Robert J. Negri v. Board of Assessors of the Town of Hinsdale (September 3, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


ROBERT J. NEGRI 			v.	BOARD OF ASSESSORS OF 
THE TOWN OF HINSDALE


Docket No. F288091				Promulgated: 
							September 3, 2008


	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 taxes on real estate located in the Town of Hinsdale, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.
	Commissioner Mulhern ("Presiding Commissioner") heard the appeal under G.L. c. 58A, § 1A, and issued a single-member decision 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.  

	Robert J. Negri, pro se, for the appellant.
	Karen Tonelli, assistant assessor, for the appellee.  

FINDINGS OF FACT AND REPORT
	On the basis of the testimony and exhibits offered into evidence at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
	On January 1, 2006, Robert Negri ("appellant") was the assessed owner of a 0.40-acre parcel of real estate located at 38 Linden Road ("subject property") in the Town of Hinsdale.  The parcel is improved with an unheated seasonal cottage with 780 square feet of finished living area.  
	For fiscal year 2007, the Board of Assessors of Hinsdale ("assessors") valued the subject property at $166,100 and assessed a tax thereon, at a rate of $10.86 per thousand, for a total amount of $1,803.  The appellant timely filed an Application for Abatement with the assessors on January 6, 2007, which the assessors denied on February 7, 2007.  On February 28, 2007, the appellant seasonably filed his appeal with the Appellate Tax Board ("Board").  Based on these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
	The appellant had also filed an appeal with the Board for the fiscal year immediately preceding the fiscal year at issue.  In the fiscal year 2006 appeal, the Board found that the assessed value of $163,800 was excessive, and determined a fair cash value of $138,800.  In that appeal, the appellant furnished comparable sales data that was essentially uncontested and unrebutted by the assessors. 
	Because the assessors increased the assessed value of the subject property for fiscal year 2007 from the value that the Board determined for fiscal year 2006, the assessors had the burden of going forward to show that the increase for fiscal 2007 was warranted.  To meet their burden, the assessors submitted evidence of a September 2005 arm's-length sale at 47 Linden Road for $210,000.  As compared to the subject property, 47 Linden Road had a smaller lot size at 0.27 acres, was of similar age, and had a slightly larger living area at 888 square feet.  In addition, 47 Linden Road was situated nearly across the street from the subject property.  After adjusting the sales price to account for time of sale, living area, lot size, condition and other differences, the assessors determined that this comparable property indicated a value of $174,000 for the subject property. 
	In addition, the assessors submitted evidence of comparable assessment data for fiscal year 2007 from similar properties located on Linden Road, including:     22 Linden Road at $182,000; 32 Linden Road at 226,800;       33 Linden Road at $170,200; 39 Linden Road at $193,300;   46 Linden Road at $182,100; and 56 Linden Road at $200,300.  These reasonably comparable Linden Road lots ranged in size from 0.27 to 0.33 acres, each smaller than the subject property's parcel.  In addition, these properties ranged in living area from 618 square feet to 1058 square feet, which on average, approximated the living area associated with the subject property.  
	Conversely, the appellant proferred no new evidence for fiscal year 2007, and instead relied on the abated value from the previous fiscal year.  The appellant's data, unchallenged by the assessors in the fiscal year 2006 appeal, was insufficient on the present record to warrant an abatement in fiscal year 2007.  
On the basis of all the evidence, the Presiding Commissioner found that the adjusted sale of the 47 Linden Road property was the best evidence of the subject property's value for fiscal year 2007.  The sale was closer in time, and the property more comparable to the subject property than the sales upon which the appellant relied from his fiscal year 2006 appeal.  The Presiding Commissioner also found that the adjustments proffered by the assessors were reasonable and resulted in a credible indicated value for the subject property for fiscal year 2007.  In addition, the Presiding Member found that the assessments attributed to similar properties on Linden Road supported the subject property's assessment for fiscal year 2007.  The Presiding Member, therefore, found that the assessors met their burden of going forward to show that the subject property's increased value from fiscal year 2006 to the fiscal year 2007 was warranted.  
	Accordingly, the Presiding Commissioner found that the assessment of $166,100 for fiscal year 2007 was not excessive and, therefore, decided this appeal for the appellee.                            

OPINION
The assessors are required to value and assess real property at its fair cash value as of the first day of January preceding the fiscal year at issue.  G.L. c. 59,  §§ 2A and 38.  "The 'fair cash value' of real property, for tax purposes, is the price that an owner willing but not compelled to sell ought to receive from one willing but not compelled to buy."  Tennessee Gas Pipeline Co. v. Assessors of Agawam, 428 Mass. 261, 262 (1998).  "In an abatement appeal, the only relevant inquiry is whether the overall assessment of the subject property     . . . is excessive."  Mass. General Hospital v. Belmont, 238 Mass. 396,        403 (1921).  The taxpayer has the burden of proving overvaluation of real property.  Tennessee Gas Pipeline Co., 428 Mass. at 261; Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974)(citation omitted). "Until the taxpayer sustains his burden, the valuation made by the assessors will be presumed valid." 
Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 684 (1982)(citing Schlaiker, 365 Mass. at 245).   
	If, however, within the two preceding fiscal years the Board has determined the fair cash value of the subject property and the assessment at issue exceeds that determination, then "the burden shall be upon the [assessors] to prove that the assessed value was warranted."  G.L. c. 58A, § 12A.  Notwithstanding this shift in the burden of production, the burden of persuasion on the issue of fair cash value remains on the appellant.  See Johnson v. Assessors of Lunenburg, Mass. ATB Findings of Fact and Reports 1992-1, 8; Cressey Dockham & Co., Inc. v. Assessors of Andover, Mass. ATB Findings of Fact and Reports 1989-72, 86-87.
The appellant satisfied his burden in fiscal year 2006 and successfully obtained an abatement from the Board.  In fiscal year 2007, however, the assessors increased the assessed value of the subject property over the value found by the Board for fiscal year 2006.  Thus, the burden of production shifted to the assessors in fiscal year 2007 to prove that the increase over the Board's previous year's finding of fair cash value was warranted and not excessive. The Presiding Commissioner found and ruled here that the evidence submitted by the assessors was sufficient to meet this burden of production and to justify the increase in the subject property's fiscal year 2007 assessment over the value found by the Board for fiscal year 2006.  Moreover, the Presiding Commissioner found and ruled that the appellant failed to adequately support his fiscal year 2007 abatement claim and failed to demonstrate that the subject property was overvalued for fiscal year 2007.  
"[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, 385 Mass. at 682.  Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date contain credible data and information for determining the value of the property at issue.  McCabe v. Chelsea, 265 Mass. 494, 496 (1929).  	
	The Presiding Commissioner found that the best evidence of the fair cash value of the subject property for fiscal year 2007 was the adjusted sale of 47 Linden Road, an arm's-length sale from September 2005, situated almost across the street from the subject property.  The assessors had not relied upon this sale in defense of their fiscal year 2006 assessment.  The Presiding Commissioner also found that the comparable assessment data proffered by the assessors was persuasive.  See G.L. c. 58A, § 12B; Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 703 (1972)("Other properties the assessed value of which are relied upon must be comparable to the subject property in order to be probative of fair cash value.").            
	After considering all of the evidence presented, the Presiding Commissioner found and ruled that the assessors satisfied their burden of showing that the increase in the subject property's assessment from the Board's previous fiscal year's finding of fair cash value was warranted.  The Presiding Commissioner further found and ruled that the appellant failed to effectively rebut the assessors' showing.  

On this basis, the Presiding Commissioner decided this appeal for the appellee. 						


APPELLATE TAX BOARD

               
					  By:____________________________
					   	Thomas Mulhern, Commissioner

ATB 2008-1135