Marco Investments, LLC v. Board of Assessors of the Town of Wellfleet (March 25, 2025)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD
MARCO INVESTMENTS, LLC 	v. 	BOARD OF ASSESSORS OF
THE TOWN OF WELLFLEET
Docket No. F347734 	Promulgated:
March 25, 2025
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 Board of Assessors of the Town of Wellfleet (“assessors” or
“appellee”) to abate a tax on real estate owned by and assessed to
Marco Investments, LLC (“appellant”) for fiscal year 2023 (“fiscal
year at issue”).
Commissioner 	Bernier 	heard 	this 	appeal. 	He 	was 	joined 	by
Chairman 	DeFrancisco 	and 	Commissioners 	Good, 	Elliott, 	and 	Metzer
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 1.34.
Martin Rebhun, managing member, pro se, for the appellant.
Jeffrey Blake, Esq., for the appellee.
ATB 2025-55

FINDINGS OF FACT AND REPORT
Based 	on 	testimony 	and 	documents 	admitted 	into 	evidence
during 	the 	hearing 	of 	this 	appeal, 	the 	Appellate 	Tax 	Board
(“Board”) made the following findings of fact.
On January 1, 2022, the relevant valuation date for the fiscal
year at issue, the appellant was the assessed owner of commercial
real 	property 	with 	an 	address 	of 	286 	Main 	Street, 	in 	the 	Town 	of
Wellfleet (“subject property”). The subject property was built in
1935 	and 	contains 	1,572 	square 	feet 	of 	building/retail 	space 	and
2,614 square feet of land.
The assessors valued the subject property at $587,800 for the
fiscal year at issue and assessed a tax thereon, at a rate of $6.65
per 	$1,000, 	in 	the 	total 	amount 	of 	$4,026.14, 	inclusive 	of 	the
Community 	Preservation 	Act 	surcharge. 	The 	tax 	assessed 	on 	the
subject 	property 	was 	less 	than 	$5,000, 	therefore, 	in 	accordance
with 	G.L. 	c. 	59, 	§ 	64, 	the 	appellant’s 	late 	payment 	of 	the 	first
installment 	of 	tax 	and 	the 	interest 	incurred 	did 	not 	prevent 	the
Board 	from 	having 	jurisdiction 	over 	the 	matter. 	On 	November 	20,
2022, 	in 	accordance 	with 	G.L. 	c. 	59, 	§ 	59, 	the 	appellant 	timely
filed 	an 	abatement 	application, 	which 	the 	assessors 	denied 	on
December 22, 2022. The appellant seasonably filed this appeal with
the 	Board 	on 	February 	23, 	2023. 	Based 	on 	these 	facts, 	the 	Board
found 	and 	ruled 	that 	it 	had 	jurisdiction 	to 	hear 	and 	decide 	this
appeal.
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The appellant presented its case through the testimony of Mr.
Rebhun, managing member of the appellant, and the submission of a
valuation analysis prepared by Mr. Rebhun.
Mr. 	Rebhun 	acknowledged 	that 	the 	appellant 	purchased 	the
subject property in 2019, three years prior to the valuation date,
for $550,000. He stated at the outset of his testimony that he was
not 	arguing 	that 	the 	assessed 	value 	of 	the 	subject 	property 	at
$587,800 	was 	inconsistent 	with 	fair 	cash 	value. 	He 	contended,
rather, that the fair cash value of the subject property was simply
irrelevant to the appellant’s request for an abatement. He argued
that 	this 	appeal 	was 	based 	on 	what 	he 	deemed 	to 	be 	a
disproportionately high assessment of the subject property for the
fiscal year at issue in comparison with the assessments of certain
other 	commercial 	properties 	located 	in 	the 	downtown 	business
district of the Town of Wellfleet.
The 	purportedly 	comparable 	properties 	ranged 	widely 	in
elements 	such 	as 	size, 	age, 	and 	condition. 	Without 	making 	any
adjustments to account for differences between the properties, Mr.
Rebhun 	applied 	an 	average 	of 	the 	price 	per 	square 	foot 	of 	the
purportedly 	comparable 	properties 	to 	the 	square 	footage 	of 	the
subject property to arrive at the appellant’s opinion of fair cash
value 	of 	the 	subject 	property 	for 	the 	fiscal 	year 	at 	issue 	of
$174,731.
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Mr. Rebhun made no assertion that the real estate market had
changed 	in 	any 	way 	since 	the 	time 	of 	the 	appellant’s 	purchase 	of
the 	subject 	property 	that 	would 	account 	for 	his 	opinion 	of 	value
being drastically less than the sale price just three years prior
to the valuation date.
Furthermore, the appellant failed to introduce any comparable
sales 	for 	consideration. 	Moreover, 	despite 	having 	asserted 	that
the subject property was disproportionately assessed in comparison
to 	his 	selection 	of 	purportedly 	comparable 	properties, 	the
appellant introduced no evidence of any intentional scheme by the
assessors 	of 	valuing 	comparable 	properties 	or 	classes 	of
properties 	at 	a 	lower 	percentage 	of 	fair 	cash 	value 	than 	the
subject property, as discussed in the Opinion below.
The 	assessors, 	for 	their 	part, 	submitted 	jurisdictional
documents, 	cross-examined 	the 	appellant, 	and 	then 	rested 	on 	the
presumed validity of the assessment.
The 	Board 	found 	and 	ruled 	that, 	of 	the 	evidence 	of 	record,
the sale price paid by the appellant in an arm’s length transaction
only 	three 	years 	earlier 	was 	the 	strongest 	indicator 	of 	value.
Furthermore, 	the 	Board 	found 	and 	ruled 	that 	the 	appellant’s
comparison 	of 	assessed 	values 	per 	square 	foot 	of 	the 	subject
property 	to 	those 	of 	purportedly 	comparable 	properties 	lacked
substantial probative value, as the appellant made no adjustments
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to 	account 	for 	differences 	which 	affect 	fair 	cash 	value, 	and 	the
record did not otherwise reflect such adjustments.
Based on the record in its entirety, the Board found and ruled
that 	the 	appellant 	presented 	insufficient 	evidence 	to 	support 	a
finding 	that 	the 	subject 	property 	was 	overvalued 	for 	the 	fiscal
year 	at 	issue. 	Accordingly, 	the 	Board 	issued 	a 	decision 	for 	the
appellee in this appeal.
OPINION
Assessors are required to assess real estate at its fair cash
value. 	G.L. 	c. 	59, 	§ 	38. 	Fair 	cash 	value 	is 	defined 	as 	the 	price
on 	which 	a 	willing 	seller 	and 	a 	willing 	buyer 	will 	agree 	where
both are fully informed and under no compulsion. Boston Gas Co. v.
Assessors of Boston, 334 Mass. 549, 566 (1956).
A 	taxpayer 	has 	the 	burden 	of 	proving 	that 	the 	property 	at
issue 	has 	a 	lower 	value 	than 	its 	assessed 	value. 	“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 	taxpayer[] 	sustain[s] 	the 	burden
of 	proving 	the 	contrary.’” 	General 	Electric 	Co. 	v. 	Assessors 	of
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Lynn, 	393 	Mass. 	591, 	598 	(1984) 	(quoting 	Schlaiker, 	365 	Mass. 	at
245).
In 	appeals 	before 	the 	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)). 	In 	the
present appeal, the appellant did not provide evidence of flaws or
errors in the assessors’ method of valuation and failed to present
affirmative evidence of overvaluation.
“We have observed in the past that ‘[a]ctual sales are . . .
very strong evidence of fair market value, for they represent what
a 	buyer 	has 	been 	willing 	to 	pay 	to 	a 	seller 	for 	a 	particular
property.’” 	New 	Boston 	Garden 	Corp. 	v. 	Assessors 	of 	Boston, 	383
Mass. 456, 469 (1981). The record in this appeal gave no indication
of a downward trend in the real estate market between the valuation
date and the date of purchase by the appellant three years earlier.
To 	the 	contrary, 	the 	Board 	found 	that 	the 	purchase 	price 	of
$550,000 in 2019 fatally undermined the appellant’s claim that the
subject property had a fair cash value that was significantly lower
than its assessed value of $587,800 for the fiscal year at issue.
The appellant contended that the assessors disproportionately
assessed 	the 	subject 	property, 	compared 	to 	the 	purportedly
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comparable 	properties 	selected 	by 	the 	appellant. 	“[T]o 	obtain
relief 	on 	the 	basis 	of 	disproportionate 	assessment, 	a 	taxpayer
must show that there is an ‘intentional policy or scheme of valuing
properties 	or 	classes 	of 	property 	at 	a 	lower 	percentage’ 	of 	fair
cash 	value 	than 	the 	taxpayer’s 	property.” 	Brown 	v. 	Assessors 	of
Brookline, 	43 	Mass. 	App. 	Ct. 	327, 	328 	(1997) 	(quoting 	Shoppers’
World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377 (1965)).
See also Wardwell v. Assessors of Wellesley, Mass. ATB Findings of
Fact 	and 	Reports 	2021-160, 	165-66; 	Scullane 	v. 	Assessors 	of
Wellesley, Mass. ATB Findings of Fact and Reports 2001-85, 95. The
appellant 	offered 	no 	such 	evidence 	in 	this 	appeal. 	There 	was 	no
evidence 	in 	the 	current 	appeal 	to 	demonstrate 	that 	the 	assessors
engaged 	in 	an 	“intentional 	widespread 	scheme 	of 	discrimination.”
Stilson v. Assessors of Gloucester, 385 Mass. 724, 728 (1982).
Properties 	used 	in 	a 	comparable-assessment 	analysis 	must 	be
comparable 	to 	the 	subject 	property, 	meaning 	that 	they 	must 	share
“fundamental 	similarities” 	with 	the 	subject 	property, 	including
similar 	age, 	location, 	and 	size. 	Lattuca 	v. 	Robsham, 	442 	Mass.
205, 	216 	(2004). 	“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., 383 Mass. at
470. Assuming the properties cited by the appellant were comparable
to the subject property, the appellant failed to make appropriate
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adjustments, 	and 	such 	adjustments 	were 	not 	evident 	elsewhere 	in
the 	record. 	Therefore, 	the 	Board 	found 	and 	ruled 	that 	the
comparable-assessment 	analysis 	lacked 	probative 	value 	for
determining the subject property’s fair cash value for the fiscal
year at issue.
Based on the entirety of the record, the Board found and ruled
that 	the 	appellant 	did 	not 	meet 	its 	burden 	of 	proving 	that 	the
assessed 	value 	of 	the 	subject 	property 	was 	greater 	than 	its 	fair
cash 	value 	for 	the 	fiscal 	year 	at 	issue. 	Accordingly, 	the 	Board
issued a decision for the appellee in this appeal.
THE APPELLATE TAX BOARD
By: 	________________________________________
Mark J. DeFrancisco, Chairman
A true copy,
Attest: _____________________________
Clerk of the Board
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