Milton B. and Marilyn J. Adams v. Board of Assessors of the Town of Westport (December 30, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



MILTON B. and 			v.	       BOARD OF ASSESSORS OF
MARILYN J. ADAMS				  THE TOWN OF WESTPORT

Docket No. F292092				  Promulgated:
							  December 30, 2008


	This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 61A, § 19, from the refusal of the appellee to abate a tax on certain real estate in the Town of Westport assessed to the appellants under G.L. c. 61A, § 12 for fiscal year 2007.
	Commissioner Mulhern heard the appeal. Chairman Hammond and Commissioners Scharaffa, Egan and Rose 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.

	Peter L. Paull, Jr., Esq., for the appellants.
	Paul Matheson, assessor, for the appellee.

FINDINGS OF FACT AND REPORT

	On the basis of a Statement of Agreed Facts with attached exhibits and testimony offered at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
	On June 21, 2005, Milton B. and Marilyn J. Adams ("appellants") purchased a 13.41-acre parcel of real estate in the Town of Westford located at "assessors Map 50 Lot 25 and portion lot 25" ("subject property").  On October 10, 2005, the appellants filed Form CL-1, Application for Classification under G.L. c. 61A ("Application") with the Board of Assessors of Westport ("assessors"), requesting agricultural/horticultural classification for fiscal year 2007 based on cultivation of an alfalfa crop on the subject property. The appellants wrote "13.41" on the line of the Application indicating the subject property's "Total Acres," but left blank the adjoining line entitled "Acres to be Classified."  The assessors granted the Application for the entire 13.41-acre parcel on November 7, 2005. By a Notice of Action dated December 14, 2005, the assessors notified the appellants that the Application had been allowed as to all 13.41 acres and that the classification would be effective January 1, 2006 for fiscal year 2007.
	On December 11, 2006, the appellants applied for a building permit from the Westport Building Inspectors Office to begin construction of a home for themselves on a 1.4-acre parcel that was part of the 13.41 acres classified under Chapter 61A ("building lot"). The permit was issued on January 5, 2007. 
	The assessors subsequently assessed a conveyance tax in the amount of $61,709.00 on May 11, 2007. According to the tax bill, the tax was assessed pursuant to G.L. c. 61A, § 12, and was computed by applying a 9% taxation rate to a value of $685,590.00 and adding a $6.00 "Cert. Fee." The appellants paid the tax on June 14, 2007, with interest of $142.02 and a $5.00 demand, for a total payment of $61,856.02. 
	The appellants timely filed an Application for Abatement with the assessors on May 11, 2007. On June 4, 2007, the assessors denied the application and sent notice of the denial to the appellants on June 5, 2007. On July 14, 2007, the appellants seasonably filed a Petition Under Formal Procedure with the Board.  Based on these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.
	On the basis of the evidence presented, to the extent that it is a finding of fact, and for the reasons detailed in the following Opinion, the Board found and ruled that the appellants' initiation of the building process for a residence on the subject property intended for their own use did not constitute a change in use within the meaning of G.L. c. 61A. Thus, imposition of the conveyance tax was not justified and the Board issued a decision for the appellants, granting an abatement in the amount of $61,709, plus statutory additions.

OPINION

	The sole issue presented for the Board's consideration in this appeal is whether the assessors properly assessed a conveyance tax to the appellants under G.L. c. 61A, § 12.  The appellants contend that imposition of the tax was improper, stating that they never intended to request classification of all of the subject property under Chapter 61A, and that such classification by the assessors was mistaken and based on an unwarranted assumption as to the appellants' intentions. In support of these claims, the appellants point to their failure to complete the portion of the Application describing the "Acres to be Classified," an omission which they argued was clearly inadvertent given the temporal proximity of the Application's filing and the appellants' commencement of their building plans. Indeed, the appellants derived little benefit from classification of the building lot under Chapter 61A, which was effective beginning in fiscal year 2007, the same fiscal year in which the conveyance tax was assessed. Accordingly, they maintained that they were unfairly subject to a harsh penalty for their error.
	Although the Board cannot grant an abatement based on the claimed inequity of the disputed assessment, relevant provisions of Chapter 61A are dispositive in this appeal. General Laws c. 61A, § 12 provides, in pertinent part:
Any land in agricultural, horticultural or agricultural and horticultural use which is valued, assessed, and taxed under the provisions of this chapter, if sold for other use within a period of ten years from the date of its acquisition . . . shall be subject to a conveyance tax applicable to the total sales price of such land. . .  Any land in agricultural or horticultural use which is valued, assessed, and taxed under the provisions of this chapter, if changed by the owner thereof to another use within a period of ten years from the date of its acquisition by said owner, shall be subject to the conveyance tax applicable hereunder at the time of such change in use as if there had been an actual conveyance . . .

The assessors assessed the conveyance tax at issue based on their determination that the appellants had changed the use of the building lot from agricultural/horticultural land to a residential building lot, thereby triggering the application of G.L. c. 61A, § 12. This conclusion, however, directly conflicts with G.L. c. 61A, § 14, which states that "specific use of land for a residence for the owner   . . . shall not be deemed to be a conversion of land from agricultural to another use."  See also Ross v. Assessors of Ipswich, Mass. ATB Findings of Fact and Reports     2001-961, 965 (ruling that a conveyance of land formerly classified under Chapter 61A by the property owners to their son did not trigger the imposition of a roll-back tax under G.L. c. 61A, § 13 because "G.L. c. 61A, § 14 explicitly provides '[s]pecific use of land for a residence for the owner or a . . . child . . . of the owner . . . shall not be deemed to be a conversion' of land from agricultural or horticultural use."). Accordingly, the Board found and ruled here that the appellants did not change the use of the building lot within the meaning of Chapter 61A when they initiated building plans for their residence. Absent such a change, the conveyance tax was improperly imposed.
	On this basis, the Board issued a decision for the appellants and granted an abatement in the amount of $61,709.00, plus statutory additions.


   					   THE APPELLATE TAX BOARD

By:_______________________________
   Thomas J. Mulhern, Commissioner

  On the second page of the Application, the appellants stated that all 13.41 acres of the subject property were currently being used to cultivate alfalfa.
   The Board could not discern from the record the method used to arrive at the valuation or confirm that the tax assessed was based solely on the value of the building lot. See  G.L. c. 61A, § 12 ("The conveyance tax shall be assessed on only that portion of land on which the use has changed.")
 Timely payment is not a prerequisite to appeal of an asserted conveyance tax. See G.L. c. 61A, § 19.

	ATB 2008-1512