Patrick F. Carmody & Another v. Board of Assessors of the Town of Mendon (September 25, 2003)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD




PATRICK F. CARMODY & Another	v.	BOARD OF ASSESSORS OF
                                   THE TOWN OF MENDON

Docket No. F263660				Promulgated:
							September 25, 2003



	This is an appeal under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate taxes on certain real estate in the Town of Mendon owned by and assessed to Patrick F. Carmody and Judith L. Carmody under G.L. c. 59, §§ 11 and 38, for fiscal year 2002. 
	Commissioner Rose heard this appeal.  Commissioners Scharaffa and Egan joined him in the decision for the appellants.
	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.

	Patrick F. Carmody, pro se, for the appellants.

	Stanley L. Weinberg, Esq., for the assessors.  

FINDINGS OF FACT AND REPORT
	On January 1, 2001, Patrick F. Carmody and Judith L. Carmody were the assessed owners of a parcel of real estate located at 7 Parker Road in the Town of Mendon.  The parcel contains approximately 1.73 acres of land and is improved with a single-family house.  The Board of Assessors of Mendon ("assessors") valued the property at $510,100, and assessed a tax thereon, at the rate of $11.34 per thousand, in the amount of $5,784.53.  
On December 3, 2001, the date that the first semi-annual tax payment was due, the appellants filed an application for abatement with the assessors.  The appellants sought to lower the assessed value of the subject property to $424,100.  On February 5, 2002, the assessors granted the appellants a partial abatement and adjusted the subject property's assessed value to $505,300.  The assessors' Notice of Revised Assessment valued the land at $195,500 and the building at $309,800.  On April 5, 2002, not satisfied with this $4,800 reduction in overall value, the appellants filed their statement under the informal procedure with this Board claiming, "that the fair cash value of the property subject to taxation was $417,600."  
On May 21, 2002, pursuant to G.L. c. 58A, § 7A, the assessors removed the appeal to the formal docket.  The Board found that all of these filings, as well as the appellants' semi-annual tax payments, were timely.  On the basis of these facts, the Board found that it had jurisdiction over this appeal.  
The appellants submitted their case through the testimony of Mr. Carmody and the introduction of several exhibits, including the property record card of what they considered to be a comparable ranch-style property located at 26 King Philip Path, a reasonably proximate and similar neighborhood, and an analysis comparing the subject property to the one located at 26 King Philip Path.  The assessors presented their case-in-chief through the testimony of their valuation expert, Howard S. Dono, and several exhibits, including Mr. Dono's written appraisal report.  On the basis of all of the evidence, the Board made the following findings of fact.  
The subject dwelling is an approximately 3,100-square-foot, hip-roofed, ranch-style home, which was constructed after the appellants had purchased the lot in 1996 for approximately $100,000.  The property is located in the highly desirable Talbott Farms subdivision.  The house has seven rooms, including four bedrooms, three full bathrooms, an unfinished basement, and an attached two-car garage.  The attic contains only crawl space.  The subject site is serviced by town water, electricity and gas.
The approximately 2,900-square-foot ranch-style home located at 26 King Philip Path, that the appellants asserted was essentially comparable to their own, was built in 1995.  It contains eleven rooms, including five bedrooms, three full bathrooms, an attached three-car garage, several attached porches or decks, and an unfinished basement.  While its interior finish and amenities are superior to the subject's, its lack of town water and gas detracts from its value.      
On the whole, the Board agreed with the appellants and found that the ranch-style home located at 26 King Philip Path was essentially comparable to the subject property.  The Board further found that the multi-story Colonial properties upon which Mr. Dono relied in his comparable sales analysis to support the assessment on the subject property were not comparable to the subject.  The Board, therefore, accorded little weight to Mr. Dono's opinion that the subject property was worth $580,000, as of January 1, 2001.  The Board did find, however, that the land value that the assessors attributed to the subject property in their revised assessment was reasonable considering the land values of other homes in the Talbott Farms neighborhood.  
On the basis of these findings, the Board found the fair cash value of the subject property by adding the property's revised assessed land value to the assessed improvement value of the comparable located at 26 King Philip Path with an upward adjustment on the comparable improvement's value to account for the subject improvement's greater size.  In this way, the Board determined that the fair cash value of the subject property as of January 1, 2001 was $475,300 and that it was overvalued by $30,000 for fiscal year 2002.  

OPINION
	The 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 in a free and open market will agree if both of them are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
	The appellant has the burden of proving that the property has a lower value than that assessed. "'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 from 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 taxpayers . . . prov[e] the contrary.'" General Electric Co. v. Assessors of Lynn,   393 Mass. 591, 598 (1984) (quoting from Schlaiker,       365 Mass. at 245)).
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. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  In the present appeal, the appellants focused on perceived errors in the assessors' separate valuations of the land and building components of the subject property.
A taxpayer, however, does not conclusively establish a right to abatement merely by showing that his land or his improvements are overvalued.  "The tax on a parcel of land and the building thereon is one tax . . . although for statistical purposes they may be valued separately."  Assessors of Brookline v. Prudential Insurance Co.,      310 Mass. 300, 317 (1941).  In abatement proceedings, "the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive.  The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921).  See also Buckley v. Assessors of Duxbury,    12 Mass. App. Tax Bd. Rep. 114, 119 (1990); Jernegan v. Assessors of Duxbury, 12 Mass. App. Tax Bd. Rep. 74, 79 (1990); Everhart v. Assessors of Dalton, 6 Mass. App. Tax Board Rep. 7, 9 (1985).
In the present appeal, the appellants challenged both the value of the land and the value of the building components of the subject assessment.  The Board found that the revised land assessment for the subject property was consistent with the land assessments for other comparably sized property in the neighborhood and was corroborated by other evidence.  The Board further found, however, that the value attributed to the subject improvement was clearly excessive when compared to the comparable ranch-style improvement's assessed value.  The Board determined that the assessors' overvaluation of the subject improvement inflated the overall assessed value of the subject property well above its fair cash value.  
Assessors have a statutory and constitutional obligation to assess all real property at its fair cash value.  Coomey v. Board of Assessors of Sandwich, 367 Mass. 836, 837 (1975); Town of Sudbury v. Commissioner of Corporations and Taxation, 366 Mass. 558, 563 (1974);   G.L. c. 59, § 38.  The Board found that the sales of the Colonial-style properties relied upon by the assessors' valuation expert were not comparable to the subject and, therefore, were not helpful for determining the fair cash value of the subject property.  Under the circumstances, it is reasonable for the Board to rely on the assessed values of comparable properties and their component parts.      See Board of Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 702-703 (1972); Tenneco v. Commissioner of Revenue, 9 Mass. App. Tax Bd. Rep. 140, 153 (1988); G.L. c. 58A, § 12B.  Accordingly, to determine the fair cash value of the subject property, the Board adopted the revised assessed value attributable to the subject's land assessment and added to that the assessed value attributed to the comparable property's improvement but then upwardly adjusted that value to reflect the subject's greater size.    
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).
Based on the evidence presented, the Board found and ruled that the appellants introduced affirmative evidence of value.  The Board further found and ruled that the fair cash value of the subject property for fiscal year 2002 was the sum of its revised land assessment coupled with the assessed value of the comparable ranch-style property's improvement upwardly adjusted to account for the subject's greater size.  On this basis, the Board issued a decision for the appellants and abated real estate taxes in the amount of $340.20.
  
					APPELLATE TAX BOARD

				  By:			          	
					 Abigail A. Burns, Chairman 


A true copy,

Attest:					
    Clerk of the Board

       

 The other appellant in this appeal is Judy L. Carmody.
 The assessors were served with the informal petition on April 22, 2002.  G.L. c. 58A, § 7A provides in pertinent part that: "If the assessed fair cash value of the property concerned exceeds $20,000, the appellee, within 30 days of the date of service of such pleadings, may elect to have the appeal heard under the formal procedure by so notifying the clerk in writing and by paying him a transfer fee."  Accordingly, the Board found that the assessors' election to transfer this appeal to the formal docket was timely.      
 The spelling of "Philip" in King Philip Path varies throughout the record.  For purposes of this appeal, the Board adopted the spelling contained in the property record cards.  

ATB 2003-549