AMB Fund III v. Board of Assessors of the City of Boston (November 17, 2011)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

AMB FUND III         	v.	     BOARD OF ASSESSORS OF 
		       THE CITY OF BOSTON
			
Docket Nos.: F286004				              	
             F289174				  
             F297264
             F300445				 Promulgated:
							 November 17, 2011

	These are appeals 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 Boston ("assessors" or "appellee"), to abate real estate taxes assessed on certain real property located in Boston, assessed to appellant AMB Fund III ("AMB" or "appellant"), under G.L. c. 59, § 11 for fiscal years 2006, 2007, 2008, and 2009 ("fiscal years at issue").  
	Commissioner Scharaffa heard these appeals and was joined by Chairman Hammond and Commissioners Egan, Rose and Mulhern in the decisions 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.

	John M. Lynch, Esq. and Stephen W. DeCourcey, Esq. for the appellant.  

	Anthony M. Ambriano, Esq. for the appellee. 
			  FINDINGS OF FACT AND REPORT
On the basis of the Agreed Statement of Facts, testimony, and exhibits offered into evidence at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact. 

I. Introduction 
At issue in these appeals was the taxability of certain real property owned by the Massachusetts Port Authority ("Massport") and leased to the appellant during the fiscal years at issue.  The appellant was a limited liability company organized under the laws of the State of Delaware. On January 22, 2004, the appellant acquired a leasehold interest in a property known as the International Cargo Port, located at 88 Black Falcon Avenue in Boston ("subject property").  The subject property is located in South Boston in an area known as the Commonwealth Flats, which is an area consisting of former tidal lands that were filled-in and developed in the nineteenth and twentieth centuries.  The subject property consists of approximately 10.52 acres of land improved with several buildings with a total rentable area of 376,267 square feet.  It is also improved with 555 parking spaces. 

The appellant acquired its leasehold interest from International Cargo Port - Boston, L.L.C. ("ICP"), which had previously leased the subject property from Massport.  The appellant in turn subleased the subject property to numerous tenants, all but three of which were for-profit businesses.  The appellant's three non-profit tenants were A Better Chance, which was a non-profit educational organization, the United States Customs Service, and United States Representative Stephen F. Lynch, who sublet office space at the subject property.

II. Jurisdiction and Procedural History

For the fiscal years at issue, the assessors valued and assessed taxes on the subject property as set forth in the following table:
Fiscal
Year	Assessed
Valuation	Tax
Rate	Total Taxes
Assessed	
2006	$29,203,000	$30.70	$896,532.10	
2007	$31,973,500	$26.87	$859,127.95	
2008	$35,059,500	$25.92	$908,742.24	
2009	$35,059,500	$27.11	$950,463.05	

The appellant paid the real estate taxes assessed on the subject property without incurring interest.  The appellant thereafter timely filed Applications for Abatement with the assessors.  The following chart contains the dates of filing of the Applications for Abatement, the dates on which they were denied by the assessors, and the dates of filing of the appellant's appeals with the Board.  
Fiscal Year	Abatement Application Filed	Abatement Application Denied	Petition
Filed	
2006	2/1/06	3/29/06	6/27/06	
2007	2/1/07	3/05/07	6/05/07	
2008	2/1/08	4/01/08	6/26/08	
2009	2/2/09	2/27/09	5/26/09	


The appellant subsequently filed amended petitions with the Board on February 24, 2009.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide these appeals. 
	The appellant's primary claim in these appeals was that the subject property was exempt from taxation.  It originally asserted several grounds for its exemption claim ("exemption claim"), but later conceded that St. 1956, c. 465, § 17 ("Section 17") which is a section of Massport's enabling act ("enabling act"), alone controlled the taxation of the subject property, and abandoned its other arguments for exemption.
The appellant additionally sought an abatement on the ground that the assessed value of the subject property exceeded its fair cash value for the fiscal years at issue ("valuation claim").  By Order dated February 4, 2009, the Board bifurcated the appellant's valuation and exemption claims for hearing, with   the hearing of the exemption claim to proceed first.   
The Board issued an Order in which it found that the subject property was taxable during the fiscal years at issue.  Subsequently, the parties submitted a Stipulation in which they resolved the valuation issue by agreeing that the assessed value of the subject property did not exceed its fair cash value for each of the fiscal years.  The parties also requested that the Board enter a decision in these appeals.  Having made its finding that the subject property was subject to tax, and because the parties stipulated that the subject property was not overvalued for the fiscal years at issue, the Board issued decisions for the appellee in these appeals. 
III. The Exemption Claim
     A. The Creation of Massport and its Acquisition of the Subject Property
 
	Massport was created by Chapter 465 of the Acts and Resolves of 1956 in order to consolidate multiple transportation facilities under the direction of one, self-supporting body politic and corporate.  These transportation facilities included Logan Airport, Hanscom Field, the Mystic River Bridge, the Sumner Tunnel, and facilities previously held by the Port of Boston Commission.  By the terms of the enabling act, Massport would not take title to these properties until it had issued revenue bonds to fund its property acquisitions.  Thus, Massport did not take title to these properties until 1959. The enabling act also granted Massport the power to acquire additional properties in the future.  
The subject property was part of a parcel of land conveyed by the Commonwealth to the United States by deed dated April 23, 1918.  Following its determination that the parcel was surplus land, the United States conveyed the parcel, including the subject property, to Massport by deed dated August 11, 1988.  On May 20, 1999, Massport leased the subject property to ICP under a ground lease with a 50-year term.  On January 22, 2004, ICP assigned its entire leasehold interest in the subject property to the appellant.  The appellant held the leasehold interest in the subject property from January 22, 2004 through the fiscal years at issue.  
	The subject property was not taxed from 1918 to 1988, while it was owned by the United States.  It was also classified as exempt by the assessors from the time of its acquisition by Massport in 1988 through 2004.   Lowell Richards III, Chief Development Officer for Massport, testified at the hearing of these appeals that the appellant was not identified by Massport as a tenant responsible for payment of property taxes during the fiscal years at issue. The appellant also introduced lists and other records maintained by Massport showing that the appellant was not identified by Massport as a tenant responsible for the payment of property taxes during this time period.  In 2005, the assessors reclassified the subject property as non-exempt property and began assessing taxes thereon. 
	B. Section 17 of the Enabling Act
As originally enacted, Section 17 provided, in relevant part, that:
[L]ands of the Authority, except lands acquired by the commonwealth under the provisions of chapter seven hundred and five of the acts of nineteen hundred and fifty-one, situate in that part of the city called South Boston and constituting a part of the Commonwealth Flats, and lands acquired by the Authority which were subject to taxation on the assessment date next preceding the acquisition thereof, shall, if leased for business purposes, be taxed by the city or by any city or town in which the said land may be situated to the lessees thereof, respectively, in the same manner as the lands and the buildings thereon would be taxed to such lessees if they were the owners of the fee[.]  

The property "acquired by the commonwealth under the provisions of chapter seven hundred and five of the acts of nineteen hundred and fifty-one" was a parcel of land then known as the Castle Island Terminal Facility ("Castle Island Terminal").  The Castle Island Terminal was located in South Boston, within the Commonwealth Flats.  Prior to 1951, the Castle Island Terminal had been exempt from property taxes because it was owned by the United States.  St. 1951, c. 705, which authorized the acquisition of the Castle Island Terminal by the Port of Boston Authority, continued this exemption by expressly prohibiting the City of Boston ("City") from assessing property taxes on that property, even if it was leased for business purposes.  St. 1951, c. 705, § 2.  Thus, Section 17 carved out two exceptions to the general exemption from tax for Massport-owned properties.  Under the first exception ("first exception"), Massport properties located within the Commonwealth Flats, except for the Castle Island Terminal, would be taxable if leased for business purposes, and under the second exception ("second exception"), properties that were taxable prior to their acquisition by Massport would be taxable if leased for business purposes.  
Minor amendments were made to Section 17 by St. 1978, c. 332, § 2, although its text remained substantially the same.  As amended, it provided, in pertinent part:
[L]ands of the Authority, except lands acquired by the commonwealth under the provisions of chapter seven hundred and five of the acts of nineteen hundred and fifty-one situated in that part of the city called South Boston and constituting a part of the Commonwealth Flats, and lands acquired by the Authority which were subject to taxation on the assessment date next preceding the acquisition thereof, shall, if leased for business purposes, be taxed by the city or by any city or town in which the said land may be situated to the lessees thereof, respectively, in the same manner as the lands and the buildings thereon would be taxed to such lessees if they were the owners of the fee[.]  
G.L. c. 91, App. § 1-17. 

     As can be seen by comparing Section 17 as originally drafted and as amended by St. 1978, c. 332, § 2, the only change made by the amendment was the removal of a comma after "fifty-one" and the addition of the letter "d" to the word "situate." 
     C. The Taxation of the Subject Property 
The issue in these appeals was primarily one of statutory interpretation.  The appellant contended that the subject property was not taxable under Section 17, either as originally enacted or as amended, because its first exception, the appellant argued, applied to only those properties located in the Commonwealth Flats that Massport took title to in 1959, and not properties acquired later, like the subject property.  It was the appellant's position that the subject property was not located in the "part" of the Commonwealth Flats referred to in Section 17, because that "part" referred to only the properties acquired by Massport in 1959.  In other words, the appellant interpreted Section 17's first exception to have both a geographic and temporal limitation.  
The appellant's argument regarding the first exception was based largely on the legislative history of the enabling act, including earlier drafts of the enabling act that were not enacted and the following recommendation from the Special Commission:

The city of Boston claims the right to tax the state-owned Commonwealth Flats in South Boston whenever they are leased for business purposes, the tax being assessed to the lessee and the right to enforce collection being limited to rights against the lessee and the leasehold interest only. . . 

A question has recently been raised, however, as to whether Boston still has the right to tax Commonwealth Flats which are under the jurisdiction of the Port of Boston Commission, and the matter is being litigated in the courts.

Your Commission recommends that the city of Boston be allowed to continue to tax in the limited manner referred to those areas of the flats which it had the right to tax at the time of transfer (exclusive of Commonwealth Pier No. 5) to the recommended Massachusetts Port Authority. (Emphasis added).  


The appellant asserted that the legislative history of the  enabling act, including the Special Commission's recommendations, make it clear that Section 17's first exception was intended to apply only to those properties located in the Commonwealth Flats that Massport took title to in 1959.  The appellant also pointed to the language of Section 17's second exception as additional support for its construction of the first exception.  According to the appellant, the Legislature's use of the phrase "lands of the Authority" in the first exception indicated its intent to limit the application of the first exception to those properties transferred to Massport via the enabling act, while the Legislature's use of the phrase "lands acquired by the Authority" in the second exception indicated its intent to address properties acquired by Massport thereafter. (Emphasis added).  
In further support of its argument, the appellant introduced evidence, including the testimony of Mr. Richards and various records maintained by Massport, indicating that Massport did not consider or treat the subject property as being among its taxable Commonwealth Flats properties.   Similarly, the appellant argued, the assessors themselves had classified the subject property as exempt from the time it was acquired by Massport in 1988 through 2004.  The appellant pointed to these facts as further evidence that the subject property was exempt from tax under Section 17.  
The appellant also pointed to the Payment In Lieu of Taxes ("PILOT") agreement entered into between the City and Massport in 1978.   Under the terms of the PILOT agreement, Massport was to make annual payments to the City which would reflect both Massport's reliance on City services and the benefits derived by the City from Massport's services.  The PILOT agreement also stated that Massport's annual payment would be adjusted in proportion to any new or additional taxes levied by the City on Massport properties.  The parties stipulated that payments made by Massport under the PILOT agreement were not reduced during the fiscal years at issue despite the fact that the assessors assessed taxes on the subject property.  The appellant proffered this fact as further evidence that the assessors improperly assessed taxes on the subject property for the fiscal years at issue.  
Lastly, the appellant contended that the subject property was not taxable under Section 17's second exception, which applies to properties that were taxable prior to their acquisition by Massport, because the subject property was previously exempt from tax as property of the United States.  
The Board was not persuaded by the appellant's evidence or by its statutory interpretations.  The assessors' prior classification of the subject property as exempt, the PILOT agreement, and Massport's opinion concerning which of its properties were taxable by the City were not persuasive indicators of whether the subject property was exempt from tax during the fiscal years at issue, and the Board therefore gave that evidence little weight.  Similarly, and as discussed further in the Opinion below, the Board found that the appellant's arguments regarding Section 17's first exception were contrary to the plain language of the statute and relevant legal precedent, and the Board therefore rejected those arguments. 

On the basis of all of the evidence, the Board found that Section 17's first exception applied to all properties located within the Commonwealth Flats, other than the Castle Island Terminal, if leased for business purposes, and not just to those properties that Massport took title to in 1959.  The Board additionally found that the subject property was located in the Commonwealth Flats for the purposes of Section 17 and that it was leased for business purposes.  Although three of AMB's sub-lessees were government or non-profit entities, the Board found that the subject property was leased for business purposes because AMB was a for-profit entity which leased the subject property for its business purposes.  
Having found that the subject property was located within the Commonwealth Flats and leased for business purposes, the Board therefore found that the subject property was taxable by the City under Section 17.  Because the Board concluded that the subject property was taxable under Section 17's first exception, it found that Section 17's second exception did not control the outcome in these appeals.  
Based on the foregoing subsidiary facts, the Board found and ruled that the appellant failed to meet its burden of proving that the subject property was exempt from tax during the fiscal years at issue.   Having resolved the exemption claim
in favor of the assessors, and because the parties stipulated that the assessed value of the subject property did not exceed its fair cash value for the fiscal years at issue, the Board issued decisions for the appellee in these appeals.


					   OPINION
All property, real and personal, situated within the Commonwealth is subject to local tax unless expressly exempt.  G.L. c. 59, § 2.  Exemptions from taxation are a privilege, and statutes granting such exemptions are strictly and narrowly construed.  See e.g. Milton v. Ladd, 348 Mass. 762, 765 (1965); see also Boston Chamber of Commerce v. Assessors of Boston, 315 Mass. 712, 717 (1944) ("Exemption from taxation is a matter of special favor or grace.").  Statutes specifying the tax treatment of particular property supersede more general tax statutes.  See Cabot v. Assessors of Boston, 335 Mass. 53, 63-65 (1956).    In the present appeals, the Board found that the specific statute at issue, Section 17, did not exempt the subject property from tax.  

As originally enacted, Section 17 provided, in pertinent part, that:
lands of the Authority, except lands acquired by the commonwealth under the provisions of chapter seven hundred and five of the acts of nineteen hundred and fifty-one, situate in that part of the city called South Boston and constituting a part of the Commonwealth Flats, and lands acquired by the Authority which were subject to taxation on the assessment date next preceding the acquisition thereof, shall, if leased for business purposes, be taxed by the city or by any city or town in which the said land may be situated to the lessees thereof, respectively, in the same manner as the lands and the buildings thereon would be taxed to such lessees if they were the owners of the fee[.]  

The property "acquired by the commonwealth under the provisions of chapter seven hundred and five of the acts of nineteen hundred and fifty-one" was a parcel of land then known as the Castle Island Terminal.  The Castle Island Terminal had previously been exempt from taxes because it had been owned by the United States.  St. 1951, c. 705, which authorized the acquisition of the Castle Island Terminal by the Port of Boston Authority, continued this exemption by expressly prohibiting the City from assessing property taxes on that property, even if it was leased for business purposes.  St. 1951, c. 705, § 2.  Thus, Section 17 provided that Massport properties located within the Commonwealth Flats, except for the Castle Island Terminal, and Massport properties that were taxable prior to their acquisition by Massport, would be taxable to lessees thereof if leased for business purposes.  
Minor amendments were made to Section 17 by St. 1978, c. 332, § 2, although its text remained substantially the same.  As amended, it provided, in pertinent part, that: 
[L]ands of the Authority, except lands acquired by the commonwealth under the provisions of chapter seven hundred and five of the acts of nineteen hundred and fifty-one situated in that part of the city called South Boston and constituting a part of the Commonwealth Flats, and lands acquired by the Authority which were subject to taxation on the assessment date next preceding the acquisition thereof, shall, if leased for business purposes, be taxed by the city or by any city or town in which the said land may be situated to the lessees thereof, respectively, in the same manner as the lands and the buildings thereon would be taxed to such lessees if they were the owners of the fee[.]  

It was the appellant's contention in these appeals that the exceptions to the general exemption from tax for properties owned by Massport contained in Section 17 were not applicable to the subject property. The appellant argued that the first exception contained in Section 17 - both as originally enacted and as amended by St. 1978, c. 332, § 2 - did not apply because it applied only to properties located within the Commonwealth Flats that Massport took title to in 1959.  Additionally, the appellant argued that the second exception did not apply because the subject property was not taxable prior to its acquisition by Massport.  

The Board disagreed with the appellant's argument concerning the first exception.  Much of that argument was based on the legislative history of the enabling act, but the Board found and ruled that the appellant's use of legislative history to buttress its argument was misplaced.  Inquiries into a statute's legislative history may be made only when the words of the statute are ambiguous.  See Welch v. Sudbury Youth Soccer Assoc., Inc., 453 Mass. 352, 355 (2009) ("Where . . . the language of a statute is clear and unambiguous, it is conclusive as to the intent of the Legislature.").   The Board found no ambiguity in the language of Section 17.  Moreover, assuming arguendo that such an ambiguity existed, the Board found that the legislative history cited by the appellant - the Special Commission's recommendations - failed to support its argument.  The Special Commission noted that the "city of Boston claims the right to tax the state-owned Commonwealth Flats in South Boston whenever they are leased for business purposes," and went on to recommend "that the city of Boston be allowed to continue to tax in the limited manner referred to those areas of the flats which it had the right to tax at the time of transfer."  (Emphasis added).  The appellant asserted that this piece of legislative history reflected the Legislature's intention that Section 17's first exception apply to only those properties transferred to Massport in 1959.  On the contrary, the Board found and ruled that the "limited manner referred to" by the Special Commission was the City's ability to tax properties within the Commonwealth Flats only if leased for business purposes.  
Furthermore, the Board was not persuaded by the appellant's argument that the Legislature's use of the phrase "lands of the Authority" signified its intent to limit the application of the first exception to only those properties that Massport took title to in 1959, while the Legislature's use of the phrase "lands acquired by the Authority" in Section 17's second exception signified its intent to address all properties acquired by Massport after 1959.   Had the Legislature wished to so limit the scope of Section 17's first exception, it presumably would have done so in a more direct manner.  See Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 461 (2007).  Further, the Board found that the Legislature's use of the term "lands acquired by the Authority" in Section 17's second exception was not used to distinguish those lands from the properties referred to in Section 17's first exception.  Rather, it was apparent from its context within the statute that the phrase "lands acquired by the Authority" was meant to describe properties which, in the hands of the previous owner, had been taxable by the City, and, but
for the second exception, would have been exempt when acquired by Massport.  
Moreover, it was evident from the statutory language that Section 17 was intended to maintain the status quo regarding the City's ability to tax certain properties, i.e., properties located within the Commonwealth Flats which the City previously had the authority to tax and properties which it had the authority to tax in the absence of Massport ownership.  For example, the City had been precluded from taxing the Castle Island Terminal, even if leased for business purposes, prior to the creation of Massport and the passage of the enabling act.  The Castle Island Terminal was not a property the City had had the authority to tax prior to the passage of the enabling act, and it was therefore expressly carved out of Section 17's first exception.  This was not the case for the subject property and other properties located within the Commonwealth Flats, which the City had long had the authority to tax prior to the creation of Massport.  The Board therefore found and ruled that the plain language of the statute reflected the Legislature's intent to maintain the City's ability to tax properties located in the Commonwealth Flats if leased for business purposes. Accordingly, the Board rejected the appellant's argument regarding Section 17's first exception because it was contrary to the legislative intent of the statute as reflected by its plain language. 
In addition, the appellant's argument must fail because it ignores two Massachusetts Appeals Court holdings to the contrary.  In Boston v. U.N.A. Corporation, et al., 11 Mass. App. Ct. 298, 299-300 (1981), the Appeals Court considered an issue nearly identical to the issue raised in these appeals, which involved property owned by Massport and located within the Commonwealth Flats on a parcel of land known as Commonwealth Pier 5.  The property at issue in that case, which involved fiscal years 1970 and 1971, was leased for business purposes, and after the City assessed taxes on the property, the lessees brought suit challenging the assessments.  The lessees in that case claimed that § 17 did not give the City the authority to assess taxes on the property.  In making this claim, the lessees emphasized Section 17's legislative history, including the Special Commission's recommendation, which explicitly excluded Commonwealth Pier 5 from the properties to which the first exception would apply. Id. at 301.   The Special Commission's recommendation regarding Commonwealth Pier 5, however, was not included in the final version of the statute.  Like the Board in the present appeals, the Appeals Court gave no weight to the legislative history cited by the taxpayers in that case because it concluded that the "plain language of § 17[] permits no other reading than that parts of [Commonwealth] Pier 5 which are leased for business purposes are taxable by the city to the lessee."  Id.  
Similarly and more recently, in Cape Cod Shellfish & Seafood Company, et al. v. Boston, Mass. App. Ct., No. 08-P-364, Memorandum and Order under Rule 1:28 (April 3, 2009), the Appeals Court considered whether property owned by Massport and located within the Commonwealth Flats on property known as the Fish Pier was taxable by the City when it was leased for business purposes.  The facts presented in that case were substantially similar to those presented in U.N.A. Corporation, but involved later fiscal years, such that the Appeals Court in Cape Cod Shellfish & Seafood Company construed § 17 as amended by St. 1978, c. 332, § 2.  Nevertheless, the Appeals Court held that "the clear language of [] § 17, the case of Boston v. U.N.A. Corp., supra, construing that provision, the rules of statutory construction, and other provisions of [the General Laws], all indicate that the city may tax the leasehold interests of the plaintiffs."  Cape Cod Shellfish & Seafood Company, Mass. App. Ct., No. 08-P-364, Memorandum and Order under Rule 1:28 (April 3, 2009) at 6.  
In so holding, the Appeals Court noted that the City "has had the authority to tax the area known as the Commonwealth Flats if leased for business purposes as far back as 1904, pursuant to St. 1904, c. 385."  Id. at 2-3, citing Boston Fish Mkt. Corp. v. Boston, 224 Mass. 31, 34 (1916).  Thus, it expressly rejected the taxpayers' claim in that case that the "retooling of the statutory scheme" called for a different result.  Id. at 3.  Likewise, the Board rejected the appellant's argument that Section 17's first exception did not apply to the subject property.  The Appeals Court has had the opportunity to construe Section 17 both as originally enacted and as amended, and in both instances, it held that properties located within the Commonwealth Flats, other than the Castle Island Terminal, were subject to tax if leased for business purposes.  
Following the guidance of the Appeals Court in both U.N.A. Corporation and Cape Cod Shellfish & Seafood Company, and the plain language of the statute, the Board found and ruled that Section 17 permitted the City to tax the subject property.  Because the Board found that the subject property was taxable by the City under Section 17's first exception, it found and ruled that Section 17's second exception did not control the outcome in these appeals.  
Finally, in an effort to bolster its statutory interpretation, the appellant pointed to the fact that both the assessors and Massport had long considered the subject property exempt from tax, even though it was leased for business purposes.  However, the assessors' failure to assess a tax is not determinative of whether the subject property was exempt from tax under § 17.   "Statutory authority (like an easement in land) is not subject to atrophy or abandonment merely from nonuse." Polaroid v. Commissioner of Revenue, 393 Mass. 490, 496 (1984).   A "'[taxing authority's] expertise in tax matters might . . . bring the [taxing authority] to the conclusion that a prior interpretation of a statute or regulation was wrong and should be changed.'"  Gillette Co. v. Commissioner of Revenue, 425 Mass. 670, 678 (1997) (quoting Commissioner of Revenue v. BayBank Middlesex, 421 Mass. 736, 741-42 (1996)).  "When a prior determination has been proved wrong, a taxpayer's reliance on the error will not prevent the [taxing authority] from correcting a mistake of law and assessing a tax that is otherwise due."  Gillette Co., 425 Mass. at 678, (citing Commissioner of Revenue v. Marr Scaffolding Co., 414 Mass. 489, 494-95 (1993); John S. Lane & Son v. Commissioner of Revenue, 396 Mass. 137, 141-42 (1985)).  Likewise, Massport's opinion that the subject property was exempt from tax was not dispositive on this point.  Accordingly, the Board placed little weight on this evidence because it was not a persuasive indicator of the subject property's taxability during the fiscal years at issue.  
Similarly, the Board was not persuaded by the appellant's arguments regarding the PILOT agreement.  The PILOT agreement provided that payments by Massport under the agreement would be reduced by "new or additional tax payments" made to the City.  The parties stipulated that the payments made under the PILOT agreement by Massport were not reduced on account of the taxes assessed on the subject property and paid to the City, but this fact provided no support for the appellant's position that the subject property was exempt from tax.  The plain language of Section 17 and the applicable legal precedent established that the subject property was taxable during the fiscal years at issue, and the Board so found and ruled.
 

        				  CONCLUSION
On the basis of all of the evidence, the Board found and ruled that Section 17's first exception applied to all properties located within the Commonwealth Flats, other than the Castle Island Terminal, if leased for business purposes, and not just to those properties that Massport took title to in 1959.  Additionally, the Board found that the subject property was located in the Commonwealth Flats for the purposes of Section 17 and that AMB was a for-profit entity which leased the subject property for its business purposes.  Having found that the subject property was located within the Commonwealth Flats and leased for business purposes, the Board found and ruled that the subject property was taxable by the assessors under Section 17.  

Based on the foregoing, the Board found and ruled that the appellant failed to meet its burden of proving that the subject property was exempt from tax during the fiscal years at issue. Because the parties stipulated that the assessed value of the subject property did not exceed its fair cash value for the fiscal years at issue, the Board issued decisions for the appellee in these appeals.  
 
    THE APPELLATE TAX BOARD


		  		   By: 				_____	____
  Thomas W. Hammond, Jr., Chairman





A true copy,

Attest: 		______	_______
	     Clerk of the Board


	

 Under G.L. c. 59, § 59, the appellant's Application for Abatement would have been due on February 1, 2009.  However, February 1, 2009 was a Sunday.  When the last day of a filing period falls on a Saturday, Sunday or legal holiday, the filing is still considered timely if it is made on the following business day.  G.L. c. 4, § 9.
 The assessors issued an omitted real estate tax bill to the appellant for fiscal year 2005, but the taxes assessed for that fiscal year were later abated in full pursuant to a settlement agreement between the parties.  Therefore, the appellant's tax liability for fiscal year 2005 is not at issue in these appeals.  
 The evidence indicated that it is now known as the Conley Marine Terminal.  
 The PILOT agreement was amended and restated in 1995.  

ATB 2011-969