Charisma Drive Nominee Trust v. Board of Assessors of the City of Pittsfield (June 26, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



CHARISMA DRIVE NOMINEE TRUST  v. 	BOARD OF ASSESSORS OF
							THE CITY OF PITTSFIELD

Docket No. F283382				Promulgated:
							June 26, 2007


	This is an appeal filed under the formal 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 on real estate assessed under G.L. c. 59, §§ 11 and 38, for fiscal year 2006.
	Commissioner Mulhern ("Presiding Commissioner") heard the appeal and, pursuant to G.L. c. 58A, § 1A and 831 CMR 1.30, issued a single-member decision for the appellant.
	These findings of fact and report are promulgated pursuant to a request by the appellant pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.

	Elie El Saddik, pro se, for the appellant.
	Kelly Baumert, Assessor, for the appellee.


FINDINGS OF FACT AND REPORT

On the basis of exhibits and testimony offered at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
	On January 1, 2005, Charisma Drive Nominee Trust, Elie El Saddik, Trustee ("appellant"), was the assessed owner of a parcel of real estate located at 10 Charisma Drive in the City of Pittsfield ("subject property").  For fiscal year 2006 ("fiscal year at issue"), the Board of Assessors of Pittsfield ("assessors") valued the subject property at $375,200. On the basis of this valuation, the appellant was assessed a tax of $5,871.88, which was paid timely.
On January 12, 2006, in accordance with G.L. c. 59, § 59, the appellant timely filed an application for abatement with the assessors. The assessors denied the application on March 13, 2006, and on May 6, 2006, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the Presiding Commissioner found that the Board had jurisdiction to hear and decide the appeal.
The subject property consists of a 0.619-acre parcel of real estate improved with a single-family, wood-frame, colonial-style home, which contains 2,426 square feet of living space.  The home was constructed in 2001, and the interior's finished area is comprised of eight rooms, including four bedrooms, two full bathrooms and one half bathroom.  The dwelling, which is heated by a gas-fired, forced-hot-air system, also contains finished basement utility space and a two-car attached garage.  
At the hearing of this appeal, the appellant maintained that the subject property was overvalued, and that its value on the relevant valuation date was $276,000, as reflected on appellant's application for abatement. To demonstrate that the subject property was overvalued, the appellant submitted information relating to several properties located in the same subdivision and on the same street as the subject property. The evidence presented included property record cards and an "assessment grid" illustrating the acreage, living area, construction date, and assessed valuation of various properties the appellant claimed were comparable to the subject property. This detailed information was submitted for properties located at numbers 1, 2, 4, 6, 9, 10, 14, 15 and 16 Charisma Drive. 
	The assessed values for the purportedly comparable properties ranged from $303,809 to $414,533.33, and the parcels varied from 0.56 of an acre to 1.50 acres. The majority of the parcels were similar in size to the subject property.  The dwellings on each of these parcels, which were constructed between 1996 and 2003, contained between 2,328 and 3,434 square feet of living area. Quality grades, as designated by the city of Pittsfield, were quite similar, falling between the B and A classifications. The dwelling on the subject property was assigned a B+ quality grade.
	For their part, the assessors presented two sales of purportedly comparable properties, both of which are located in a subdivision other than the subdivision in which the subject property is located. The first property is located at 33 Meadow Ridge Drive, and was sold on December 27, 2004 for $400,000.  The property's 2,864 square foot colonial-style dwelling, which was constructed in 2001, is situated on a 0.76-acre lot.  The second property is located at 31 Meadow Ridge Drive, and was sold on April 5, 2004 for $389,000.  This property's 2,344 square foot colonial-style dwelling was also constructed in 2001, and is situated on a 0.73-acre lot. 
	The assessors claimed that both of the cited properties are located in a subdivision which is competitive with subject property's subdivision, but provided scant evidence to support this assertion. Further, the assessors made no adjustment of any kind to the sale price of either of the purportedly comparable properties to account for differences between these properties and the subject property. Consequently, the Presiding Commissioner found that the assessors failed to establish the comparability of or make appropriate adjustments to the sale properties when compared to the subject property.
On the basis of these facts, the Presiding Commissioner found that the appellant met its burden of proving that the subject property was overvalued for fiscal year 2006. In particular, the Presiding Commissioner found that the appellant demonstrated that certain of the properties offered as comparable to the subject property, which were located on the same street as the subject property and were all reasonably similar in size, age, style and condition, were comparable to the subject property. Moreover, the appellant's evidence, which consisted primarily of several property record cards and a comparative explication of relevant data, drew a sufficiently detailed comparison between these properties and the subject property. The disparity in overall value between the subject property and the comparable properties was apparent from the lower assessed values of the comparable properties, taking into account existing differences among the properties.
	Among the properties presented by the appellant, the Presiding Commissioner found that two were most comparable, 4 and 14 Charisma Drive.  The property at 4 Charisma Drive consists of a 2,608 square foot colonial-style dwelling constructed in 1997, situated on a 0.61-acre lot. The property at 14 Charisma Drive consists of a 2,328 square foot colonial-style dwelling constructed in 1996, located on a 0.56-acre lot. The Presiding Commissioner found that these properties were comparable to the subject property given the various similarities between the properties and the subject property. The Presiding Commissioner also adjusted for differences in dwelling size and construction date between the subject property and the comparable properties.
	Having concluded that the properties at 4 and 14 Charisma Drive were comparable to the subject property, the Presiding Commissioner noted that the total assessed value per square foot of living area of the subject property exceeded the assessed value per square foot of living area for these comparables by more than ten percent. 
	Based on the foregoing, and taking into account adjustments for dwelling size and construction date, the Presiding Commissioner found that the subject property's fair cash value was $359,800 as of the relevant assessment date.
 Accordingly, the Presiding Commissioner issued a single-member decision for the appellant under G.L. c. 58A, § 1A, granting an abatement in the amount of $241.01.

OPINION
"All property, real and personal, situated within the commonwealth . . . shall be subject to taxation."  G.L. c. 59, § 2.  The assessors are required to assess real estate at its fair cash value determined as of the first day of January of each year.  G.L. c. 59, §§ 2A and 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 subject 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 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, 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., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)). 
General Laws Chapter 58A, § 12B provides, in pertinent part, that "at any hearing relative to the assessed fair cash valuation or classification of property, evidence as to fair cash valuation or classification of property at which assessors have assessed other property of a comparable nature or class shall be admissible." "The introduction of ample and substantial evidence in this regard may provide adequate support for abatement."  Chouinard v. Assessors of Natick, ATB Findings of Fact and Reports 1998-299, 307-308 (citing Garvey v. Assessors of West Newbury, ATB Findings of Fact and Reports 1995-129, 135-36; Swartz v. Assessors of Tisbury, ATB Findings of Fact and Reports 1993-271, 279-80); see also Turner v. Assessors of Natick, ATB Findings of Fact and Reports 1998-309, 317-18.  
The appellant challenged the assessed value of the subject property primarily by introducing affirmative evidence consisting of assessments relating to comparable properties located in the same subdivision and on the same street as the subject property.  The Presiding Commissioner found that this evidence was credible and sufficient to establish the fair cash value of the subject property for the fiscal year at issue.  
The Board is mindful that, generally, reliable comparable sales data is considered more probative than comparable assessment information for purposes of ascertaining a property's fair cash value.  See Buckley v. Assessors of Cambridge, ATB Findings of Fact and Reports 2006-227, 236-37. In the present appeal, however, the assessors provided only two purportedly comparable sales, neither of which is located in the same subdivision as the subject property, and the comparability of which was not otherwise established. Moreover, the assessors failed to make appropriate adjustments for existing differences between the sale properties and the subject property. Consequently, the Presiding Commissioner found that the comparable assessment evidence provided by the appellant was more probative for determining the fair cash value of the subject property than the comparable sales data submitted by the assessors.
On this basis, the Presiding Commissioner decided this appeal for the appellant and granted an abatement in the amount of $241.01.

				     APPELLATE TAX BOARD


				By: ___________________________________
					Thomas J. Mulhern, Commissioner



A true copy,

Attest: ______________________________
	    Assistant Clerk of the Board

8


ATB 2007-591