John Gurvitch v. Board of Assessors of the City of Holyoke (June 10, 2011)

                  COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


JOHN GURVITCH 	               v.		  BOARD OF ASSESSORS OF 
		            THE CITY OF HOLYOKE

Docket No. F308586  			       Promulgated:
		  						  June 10, 2011


	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 Holyoke ("assessors" or "appellee") to abate taxes on certain real estate owned by and assessed to John Gurvitch ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2010 ("fiscal year at issue").
	Commissioner Egan ("Presiding Commissioner") heard the appeal under G.L. c. 58A, § 1 and 831 CMR 1.20 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.

	John Gurvitch, pro se, for the appellant.
	Anthony Dulude, chief assessor, for the appellee.


                  FINDINGS OF FACT AND REPORT
	Based on 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, 2009, the appellant was the assessed owner of a 9,148 square-foot parcel of real estate, improved with a one-story, single-family dwelling located at 294 Cabot Street in Holyoke ("subject property").  For fiscal year 2010, the assessors valued the subject property at $133,500, and assessed taxes thereon, at the rate of $14.98 per thousand, in the total amount of $1,999.83.  The appellant paid the taxes due, incurring $8.28 of interest, which he also paid.  On February 1, 2010, the appellant timely filed an Application for Abatement with the assessors.  The assessors denied the appellant's abatement application on April 7, 2010.  The appellant timely filed his appeal with the Board on July 7, 2010.  Based on the foregoing, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal. 
The dwelling on the subject property was built in 1950.  It is a brick ranch with 1,740 square feet of finished living area. It has five rooms in total, including three bedrooms.  The dwelling also has one full bathroom, one half bathroom, two fireplaces, and a one-car garage.  Interior features include drywall and hardwood flooring, while the exterior is brick with a concrete foundation and a gabled, asphalt-covered roof.  
For the fiscal year at issue, the assessors rated the subject property's dwelling as being in "average" condition, and accordingly, gave it a depreciation factor of 35 percent.  The assessors gave an additional depreciation of 10 percent to account for what they referred to as the subject property's "mis-improvements."
In addition to his own testimony, the appellant offered into evidence several photographs of the subject property's exterior, as well as a written statement detailing the subject property's condition.  The appellant's primary contention was that the subject property was overvalued because it was in a state of disrepair, including: missing and sagging gutters; damaged fascia and soffits; an aging roof; cracking and crumbling retaining walls; and peeling exterior windows.  The appellant's contentions regarding the subject property's condition were corroborated by the photographs that he entered into evidence, which showed damaged gutters, cracked paint around the dwelling's windows and gutters, cracked and crumbling retaining walls, and several missing roof tiles.  The appellant did not advance his own opinion of the subject property's fair cash value, nor did he provide other affirmative evidence of its fair cash value.  
The assessors presented their case through the testimony of Anthony Dulude, chief assessor, and through the submission of several exhibits, including, among other items, a photograph of the subject property, a tax map of the subject property's immediate area, and a multiple listing service sales listing for the subject property from 2000.  The assessors also introduced comparable-sales and comparable-assessment data for several properties in Holyoke, along with the property record cards for the subject property and each of their selected comparable properties.  
For their comparable-sales data, the assessors presented two comparable-sales properties.  Sale Number One was 604 Pleasant Street, which was a 6,080 square-foot parcel of land improved with a single-family brick ranch built in 1953, with approximately 1,780 square feet of finished living area.  Sale Number One sold on March 30, 2009 for $156,900.  The Presiding Commissioner found that Sale Number One, which occurred in close proximity to the relevant date of assessment, was highly comparable to the subject property and thus it provided reliable evidence of the subject property's fair cash value.  Comparable Sale Number Two was 608 Pleasant Street, which was an 8,024 square-foot parcel of land improved with a single-family brick ranch built in 1950, with approximately 1,064 square feet of finished living area.  Sale Number Two sold on May 28, 2010 for $133,000.  The Presiding Commissioner placed no reliance on Sale Number Two because it was significantly smaller in finished living area than the subject property, and its sale, which occurred on May 28, 2010, was remote in time from the relevant date of assessment.  Thus, the Presiding Commissioner placed considerable weight on Sale Number One but no weight on Sale Number Two.  
Sale Number One and Sale Number Two were also among the assessors' comparable-assessment properties.  Sale Number One was assessed for $142,600 for fiscal year 2010, and Sale Number Two was assessed for $122,400 for fiscal year 2010.  Additionally, the assessors presented assessment data for 600 Pleasant Street, which was an 8,260 square-foot parcel of land improved with a single-family, brick ranch built in 1950, with approximately 1,140 square feet of finished living area.  Its assessed value for fiscal year 2010 was $139,600.  
On the basis of all of the evidence, and its foregoing subsidiary findings, the Presiding Commissioner found that the appellant did not prove that the assessed value of the subject property exceeded its fair cash value as of the relevant date of assessment.  The appellant did not introduce any affirmative evidence of the subject property's value, such as evidence of recent, comparable-sales or assessment data for other comparable properties.  The appellant's evidence consisted primarily of photographs and a written statement documenting the subject property's condition.  Although the photographs corroborated the appellant's testimony about the subject property's condition, including its deteriorated gutters, windows, and retaining walls, there was no evidence showing that these items had not been taken into consideration by the assessors in valuing the subject property.  In fact, the assessors graded the subject property as being in "average" condition, and gave it a depreciation factor of 35 percent.  Further, they discounted its value by an additional 10 percent to account for what they called "mis-improvements."  Based on the evidence, the Presiding Commissioner found that the assessors adequately accounted for the condition of the subject property when setting its assessed value.
Moreover, the assessors presented credible evidence demonstrating that the assessed value of the subject property did not exceed its fair cash value.  The Presiding Commissioner found that Sale Number One provided highly probative evidence of the subject property's fair cash value.  Sale Number One was a brick ranch with 1,780 square feet of finished living area, and the Presiding Commissioner found it to be highly comparable to the subject property.  Sale Number One sold for $156,900 on March 30, 2009, just months after the relevant date of assessment, and the Presiding Commissioner found this evidence the be a persuasive indication that the subject property's assessed value for the fiscal year at issue did not exceed its fair cash value.  
Moreover, the subject property's assessed value was within the range of assessed values introduced by the assessors.  The assessed value of Sale Number One, which the Presiding Commissioner found to be highly comparable to the subject property, was $142,600, as compared to the subject property's assessed value of $133,500.  In addition, another of the assessors' comparable-assessment properties, 600 Pleasant Street, had a higher assessed value than the subject property, even though it had approximately 600 fewer square feet of finished living area than the subject property.  The Presiding Commissioner found that the assessors' comparable-assessment properties provided additional support for the assessment.  
	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 fair cash value of the subject property was less than its assessed value for the fiscal year at issue.  Accordingly, the Presiding Commissioner issued a single-member decision for the appellee in this appeal.   

				     OPINION
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 appellant has the burden of proving that the 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 board is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayer[] . . . prov[es] the contrary.'" General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984)(quoting Schlaiker, 365 Mass. at 245).
  The fair cash value of property may be determined by reviewing recent sales of comparable properties in the market.   Actual sales generally "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. 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).   
 Additionally, evidence of the assessed values of comparable properties may provide probative evidence of fair cash value.  G.L. c. 58A, § 12B.  "The introduction of such evidence may provide adequate support for either the granting or denial of an abatement." John Alden Sands v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2007-1098, 1106-07, (citing Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-08).     
In the present appeal, the appellant introduced his testimony and a written statement, which detailed the condition of the subject property, along with several photographs of the exterior of the subject property.  Although the photographs corroborated the appellant's testimony about the condition of the subject property's exterior, there was no evidence indicating that the assessors failed to take its condition into consideration when valuing the subject property.  See Paul B. Cocchi d/b/a Hick-O-Rock Farm v. Assessors of Ludlow, Mass. ATB Findings of Fact and Reports 2010-861, 876 ("[T]o the extent there [was such damage to the subject property], there was no evidence suggesting that the assessors did not take this issue into consideration in valuing the subject real property.")  On the contrary, the evidence showed that the assessors gave the subject property a 35 percent deprecation rate as well as an additional 10 percent reduction in value for "mis-improvements."  Further, the appellant failed to offer his own opinion of the subject property's fair cash value or any other affirmative evidence of value, such as comparable-sales or assessment data.  Accordingly, the appellant's evidence failed to persuade the Presiding Commissioner that the subject property's assessed value exceeded its fair cash value for the fiscal year at issue.  
The assessors, on the other hand, produced credible evidence in support of the assessment, including comparable-assessment and comparable-sales data.  The Presiding Commissioner found the assessors' Sale Number One to be highly comparable to the subject property, and placing particular reliance on the sale price and assessed value of Sale Number One, the Presiding Commissioner found and ruled that the assessed value of the subject property did not exceed its fair cash value for the fiscal year at issue.

 The Presiding Commissioner therefore issued a single-member decision for the appellee in this appeal. 

						   


   APPELLATE TAX BOARD



	                   By: ___________________________
					   Nancy T. Egan, Commissioner


A true copy,

Attest: __________________________
		Clerk of the Board

 Because the assessed real estate taxes were $3,000 or less, the incurring of interest did not defeat the Board's jurisdiction. G.L. c. 59, §§ 64 & 65.     
 The appellant's petition was mailed in an envelope postmarked July 7, 2010 and was received by the Board on July 8, 2010.  Where, as here, the Board receives a petition after the three-month due date, the date of postmark is deemed to be the date of filing. G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 & 65. Accordingly, the Presiding Commissioner found and ruled that the filing date of the petition was deemed to be July 7, 2010 and therefore the appellant's appeal was timely. 

ATB 2011-568