Digna Scott v. Board of Assessors of the Town of Swampscott (April 23, 2009)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

DIGNA SCOTT				v.	BOARD OF ASSESSORS OF
							THE TOWN OF SWAMPSCOTT

Docket No. F297134				Promulgated:
						April 23, 2009


This is an appeal originally filed under the informal procedure pursuant to G.L. c. 58A, § 7A 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 Swampscott, owned by and assessed to the appellant under G.L. c. 59,  §§ 11 and 38, for fiscal year 2008.  
Commissioner Mulhern ("Presiding Commissioner") heard the appeal and, in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20, issued a single-member decision for the appellee. 
	These findings of fact and report are made pursuant to requests by both the appellant and the appellee under   G.L. c. 58A, § 13 and 831 CMR 1.32.

Digna Scott, pro se, for the appellant.
Donna Champagne O'Keefe, Assessor, for the appellee.

FINDINGS OF FACT AND REPORT
	On October 29, 2007, Digna Scott ("appellant") purchased the property located at 22 The Greenway in the Town of Swampscott ("subject property").  For fiscal year 2008, the Swampscott Board of Assessors ("assessors") valued the subject property at $412,000 and assessed a tax at the rate of $13.63 per thousand in the total amount of $5,615.56.  In accordance with G.L. c. 59, § 57C, the appellant paid the tax due without incurring interest.  On January 10, 2008, in accordance with G.L. c. 59, § 59, the appellant timely filed an Application for Abatement with the assessors.  The assessors denied the abatement application on February 22, 2008.  Subsequently, on May 7, 2008, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
The subject property is a 5,475 square-foot parcel of real estate improved with a Colonial-style dwelling which contains a finished living area of 1,836 square feet.  The dwelling has a total of eight rooms, including four bedrooms and also two full bathrooms and one half-bathroom.  The kitchen has granite countertops and stainless steel appliances and is in good condition.  There is tile in the kitchen and bathrooms, hardwood flooring in the living and dining rooms, and carpet in the second-story bedrooms.  The exterior of the home has vinyl siding and an asphalt roof.  
To support her claim that the subject property was overvalued for fiscal year 2008, the appellant offered into evidence a copy of the deed to the subject property dated October 29, 2007, which recited a consideration paid by the appellant of $392,500.  In conjunction with the deed, the appellant also offered an appraisal report prepared for the appellant's mortgagee in conjunction with the purchase, which estimated the market value of the subject property at $393,000 as of October 1, 2007.  
The appellant also offered into evidence the property listing sheets for six properties in Swampscott that sold during calendar year 2006 with sale prices that ranged from $348,000 to $535,000.  The appellant offered no descriptive detail on the comparison properties.  Furthermore, she failed to make adjustments for differences such as time of sale, finished living area, garage, fireplaces, age of property, overall condition and location. 
In support of their assessment, the assessors offered into evidence a sworn affidavit of Joan Dandreo, Trustee of Grasshopper Heights Realty Trust, the previous owner of the subject property.  Ms. Dandreo indicated that the subject property was first listed for sale on July 3, 2007.  Subsequently, Ms. Dandreo, as Trustee, and a third party entered into a purchase and sale agreement for the subject property with a purchase price of $420,000.  The closing never took place and, on August 18, 2007, the subject property was placed back on the market.  Under the terms of the purchase and sale agreement, the seller received and kept a deposit in the amount of $18,000.  Because she retained the deposit, the seller indicated in her affidavit that she was willing "to accept a lower purchase price from [the appellant]."   
The assessors also presented a sales-comparison analysis of two sales which the appellant relied on,      97 Foster Road and 64 Magnolia Road.  These properties sold on August 22, 2006 for $509,000 and June 26, 2007 for $426,300, respectively.  The assessors made an upward timing adjustment to 64 Magnolia Road to reflect the less desirable market conditions at the time of sale versus the assessment date.  The assessors also adjusted both sales for the age of the properties, the lot size, the finished living area, number of bathrooms, garage, wood deck, front porch, and the overall condition.  After adjustments, the assessors arrived at adjusted sale prices of $454,405 for 97 Foster Road and $433,823 for 64 Magnolia Road.   
On the basis of the evidence presented, the Presiding Commissioner found that the price recited on the deed was not reflective of the subject property's fair market value as of the January 1, 2007 assessment date.  The Presiding Commissioner found, based on the assessors' testimony and evidence, that property values were decreasing during the period from January 1, 2007 through October 2007.  Accordingly, the subject property's sale price on October 29, 2007 required an upward adjustment to arrive at a value as of January 1, 2007.  Moreover, the Presiding Commissioner found that the seller was willing to accept a lower price for the subject property, having retained an $18,000 deposit when a prospective purchaser failed to go forward with the purchase of the subject property.  Further, the Presiding Commissioner found that the appellant's evidence lacked sufficient detail to establish that her purported comparable properties were actually comparable and that the appellant failed to make any adjustments to the purported comparable properties for differences that did exist.  
In contrast, in their sales-comparison analysis, the assessors made adjustments for time, the difference in lot size, effective living area, the number of bathrooms, the existence of a garage, deck or patio, and overall condition.  The Presiding Commissioner therefore found that the comparable-sales analysis provided by the assessors supported the subject property's fiscal year 2008 assessment.	
Accordingly, the Presiding Commissioner found and ruled that the appellant failed to meet her burden of proving that the subject property was overvalued for fiscal year 2008. 
OPINION
Assessors are required to assess real estate at its fair cash value determined as of the first day of January of each year. G.L. c. 59, §§ 2A and 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).  Accordingly, fair cash value means fair market value.  Id. 
The appellant has the burden of proving that the subject 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)). The assessment is presumed valid until the taxpayer sustains its burden of proving otherwise.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245).
In appeals before this Board, a taxpayer "may present persuasive evidence of overvaluation either by exposing flaws or errors in the assessors' method of valuation, or by introducing affirmative evidence of value which undermines the assessors' valuation."  General Electric Co.  393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  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).  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). 
Actual sales of the subject "are very strong evidence of fair market value, for they represent what a buyer has been willing to pay to a seller for [the] particular property [under appeal]."  New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 469 (1981) (quoting First Nat'l Stores, Inc. v. Assessors of Somerville,     358 Mass. 554, 560 (1971)).  However, the consideration stated on the deed may not always be the best evidence of a property's fair cash value at any given instance. See Halstead v. Assessors of Wales, Mass. ATB Findings of Fact and Report 1988-680, 686 (citing Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682-683 (1982).  
In the instant appeal, the appellant argued that the sale on October 29, 2007 for $392,500 represented the subject property's fair market value for fiscal year 2008.  However, the assessors produced credible persuasive evidence that property values were decreasing in the relevant market during the period January 1, 2007 thru October 2007 and the Presiding Commissioner so found.  Therefore, the appellant's purchase price on October 29, 2007 required an upward timing adjustment to reflect the subject property's fair cash value as of January 1, 2007.  Moreover, the assessors offered evidence to show that the seller was willing to accept a lower price for the subject property, having retained an $18,000 deposit when a prospective purchaser failed to go forward with the purchase of the subject property.  Accordingly, the Presiding Commissioner found that the $392,500 recited on the deed did not represent the subject property's fair cash value as of the relevant assessment date.
The appellant also offered into evidence sales of purportedly comparable properties but made no adjustments to account for differences including, but not limited to, time of sale, age of property, lot size, finished living area, existence of garage, deck or patio, and overall condition.  The Presiding Commissioner found that, without the appropriate adjustments, the appellant's reliance on her comparables was not warranted and did not provide a reliable indicator of the subject property's fair market value.  

Accordingly, on the basis of the evidence presented, the Presiding Commissioner found and ruled that the appellant failed to meet her burden of proving that the subject property was overvalued and issued a decision for the appellee. 

THE APPELLATE TAX BOARD



				
                  By: ___________________________________
				  Thomas J. Mulhern, Commissioner




A true copy,

Attest:  __________________________________
	    Clerk of the Board

Within thirty days of service of the Petition Under Informal Procedure, the assessors elected to transfer the proceedings to the formal docket.  See G.L. c. 58A, § 7A.

	ATB 2009-532