Harry D. Ainsworth, Trustee, Ainsworth Family Trust v. Board of Assessors of the Town of Mattapoisett (June 1, 2012)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


HARRY D. AINSWORTH, TRUSTEE	   v.	BOARD OF ASSESSORS OF 
AINSWORTH FAMILY TRUST				THE TOWN OF MATTAPOISETT

Docket No. F304491				   	Promulgated:
		  						June 1, 2012


	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 Mattapoisett ("assessors" or "appellee") to abate taxes on certain real owned by and assessed to Harry D. Ainsworth, Trustee of the Ainsworth Family Trust ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2009 ("fiscal year at issue").
	Commissioner Mulhern heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Egan and Rose joined him in the decision for the appellant. 
	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.

	Keith R. Ainsworth, Esq., for the appellant.
	Donald Fleming and Robert Cole, assessors, for the appellee.


FINDINGS OF FACT AND REPORT
	Based on the testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
	On January 1, 2008, the appellant was the assessed owner of an improved 13,818 square-foot waterfront parcel of real estate located at 7 Point Road in Mattapoisett ("subject property").  The subject property has approximately 94 feet of water frontage, overlooks Buzzards Bay, and is located on Peases Point, which is identified by the assessors as within "neighborhood 9."  The subject parcel is improved with a single-story, seasonal cottage that contains 1,008 square feet of living space.  The cottage has three bedrooms as well as one full bathroom and one half bathroom.  The dwelling rests partially on piers to avoid flood damage, and there is an unfinished, raised basement.
	For the fiscal year at issue, the assessors valued the subject property at $1,078,700 and assessed a tax thereon, at the rate of $9.48 per thousand, in the amount of $10,318.86. Of the subject property's total assessed value, $984,800 was allocated to the land and $93,900 to the dwelling.  

On December 31, 2008, Mattapoisett's Collector of Taxes sent out the town's actual real estate tax bills for fiscal year 2009.  In accordance with G.L. c. 59, § 57C, the appellant paid the tax without incurring interest.  On January 26, 2009, in accordance with G.L. c. 59, § 59, the appellant timely filed an abatement application with the assessors, which was deemed denied on April 26, 2009.  The appellant seasonably filed an appeal with the Board, which the Board received on July 28, 2009, in an envelope postmarked July 27, 2009.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.
	At the hearing of the appeal, the appellant argued that the subject property was overvalued, primarily because the assessors had placed too high a value on the land component of the assessment.  In support of his argument, the appellant offered into evidence data relating to sales and the assessed values of several properties located in neighborhood 9, the same neighborhood as the subject property. The sales cited by the appellant occurred during 2007 and 2008 and the properties varied in parcel size, improvements and sale price. 
	The assessors presented their case-in-chief through the testimony of the assessor Robert Cole and the introduction of several exhibits, including the requisite jurisdictional documentation and the property record cards for three sales that occurred between April of 2007 and September of 2008. Among these was the property located at 23 Bay Road, which was also cited as a comparable sale by the appellant. This property, which consists of a 15,000 square-foot parcel improved with a 1,695 square-foot dwelling, features 75 feet of water frontage.  The property sold on September 4, 2008 for $815,000, and is located in neighborhood 9.  
Based on the evidence presented, the Board found and ruled that the appellant met his burden of proving that the subject property was overvalued for the fiscal year at issue. In reaching this decision, the Board considered the sales and assessment data presented by the parties, and ultimately afforded the greatest weight to the sale of the property at 23 Bay Road. The Board found that this property, which is similar to the subject property in several respects, including parcel size and location, is comparable to the subject property. While the property at 23 Bay Road is improved with a more substantial dwelling than the dwelling on the subject property, the subject parcel has approximately twenty-five percent more water frontage than the property at 23 Bay Road. Further, a paved street separates 23 Bay Road from the water, whereas the subject property's parcel extends directly to the ocean. The Board made adjustments to the 2008 sale price of 23 Bay Road to account for the differences between the subject property and the property at 23 Bay Road, including those relating to the properties' dwellings, water frontage and water access. Having made these adjustments, and with consideration given to the balance of the evidence, the Board derived a fair cash value of $922,900 for the subject property for the fiscal year at issue. Accordingly, the Board issued a decision for the appellant and granted an abatement of $1,491.76, including the CPA surcharge.

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 [appellant] to make out its right as a matter of law to 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[]  . . . prove[s] 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)).  In the present appeal, the Board found that the appellant introduced affirmative evidence of the subject property's value, primarily through the submission of comparable sales data. Id.
"[A]ctual sales of property generally furnish strong evidence of market value, provided they are arm's-length transactions." Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982).  "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."  Giard v. Assessors of Colrain, Mass.
 ATB Findings of Fact and Reports 2009-115, 123 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)). Properties are "comparable" to the subject property when they share "fundamental similarities" with the subject property, including similar age, location, size and date of sale.  Lattuca v. Robsham, 442 Mass. 205, 216 (2004). When offering sales, the taxpayer "bears the burden of 'establishing the comparability of . . . properties [used for comparison] to the subject property.'" Wood v. Assessors of Fall River, Mass. ATB Findings of Fact and Reports 2008-213, 225 (quoting Fleet Bank of Mass. v. Assessors of Manchester, Mass. ATB Findings of Fact and Reports 1998-546,554).
When comparable sales are used, allowances must be made for various factors which would otherwise cause disparities in the comparable properties' sale prices. See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082.  "Adjustments for differences in the elements of comparison are made to the price of each comparable property . . . . The magnitude of the adjustment made for each element of comparison depends on how much that characteristic of the comparable property differs from the subject property."  Appraisal Institute, the Appraisal of Real Estate 322 (13th ed., 2008).
 Having reviewed all the evidence presented by the parties, the Board ultimately relied most on the September 2008 sale of the comparable property at 23 Bay Road, which was cited both by the appellant and the assessors.  The Board made adjustments to the property's sale price to account for differences between the property and the subject property, including those relating to the properties' dwellings, water frontage and water access. Having made these adjustments, and with consideration given to the balance of the evidence, the Board derived an indicated value of $922,900 for the subject property. 
In reaching its opinion of fair cash value in this appeal, the Board was not required to believe the testimony of any particular witness or to adopt any particular method of valuation. Rather, the Board could accept those portions of the evidence that the Board determined had more convincing weight. Foxboro Associates, 385 Mass. at 683; New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 469 (1981).
	The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 106, 110 (1971).  The fair cash value of property cannot be proven with "mathematical certainty and must ultimately rest in the realm of opinion, estimate and judgment."  Assessors of Quincy v. Boston Consolidated Gas, 309 Mass. 60, 72 (1941).  "The credibility of witnesses, the weight of evidence, and inferences to be drawn from the evidence are matters for the [B]oard."  Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).  In evaluating the evidence before it, the Board selected among the various elements of value and formed its own independent judgment of fair cash value.  General Electric Co., 393 Mass. at 605; North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984). 
	On the basis of the evidence presented, the Board found that the appellant met his burden of proving that the subject property was overvalued for the fiscal year at issue and that the property's fair cash value was $922,900.  Accordingly, the Board issued a decision for the appellant and granted an abatement in the amount of $1,491.76.
  		
				    APPELLATE TAX BOARD
			 
    
By:			          	_______
				    Thomas W. Hammond, Jr., Chairman 

A true copy,

Attest:					
  Clerk of the Board

 This sum includes a Community Preservation Act ("CPA") surcharge of $92.78. 
 Where the last day of a filing period falls on a Saturday, Sunday or a legal holiday, the filing is still considered timely if it is made on the following business day. G.L. c. 4, § 9.  July 26, 2009 was a Sunday.  Therefore an appeal filed on Monday, July 27th would have been timely. Further, where the Board receives a petition after the three-month due date, the date of the postmark is deemed to be the date of filing.  G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 & 65.  As the envelope containing the appellant's petition was postmarked July 27, 2009, the appellant's appeal was deemed filed with the Board that same day and was timely.  
 While the appellant also couched his case in terms of "disproportion," in substance he argued only overvaluation. Moreover, the evidence presented did not approach the threshold necessary to establish that the assessors had perpetrated an "intentional scheme of disproportionate assessment."  Brown v. Assessors of Brookline, 43 Mass. App. Ct. 327, 332 (1997) (citing Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377 (1965)). 

ATB 2012-705