Joseph Nunes Irrevocable Trust v. Board of Assessors of the Town of Plymouth (September 25, 2009)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


JOSEPH NUNES IRREVOCABLE       v.	BOARD OF ASSESSORS OF
TRUST	THE TOWN OF PLYMOUTH                                

Docket No. F296810				   Promulgated:
        						   September 25, 2009
		   

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 Town of Plymouth ("appellee" or "assessors"), to abate a tax on certain real estate in the Town of Plymouth, owned by and assessed to the Joseph Nunes Irrevocable Trust ("appellant") under G.L. c. 59 §§ 11 and 38 for fiscal year 2008.
Commissioner Mulhern ("Presiding Commissioner") heard this appeal and issued a single-member decision for the appellee in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20.  
	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.
	
Catherine A. Arnold, Esq., for the appellant.

	Catherine Salmon, Assessor, for the appellee.

FINDINGS OF FACT AND REPORT
Based on the evidence and testimony offered at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
On January 1, 2007, the appellant was the assessed owner of a 0.58-acre parcel of real estate located at      6 Braley Lane in the Town of Plymouth ("subject property").  Braley Lane is a small, dead-end street.  The lot is improved with a two-story, Victorian-style, single-family residence, built in 1900, which has a wood-frame and shingle exterior and an asphalt gable-style roof.  The dwelling contains approximately 1,160 square feet of living area and has a total of six rooms, including three bedrooms, as well as one bathroom.  The subject property also includes a detached one-car garage.  Both parties stipulated that the interior and exterior of the subject dwelling are in need of repairs.  The property record card in evidence, submitted by the assessors, indicates that the subject property's assessed value accounts for the dwelling being in "poor" condition.
For the fiscal year at issue, the assessors valued the subject property at $241,900.  A tax was assessed to the appellant, at a rate of $10.33 per $1,000, in the amount of $2,498.83.  Although the appellant paid three of the four installments of the tax bill after the due dates, the late payments were not a jurisdictional defect because the total tax bill was less than the $3,000 threshold under       G.L. c. 59, § 64.  
On January 25, 2008, the appellant timely filed an abatement application with the assessors.  On March 18, 2008, the assessors granted a partial abatement, reducing the assessed value to $223,100 and abating $194.20 in tax.  On June 18, 2008, the appellant timely filed a Petition under Formal Procedure with the Appellate Tax Board ("Board").  On the basis of all of these facts, the Presiding Commissioner found that the Board had jurisdiction to hear this appeal.  
Attorney Catherine Arnold presented the case on behalf of the appellant.  Attorney Arnold contended that the dwelling on the subject property was uninhabitable and beyond repair.  She thus contended that the subject property should be valued at the assessment for its land ($186,100) less $40,000, which she suggested was the cost to demolish the dwelling.  Attorney Arnold submitted into evidence photographs of the subject property, which depict the dwelling's interior and exterior and the poor condition of the property.  The appellant also submitted an affidavit dated December 18, 2008 of James Eno, a real estate agent with twenty-five years of experience in the Plymouth area.  Mr. Eno stated that he was familiar with the subject property and estimated its value at about $120,000 to $130,000.  This estimate was based solely on Mr. Eno's opinion of the condition of the subject property.  Mr. Eno did not cite comparable sales, comparable assessments, or any other valuation evidence in reaching his conclusion.  
Finally, Attorney Arnold submitted an "unofficial property record card" for the property at 150 Westerly Road in Plymouth, Massachusetts, which sold on February 1, 2006 for $140,000.  The appellant's comparable consists of a 0.36-acre parcel of land improved with a single-family ranch-style residence built in 1940.  The dwelling's exterior is wood shingles, and it has an asphalt gable-style roof.  The dwelling contains 636 square feet of living area with a total of 5 rooms, including 2 bedrooms, as well as one full bath.  The appellant made no adjustments to this purportedly comparable sale property to account for differences in, among other factors, size of lot, size of living area, date of sale, and location.     
	The assessors submitted a listing of the subject property dated November 5, 2008.  The listing cites an asking price of $225,000 for the subject property, and its description very closely matches that of the property record card, including the disclosure that the dwelling is in "tear-down" condition.  The asking price of $225,000 on the listing is just under $2,000 more than the adjusted assessed value of $223,100 for the fiscal year at issue.  The listing was made by real estate agent James Eno, who, in his affidavit offered by the appellant, stated that the subject property had a value of about $120,000 to $130,000.  The appellant advanced no evidence of changes to the relevant market that would support a significant change in value from the relevant assessment date to the date of   Mr. Eno's listing. 
	The Presiding Commissioner found that the appellant's evidence was unpersuasive.  The appellant provided no affirmative evidence to support Mr. Eno's opinion of value for the subject property.  Further, Mr. Eno's opinion of value of $120,000 to $130,000 was contradicted by his own listing of the subject property at $225,000.
Aside from Mr. Eno's affidavit, the only valuation evidence offered by the appellant was the sale of one purportedly comparable property.  However, because the appellant made no adjustments to account for differences between the subject property and the purportedly comparable property, the Presiding Commissioner found that the appellant's comparable sale evidence did not provide persuasive, credible evidence that the subject property was overvalued.   
On the basis of the evidence offered, the Presiding Commissioner found and ruled that the appellant failed to meet its burden of proving that the assessed value of the subject property, as abated, exceeded its fair cash value.  Accordingly, the Presiding Commissioner issued a decision for the appellee in this appeal. 
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.  G.L. c. 59, § 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 taxpayer has the burden of proving that the subject property has a lower value than that assessed.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974) (citing Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)).  The assessment is presumed to be valid until the taxpayer sustains its burden of proving otherwise.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (citing Schlaiker,       365 Mass. at 245).  The taxpayer may sustain this burden by introducing evidence of fair cash value, or by proving that the assessors erred in their method of valuation.  General Electric Co. 393 Mass. at 600 (citing Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
Generally, real estate valuation experts, Massachusetts courts, and this Board rely upon three approaches to determine the fair cash value of property: income capitalization; sales comparison; and cost reproduction.  Correia v. New Bedford Redevelopment Authority, 375 Mass. 360, 362 (1978).  "[S]ales of property usually furnish strong evidence of market value, provided they are arm's-length transactions and thus fairly represent what a buyer has been willing to pay for the property to a willing seller."  Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 682 (1982).  Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date generally contain probative evidence for determining the value of the property at issue.  Graham  v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2008-321,         400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)), aff'd 73 Mass. App. Ct. 1107 (2008).  When comparable sales are used, however, allowance must be made for various factors which would otherwise cause disparities in the comparable prices.  See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082.  "Adjustments for differences are made to the price of each comparable property to make that property equivalent to the subject in market appeal on the effective date of the opinion of value."  Appraisal Institute, The Appraisal of real Estate 322 (13th ed., 2008).  
In the instant appeal, the appellant presented one purportedly comparable sale at 150 Westerly Road in Plymouth.  However, the appellant made no adjustments for, among other factors, location, time of sale, size of land, and living area.  Without adjustments, the Presiding Commissioner found and ruled that the appellant failed to demonstrate comparability between this purportedly comparable property and the subject property.  Therefore, the Presiding Commissioner found and ruled that this comparable sale failed to demonstrate that the subject assessment, as adjusted, exceeded the subject property's fair market value.  Furthermore, evidence of only one sale is not usually a sufficient sample size for market comparison.  Franco v. Board of Assessors of the City of Holyoke, Mass. ATB Findings of Fact and Reports 2008-885, 891 (quoting Appraisal Institute, The Appraisal of Real Estate 438 (12th ed. 2001) ("[A] single sale does not necessarily reflect market value.")).      
Moreover, the Presiding Commissioner found that the affidavit of Mr. Eno was contradictory, as Mr. Eno listed the subject property for $225,000 on November 5, 2008, which was very close to the adjusted assessed value of $223,100, yet about one month later, he claimed that the subject property was worth $120,000 to $130,000.  The appellant provided no evidence to support Mr. Eno's opinion of the value of the subject property, such as comparable-sales or comparable-assessment data.    


On this basis, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of proving that the subject property was overvalued for fiscal year 2008.  Accordingly, the Presiding Commissioner issued a decision for the appellee in this appeal.           

   				APPELLATE TAX BOARD

				By:				______	undefinedundefined_____
				   Thomas J. Mulhern, Commissioner



A true copy,



Attest:	______		_____
	    Clerk of the Board

 The assessors also assessed a Community Preservation Act tax of $37.48, equal to 1.5% of the total tax assessed.
 The assessors also abated $2.91 from the Community Preservation Act assessment.
 These photographs appeared to have been part of an appraisal report, although the remainder of the appraisal report was not submitted into evidence.  

785


ATB 2009 - 779