Route 16 Land Development Corp. v. Board of Assessors of the Town of Milford (June 13, 2012)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



ROUTE 16 LAND DEVELOPMENT CORP.	v.	BOARD OF ASSESSORS OF 
THE 	TOWN OF MILFORD

Docket No. F310500				
Promulgated:
								June 13, 2012



	This is an appeal 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 to abate taxes on certain real estate in the Town of Milford owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38 for fiscal year 2011.  
	Commissioner Scharaffa heard the appellee's motion to dismiss this appeal under G.L. c. 59, § 38D ("§ 38D"). Chairman Hammond, and Commissioners Rose and Egan joined him in allowing the motion and deciding this appeal for the appellee.     
	These findings of fact and report are made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.  

	James L. Roberti, Esq., for the appellant.
	Kenneth W. Gurge, Esq., for the appellee.  

FINDINGS OF FACT AND REPORT
	At all material times, the appellant, Route 16 Land Development Corp. (the "appellant") was the owner of a certain parcel of commercial real estate located at 324 East Main Street in the Town of Milford (the "subject property").  
	In January, 2010, the Board of Assessors for the Town of Milford (the "assessors" or the "appellee") sent to the appellant, by first class mail, a request for income and expense information under § 38D (the "first § 38D request") for purposes of establishing the fair cash value of the subject property for fiscal year 2011.  The first § 38D request included a cover letter explaining the information sought and a reference to     § 38D, as well as an information request form approved by the Commissioner of Revenue. This request sought lease and expense information concerning the subject property during calendar year 2009 to establish the fair cash value of the subject property as of January 1, 2010, the valuation date for fiscal year 2011. The information was requested early in calendar year 2010 to provide the assessors sufficient time to establish the fair cash value of the property prior to the sending of the fiscal year 2011 actual tax bill. The assessors received no response to the first § 38D request.
	On March 18, 2010, the assessors sent a second § 38D request (the "second § 38D request"), which they titled "Final Request." The second § 38D request contained a recitation of relevant language from § 38D, including, "[f]ailure of an owner or lessee of real property to comply with such request within sixty (60) days after it has been made shall bar him from any statutory appeal . . . ." 
	The assessors valued the subject property at $1,555,200 and assessed a tax thereon, at the rate of $26.05 per $1,000, in the amount of $40,512.96. The appellant timely paid the tax and filed an abatement application with the assessors on January 20, 2011, which they denied on January 25, 2011. The appellant seasonably appealed to the Appellate Tax Board (the "Board") on February 25, 2011.  
	The assessors maintained that they received no response to either the first or the second § 38D request, and that, as a result of the appellant's failure to provide the requested information, they were prejudiced in their ability to determine the actual fair cash value of the subject property for fiscal year 2011. Accordingly, the assessors filed with the Board a motion to dismiss the appeal for failure to comply with § 38D. The Board held an evidentiary hearing at which the principal of the appellant, Kevin T. Cody, Sr., and Priscilla Hogan, Assessor and Administrator for the Town of Milford, each testified. On the basis of their testimony and additional evidence admitted during the evidentiary hearing, the Board found the following facts.
	The appellant did not contest that the information sought was "reasonably required" for the assessors to determine the actual fair cash value of the subject property for fiscal year 2011. Further, Mr. Cody admitted that he received the second    § 38D request for fiscal year 2011 and claimed to have completed and returned the form to the assessors as requested. Mr. Cody testified that he mailed the completed form along with a cover letter dated March 31, 2010 to the assessors' office. He further testified that he annually responds to the assessors' § 38D request by mailing a completed § 38D request back to the assessors, and has never had a prior issue concerning the assessors' receipt of the completed § 38D request. The appellant, however, failed to provide any corroborating evidence to support his testimony that he completed and returned the second § 38D request for the fiscal year 2011, or, for that matter, any other § 38D request for any other fiscal year.
In contrast, the assessors' witness, Ms. Hogan, credibly testified that the assessors had not received any response to either the first or the second § 38D request for fiscal year 2011. Furthermore, Ms. Hogan credibly testified that of the     § 38D requests sent to the appellant for each of the prior four years, only one had been completed and returned to the assessors. A print-out of the payment history for the appellant's real estate tax account confirmed that the appellant was charged the statutory $50.00 fee for failure to respond to a § 38D request for three of the prior fiscal years shown on the account.
Based on all the evidence and its determination of the credibility of the witnesses, the Board found that the appellant's claim that it had timely completed and returned the second § 38D request for fiscal year 2011 to the assessors was unsubstantiated and therefore unreliable. Specifically the Board found that: the appellant likely received the first § 38D request and admitted that he received the second § 38D request; the appellant failed to respond to either the first or the second § 38D request; the requested information was reasonably required by the assessors to determine the actual fair cash value of the subject property for the fiscal year at issue; to the extent relevant to these proceedings, the assessors were prejudiced by the appellant's failure to provide the assessors with the requested information; and the appellant's failure to respond to either the first or the second § 38D request was not due to reasons beyond its control. On this basis, the Board allowed the assessors' motion to dismiss this appeal for the appellant's unjustifiable failure to respond to either of the assessors' valid § 38D requests. Accordingly, the Board decided this appeal for the appellee.

OPINION
At all material times, § 38D provided in pertinent part:
A board of assessors may request the owner or lessee of any real property to make a written return under oath within sixty days containing such information as may reasonably be required by it to determine the actual fair cash valuation of such property.  Failure of the owner or lessee to comply with such request within sixty days after it has been made shall bar him from statutory appeal under this chapter, unless such owner or lessee was unable to comply with such request for reasons beyond his control.  

Accordingly, when an owner fails to respond within sixty days to a written request from the assessors for information reasonably required by the assessors to determine the fair cash value of the property at issue, the owner's right to appeal an assessment to this Board is foreclosed unless the owner was unable to comply for reasons beyond the owner's control.  See, e.g., Marketplace Center II Limited v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2000-258, 276-77 ("Marketplace Center II"), aff'd, 54 Mass. App. Ct. 1101, 1107 (2002); Forty-Four - 46 Winter Street, LLC v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2005-656, 661 ("Forty-Four-46 Winter Street"); and Herman Banquer Trust v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2005-664, 671 ("Herman Banquer Trust"). 
There is no dispute in this appeal that: (1) the appellant received the second § 38D request; (2) the information sought by the assessors on the first and the second § 38D request was reasonably required by them to determine the actual fair cash value of the subject property for the fiscal year at issue; and (3) to the extent it may be relevant, the assessors were prejudiced by the appellant's failure to provide the assessors with the requested information. See, e.g., Marketplace Center II, Mass. ATB Findings of Fact and Reports 2000 at 276-77; Forty-Four-46 Winter Street, Mass. ATB Findings of Fact and Reports 2005 at 661-62; and Herman Banquer Trust, Mass. ATB Findings of Fact and Reports 2005 at 671-72.  
The appellant argued, however, that he completed the second § 38D request for fiscal year 2011 and timely mailed it along with a cover letter dated March 31, 2010 to the assessors' office. In support of his assertion, the appellant testified that he had mailed a similar form in prior years, and none of them had ever been returned to him. The appellant, however, failed to offer any credible corroborating evidence that he completed and mailed either the first or the second § 38D request for the fiscal year at issue or for any prior fiscal year. The assessors successfully contested the appellant's assertions by providing credible testimony and other evidence that they had not received any reply from the appellant for the fiscal year at issue and that of the four § 38D requests sent to the appellant over the prior four fiscal years, the assessors had only received one response. 
Although the appellant testified that he completed and mailed the second § 38D request for fiscal year 2011 on March 31, 2010, the Board ultimately found the appellant's unsubstantiated testimony to be unconvincing.  One of the Board's primary functions is to evaluate the credibility of a witness' testimony.  See, e.g., Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977)("The credibility of witnesses, the weight of the evidence, and inferences to be drawn from the evidence are matters for the board."); Bayer Corp. v. Commissioner of Revenue, 436 Mass. 302, 308 (2002)("[W]e have consistently ruled that the assessment of the credibility of witnesses is a matter of the board.")(citing Kennametal, Inc. v. Commissioner or Revenue, 426 Mass. 39, 43 n. 6 (1997)).  Given the lack of evidence substantiating the appellant's claims coupled with the credible evidence submitted by the assessors, the Board found the appellant's testimony to be unavailing. 
  	


On this basis, the Board granted the assessors' motion to dismiss under § 38D and decided this appeal for the appellee.


					APPELLATE TAX BOARD



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

					

A true copy,

Attest: _____________________________
	   Clerk of the Board

ATB 2012-751