Anthony P. Snigier v. Board of Assessors of the City of Brockton (June 28, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


ANTHONY P. SNIGIER       v. 	BOARD OF ASSESSORS OF    THE CITY OF BROCKTON	   
	
Docket No. F299523				Promulgated
                                   June 28, 2010

        						  
This is an appeal 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 Board of Assessors of the City of Brockton ("appellee" or "assessors") to abate taxes on certain real estate in Brockton, owned by  and  assessed to Anthony P. Snigier ("Mr. Snigier" or "appellant") under G.L. c. 59, §§ 11 and 38 for fiscal year 2009 ("fiscal year at issue").
Commissioner Egan ("Presiding Commissioner") heard this appeal and issued a single-member decision for the appellee in accordance with G.L. c. 58A, § 1 and 831 CMR 1.20.  
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.
	Anthony P. Snigier, pro se, for the appellant. 

	Philip Nessralla, Esq. for the appellee.

		       FINDINGS OF FACT AND REPORT 

	On the basis of the testimony and exhibits entered into the record in this appeal, the Presiding Commissioner made the following findings of fact.  On January 1, 2008, the relevant date of assessment for the fiscal year at issue, the appellant was the assessed owner of a 0.316-acre parcel of land improved with a 5,690 square-foot building and a 9,000 square-foot asphalt parking lot, located at 772 North Main Street in Brockton ("subject property").  The subject building was constructed in 1983 and has a brick and steel exterior.  It primarily consists of a six-bay garage which houses the appellant's automotive repair business.  In addition to the garage area, the subject building also has finished areas consisting of three offices, three bathrooms, an employee break room and a customer waiting area.  The paved parking lot can accommodate approximately 50 cars.  
	For the fiscal year at issue, the assessors valued the subject property at $408,500, and assessed a tax thereon, at a rate of $22.84 per thousand, in the total amount of $9,330.14.  The appellant timely paid the taxes due without incurring interest.  On January 23, 2008, the appellant filed an Application for Abatement with the assessors, which was denied by vote of the assessors on January 30, 2008.  The appellant timely filed this appeal with the Appellate Tax Board ("Board") on April 23, 2009.  Based on the foregoing, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
A deed entered into evidence indicated that Mr. Snigier purchased the subject property in December of 2006 for $450,000.  However, Mr. Snigier testified that he purchased the subject property under duress, as he had only thirty days to find a location for his business.  Mr. Snigier also testified that, for fiscal year 2008, the assessors initially assessed the subject property for $440,800, but that the assessment was later abated, by agreement of the parties, to $350,000.  
In addition to his testimony, Mr. Snigier offered a comparative analysis of five commercial properties in Brockton, as well as the property record cards for each of his selected comparable properties.  The comparative analysis offered by Mr. Snigier is substantially reproduced in the following chart.
	

  Address	Assessed Value
FY08 ($)	Assessed Value
FY09 ($)	Change
($)	
772 North
Main St.	350,000	408,500	 58,500	
501 North
Main St. 	384,800	356,000	-28,200	
312 North
Montello St.	342,000	314,300	-27,700	
33 Montello
Street 	293,500	272,000	-21,500	
210 North
Cary St.	358,600	329,600	-27,000	
225 North
Montello St.	395,000	363,000	-32,000	
	
	The five properties selected for comparison by Mr. Snigier were all classified as automotive repair facilities for assessment purposes, with the exception of 33 Montello Street, which was classified as warehouse space.  However, the property record card for 33 Montello Street showed a building with three garage bays which appeared to house a car wash or automotive repair business.  Mr. Snigier concluded from his analysis that properties comparable to the subject property saw a decrease in their assessment of approximately seven percent between fiscal year 2008 and 2009.  Based on this analysis, Mr. Snigier opined that the fair cash value of the subject property for the fiscal year at issue was $325,500, which was seven percent less than its assessed value, as abated, of $350,000 for the preceding fiscal year. 
	The assessors presented their case through the testimony of assessor Paul Sullivan and through the introduction of various documents.  Among the exhibits offered by the assessors were two Multiple Listing Service ("MLS") listings offering the subject property and the automotive business located thereon for sale.  One MLS listing, dated June 16, 2008, recited an asking price of $875,000.   According to the listing, the original asking price had been $975,000, but was reduced to $875,000 after the property had been on the market for 94 days.  Included in the sale price were the automotive business, the subject real property, and certain other personal property, such as tools and equipment.  The other MLS listing, dated January 18, 2009, recited an asking price of $689,900.  
	In addition, Mr. Sullivan testified that, on average, commercial properties in Brockton increased in assessed value by five percent between fiscal years 2008 and 2009.  Mr. Sullivan stated that the assessors used income and expense data to determine the assessed value of the subject property for the fiscal year at issue.  The Presiding Commissioner found his testimony to be credible.  
On the basis of all of the evidence, the Presiding Commissioner found and ruled that the appellant did not meet his burden of proving that the assessed value of the subject property was greater than its fair cash value.  The appellant purchased the subject property for $450,000 in December of 2006, just thirteen months before the relevant date of assessment.  The Presiding Commissioner found that the actual sale of the subject property, reasonably close to the relevant date of assessment, provided reliable evidence of its fair cash value for the fiscal year at issue.  
The appellant asserted that he purchased the subject property under duress and, therefore, the actual sale price did not reflect an arm's-length transaction.  However, there was nothing in the record besides the appellant's testimony indicating that he purchased the subject property under duress, and the Presiding Commissioner found that the appellant's bare assertion was insufficient to establish that the sale price did not reflect the subject property's fair cash value at the time.  
Moreover, the Presiding Commissioner found that even if Mr. Snigier had established that he purchased the subject property under duress, that fact in and of itself would not prove that the subject property was overvalued for the fiscal year at issue.  The appellant purchased the subject property for $450,000 in December of 2006.  Even assuming arguendo that the appellant paid more than fair cash value when he purchased the subject property, the subject assessment - $408,500 - was still considerably less than the purchase price paid by the appellant.  Further, Mr. Snigier's opinion of value for the subject property for the fiscal year at issue was $325,000, or $125,000 less than what he paid for the subject property in December of 2006.  The Presiding Commissioner found that the record did not support the conclusion that the subject property's fair cash value just thirteen months later was nearly twenty-eight percent less than the purchase price paid by the appellant.  
Based on the foregoing, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of proving that the assessed value of the subject property exceeded its fair cash value for the fiscal year at issue.  Accordingly, the Presiding Commissioner issued a decision for the appellee in this appeal.

			     OPINION
Assessors are required to assess real estate at its fair cash value as of the first day of January preceding the fiscal year at issue.  G.L. c. 59, § 38.  The fair cash value of a property is defined as the price upon which a willing buyer and a willing seller would agree if both are fully informed and under no compulsion. Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).	 
The burden of proof is upon the taxpayer to make out a right to an abatement.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is considered to be valid unless the taxpayer meets its burden and proves otherwise.  Id.  A right to an abatement can be proven by either introducing evidence of fair cash value, or by proving that the assessors erred in their method of valuation.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 600 (1984).  
In the present appeal, the Presiding Commissioner found and ruled that the appellant failed to prove that the assessed value of the subject property exceeded its fair cash value.  The appellant introduced a chart showing the assessed values of five comparable commercial properties in Brockton.  Although evidence of the assessed values of comparable properties is probative, evidence of actual sales generally furnishes the most reliable evidence of fair cash value.  Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 469 (1981); First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 560 (1971).  The Presiding Commissioner found and ruled that the actual sale price of the subject property in December of 2006 provided the most reliable evidence of its fair cash value.  Although the appellant testified that he purchased the subject property under duress, there was no other support for this assertion in the record.  Moreover, even assuming arguendo that the appellant paid more than fair cash value for the subject property, the subject assessment - $408,500 - was still considerably less than the $450,000 purchase price paid by the appellant.  The evidence presented by the appellant simply did not establish that the assessed value of the subject property was greater than its fair cash value for the fiscal year at issue.  

Accordingly, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of proving that he was entitled to an abatement.  The Presiding Commissioner therefore issued a decision for the appellee.  

      			       APPELLATE TAX BOARD


			       By: ___________________________
			           Nancy T. Egan, Commissioner


A true copy,
Attest: ________________________
      Clerk of the Board

 The subject property was legally owned by the A&M Nominee Trust, of which Mr. Snigier and his wife, Mary, were the trustees.  
 Although there was testimony that the parties resolved litigation involving the assessed value of the subject property for fiscal year 2008 by agreeing to an abated value of $350,000, there was no evidence in the record as to the basis for that settlement or valuation.  The Presiding Commissioner's determination in this appeal is based solely on evidence introduced into the record in the present appeal.  

ATB 2010-607