Nancy J. Gonthier and R. Claude Gonthier v. Board of Assessors of the Town of Amesbury(August 18, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



NANCY J. GONTHIER and	  v.	        BOARD OF ASSESSORS OF 
R. CLAUDE GONTHIER				   THE TOWN OF AMESBURY

Docket No. F287521				   Promulgated:
                                      August 18, 2008

This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 61A, § 19 from the refusal of the appellee to abate roll-back taxes assessed to Nancy J. Gonthier and R. Claude Gonthier ("appellants") for fiscal years 2001 through 2004, inclusive. 
Commissioner Rose heard the appeal.  Chairman Hammond and Commissioners Scharaffa, Egan, and Mulhern joined him in the decision for the appellee.
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.

Nancy J. Gonthier and R. Claude Gonthier, pro se, for the appellants.

	Mary Marino, assessor, for the appellee.




FINDINGS OF FACT AND REPORT
	Based on testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
At all material times, the appellants were the assessed owners of 5.70 acres of land located at 112 Kimball Road in Amesbury (the "subject property").  The subject property was primarily used to cultivate Christmas trees for seasonal sale, with the exception of a small portion used for the appellants' residential purposes.  Up to and including fiscal year 2004, the non-residential portion of the subject property was valued, assessed, and taxed under G.L. c. 61A as land devoted to "agricultural, horticultural or agricultural and horticultural use."  
On September 30, 2004, pursuant to G.L. c. 61A, § 6, the appellants filed their fiscal year 2006 annual Application for Forest-Agricultural or Horticultural-Recreational Land Classification ("Chapter 61A application").  During an inspection of the subject property, the Board of Assessors of Amesbury ("assessors") determined that the appellants were not actively cultivating the requisite five acres of land necessary to obtain G.L. c. 61A classification and, therefore, on November 4, 2004, the assessors denied the appellants' Chapter 61A application.  Subsequently, for fiscal year 2005, the subject property was valued, assessed, and taxed as residential land.  
On February 9, 2006, the assessors assessed the appellants a "roll-back tax" of $ 9,383.77.  The roll-back tax was calculated by valuing the subject property at its highest and best use as residential property for each of the fiscal years 2001-2004, subtracting from each the values actually attributed to the subject property for the fiscal years, multiplying the differences by the tax rate in effect during each fiscal year to produce a yearly additional assessment figure, and finally, by totaling all of the additional assessments.  The appellants timely paid the tax due on March 23, 2006.  
On April 3, 2006, the appellants timely filed with the assessors an Application for Abatement of the roll-back tax.  The assessors denied the application on June 8, 2006.  The appellants were not notified of the assessors' action until September 14, 2006, more than three months after the assessors' denial.  On October 11, 2006, the appellants filed a Petition under Formal Procedure with the Board.  A hearing was held on March 20, 2007.  On May 14, 2007, the Board dismissed the appeal for lack of jurisdiction and issued a decision for the appellee.
OPINION
Pursuant to G.L. c. 61A, § 13, "[w]henever land which is valued, assessed and taxed under this chapter no longer meets the definition of land actively devoted to agricultural, horticultural or agricultural and horticultural use, it shall be subject to additional taxes, in this section called roll-back taxes . . . ."  Further, 
any person aggrieved by any determination or assessment by the board of assessors under this chapter may within sixty days of the date of notice thereof apply in writing to the assessors for modification or abatement thereof. Any person aggrieved by the refusal of the assessors to modify such a determination or make such an abatement or by their failure to act upon such an application may appeal to the appellate tax board within thirty days after the date of notice of their decision or within three months of the date of the application, whichever date is later.

G.L. c. 61A, § 19 (emphasis added).
The appellants purchased the subject property in 1987 for the cultivation of Christmas trees for sale and also for use as their primary residence.  Through fiscal year 2004, the non-residential portion of the subject property qualified as and was assessed, valued and taxed as, land devoted to "agricultural, horticultural or agricultural and horticultural use."  See G.L. c. 61A.  Subsequent to the appellants' filing of their fiscal year 2006 application for agricultural classification, the assessors determined that the subject property did not satisfy the statutory requirements and, accordingly, denied the appellants' application.
On February 9, 2006, the appellants were assessed a roll-back tax and, on April 3, 2006, the appellants timely filed an Application for Abatement.  The assessors denied the appellants' abatement application on June 8, 2006; however, the appellants did not receive notice until September 14, 2006.  Subsequently, the appellants filed their appeal with the Board on October 11, 2006.  The Board found and ruled that the appellants' appeal, filed more than three months after the date of their abatement application, was not timely. 
In W. D. Cowls, Inc. v. Assessors of Shutesbury, 34 Mass. App. Ct. 944, 945 (1993), the Appeals Court, in upholding the Board's decision, reached the same result when analyzing an identical provision in G.L. c. 61, § 3, regarding time limits for an appeal to the Board relating to forest land.  The Court noted that the statute imposes two deadlines.  
First, if the assessors notify the taxpayer that they refuse to grant an abatement, the taxpayer must act within thirty days of that notice . . . .  Second, if the assessors do nothing they are assumed to have refused a tax abatement and the taxpayer must file with the [] Board within three calendar months of the application for abatement. 

Id. at 945.  Therefore, the Court ruled, appeals to the Board must be "filed within three months of an application for abatement."  Id. 
The taxpayer, however, argued that until the assessors acted he could not have known that he was aggrieved.  The Court ruled that this argument "fails to take into account that the taxpayer may be deemed aggrieved - indeed, may be aggrieved - by the failure of the assessors to act." Id.  Ultimately, if a challenge is to be made at the Board, "that challenge must be brought within three months of the application for abatement."  Id. at 946.
Although W.D. Cowls analyzed G.L. c. 61, § 3 regarding time limits for an appeal to the Board relating to forest land, the Court stated that the same time limits control in cases arising under G.L. c. 61A, § 19 and "in the absence of action by the assessors on an application for an abatement, an appeal to the Appellate Tax Board must be filed within three months of the date of application for abatement."  Id. at 946-47.  
In Hill v. Assessors of Sudbury, Mass. ATB Findings of Fact and Reports, 1994-294, the taxpayers applied for an abatement of a roll-back tax on January 15, 1993.  The assessors did not deny the request until June 18, 1993, more than 3 months from the date they filed their application for abatement, and the taxpayers did not file their petition with the Board until July 22, 1993.  The Board found that "appellants' petition, which was filed within thirty days of the assessors' decision, was still late because it was not filed within three months of the application for abatement."  Id. at 1994-298.  Accordingly, "appellants' petition to the board, here, was not timely filed, and must be dismissed."  Id.
The Board recognizes the harshness of the results in these cases and the present appeal.  The appellants here had no notice of the assessors' decision on their abatement application until after the three-month appeal period had expired.  Like the taxpayer in Hill, the appellants filed their appeal with the Board "within thirty days after the date of notice" of the assessors' decision as required by  § 19.  However, the precedents established in W.D. Cowles and Hill require that the Board rule in the present appeal that any appeal of the assessors' denial of the appellants abatement application had to have been filed within three months of their April 3, 2006 application.  
On the basis of the evidence presented, the Board found and ruled that the appellants' appeal, filed more than three months from the date of the abatement application, was not timely and, therefore, must be dismissed.  Accordingly, the Board dismissed the appeal for lack of jurisdiction and issued a decision for the appellee. 

   					   THE APPELLATE TAX BOARD


By: ___________________________________
 Thomas W. Hammond, Jr. Chairman



A true copy,

Attest: ________________________________
        Clerk of the Board
 

ATB 2008-1096