Henry F. Kabat and Margaret Mullins v. Board of Assessors of the Town of Cummington (FY 2007)(April 2, 2008)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD
HENRY F. KABAT and 			v.	  BOARD OF ASSESSORS OF 
MARARET MULLINS				  THE TOWN OF CUMMINGTON

Docket Nos. F293427, F293428		  Promulgated:
	       & X299027                April 2, 2008


	These are two appeals filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65, and an appeal filed under the informal procedure pursuant to G.L. c. 58A, § 7A and G.L. c. 59, §§ 64 and 65 from the refusal of the appellee to abate taxes assessed on real estate located at 35 Powell Road and 0 Powell Road in the Town of Cummington, and personal property owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.
	Chairman Hammond ("Presiding Commissioner") heard these appeals, and, in accordance with G.L. c. 58A, § 1A and 831 CMR 1.30, issued single-member decisions for the appellants.
	These findings of fact and report are made pursuant to a request by appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.
	Mark A. Tanner, Esq., for the appellants.
	Karen Tonelli, assessor, for the appellee.
FINDS OF FACT AND REPORT

On January 1, 2006, the relevant assessment date for fiscal year 2007 ("fiscal year at issue"), Henry F. Kabat and Margaret Mullins ("appellants") were the assessed owners of: a 28.50-acre parcel of real estate and structures located at 35 Powell Road in the Town of Cummington ("35 Powell Road"); a 9.0-acre parcel at 0 Powell Road ("0 Powell Road"); and certain personal property, including a farm tractor ("personal property").  
Appellants timely paid the taxes assessed on the two parcels of real estate and the personal property at issue in these appeals and timely filed three separate Applications for Abatement of these taxes on December 23, 2006.  The Assessors of Cummington ("assessors") denied each application on March 22, 2007.  Appellants filed their petitions with the Appellate Tax Board ("Board") on June 11, 2007.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction over these appeals.

I.	35 POWELL ROAD (DOCKET NO. F293427)
The property at 35 Powell Road consists of a 28.5-acre parcel of land, a 35-foot camper/trailer, and outbuildings consisting of a storage garage, pole barn and a shed.  For the fiscal year at issue, the assessors valued appellants' land at $85,900, the camper/trailer at $32,900, and the outbuildings at $17,200, for a total assessed value of $136,000.  The property at 35 Powell Road is located in an area of Cummington that is zoned Rural/Residential and is a mix of open land and single-family dwellings.  
The 35 Powell Road property was the subject of an appeal at the Board for the previous fiscal year.  See Kabat, et al v. Assessors of Cummington, Mass. ATB Findings of Fact and Reports, 2008-397 ("Kabat I").  In Kabat I, the Board found and ruled that appellants failed to meet their burden of proving that the $71,700 value attributed by the assessors to the 28.5-acre parcel of land exceeded its fair cash value.  
In the present appeal, the parties relied on essentially the same evidence that they introduced in Kabat I, which consisted of sales of purportedly comparable properties in Cummington and the nearby town of Ashfield.  Although this evidence was insufficient to warrant a finding that the fair cash value of the land portion of the assessment was less than the $71,700 value attributed to it by the assessors Kabat I, it is sufficient to prove here that the $85,900 value attributed to the land exceeded its fair cash value for the fiscal year at issue in the present appeal.  After adjusting for differences between the comparable properties offered by the parties and appellants' land, the Presiding Commissioner found that the fair cash value of the land was $80,000.  
With regard to the camper/trailer, the parties presented essentially the same evidence they offered in Kabat I including: appellant's payment of only $8,000 in 1986 for the trailer; credible testimony that the trailer is an asset which depreciated over time; and credible testimony concerning the value of comparable used trailers available on the market.  For the reasons detailed in Kabat I, the Presiding Commissioner found in the present appeal that the fair cash value of the camper/trailer was $5,000.  
Finally, as to the outbuildings, the Presiding Commissioner found, for the reasons described in Kabat I, that the shed contributed nothing to the value of the property and was effectively worthless.  The Presiding Commissioner further found, on the basis of the evidence submitted in the present appeal, that the fair cash value of the remaining outbuildings was $16,000.

Therefore, the Presiding Commissioner found that the fair cash value of the 35 Powell Road property was $101,000, broken down as follows: land, $80,000; camper/trailer, $5,000; outbuildings, $16,000. Accordingly, the Presiding Commissioner found that the 35 Powell Road property was overvalued by $35,000, and granted an abatement in the amount of $376.60

0 POWELL ROAD (DOCKET NO. 293428)
The property at 0 Powell Road is a 47.4-acre parcel of vacant land.  The assessors valued the parcel at $123,900.  According to the property record card, the assessors valued a 2-acre portion of the parcel as a primary lot with a value of approximately $12,760 per acre, and the remaining portion of the lot as residual land with a value of approximately $2,167 per acre.  
Appellants claimed that the fair cash value of the property was $70,000.  However, they offered no meaningful evidence of sales or assessments of comparable properties or other evidence of fair market value from which the Presiding Commissioner could make a finding as to the fair cash value of the 0 Powell Road property.  Accordingly, the Presiding Commissioner found and ruled that the appellants did not meet their burden of proving that the 0 Powell Road property was overvalued. 

III.	PERSONAL PROPERTY (DOCKET NO. X299027)
The personal property at issue in this appeal is comprised of a 1964 Massey Ferguson farm tractor assessed at $14,000 and various articles of personal property kept at appellants' camper/trailer -- including a stove, refrigerator, and microwave purchased between 1986 and 1990, as well as furniture, coffee maker, toaster, drapes, curtains, and two sleeping bags -- all assessed for $500.
Mr. Kabat purchased the tractor, which includes a backhoe and loader, for $4,000 in 1988.  There is no evidence in the record to suggest that the value of the tractor would increase since the date of its purchase, and certainly nothing to suggest that it increased more than tripled in value to its $14,000 assessed value.  Appellants maintained that the fair market value of the tractor for the fiscal year at issue was $2,500.  The Presiding Commissioner found that appellants were knowledgeable about the value of the tractor and that they offered the best evidence of the tractor's value in this appeal.  Further, this value is consistent with the value found by the Board for the previous fiscal year in its decision without findings of fact and report in Docket Number X299027.  Accordingly, the Presiding Commissioner found that the fair cash value of the tractor for fiscal year 2007 was $2,500.
Regarding the miscellaneous personal property in appellants' camper/trailer, appellants maintained that this property was essentially worthless.  The assessors offered no meaningful evidence of the value, if any, of used articles of this vintage and condition.  Accordingly, the Presiding Commissioner granted an abatement in full of the $500 assessed value of this miscellaneous property.
Therefore, the Presiding Commissioner found that the fair cash value of the personal property at issue was $2,500 and that the personal property was overvalued by $12,000.  Accordingly, the Presiding Commissioner granted an abatement in tax of $129.12.

OPINION
I.	35 POWELL ROAD (DOCKET NO. F293427)
For the reasons stated in Kabat I, the Presiding Commissioner found and ruled that the camper/trailer was properly taxable as real estate.  Id. at 2008-404.
	Regarding the appellants' overvaluation claims, "[t]he burden of proof is upon the petitioner[s] to make out [their] 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 [B]oard 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, taxpayers "'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. v. Assessors of Lynn, 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983).  When evaluating this evidence, "[the Board can] accept such portions of the evidence as appear to have the more convincing weight.  The market value of the property [can] not be proved with mathematical certainty and must ultimately rest in the realm of opinion, estimate, and judgment . . . .  The board [can] select the various elements of value as shown by the record and from them form . . . its own independent judgment."  Assessors of Quincy v. Boston Consolidated Gas Company, 309 Mass. 60, 72 (1941).  See also North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984); New Boston Garden, 383 Mass. 456, 473 (1981); Jordan Marsh Co. v. Assessors of Malden, 359 Mass. 106, 110 (1971).  
Regarding the valuation of the 28.5-acre parcel, the Presiding Commissioner found and ruled that the evidence of record supported a finding that the fair cash value of the parcel as of the relevant assessment date for fiscal year 2007 was $80,000.  Further, the Presiding Commissioner found that the appellants produced reliable evidence that the value of the camper/trailer was $5,000 and the value of the outbuildings was $16,000.  On the basis of this evidence, the Presiding Commissioner found and ruled that the 35 Powell Road property was overvalued by $35,000 and granted an abatement of $376.60

0 POWELL ROAD (DOCKET NO. 293428)
Appellants offered no meaningful evidence of overvaluation of the 0 Powell Road property.  Appellants bear the burden of proving overvaluation (Schlaiker, 365 Mass. at 245) and the subject assessment is presumed to be valid unless appellants prove to the contrary.  General Electric, 393 Mass. at 598.  Accordingly, the Presiding Commissioner found and ruled that appellants did not meet their burden of proving that the 0 Powell Road property was overvalued.  

III.	PERSONAL PROPERTY (DOCKET NO. X299027)
Similar to their assessment of the camper/trailer discussed above, the assessors valued appellants' tractor at a value significantly higher than the price appellants paid for the asset many years before.  There is simply no basis for valuing a depreciating asset such as the subject trailer at a value exceeding its purchase price.  The Presiding Commissioner found and ruled that appellants produced the best evidence of the tractor's value and, accordingly, found that its fair cash value was $2,500.
Regarding the personal property located in appellants' camper/trailer, appellants are subject to tax on these articles because, as appellants concede, the camper/trailer is not their domicile.  See G.L. c. 59, § 5, clause 20.  However, appellants met their burden of proving that the personal property is essentially worthless, given its age and condition.  On this record, there is simple no evidence that there is a market for these items.
 For all of the above reasons, the Presiding Commissioner issued decisions for the appellants in Docket Numbers F293427 and X299027 and a decision for the appellee in Docket Number F293428.

     APPELLATE TAX BOARD

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


					

A true copy,


Attest:	____________________________
		      Clerk of the Board



 

 The Board also found in Kabot I that, given the nature of the improvements, it was appropriate to value the land component of the property as a discrete, unimproved parcel.
 Due to a clerical error, the original decision issued on November 30, 2007 indicated a fair cash value of $7,500 with a resulting overvaluation of $7,000 and tax abatement of $75.32.  A Revised Decision, issued simultaneously with these findings, reflects the correct fair cash value of $2,500, overvaluation of $12,000 and abatement of $129.12.

ATB 2008-409