American House, LLC v. Board of Assessors of the Town of Greenfield (March 4, 2005)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



AMERICAN HOUSE, LLC			v.	BOARD OF ASSESSORS OF 
							THE TOWN OF GREENFIELD

Docket No. F265737				Promulgated:
							March 4, 2005



	This is an appeal filed under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate tax assessed on real estate located in the Town of Greenfield owned by and assessed to the appellant under G.L. c. 59, § 38, for fiscal year 2002.
	Commissioner Scharaffa heard the appeal and was joined in a decision for the appellee by then-Chairman Burns and Commissioners Gorton and Egan.
	These findings of fact and report are promulgated at the request of the appellant pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.

	Thomas T. Merrigan, Esq. for the appellant.
	Ellen M. Hutchinson, Esq. for the appellee.



FINDINGS OF FACT AND REPORT
	Based on testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
I.	JURISDICTION
On January 1, 2001, American House LLC ("appellant"), a real estate holding company, was the assessed owner of a parcel of real estate located at 242-262 Main Street, Greenfield, Massachusetts ("subject property").  The real estate is improved with a multi-story building which houses Wilson's Department Store and several other small retail establishments.  For fiscal year 2002, the Greenfield Board of Assessors ("assessors") valued the subject property at $811,500 and assessed a tax at the rate of $21.23 per thousand, in the amount of $17,228.15.
	On January 8, 2002, the appellant timely filed with the assessors an application for abatement.  Because of the assessors' failure to act on the application within three months of its filing, the application for abatement was deemed denied on April 8, 2002.  The assessors did not send notice of the deemed denial.  Subsequently, on April 26, 2002, the assessors voted to grant the appellant a partial abatement reducing the assessed value to $753,300.  On April 30, 2002, the assessors sent to the appellant notice of the partial abatement.  The appellant filed its appeal with this Board on July 29, 2002.
	Prior to a hearing on the merits of this appeal, the assessors moved to dismiss the appeal on the ground that the appellant failed to timely file its petition with the Board.  Generally, when assessors fail to act on an application for abatement within three months of its filing, appeals must be filed with this Board within three months of the deemed denial date.  In this appeal, three months from the April 8, 2002 deemed denial date was July 8, 2002.  However, where, as here, the assessors fail to send written notice of their inaction to a taxpayer within ten days of the deemed denial date, this Board, in accordance with G.L. c. 59, § 65C, may extend the deadline for filing an appeal by two months.  In this appeal, extension of the appeal period by two months results in a filing deadline of September 8, 2002.  The appellant filed its petition on July 29, 2002, well within the two month extension period allowed under § 65C.
On the basis of this evidence, the Board found that the assessors failed to timely notify the applicant of their inaction on its application for abatement and, due to mistake or accident, the appellant failed to enter his appeal within three months of the deemed denial date.  Accordingly, the Board determined that the appellant's filing of its petition within the additional two-month period provided by § 65C provided a sufficient basis for the Board to exercise jurisdiction over this appeal.  Therefore, the Board denied the assessors' motion to dismiss.
II.	VALUATION
	The Town of Greenfield is located in Franklin County in the northwest portion of Massachusetts.  The area is largely rural and residential in character.  More than seventy-percent of the county's retail commerce takes place in Greenfield, the largest town in the county.  Main Street is not only the commercial center of Greenfield but is also the center for the county government and for many regional offices.  During the last twenty years, a major downtown revitalization has been implemented, including projects such as upgrading sidewalks, planting trees, and improving lighting.  Consequently, properties along Main Street benefit from increased pedestrian and vehicular traffic.  
	The subject property is a 37,314 square-foot lot located on the corner of Main and Davis Streets in downtown Greenfield.  Originally built in 1886 as a hotel, the five-story improvement has been converted into a retail and warehouse space with a gross area of 120,214 square feet.  The first three floors of the building are currently used for retail, with Wilson's Department Store being the largest tenant.  Wilson's is the only remaining department store in Greenfield and in Franklin County.  In addition to Wilson's, the subject property has three smaller tenants that lease space on the first floor and, within Wilson's, space is sub-leased to a beauty salon.  Floors four and five are used for cold-storage.  The partially-finished basement is also used for retail.  Parking is more than sufficient with adequate parking spaces to the rear of the building and also street-front parking.  
	In support of its contention that the subject property was over-valued for fiscal year 2002, the appellant offered the testimony of Kevin O'Neil, President of Wilson's Department Store; Richard Dupree, Vice President of Fleet Bank; and, Kim Levitch, a real estate appraiser.
	Mr. O'Neil testified mainly about the history of Wilson's Department Store and the fact that most department stores now locate in either large shopping malls or strip malls.  Mr. O'Neil explained that prior to its sale to the appellant in 2000, the subject property was held in a trust established under the Will of R. Stanley Reid.  Subsequent to the property being placed in trust, "ROBERT S. REID, JR. (the decedent's son) and SHAWMUT BANK, N.A., Trustee under the Will [], both of Greenfield, Massachusetts" formed "American House, a Partnership."  In 1995, the partnership entered into a lease for the subject property with Wilson's Department Store.  Mr. O'Neil is the President of Wilson's; his wife is Clerk; and, his father-in-law, Robert S. Reid, Jr., and mother-in-law, Marjorie Reid, are Directors.  
	In 2000, American House the partnership reorganized into American House, LLC.  On June 19, 2000, Fleet National Bank, Trustee, sold the subject property to the appellant for $425,000.  Fleet National Bank, Trustee under the Will of R. Stanley Reid, is a member of the appellant, American House, LLC. 
Mr. Richard Dupree, asset manager for assets held in trust by Fleet, also testified on behalf of the appellant.  Mr. Dupree is a member of the National Association of Realtors and also a certified property manager.  Mr. Dupree testified that in August of 1997, Fleet commissioned an independent appraisal of the subject property and that the property's fair market value at that time was estimated at $500,000.   Mr. Dupree further testified that in 1999, while in negotiations with Mr. O'Neil, President of Wilson's Department Store and also a member of American House, LLC, for the sale of the subject property, he spoke with Fleet's appraiser who told him that there was no "substantial reason to believe that the property's value was any different" than that estimated in the 1997 appraisal report.  Mr. Dupree acknowledged that he did not request the bank's appraiser to do an update of his 1997 report and estimate of value.
Mr. Dupree testified that although Fleet would have considered other potential buyers, none came forward.  Mr. Dupree noted that changing the use of the property to something other than a department store would require substantial repairs and renovations, thereby limiting the marketability of the property.  Based on this fact, the 1997 appraisal, and Fleet's desire to avoid a prolonged delay in the property's sale, Fleet agreed to sell the subject property to the American House, LLC, for $425,000. 
Finally, the appellant offered the testimony and appraisal report of Kim A. Levitch, a Massachusetts certified real estate appraiser.  On the basis of his education and experience, the Board qualified Mr. Levitch as an expert witness in real estate valuation.  Mr. Levitch relied on the sales comparison methodology to ascertain the subject property's fair market value.  In his report, Mr. Levitch noted that a market value analysis could be based on consideration of either (1) sales of department stores, which he deemed "like property" sales; or (2) sales of "like-size" property, which are sales of properties of similar size that are not used as department stores, such as properties with first floor retail and upper floor office space.  He noted that comparison of the latter sales would be fairly easy by estimating the cost of conversion to department store use.  He conceded, however, that one problem in using a use-conversion analysis is estimating the effect of a stable or declining market on the likelihood of a purchase for conversion.
Mr. Levitch reviewed ten sales of properties where the first floor is used for retail and the upper floors are used as office space.  Ultimately, he relied on four sales of properties that he deemed most comparable to the subject property and which occurred between February 2, 1998 and June 4, 2002, with unadjusted sale prices ranging from $17.48 to $31.05, per square foot.
Sale number one, located at 60 Wells Street, Greenfield, is a 1.27-acre lot with a two-story, 100 year-old building that has a total area of 18,582 square feet.  The property sold on June 4, 2002 for $383,500, or $19.23 per square foot.  The first floor of the building is occupied by a "mini-golf" course and the second floor is leased office space.  There is also a 3,000 square-foot finished basement that was not considered by Mr. Levitch in his calculations.  
Sale number two, located at 324 Main Street, Greenfield, is a 0.57-acre parcel improved with a multi-story building with a total area of 32,894 square feet.  The first floor and basement are occupied by a bank.  The basement houses the bank's drive-up window, an automated teller machine, and a fully finished office.  The upper floors are rented office space.  The property sold on February 2, 1998 for $575,000, or $19.61 per square foot.  
Sale number three, located at 102 Main Street, Greenfield, is a 1.35-acre parcel improved with a two-story building with a total area of 24,554 square feet.  Formerly occupied by the Sears, Roebuck & Co., the building is now Class A office space.  The first floor has two tenants but the second floor has been vacant since Sears vacated in 1996 or 1997.  According to Mr. Levitch, at the time of the sale, the prospective buyer had entered into a "pre-lease" for a price above market rent.  This property sold on December 21, 2001 for $475,000, or $19.35 per square foot.
 Sale number four, located at 55 Federal Street, Greenfield, is a 1.9669-acre parcel improved with a two-story building with a total area of 31,244 square feet.  Originally a mill factory, the building has been converted to Class A office space with approximately 28,000 square feet being leased.  This property sold on June 7, 2001, for $950,600, or $30.43 per square foot.
Mr. Levitch testified that at the time of sale, one of the properties had a contract to lease space at double the market rents and another had a contract to lease space below market rents.  He further testified that he made adjustments for these factors.  He also made adjustments to all four comparable sales for differences with the subject property in terms of market conditions at the time of sale, building size, overall condition, quality of construction and lot size.  After adjustments, Mr. Levitch calculated per-square-foot values for these properties ranging from $2.88 to $6.86, with a "mean" adjusted selling price of $4.72 per square foot.  
To estimate a value for the subject property, Mr. Levitch chose to go above the mean per-square-foot value and used a value of $5.20 per square foot.  He used a building size of 81,418 square feet for the first, second and third floors, but did not assign a value to floors four and five and the basement.  Mr. Levitch arrived at a value for the subject property as of January 1, 2001 of $423,000.
In his sales comparison grid, Mr. Levitch's total adjustments ranged from sixty-five to eighty-nine percent.  The Board found that such large adjustments undermined the comparability of the chosen properties in comparison to the subject property and cast doubt on his adjusted per-square-foot sale values.
The town presented its case through the testimony and appraisal report of Stevens C. Marston, the town's Principal Assessor.  Mr. Marston testified that the property's highest and best use was retail on the first floor with office space on the second and third floors.  He conceded that floors four and five would not be used and, therefore, added no value to the property.  
Mr. Marston used both the sale comparison and the income capitalization approaches to value the subject property.  For his sales approach, he chose three properties that he deemed comparable to the subject.  The first two sales, the properties at 102 Main Street and 60 Wells Street, were also used by the appellant's expert.  Mr. Marston, however, provided the Board with a more detailed description of these properties.
Mr. Marston's sale number one, located at 102 Main Street, as noted by the appellant's expert, was originally built as a department store used by Sear's and Roebuck.  Mr. Marston reported that the first floor is currently occupied by an appliance store, which also uses the entire basement for storage.  Another tenant leases a long, narrow first-floor space used for storage only.  To the rear of the property, there is a one-story addition previously used as an automotive repair facility.  At the time of sale, this area was vacant with considerable deferred maintenance.  The second floor, accessible only by a flight of stairs, is outdated and requires renovations.  The property sold on December 31, 2001, for $500,000.
Sale number two, located at 60 Wells Street, is a two-story, concrete-block commercial building constructed circa 1900 with a total area of 18,582 square feet.  Prior to its sale in 2002, half of the first floor was leased to a long-term tenant, a public agency, and the second floor was leased as office space.  There is an approximately 4,600 square-foot one-story addition which is used as an indoor golf facility.  The building has a partial, unfinished basement.  Overall the building is of average condition.  The property sold on June 4, 2002 for $383,500.
Sale number three is located at 142 Main Street approximately one-and-a-half blocks from the subject property.  The building is a one-story, brick-veneer department store built in 1940.  The building is currently used as an owner-occupied retail furniture outlet.  The full basement is used for storage.  Having been renovated just prior to its most recent sale, the building's condition is good.  There is, however, no off-street parking available at this site.  This property, with a lot size of only 0.203 acres and a total building area of only 7,650 square feet, sold on April 19, 2000 for $234,000.
Acknowledging that differences did exist between his chosen comparable sales and the subject property, Mr. Marston then made adjustments for market conditions, lot size,  building size, building condition and location.  After adjustment, he calculated per-square-foot values for the three properties of $28.48, $22.60 and $24.77, respectively.  Based on these figures, Mr. Marston chose a value of $25.28 per square foot to apply to the subject property.
Mr. Marston then applied this value to the property's first and second floors, with a combined area of 57,507 square feet, and calculated a value of $1,424,000 for this portion of the building.  For the building's third floor and basement, Mr. Marston allowed a forty-percent and sixty-percent reduction, respectively, to the $25.28-per-square-foot value to computed a value for these areas of $269,382 and $66,081, respectively.  Finally, Mr. Marston added the three values together to determine an estimate of value for the subject property of $1,750,000.
Mr. Marston also used the income capitalization approach to value this property.  To calculate the per-square-foot rent, Mr. Marston relied on the rents received from the current first floor retail tenants of $8.80, $5.76, $6.40 and $6.00 per square foot.  On the basis of these rents, he determined that a net rent of $6.00 per square foot would be appropriate.  According to Mr. Marston, a survey of rents during the relevant period, for retail and office space on the first floor of commercial properties on Main Street, Greenfield, supported this value.  On the basis of area vacancy rates for 2000, 2001 and 2002, he allowed a vacancy of five percent for the subject property and calculated a gross effective income of $207,313.  He did not allocate a rent for the fourth and fifth floors.  
For expenses, Mr. Marston used data provided to him by Wilson's Department Store from which he concluded that an allowance of twenty-eight percent of the effective gross income was appropriate.  He noted that this percentage was supported by a market-extracted rate for net leases.  After subtracting the expenses, Mr. Marston calculated a net income of $150,142.  Mr. Marston used a capitalization rate, including tax factor, of 0.1133 to calculate an estimate of value, based on the income capitalization approach, of $1,325,000.
In closing, Mr. Marston argued that the subject property's June 19, 2000 sale of $425,000 was not an arm's-length transaction and, therefore, the sale price should not be considered persuasive evidence of value.  He further noted that the assessment of the subject property, prior to the 2000 sale, ranged from $1,485,000 to $1,523,700.
On the basis of all the evidence presented, the Board found that the circumstances surrounding the 2000 sale raised an inference that it was less than arm's-length, and therefore, the sale price was not conclusive evidence as to the subject property's fair market value.  First and foremost, evidence presented indicated that the seller and buyer were related entities.  As evidenced by leases offered into evidence at the hearing, Fleet National Bank, Trustee, the seller, was also a member of American House, the buyer.  
Furthermore, there was insufficient evidence produced to show that the property was exposed to the market for a sufficient period to maximize the number of potential buyers.  In fact, only one interested party, the appellant, came forward and there is evidence that the trustee wanted to avoid a prolonged marketing of the property.  Moreover, the price was based on a three-year old appraisal report.
The Board further found that the appellant's expert failed to establish comparability between his chosen sales and the subject property.  As shown in his report, the net adjustments he made to these properties ranged from sixty-five to eighty-nine percent.  The magnitude of the adjustments undermined the properties' comparability and Mr. Levitch's estimate of value.  The Board further found that the evidence presented by the assessors supported the assessed value.  The Board, therefore, concluded that the appellant failed to meet its burden of proving overvaluation.  Accordingly, the Board issued a decision for the appellee in this appeal.

OPINION
I.	JURISDICTION
G.L. c. 59, §§ 64 and 65, provide that a taxpayer who is aggrieved by the assessors' refusal to abate a tax on real estate may appeal to this Board "within three months after the date of the assessors' decision on an application for abatement . . . or within three months after the time when the application for abatement is deemed to be denied."  See also Berkshire Gas v. Assessors of Williamstown, 361 Mass. 873 (1972); Boston Penny Savings Bank v. Assessors of Boston, 314 Mass. 599, 600 (1943).  "The time limit of three months provided for filing the petition by statute is jurisdictional and a failure to comply with it will result in dismissal of the appeal."  Attilio F. Cardaropoli v. Assessors of Springfield, 2001 ATB Adv. Sh. 913, 919-920 (December 7, 2001), quoting Alan Ades v. Assessors of New Bedford, 19 Mass. App. Tax Bd. Rep. 27, 28 (1996)(citation omitted).  
Applications for abatement are deemed denied at the expiration of three months from the date the application for abatement was filed if the assessors have taken no action on the application.  G.L. c. 58A, § 6 and G.L. c. 59, §§ 64 and 65.  Further, if the assessors fail to act on an application for abatement within three months of its filing, they "shall have no further authority to act" on the application other than to agree with the taxpayer on a final settlement of the application.  Id. 
	The three-month jurisdictional appeal period is computed as "three calendar months, measured from (but excluding) the date of the [assessors' action] . . . [the] three calendar months began at midnight following October 6, 1970, . . . and expired at midnight before January 7, 1971, three complete calendar months."  Berkshire Gas, 361 Mass. at 873.  If the assessors do not act on an application for abatement, an appeal must be filed within three calendar months of the date the application is deemed denied, which is three calendar months from the date the application for abatement is filed.  G.L. c. 58A, § 6 and G.L. c. 59, §§ 64 and 65.
	Pursuant to G.L. c. 59, § 63, the assessors are required to send written notice to a taxpayer applying for an abatement within ten days of the assessors' decision on an application or within ten days of the date the application is deemed denied by the assessors' inaction.   The § 63 notice must advise the applicant of the assessors' decision on the application (i.e., whether the application is denied or allowed in whole or part) or advise the taxpayer that the assessors have taken no action on the application.  The notice must also contain the date of the decision or, if no decision was made, the date the application was deemed denied, and must advise the applicant of its right to appeal the decision or deemed denial under G.L. c. 59, §§ 64 and 65.
	In the present appeal, the appellant filed an application for abatement on January 8, 2002.  By operation of law the application was deemed denied on April 8, 2002.  On April 26, 2002, the assessors voted to grant the appellant a partial abatement.  On April 30, 2002, more than ten days after the deemed denial date, the assessors sent notice of their action to the appellant.
G.L. c. 59, § 65C provides a remedy to taxpayers when the assessors fail to comply with the requirements of § 63.
If a person has, by reason of the failure of the board of assessors to act upon an application for abatement, a right of appeal to the appellate tax board under section sixty-five but the board of assessors failed to send written notice of such inaction to the applicant within ten days as provided in section sixty-three and by mistake or accident such person fails to enter such appeal in said board within the time prescribed by section sixty-five, said board, upon petition filed within two months after the appeal should have been entered, and after notice and hearing, and upon terms, may allow such person to enter his appeal.

Although the appellant's petition was filed with the Board within the two-month period allowed for a petition for late entry under G.L. c. 59, § 65C, the assessors argue that the petition should be dismissed since the appellant did not first file a petition for late entry and no hearing was held on the matter.
The Board rejected this precise argument in Attilio F. Cardaropoli v. Assessors of Springfield, 2001 ATB Adv. Sh. at 925.  "If it is determined that the conditions for allowing a petition for late entry exists, then the Board [will allow] the petition to be entered nunc pro tunc and exercises jurisdiction over the appeal."  Id.   
	Holding in the present appeal that the Board has no jurisdiction would result in a trap for unwary taxpayers.  Cardaropoli at 927;  See also, Becton, Dickinson & Co. v. State Tax Commission, 374 Mass. 230, 233 (1978).  By enacting § 65C, the Legislature clearly intended to provide the Board with jurisdiction to hear appeals brought by taxpayers in the precise position of this appellant, i.e., those taxpayers who received no timely notice of the assessors' inaction on their application for abatement and who then file with the Board within two months after the §§ 64 and 65 appeal period has expired.  To hold that the Board's jurisdiction turns on the fact that the taxpayer filed a "petition" rather than a "petition for late entry" would frustrate the legislative purpose behind § 65C and unduly complicate procedures designed to simplify review of tax assessments.  See J. Jerome Phifer v. Assessors of Cohasset, 28 Mass. App. Ct. 552, 555 (1990); 830 CMR 1.37(1) ("The Board reserves the right to make hearings and proceedings as informal as possible, to the end that substance and not form shall govern, and that a final determination of all matters before it may be promptly reached.").
Accordingly, the Board ruled that it had jurisdiction over this appeal, and therefore, issued an Order denying the appellee's Motion to Dismiss and proceeded to hear the appeal on its merits.
II.	VALUATION
Assessors are required to assess all real property at its full and fair cash value.  G.L. c. 59, § 38; Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975).  Fair cash value is defined as the price on which a willing seller and a willing buyer will agree if both are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1954).
	The assessment is presumed valid unless the taxpayer sustains the burden of proving otherwise.  Schlaiker v. Board of Assessors of Great Barrington, 356 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the appellant to make out its right as a matter of law to an abatement of the tax.  Id.  The appellant must show that the assessed valuation of its property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough,
385 Mass. 679, 691 (1982). 
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. v. Assessors of Lynn, 393 Mass. 591, 600 (1984) (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  The Board found and ruled that the appellant did not "expose any flaws or errors in the assessors' method of valuation" and did not "present persuasive evidence of overvaluation" by any method or measure.  
The appellant relied primarily on the fact that the subject property sold in 2000 for only $425,000.  The sale price recited in the deed is not conclusive evidence of fair cash value.  Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. at 682-683.  Evidence of sales may be considered "only if they are free and not under compulsion."  Congregation of the Mission of St. Vincent de Paul v. Commonwealth, 336 Mass. 357, 360 (1957).  Although actual sales are strong evidence of fair market value, where there is evidence that the sale was a less than arm's-length transaction the sale has "limited relevance to establishing fair market value."  New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 469 (1981).
In the present appeal, the Board found and ruled that the subject property's June 19, 2000 sale was not a transaction that was representative of the market.    The Board found that there was insufficient evidence produced to show that the subject property was exposed to the market for a sufficient period of time to maximize the number of potential buyers.  In fact, only one interested party came forward, the appellant, and there was evidence that the trustee wanted to avoid a prolonged marketing of the property.  Furthermore, there was evidence presented that showed the trustee seller of the property was also a member of the buyer LLC.  And finally, the Board found that the negotiated sale price was based on a three-year-old appraisal report.
In Cambridge Brands v. Assessors of Cambridge, the Board found and ruled that a sale which was "privately marketed to only two potential buyers and was not exposed to the open market . . . did not result from an arm's-length transaction."  2001 ATB Adv. Sh. 409, 430 (May 31, 2001).  Recently, in Joseph L. Finnigan v. Assessors of Belmont, the presiding member gave little weight to an estate sale used by the assessors' real estate valuation expert in his sales comparison methodology.  The presiding member found that the property had "not been marketed by a broker and was sold without adequately testing the market."  2004 ATB Adv. Sh. 533, 539 (December 9, 2004).  Therefore, the Board found, the circumstances surrounding the sale "significantly diminish the evidentiary weight" accorded to the sale of the property.  Id. at 545, citing Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682-683 (1982).  See also, Brennan v. Assessors of Manchester, 2004 ATB Adv. Sh. 548, 559 (December 10, 2004)(finding and ruling that where sale of property is between related parties, from one family member to another, circumstances exist which significantly diminish the evidentiary weight accorded to the reported sale price).
Further, with regard to the appellant's appraisal report, the Board found that the extremely large adjustments used by the appraiser undermined the chosen properties' comparability to the subject property and, therefore, the appraiser's estimate of value.  In contrast, the Board found and ruled that the analyses submitted by the assessors supported the subject property's fiscal year 2002 assessment.  
In evaluating the evidence before it, the Board selected among the various elements of value and formed its own independent judgment of fair cash value.  General Electric, 393 Mass. at 605; North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984).  The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 106, 110 (1971).  The fair cash value of property cannot be proven with "mathematical certainty and must ultimately rest in the realm of opinion, estimate and judgment."  Assessors of Quincy v. Boston Consolidated Gas Co., 309 Mass. 60, 72 (1941).
Accordingly, the Board issued a decision for the appellee.  

					APPELLATE TAX BOARD

				By:					_________
				    Frank J. Scharaffa, Member


A true copy,


Attest:				__________
  Assistant Clerk of the Board


 

 From the testimony offered, the Board presumes that pursuant to a merger of the two banks, Fleet National Bank is now the successor to assets of Shawmut Bank.

ATB 2005-63