Edward S. Scullane & Veralene W. Scullane v. Board of Assessors of the Town of Wellesley (January 29, 2001)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




EDWARD S. SCULLANE &          v.	BOARD OF ASSESSORS OF
VERALENE W. SCULLANE	THE TOWN OF WELLESLEY

Docket No. F258251             	Promulgated:
	January 29, 2001


	This is an appeal under the formal procedure, pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate taxes on certain real estate in the Town of Wellesley owned by and assessed to the appellants under G.L. c. 59, § 38, for fiscal year 2000.
	Commissioner Gorton heard this appeal and on November 17, 2000, issued a single member decision for the appellee in accordance with G.L. c. 58A, § 1, and 831 CMR 1.20.
	These findings of fact and report are made pursuant to a request by the appellants under G.L. c. 58A, § 13, and 831 CMR 1.32.

	Edward S. Scullane, pro se, for the appellants.
	Donna McCabe, Chief Assessor, for the appellee.  

FINDINGS OF FACT AND REPORT
	On January 1, 1999, Edward S. and Veralene W. Scullane were the assessed owners of a parcel of real estate, improved with a home and a detached garage, located at 18 Park Avenue, in the Wellesley Hills section of the Town of Wellesley.  For fiscal year 2000, the Board of Assessors of Wellesley ("Assessors") valued the property at $430,000, and assessed a tax thereon, at the rate of $9.50 per thousand, in the amount of $4,085.00.
	The appellants timely filed an application for abatement on the February 1, 1999 deadline.  In their application, the appellants sought a $30,000 reduction in the subject property's valuation to $400,000.  The appellants also signed a sixty-day extension of time within which the Assessors could act on their application.
	On May 2, 2000, the Assessors denied the appellants' request for an abatement, and on July 31, 2000, the appellants seasonably appealed the denial to the Appellate Tax Board ("Board").  On this basis, the hearing officer found that the Board had jurisdiction to hear and decide this appeal.  
	The subject property consists of a 14,712 square-foot parcel of land, improved with a 1,812 square-foot, Colonial-style, single-family, two-story house and a two-car detached garage.  Both improvements were constructed around 1936.  The house contains a total of seven rooms, of which three are bedrooms located on the second floor.  The first floor contains the kitchen, living and dining rooms, and a family room.  There are also two full baths on the second floor, a half bath on the first floor, and two working fireplaces.  The heating system is a single-zone two-pipe steam by oil configuration with wrought iron radiators.  The twenty-four-foot by thirty-four-foot full basement is unfinished.  A thirty-six-square-foot enclosed porch is attached to the rear of the house along with a twelve-foot by twenty-foot stone patio.  The lot is level and appropriately landscaped.  The property is located in a single-family residentially zoned neighborhood, which experiences only light vehicular traffic.  
	Edward S. Scullane presented the appellants' case to the Board.  He raised essentially three arguments to prove that his property was over-assessed in fiscal year 2000 and should have been valued at only $375,000 to $385,000.  First, he attempted to show that the Assessors' mass appraisal techniques as depicted on the subject's property record  card  were flawed  because they tended to overvalue 

certain older components of properties like his, including his bathrooms, heating system, and electrical system.  Second, he introduced property record cards of other properties that he contended were comparable to his own in an attempt to show that the Assessors had overvalued his property.   The cards included these purportedly comparable properties' assessed values and recent sale prices.  Finally, he tried to prove that his property was disproportionately assessed during the relevant time period when compared to the assessed values and recent sale prices associated with better residential properties in Wellesley.  Mr. Scullane again relied on the introduction of property record cards that indicated assessed values between ten and twenty percent below those same properties' recent selling prices.
	Donna McCabe, the Chief Assessor for Wellesley, testified for the Assessors.  She related that fiscal year 2000 was a revaluation year for Wellesley, and the Department of Revenue did re-certify Wellesley based on a comparable sale and assessment analysis.  She also testified to and submitted a written sales and assessment analysis comparing the subject property to four other purportedly comparable properties.  The Board found that three of the sales were recent transfers of Colonial homes that were comparable to the subject in most respects and, in fact, did support the subject property's assessment.              
	On the basis of all of the evidence, the Board made the following additional findings of fact.  With respect to the appellants' first argument, the Board found that the record was wholly lacking in evidence to support the appellants' contention that the Assessors' mass appraisal technique overvalued the subject property.   Mr. Scullane did not show how or to what extent the Assessors' mass appraisal methodology was flawed.  Moreover, Mr. Scullane did not show how the value ascribed to his property by the Assessors was adversely affected by their utilization of the mass appraisal methodology.  The Board noted that even the appellants' own evidence regarding a sale in the subject property's neighborhood supported the assessment.  Moreover, the Chief Assessor testified that the age and condition of a property, as graded on its property record card, adequately accounts for the factors that concerned the appellants, such as limited remodeling, antiquated systems or simply less expensive finish work.  Accordingly, the Board found that the appellants failed to demonstrate how their property was overvalued in fiscal year 2000 using this argument.
	With respect to the appellants' second argument, which is essentially based on a comparable sales approach, the Board found that the purportedly comparable properties introduced by the appellants were anything but comparable to the subject, with one or two possible exceptions.  Otherwise, the appellants' comparable properties were far more expensive properties that, in addition, were considerably larger, differently designed and constructed, and located in dissimilar and better neighborhoods.  Furthermore, Mr. Scullane did not even attempt to adjust his allegedly comparable properties' relatively expensive sale prices for obvious differences with the subject to better compare their values to that of his property.  He never even compared or contrasted their square-foot values to that of the subject.  Accordingly, the Board found that the appellants failed to demonstrate that their property was overvalued using this technique.  
	Finally, with respect to the appellants' third argument that alleged disproportion, the Board found that the appellants did not prove that a pattern of disproportionate assessment existed in Wellesley or that there was any intentional or deliberate scheme by the Assessors to over-assess the appellants' property and other properties in Wellesley that may have been similar to theirs.  The appellants did not introduce any evidence that indicated a pattern of disproportionate assessment or any evidence that supported an intent on the part of the Assessors to assess in a discriminatory way.  The evidence that was introduced only showed, if anything, that some isolated properties throughout Wellesley, including their own, might have been under-assessed in fiscal year 2000.  Accordingly, the Board found that the appellants failed to demonstrate any pattern of disproportionate assessment in Wellesley during the fiscal year at issue and failed to show any intent on the part of the Assessors to discriminate against any class of property.
	On this basis, the Board found that the appellants failed to demonstrate that their property was over-valued in fiscal year 2000.  The Board further found that the Assessors showed that the assessment was reasonable under the circumstances.  Therefore, the Board decided this appeal for the appellee.  

OPINION
	The assessors have a statutory and constitutional obligation to assess all real property at its full and fair cash value.  Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth; art. 10 of the Declaration of Rights; G.L. c. 59, §§ 38, 52.  See Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975) (citations omitted).  Fair cash value means fair market value, which is defined as the price on which a willing seller and a willing buyer 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 burden of proof is upon the taxpayers to make out their right as a matter of law to an abatement of the tax.  Schlaiker v. Board of Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  Taxpayers must show that the assessed valuation of their property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).  The assessment is presumed valid until the taxpayers sustain their burden of proving otherwise.  Schlaiker, 365 Mass. at 245.  
	In appeals before this Board, taxpayers "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. v. Assessors of Lynn, 393 Mass. 591, 600 (1984), quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983).  "A taxpayer may show that its property is overvalued by demonstrating that the assessors relied on inaccurate information contained in their property record cards that improperly increased the value of the subject property."  Kelly v. Board of Assessors of Bedford, 1998 App. Tax Bd. Adv. Sh. 941, 946 (Docket No. F233661, September 25, 1998); see also Olivieri v. Board of Assessors of Egremont, 1998 App. Tax Bd. Adv. Sh. 950, 955 (Docket No. F232204, September 25, 1998); Mason v. Board of Assessors of Lakeville, 1998 App. Tax Bd. Adv. Sh. 558, 566 (Docket No. F241891, May 22, 1998).  
In the present appeal, the appellants attempted to prove that the property's bathrooms, heating system, and electrical systems were overvalued, thereby overvaluing the property as a whole.  They contended that the Assessors had overvalued the subject property by attributing too much value to these components using mass appraisal techniques as depicted in the pertinent property record card.  The Board found, however, that the appellants did not show how, or to what extent, the mass appraisal techniques over-valued the property.  Furthermore, the Assessors demonstrated that the condition and age of these components were considered in their assessment of the subject.  Accordingly, the Board ruled that the appellants failed to meet their burden in proving that the assessors had erred in this way in valuing the subject property.
	 "If the taxpayer can demonstrate in an appeal to the Board that he has been the victim of a scheme of discriminatory, disproportionate assessment, he 'may be granted an abatement . . . which will make . . . [his] assessment proportional to other assessments, on a basis which reaches results as close as is practicable to those which would have followed application by the assessors of the proper statutory assessment principles.'"  Coomey v. Assessors of Sandwich, 367 Mass. at 836, quoting Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377-78 (1971).  The burden of proof as to the existence of a "scheme of discriminatory, disproportionate assessment" is on the taxpayer.  First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 559 (1971); see Schlaiker v. Assessors of Great Barrington, 365 Mass. at 245.  If a taxpayer successfully demonstrates improper assessment of such a number of properties to establish an inference that such a scheme exists, the burden of going forward to disprove such a scheme shifts to the assessors.  Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. at 377.  "The ultimate burden of persuasion, of course, will remain upon the taxpayer."  First National Stores, Inc. v. Assessors of Somerville, 358 Mass. at 562.
In the present appeal, the appellants failed to meet their burden of proving and persuading the Board that a deliberate scheme of disproportionate assessment ever existed.  The evidence submitted was simply inadequate to prove that the assessors engaged in an "intentional widespread scheme of discrimination."  Stilson v. Assessors of Gloucester, 385 Mass. 724. 727-28 (1982).  In the present appeal, the appellants only analyzed a minimal number of properties, sales, and assessments for fiscal year 2000.  The finding of a widespread scheme would require far more data and analysis between classes of property or groups of taxpayers than that supplied by the appellants.  The Board found no evidence or inference of an intentional or deliberate scheme of disproportionate assessment on the part of the Assessors.  Accordingly, the Board ruled that the appellants had failed to meet their burden in showing that a deliberate scheme of disproportionate assessment existed in these appeals.  Where assessments, even if wrong, are "consistent with honest mistake or oversight on the part of assessors" as opposed to a "deliberate scheme of disproportionate assessment" no relief for disproportionate assessment is appropriate.  Brown v. Assessors of Brookline, 18 App. Tax Bd. Rep. 83, 92 (Docket Nos. 145188, etc., February 9, 1996), affirmed 43 Mass. App. Ct. 327 (1997), quoting Stilson v. Assessors of Gloucester, 385 Mass. at 728.  In this appeal, the Board found and ruled that the assessment was reasonable under the circumstances and supported by the evidence.   
On this basis, the Board ruled that the appellants' property was not overvalued or disproportionately assessed.  Therefore, the Board decided this appeal for the Assessors.

						THE APPELLATE TAX BOARD



					 By: _____________________________
				          Donald E. Gorton, III, Member




A true copy:




Attest: ____________________
	    Clerk of the Board

	          

 As noted earlier, the appellants' application for abatement sought to lower the assessed value to $400,000.

ATB 2001 - 85