W.A. Wilde Company, Inc. v. Board of Assessors of the Town of Holliston (May 13, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




W.A. WILDE COMPANY, INC.     v.      BOARD OF ASSESSORS OF                                  
					            THE TOWN OF HOLLISTON
 

Docket Nos. F293416, F293417		  Promulgated:
		  					  May 13, 2010


	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 Holliston ("appellee" or "assessors") to abate taxes on real estate located in Holliston, owned by and assessed to Clinton Hill Holliston LLC, TC Equities Holliston LLC, and Cooperative Equities IV Holliston LLC, under G.L. c. 59, §§ 11 and 38, for fiscal year 2007. These appeals were brought by W.A. Wilde Company, Inc. ("appellant") under G.L. c. 59, § 59, as a tenant paying rent and under an obligation to pay more than one-half of the taxes assessed.
	Commissioner Egan heard these appeals. Chairman Hammond and Commissioners Scharaffa and Rose joined her in the decisions for the appellee. Commissioner Mulhern took no part in the deliberations or decisions relating to these matters.
	These Findings of Fact and Report are made at the request of the appellant pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32. 
	Matthew A. Luz, Esq. for the appellant.
	James F. Sullivan, Esq. for the appellee.

FINDINGS OF FACT AND REPORT
	Based on oral arguments and exhibits offered at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2006, the appellant was a lessee in possession of two parcels of real estate located at 200 and 201 Summer Street in Holliston (collectively, the "subject properties"). The subject properties are situated across the street from one another and are improved with buildings used for industrial and office purposes. 
For fiscal year 2007, the assessors valued 200 Summer Street at $3,211,800 and 201 Summer Street at $5,012,300 and assessed a tax thereon, at the rate of $13.35 per $1,000, in the amounts of $43,520.69 and $67,917.92, respectively. The assessors mailed the actual tax bills relating to the referenced assessments on or about March 22, 2007. In accordance with G.L. c. 59, § 57C, the appellant paid the taxes due without incurring interest and in accordance with G.L. c. 59, § 59, timely filed Applications for Abatement on March 28, 2007, which were denied by the assessors on June 28, 2007. On August 6, 2007, the appellant seasonably filed Petitions Under Formal Procedure with the Board. On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide these appeals.
	Prior to the current appeals, the subject properties' assessed values for fiscal years 2005 and 2006 were contested before the Board, resulting in decisions for the assessors. See W.A. Wilde Co. & Wilde Acres Realty Corp. v. Assessors of the Town of Holliston, Mass. ATB Findings of Fact and Reports 2008-86 ("W.A. Wilde Co. I"). For both fiscal year 2005 and 2006, the assessors had valued 200 Summer Street at $3,162,000 and 201 Summer Street at $4,877,500, and the Board found that the appellants failed to meet their burden of proving that the subject properties had been overvalued. W.A. Wilde Co. I, Mass. ATB Findings of Fact and Reports at 2008-108. The Board made no determination of the properties' fair cash value in W.A. Wilde Co. I.
 	In the present appeals, the appellant presented neither witnesses nor evidence to support its assertion that the subject properties were overvalued for fiscal year 2007. Rather, the appellant relied entirely on G.L. c. 58A, § 12A, which provides that if the Board has "determined the fair cash value" of property within the two fiscal years preceding an assessment that exceeds the Board's determination, "the burden shall be upon the [assessors] to prove that the assessed value was warranted."  Id. 
	Having noted that assessors are required by statute to value property at its fair cash value for each fiscal year, the appellant argued that "[w]hen the [Board] makes a decision, whether . . . it's in favor of the appellant or the appellee, the [Board] is determining value. It's a decision that determines [that] the fair cash value set by the assessors is the fair cash value." For their part, the assessors, while disagreeing with the appellant's legal argument, chose not to present evidence in support of the contested assessments.
	For the reasons discussed in the following Opinion, the Board found and ruled that G.L. c. 58A, § 12A was not applicable to the current appeals. Thus, having declined to present evidence relating to the fair cash value of the subject properties, the appellant failed to sustain its burden of demonstrating that the properties were overvalued for fiscal year 2007. The Board, therefore, decided these appeals for the appellee. 

OPINION
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 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 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 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 Schlaiker, 363 Mass. at 245).
This allocation of burden is not, however, applicable in all circumstances. For example, G.L. c. 58A, § 12A ("§ 12A") provides, in pertinent part:
If the owner of a parcel of real estate files an appeal of the assessed value of said parcel with the board for either of the next two fiscal years after a fiscal year for which the board has determined the fair cash value of said parcel and if the assessed value is greater than the fair cash value as determined by the board, the burden shall be upon the appellee to prove that the assessed value was warranted . . . .

	The disputed assessments in these appeals fall within the temporal constraints of § 12A, as the fiscal year currently at issue immediately followed those considered by the Board in W.A. Wilde Co. I. See W.A. Wilde Co. I, Mass. ATB Findings of Fact and Reports at 2008-108. Moreover, the subject properties' fiscal year 2007 assessments exceeded their fiscal year 2005 and 2006 assessments by slightly more than one percent. The dispositive issue, therefore, is whether the Board's decision in W.A. Wilde Co. I constituted a determination of the fair cash value of the subject properties within the meaning of § 12A, thereby placing a burden on the assessors "to prove that the assessed value [for fiscal year 2007] was warranted." The Board found and ruled that its decision in W.A. Wilde Co. I did not constitute such a determination.
	Assuming that jurisdictional prerequisites have been satisfied, the Board may decide appeals brought by appellants who are aggrieved by the assessors' valuations of real property. See G.L. c. 58A, § 6; G.L. c. 59, §§ 64 and 65. For each appeal, a decision is issued, and with exceptions not here relevant, either party may request a "findings and report" that describes the facts relating to, and legal basis for, the decision. See G.L. c. 58A, § 13. 	
	For cases in which the appellant prevails and the Board has found that the fair cash value of the property is lower than its assessed value, the Board's decision specifies the fair cash value of the property, and the consequent abatement due the appellant. See G.L. c. 58A, § 13; G.L. c. 59, §§ 64 and 65; see, e.g., Holyoke Shopping Center, LLC v. Assessors of the City of Holyoke, Mass. ATB Findings of Fact and Reports 2008-1185, 1196; Bodwell Extension, LLC v. Assessors of the Town of Avon, Mass. ATB Findings of Fact and Reports 2007-1257, 1265; Wayland Business Center Holdings, LLC and GRM Properties II, LLC v. Assessors of the Town of Wayland, Mass. ATB Findings of Fact and Reports 2005-557, 590-592. There is no statutory requirement that the Board determine a value in those appeals it decides in favor of assessors, and there is generally no practical need to do so because no abatement is calculated. 
	In W.A. Wilde Co. I, the Board concluded that the subject properties had not been overvalued and the decision relating to each appeal stated only that it was for the appellee. In the associated Findings of Fact and Report, the Board found only that the properties had not been overvalued. Regardless, and without citing supporting authority, the appellant in the present appeals argued that any decision issued by the Board necessarily constitutes a determination of the fair cash value of property within the meaning of § 12A. 
	The Board agreed that in those cases in which the appellant prevails and the Board has found the fair cash value of property, a determination of fair cash value has been made, thereby triggering possible application of § 12A. However, when a decision or Finding of Facts and Report states only that property has not been overvalued, there has been no such determination. Rather, the Board, based on all of the evidence before it, has found only that the taxpayer failed to meet its burden of proving that the fair cash value of the property is less than its assessed value. 
	In sum, the Board found and ruled that a decision for an appellee or a Findings of Fact and Report in which the Board does not provide its own separate calculation of fair cash value but finds only that the appellant failed to meet its burden of proving that its property was overvalued does not constitute an independent determination of the fair cash value of the property within the meaning of § 12A. In turn, the Board found and ruled that § 12A is not applicable to the present appeals.    
	Having concluded that § 12A does not apply to these appeals, the Board further found and ruled that by not presenting evidence relating to the fair cash value of the subject properties, the appellant failed to sustain its burden of demonstrating that the properties were overvalued for fiscal year 2007. On this basis, the Board decided these appeals for the appellee.

					   THE APPELLATE TAX BOARD


				   By:___________________________________
					   Thomas W. Hammond, Jr., Chairman
A true copy,

Attest: ____________________________
	               Clerk of the Board

  These sums include a Community Preservation Act surcharge equal to 1.5% of the tax assessed.
 See G.L. c. 59, §§ 2A and 38.
 The "findings and report" is generally referred to by the Board as a "Findings of Fact and Report."
 In certain instances the Board may, on its own motion, issue a decision and Findings of Fact and Report simultaneously, without a request by either party.

ATB 2010-479