Donald J. Correa, Trustee, DJC Realty Trust v. Board of Assessors of the Town of Plymouth 2 (October 2, 2006)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



DONALD J. CORREA, TRUSTEE,	v.	    BOARD OF ASSESSORS OF 
DJC REALTY TRUST				    THE TOWN OF PLYMOUTH

Docket No. F272650			         Promulgated:
							             October 2, 2006


	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 appellee to abate a tax on real estate in the Town of Plymouth owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2004.
	Commissioner Rose heard the appeal and issued a single-member decision for the appellant in accordance with G.L. c. 58A, § 1A.
	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.

	Donald J. Correa, Esq., pro se, for the appellant.
	Catherine M. Salmon, assistant assessor, for the appellee.

FINDINGS OF FACT AND REPORT
	On January 1, 2003, Donald J. Correa, Trustee of DJC Realty Trust ("appellant") was the assessed owner of a parcel of real estate located at 59 Court Street in the Town of Plymouth ("subject property").  For fiscal year 2004, the Board of Assessors of Plymouth ("assessors") valued the subject property at $304,900, and assessed a tax at the rate of $11.81 per thousand in the amount of $3,600.87. Of the total valuation, $133,000 was attributable to land, and $171,900 to the building constructed thereon. On February 2, 2004, the appellant timely filed an application for abatement with the assessors.  The assessors denied the application on April 20, 2004, and on May 12, 2004, 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 over this appeal.
The subject property consists of a 0.15 acre parcel of real estate improved with a wood-frame, clapboard-exterior Colonial-style building constructed sometime near 1722. The building is classified as mixed residential/commercial use, and has finished area of 2,778 square feet, which includes six rooms, two bedrooms, and one and one-half bathrooms. A portion of the space is used as a law office.  
At the hearing of this appeal, both the appellant and the town's assistant assessor testified and introduced several exhibits, including property record cards for purportedly comparable properties, a summary record card of the subject property, and various jurisdictional documents. The appellant testified that as of the relevant assessment date, the subject property was overvalued because the assessment failed to reflect the substantially deteriorated condition of the building. In particular, the electrical system was antiquated, requiring frequent replacement of fuses. Similarly, the plumbing was in dire need of repair simply to bring it to modern standards. The assessors did not offer any evidence to contradict these assertions.
The assessors presented a sales analysis of purportedly comparable properties located at 46, 63, and 70 Court Street. This analysis incorporated adjustments for the amount of finished area of the properties analyzed relative to the subject property, as well as a time adjustment for their sale dates. The assessors, however, failed to compare the condition of the claimed comparables to that of the subject property. In particular, no allowance was made for the deteriorated electrical or plumbing systems of the subject property. Moreover, the property record cards for the comparable properties did not reflect similar interior deficiencies.
Based on the evidence presented by the parties, the presiding Commissioner found that the appellant sustained his burden of proving that the subject property's assessed value of $304,900 exceeded its fair cash value for the fiscal year 2004.  The presiding Commissioner found that the appellant's uncontroverted testimony regarding the building's deteriorated electrical and plumbing systems was credible and consistent with the building's age and lack of documented improvements. Moreover, the presiding Commissioner found that the comparable-sales analysis submitted by the assessors failed to account for these interior deficiencies. 
On the basis of the foregoing, the presiding Commissioner found that the fair cash value of the subject property as of January 1, 2003 was $294,900. Accordingly, the presiding Commissioner decided this appeal for the appellant and granted an abatement of $118.10.   

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. v. Assessors of Lynn, 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
In the present appeal, the presiding Commissioner found that the assessors failed to consider the substantially deteriorated condition of the electrical and plumbing systems within the subject property's building as of the relevant assessment date. Moreover, none of the properties considered in the assessors' comparable-sales analysis contained interior deficiencies such as those present in the building on the subject property. Thus, the adjustments to sale prices of the purportedly comparable properties for finished area and sale dates were not sufficient to derive an appropriate indicated value for the subject property.
 Based on credible testimony, the age of the subject property's building, and the lack of evidence indicating improvements to the antiquated electrical and plumbing systems, the presiding Commissioner found that the appellant met his burden of demonstrating that the subject property was overvalued for fiscal year 2004 by showing that the assessors failed to properly consider the effect of these deficiencies in their determination of the property's building and overall assessed values.   
In abatement proceedings, "the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive.  The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921); see also Guernsey v. Assessors of Williamstown, ATB Findings of Fact and Reports 2006-158, 168; Buckley v. Assessors of Duxbury, ATB Findings of Fact and Reports 1990-110, 119; Jernegan v. Assessors of Duxbury, ATB Findings of Fact and Reports 1990-39, 48-9; Everhart v. Assessors of Dalton, ATB Findings of Fact and Reports 1985 (Docket No. 132237, February 26, 1985). In the present appeal, the presiding Commissioner ruled that the excessive value attributed to the building component of the subject property's assessment resulted in the assessors commensurately attaching excessive value to the overall assessment. 
On this basis, the presiding Commissioner decided this appeal for the appellant and granted an abatement in the amount of $118.10.


						APPELLATE TAX BOARD


				By:	_________________________________
					   James D. Rose, Commissioner




A true copy,


Attest:______________________________
	   Assistant Clerk of the Board

 G.L. c. 59, § 59 requires that applications for abatement be filed: "on or before the last day for payment, without incurring interest in accordance with the provisions of chapter fifty-seven or section fifty-seven C, of the first installment of the actual tax bill issued upon the establishment of the tax rate for the fiscal year to which the tax relates."  According to G.L. c. 59, § 57C, the applicable payment section for this appeal, the last day for payment is February 1st.  However, in 2004, February 1st fell on a Sunday.  When the last day of a filing period falls on a Sunday or legal holiday, the filing is still considered timely if it is made on the following business day.  See G.L. c. 4, § 9.  Accordingly, the presiding Commissioner found that the appellant timely filed his application for abatement on Monday, February 2, 2004.
  The appellant's Petition Under Formal Procedure relating to this appeal also claimed disproportionate assessment of the subject property. During the hearing, however, the appellant made no argument and presented no evidence relating to this contention. Thus, the appeal was decided solely on the basis of valuation, with no consideration given to the theory of disproportionate assessment. 

8


ATB 2006-731