Sevenars Concert Trust, Charles V. Ryan, Trustee v. Board of Assessors of the Town of Worthington (May 1, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

SEVENARS CONCERT TRUST,   	v.    BOARD OF ASSESSORS OF 
CHARLES V. RYAN, TRUSTEE            THE TOWN OF WORTHINGTON

Docket Nos. F282335, F282366		 Promulgated:
							 May 1, 2008	
			

	These are appeals 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 Board of Assessors of the Town of Worthington ("appellee" or "assessors") to abate taxes on certain real estate located in the Town of Worthington, owned by and assessed to appellant Sevenars Concert Trust ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2005.
Commissioner Gorton heard these appeals. With Commissioner Gorton materially participating in the deliberations of these appeals, Chairman Hammond and Commissioners Scharaffa, Egan, Rose, and Mulhern joined in the decision to dismiss the petitions for lack of jurisdiction.
These findings of fact and report are made on the Appellate Tax Board's ("Board's") own motion under G.L. c. 58A, § 13 and 831 CMR 1.32 and are promulgated simultaneously with its decisions.

Michael P. Ryan, Esq., for the appellant.
John H. Fitz-Gibbon, Esq., for the appellee.

           FINDINGS OF FACT AND REPORT
On January 1, 2004, appellant Sevenars Concert Trust, Charles V. Ryan, Trustee ("appellant" or the "Trust"), was the assessed owner of a parcel of real estate located at 15 Ireland Street in the Town of Worthington. The parcel has a land area of 9.9 acres, most of which is situated in the Town of Worthington, and the rest in the Town of Chesterfield. The parcel is improved with three structures, all situated in Worthington: a farm house and barn, a wood frame building used as a "concert hall", and a small structure styled the "blacksmith shop." 
	The property was assessed for $533,000 for fiscal year 2005. Taxes due were timely paid without incurring interest. Appellant filed an Application for Abatement with the assessors on February 1, 2005. The application was denied by a vote of the assessors on April 5, 2005. Appellant was informed of the abatement denial by a notice dated April 8, 2005. The appellant filed Petitions Under Formal Procedure on August 2, 2005. 
	Neither party raised the issue of jurisdiction at the trial of this matter. Nevertheless, the Board detected an impediment to jurisdiction in its review of the case, and raised the issue sua sponte. The Petition Under Formal Procedure fell due on July 5, 2005 under G.L. c. 59, § 64. The Petitions were received nearly one month later, after the time allowed had expired.
	Accordingly, the Board dismissed the instant appeal for lack of jurisdiction, based on the late filing of the Petition. 	 
OPINION
The authority of the Board to hear and decide appeals relating to the assessment of taxes on property is wholly a function of statute law. See Stilson v. Assessors of Gloucester, 385 Mass. 724, 732 (1982). Accordingly, "[t]he case law is abundant in stern pronouncements requiring strict adherence by the taxpayer to the timelines and other procedural commands of the taxing statutes." Tambrands, Inc. v. Commissioner of Revenue, 46 Mass. App. Ct. 522, 525 (1999). 
To review the decisions of municipal boards of assessors denying the abatement of taxes, the Board derives its authority from G.L. c. 59, §§ 64 and 65. The statute provides, in relevant part, as follows:
A person aggrieved by the refusal of assessors to abate a tax on personal property at least one-half of which has been paid … may, within three months after the date of the assessors' decision on an application for abatement … appeal therefrom by filing a complaint with … the board authorized to hear and determine such complaints … and if on hearing the board finds that the property has been overrated and that the complainant has complied with all applicable provisions of law, it shall make a reasonable abatement…

G.L. c. 59, § 64.
	The jurisdictional documents produced by the assessors indicate that the date of denial of the application for abatement was April 5, 2005. Notice followed on April 8, 2005, within the time provided by G.L. c. 59, § 63. The time allowed for filing an appeal was "within three months after the date of the assessors' decision on an application for abatement."  G.L. c. 59, § 64. The Supreme Judicial Court has held that "[t]hree months means three calendar months. … The three calendar months began at midnight following" the date of the decision on the application for abatement or April 5, 2005, and "expired at midnight" exactly three months later. See Berkshire Gas Co. v. Assessors of Williamstown, 361 Mass. 873 (1972). The time allowed for filing the petitions expired on July 5, 2005. Id. The appellant filed its petitions late, on August 2, 2005. 
	"Adherence to the statutory prerequisites is essential to an effective application for abatement of taxes." Stilson, 385 Mass. at 732. "Since the remedy of abatement is created by statute, the [B]oard lacks jurisdiction over the subject matter of proceedings that are commenced at a later time or prosecuted in a different manner from that prescribed by statute."  Nature Church v. Assessors of Belchertown, 384 Mass. 811, 812 (1981) (citing Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 495 (1936).  See also John J. Giurleo v. Assessors of Raynham, Mass. ATB Findings of Fact and Reports 2007-615, 2007-619. ("[T]he time limit provided for filing the petition is jurisdictional and a failure to comply with it must result in dismissal of the appeal.")  Even if neither party raises the question of jurisdiction, "adjudicatory bodies have both the power and the obligation to resolve problems of subject matter jurisdiction whenever they become apparent." Nature Church, 384 Mass. at 812. The Board dismissed this case for lack of jurisdiction on its own motion. See Marr Scaffolding v. Commissioner of Revenue, 414 Mass. 489, 493 (1993)("[T]he board may grant abatements only if it is authorized to do so by statute.")


APPELLATE TAX BOARD


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


A true copy,

Attest: _______________________________
	        Clerk of the Board

 On September 11, 2006, Commissioner Gorton was sworn as a temporary member of the Appellate Tax Board pursuant to G.L. c. 58A, § 1, his status as a member of the Board having terminated on that date with the appointment and qualification of his successor. See G.L. c. 30, § 8. This appointment was renewed for an additional year commencing September 11, 2007. Commissioner Gorton's material participation in the deliberation of this appeal included, inter alia, drafting and distributing proposed Findings and giving a detailed report on the evidence and his observations as to witness credibility. He also made oral presentations of his recommendations to the Board members. 
 Appellant filed two Petitions Under Formal Procedure pertaining to the subject property for a single fiscal year. The Petition in Number F282335 begins with the recitation: "This is an appeal from the refusal of the Appellee to abate a tax assessed for the fiscal year 2005 on real estate owned or occupied by the Appellant on January 1, 2005 [sic]." The Petition in Number F282335 alleges at ¶ 8 that "the property was overvalued and/or subject to a disproportionate assessment." The Petition in Number F282336 addresses the denial of the exemption for the subject property, also for fiscal year 2005. 

ATB 2008-539