Sunset Realty Group of the Berkshires, Inc. v. Board of Assessors of the Town of Peru (April 1, 2015)

 COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


SUNSET REALTY GROUP 		  v.		BOARD OF ASSESSORS OF
OF THE BERKSHIRES, INC.				THE TOWN OF PERU


Docket Nos.: F315040, F318604			Promulgated:
								April 1, 2015
		
			
	These are appeals 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 Assessors of the Town of Peru ("assessors" or "appellee") to abate taxes on real estate located in the Town of Peru owned by and assessed to Sunset Realty Group of the Berkshires, Inc. ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal years 2012 and 2013 ("fiscal years at issue").
	Commissioner Chmielinski ("Presiding Commissioner") heard these appeals under G.L. c. 58A, § 1A 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.


	William A. Tatro, President, and Robin J. Wadsworth, Director, pro se, for the appellant.

	Karen Tonelli, assessor for the appellee.




FINDINGS OF FACT AND REPORT
	Based on the testimony and exhibits offered into evidence at the hearing of these appeals, the Presiding Commissioner made the following findings of fact.
	On January 1, 2011 and January 1, 2012, the appellant was the assessed owner of a 2.66-acre parcel of unimproved, waterview land ("subject parcel") located at the end of a cul-de-sac known as Lafayette Drive in the Town of Peru.  For assessment purposes, the subject parcel is identified on map 26, as lot 57.  For the fiscal years at issue, the assessors valued the subject parcel and assessed taxes as follows.
Docket Number	Fiscal 
Year	Assessed Value	Tax Rate per $1,000	Tax Assessed	
F315040	2012	$66,000	$15.40	$1,016.40	
F318604	2013	$62,000	$16.30	$1,010.60	

The other jurisdictional information, including relevant filing dates for the subject parcel for the fiscal years at issue are contained in the following table.
Docket Number	Fiscal 
Year	Abatement Application	Assessors' Denial	Petition to Board	
F315040	2012	10/31/2011	 11/21/2011	02/16/2012	
F318604	2013	11/01/2012	 11/05/2012	02/04/2013	

On the basis of these facts the Presiding Commissioner found and ruled that the Appellate Tax Board ("Board") had jurisdiction to hear and decide these appeals.
In support of its requests for abatement, the appellant offered the testimony of a member of its Board of Directors, Robin Wadsworth.  The appellant also introduced a written narrative, which included: a 2009 hand-written agreement between the assessors and the taxpayers ("2009 Agreement"); a listing of the subject parcel's assessments and abatements, where applicable, for fiscal years 2007 through 2011; and a listing of eighteen properties in Peru that sold during the period July 11, 2011 through October 18, 2013, and their respective assessment-to-sale ratios for fiscal years 2012, 2013 and 2014.  
Pursuant to the 2009 Agreement, the parties agreed that the subject parcel, and also five other properties located on Lafayette Drive and owned by the appellant, would be valued prospectively at the agreed upon amounts until one of the referenced properties sold, at which point the parties agreed to "meet and discuss assessments."  The appellant's primary argument in the present appeals was that none of the properties cited in the 2009 Agreement has sold and, therefore, the subject parcel's fiscal year 2012 and 2013 assessments, which were greater than the value stated in the 2009 Agreement, were excessive.  The appellant conceded that the mere listing of sales submitted into evidence, without more analysis, is not probative of the subject parcel's fair cash values for either fiscal year 2012 or 2013.  Further, Ms. Wadsworth testified that she did not have an opinion of the subject parcel's fair market value for the fiscal years at issue. 
 In support of their assessment, the assessors presented several exhibits, including the requisite jurisdictional documentation and also a sales-comparison analysis of three waterview vacant lots located in Peru and the neighboring town of Hindsdale, which sold during the period June 23, 2008 through October 18, 2010, as well as copies of the corresponding deeds.  These parcels ranged in size from 1.5 acres to 14.32 acres with sale prices that ranged from $70,000 to $80,000.  
On the basis of the evidence of record, the Presiding Commissioner found and ruled that the appellant failed to demonstrate that the assessed value of the subject parcel exceeded its fair cash value for the fiscal years at issue.  The Presiding Commissioner also found and ruled that the 2009 Agreement did not provide probative evidence of value for purposes of these appeals.  Finally, the Presiding Commissioner found that the appellant failed to offer any credible evidence of value.  
Accordingly, the Presiding Commissioner issued a single-member decision for the appellee in these appeals.
OPINION
The 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).  
	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)). "[T]he [B]oard is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayers . . . prov[e] the contrary.'" 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)).  Given the appellant's concession that its sales listing did not provide probative valuation evidence and its failure to offer an opinion of value, the appellant solely relied on the 2009 Agreement to support its case.  However, the 2009 Agreement did not provide probative, credible evidence of the subject property's fair cash value as of January 1, 2011 and January 1, 2012, the relevant dates of assessment.  The fair cash value standard for assessing real estate tax "cannot be varied by public officers or agreement of parties."  Town of Saugus v. Refuse Energy Systems Company, 388 Mass. 822, 826 (1983).  
Based on all of the evidence, the Presiding Commissioner found and ruled that the appellant failed to meet met its burden of proving that the subject parcel was overvalued for fiscal years 2012 and 2013.  Accordingly, the Presiding Commissioner issued a single-member decision for the appellee in these appeals.
				THE APPELLATE TAX BOARD


				By:	____________________________________
					Richard G. Chmielinski, Commissioner

A true copy,

Attest: ________________________________
         Clerk of the Board

 Pursuant to G.L. c. 58A, § 7A, the assessors elected to transfer these appeals to the formal procedure.

ATB 2015-158