitioner to make out its right as a matter of law to 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)).  Because the appellant owned the subject property on the relevant assessment date, and offered no evidence to prove that it was overvalued, she did not carry her burden of proving that she was entitled to an abatement.  Accordingly, the Board issued a decision for the appellee in this appeal.  

APPELLATE TAX BOARD



		  		 By: 				_____________
Frank J. Scharaffa, Commissioner





A true copy,


Attest:		______	_____	
	       Clerk of the Board

 The appellant filed a Motion for Summary Judgment because the assessors did not file an Answer within thirty days of the service of her Petition, in accordance with 830 CMR 1.12.  However, 830 CMR 1.12 allows the appellee to file an Answer later than thirty days from the service of the Petition if the Answer is filed "within such further time as the Board may allow."  In the instant appeal, the Board allowed the appellee to file its Answer on October 8, 2008, and accordingly, denied the appellant's Motion for Summary Judgment.  
 The appellant's petition raised the issue of overvaluation of the subject property.  However, the appellant made additional filings with the Board in which she asserted that the subject "property was overvalued for the simple reason that I did not own any such taxed property during the FY2008 year."  Further, the appellant offered no evidence into the record as to the value of the subject property.  Accordingly, the Board found and ruled that the appellant did not meet her burden of proving that the subject property was overvalued.  

ATB 2009-744