Paul A. Giard v. Board of Assessors of the Town of Colrain (February 5, 2009) (Docket No. F293873)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


PAUL A. GIARD 			v.	BOARD OF ASSESSORS OF 
THE TOWN OF COLRAIN

Docket No. F293873			     Promulgated:
							February 5, 2009
 
							
	This 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, Board of Assessors of the Town of Colrain ("assessors") to abate taxes on certain personal property in the Town of Colrain, owned by and assessed to the appellant under G.L. c. 59, §§ 2 and 18, for fiscal year 2007.
	Chairman Hammond ("Presiding Commissioner") heard this appeal and, in accordance G.L. c. 58A, § 1A and 831 CMR 1.20, issued a single-member Revised Decision for the appellee simultaneously with the issuance of these findings of fact and report.  
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.  
	William J. Pudlo, Esq. for the appellant.
	Nicholas Anzuoni, assessor, for the appellee.  
FINDINGS OF FACT AND REPORT
	On January 1, 2006, Paul A. Giard ("appellant"), doing business as Twin Brook Farm, was in possession of certain personal property located at 146 Jacksonville Road, in the Town of Colrain.  The assessors valued the property at $42,600 and assessed to the appellant a tax thereon, at a rate of $14.25 per $1,000, in the amount of $607.05.  
The appellant filed an abatement application with the assessors on June 6, 2007, which the assessors denied on August 28, 2007.  The assessors notified the appellant of their denial of his abatement application on September 24, 2007, exceeding the ten-day notification period prescribed by G.L. c. 59, § 63.  The Presiding Commissioner therefore found and ruled that the assessors' statutorily-mandated notice was defective.  Accordingly, the Presiding Commissioner applied the "deemed to be denied" time frame for appeal from G.L. c. 59, §§ 64 and 65 and further found and ruled that on December 10, 2007, the appellant seasonably filed his appeal with the Appellate Tax Board ("Board").  See Stagg Chevrolet, Inc. v. Board of Water Comm'rs, 68 Mass. App. Ct. 120, 126 (2007) (holding that where, as here, a defective notice under G.L. c. 59, § 63 has been given, "the 'deemed to be denied' time frame provides a reasonable time period with dates certain easily ascertained by both parties.").  The appellant's petition included a statement that the personal property assessment for fiscal year 2007 had been paid on June 7, 2007 without the incurrence of interest.   
	On May 8, 2008, a hearing was held by the Presiding Commissioner to decide the merits of the appellant's case.  The assessors did not introduce any evidence of payment and did not raise any jurisdictional issues.   In the course of his testimony at the hearing, however, the appellant admitted that he did not, in fact, make any payment of the personal property tax for the fiscal year at issue.  At a subsequent telephonic hearing conducted on the Board's own motion on July 29, 2008, Alice Wozniak, an employee of the Colrain Assessors' Office, confirmed that the appellant's fiscal year 2007 personal property taxes remained unpaid to date.  Computerized records generated by the Town of Colrain, which were submitted to the Board, confirmed the appellant's nonpayment of these taxes.  Upon further review of the facts, the Presiding Commissioner revised his    June 13, 2008 decision, sua sponte, and issued a revised decision in favor of the appellee, on the ground that the Board lacked jurisdiction to hear this appeal.    


OPINION
"Adherence to the statutory prerequisites is essential to an effective application for abatement of taxes." Stilson v. Assessors of Gloucester, 385 Mass. 724,       732 (Mass. 1982). "Since the remedy of abatement is created by statute, the [B]oard lacks jurisdiction over the subject matter of proceedings that are commenced at a later time or prosecuted in a different manner from that prescribed by statute."  Nature Church v. Assessors of Belchertown, 384 Mass. 811, 812 (1981) (citing Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 495 (1936)); see also John J. Giurleo v. Assessors of Raynham, Mass. ATB Findings of Fact and Reports 2007-615, 619.
	In order to appeal from the assessors' denial of his application to abate his personal property tax assessment, the appellant was required to pay "at least one-half" of the disputed tax.  G.L. c. 59, §§ 64 and 65.  In the present appeal, the appellant testified that his fiscal year 2007 personal property tax assessment remained unpaid at all times relevant to this appeal.  Records maintained by the Town of Colrain in the ordinary course of business corroborated this testimony.  The Board thus lacked jurisdiction over his appeal.  Marr Scaffolding v. Commissioner of Revenue, 414 Mass. 489, 493 (1993)("[T]he board may grant abatements only if it is authorized to do so by statute.").  The assessors' failure to raise this impediment to the Board's jurisdiction does not preclude the Board from raising the issue on its own motion.  "Adjudicatory bodies have both the power and the obligation to resolve problems of subject matter jurisdiction whenever they become apparent." Sevenars Concert Trust, et al v. Assessors of Worthington, Mass ATB Findings of Fact and Report, 2008-534, 538-39 (citing Nature Church, 384 Mass. at 812).
	Because the appellant did not comply with the statutory requisites to establish the Board's jurisdiction over his appeal, the Board, on its own motion, issued a revised decision for the appellee.
	 
APPELLATE TAX BOARD

               
				    By:________________________________
					  Thomas W. Hammond, Jr., Chairman



A true copy:



Attest: undefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefined_____________________
	    Clerk of the Board

ATB 2009 -127