F306879 | Omnilex

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COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



WILLIAM  F. CARNEY		 v.	       BOARD OF ASSESSORS OF
					            THE TOWN OF ASHLAND

Docket No. F306879				  Promulgated:
							       June 10, 2011


	This is 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 Board of Assessors of the Town of Ashland ("assessors") to abate a tax on certain real estate in Ashland assessed to William F. Carney ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2010. 
	Commissioner Rose ("Presiding Commissioner") heard this appeal 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 F. Carney, pro se, for the appellant.
	Jason Talerman, Esq., for the assessors.


FINDINGS OF FACT AND REPORT
	On the basis of exhibits and testimony offered at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
On January 1, 2009, the appellant was the assessed owner of an improved parcel of real estate located at 224 Pond Street in Ashland ("subject property"). For fiscal year 2010, the assessors valued the subject property at $224,600 and assessed a tax thereon, at a rate of $15.10 per $1,000, in the amount of $3,391.46. In accordance with G.L. c. 59, § 57C, the appellant paid the tax due without incurring interest, and in accordance with G.L. c. 59, § 59, the appellant timely filed an Application for Abatement with the assessors on January 27, 2010. The assessors denied the appellant's abatement application on March 8, 2010, and on June 1, 2010, 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 the appeal. 
The subject property consists of a 0.31-acre parcel of real estate improved with a single-story home containing 864 square feet of finished living area. The dwelling has five rooms including two bedrooms, a kitchen and a full bathroom. 
	The appellant argued that the assessed value of the subject property exceeded its fair cash value by almost $100,000 for fiscal year 2010. The appellant based his claimed valuation of $115,000 entirely upon the sale of the property at 226 Pond Street, which abuts the subject property. According to a Multiple Listing Service ("MLS") report printed on May 11, 2010, the only evidence presented by the appellant relating to 226 Pond Street, the property sold on March 21, 2009, for $172,900. 
	The appellant asserted that the 226 Pond Street property "contains more than double the amount of living area as does my house, along with a separate building that is almost equal to the size of my house. Clearly this abutting property is worth twice as much as mine." These claims, together with the MLS report, comprised the whole of the appellant's case.
	As a threshold matter, the Presiding Commissioner found that the appellant's assertion regarding the relative size of the dwellings on the subject property and at 226 Pond Street was inaccurate. According to the MLS report, the dwelling at 226 Pond Street contains 1232 square feet of living area, approximately forty-three percent more finished living area than the subject property's dwelling. Further, the only "separate building" referenced on the MLS report is a garage, the size of which is not indicated. The parcel at 226 Pond Street is 0.28 acres, slightly smaller than the subject property's lot.
	The appellant also failed in any way to address that 226 Pond Street had been foreclosed upon long before its sale. Consistent with this fact, the "Disclosures" section of the MLS report states that the property was "CORPORATE OWNED/SOLD AS IS./NO CHANGES TO CONTRACTS . . ." (emphasis in original). While offering certain basic data relating to the property, the MLS report provided scant information regarding the condition of the property's dwelling or the physical characteristics of the parcel upon which it was situated. Absent such detail regarding the dwelling and parcel at 226 Pond Street, the Presiding Commissioner could not determine if the property was comparable to the subject property.
	Irrespective of the factually inaccurate comparison drawn by the appellant between the dwellings at the subject property and 226 Pond Street, the Presiding Commissioner found that the appellant failed to demonstrate that the subject property's assessed value exceeded its fair cash value for fiscal year 2010. More specifically, the appellant presented only one purportedly comparable sale of property for consideration, and that property had been subject to foreclosure, thereby calling into question whether the sale was made under compulsion, an issue the appellant did not address. Further, the appellant failed to provide sufficient detail regarding 226 Pond Street to demonstrate that the property was comparable to the subject property, thereby rendering any comparison of negligible probative value.    
	Accordingly, the Presiding Commissioner decided this appeal for the assessors. 
  
OPINION
The assessors are required to assess real estate at its fair cash value.  G.L. c. 59, § 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 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 board is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayer . . . prov[es	] the contrary.'" General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245).
	In the present appeal, the appellant sought to sustain his burden through presentation of a single purportedly comparable sale of property. The Presiding Commissioner, however, found the appellant's evidence lacking in several important respects. 
The fair cash value of property may be determined by recent sales of comparable properties in the market, as actual sales generally "furnish strong evidence of market value, provided they are arm's-length transactions and thus fairly represent what a buyer has been willing to pay for the property to a willing seller."  Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 469 (1981); First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 560 (1971). The burden of proof that the price was fixed fairly rests with the proponent of the sale. See, Epstein v. Boston Housing Authority, 317 Mass. 297, 300-01 (1944). Further, evidence of sales may be considered "only if they are free and not under compulsion."  Congregation of the Mission of St. Vincent dePaul v. Commonwealth, 336 Mass. 357, 360 (1957).  "A foreclosure sale inherently suggests a compulsion to sell; a proponent of evidence of such sale must show circumstances rebutting the suggestion of compulsion." DSM Realty, Inc. v. Assessors of Andover, 391 Mass. 1014 (1984)(rescript opinion).  Similarly, a sale by a bank which acquired property by foreclosure or a deed in lieu of foreclosure also carries indicia of compulsion. G.F. Springfield Management v. Assessors of West Springfield, Mass. ATB Findings of Facts and Reports 2000-228, 242, 251 (additional citations omitted). The property at 226 Pond Street had been foreclosed upon, and consistent with the cited authority, its sale "carri[ed] indicia of compulsion." Id. The appellant, however, presented virtually no evidence to "rebut[] the suggestion of compulsion." DSM Realty, Inc., 391 Mass. at 1014. Consequently, the Presiding Commissioner found that the appellant failed to demonstrate that the sale of the property at 226 Pond Street was arm's-length and under no compulsion. In turn, the Presiding Commissioner found that the sale was of little probative value. 
The Presiding Commissioner also found that even if the sale of 226 Pond Street had qualified as an arm's-length transaction free of compulsion, the sale of a single purportedly comparable property is generally not sufficient to establish the fair cash value of property.  "The sales comparison approach is applicable . . . when there are sufficient recent, reliable transactions to indicate value patterns or trends in the market." appraisal institute, the appraisal of real estate 300 (13th ed. 2008).  Moreover, the appellant did not offer evidence regarding the condition of the dwelling or the physical characteristics of the parcel at 226 Pond Street. The Presiding Commissioner therefore found that the appellant failed to demonstrate that the property at 226 Pond Street was comparable to the subject property, and that absent such showing, the 226 Pond Street sale was not a reliable indicator of the fair cash value of the subject property.

On this basis, the Presiding Commissioner found and ruled that the appellant did not provide sufficient evidence to support his claim that the subject property was 
overvalued for fiscal year 2010 and decided this appeal for the assessors.

						APPELLATE TAX BOARD

					By: ____________________________
					    James D. Rose, Commissioner





A true copy,

Attest:	____________________________
			Clerk of the Board

8


ATB 2011-559

William F. Carney v. Board of Assessors of the Town of Ashland (June 10, 2011)

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