Robert E. Fitzgibbon v. Board of Assessors of the Town of Leominster (October 16, 2008)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

ROBERT E. FITZGIBBON		v.	BOARD OF ASSESSORS OF
							THE TOWN OF LEOMINSTER

Docket No. F288212				Promulgated:
							October 16, 2008	


	This is an appeal under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate a tax on certain real estate in the Town of Leominster assessed to the appellant under G.L. c. 59, §§ 11 and 38 for fiscal year 2007.
	Commissioner Egan ("Presiding Commissioner") heard this appeal under G.L. c. 58A, § 1A 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.

	Robert E. Fitzgibbon, pro se, for the appellant.
	Walter Poirer, assistant assessor, for the appellee.

FINDINGS OF FACT AND REPORT
On the basis of the testimony and exhibits offered into evidence at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
	On January 1, 2006, Robert E. Fitzgibbon ("appellant") was the assessed owner of a 6,422 square-foot parcel of real estate located at 7 Winter Street in the Town of Leominster ("subject property").  The parcel is improved with a single-family, ranch-style home, which contains approximately 1,120 square feet of finished living area.
	For fiscal year 2007, the Board of Assessors of Leominster ("assessors") valued the subject property at $205,700 and assessed a tax thereon, at a rate of $10.88 per thousand, in the total amount of $2,238.  The appellant timely paid the tax and filed an Application for Abatement with the assessors on January 30, 2007.  On February 8, 2007, the assessors denied the application and sent notice of the denial to the appellant on February 9, 2007.  On April 25, 2007, the appellant seasonably filed his appeal with the Appellate Tax Board ("Board").  Based on these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.	
	The appellant argued that the subject property was overvalued in comparison with other properties in Leominster.  In particular, he challenged the land component of his assessment, emphasizing that the land is on a steep hill surrounded by tenement houses.  He also stated that the land value had, without justification, increased by $77,000 over a period of four years and argued that the land component of his fiscal year 2007 assessment should be reduced by $77,000.  He did not, however, provide any affirmative evidence of the subject property's fair cash value, failing to offer comparable sales, comparable assessments, or any other meaningful evidence of value.  Further, in the middle of his testimony, the appellant simply stopped, stated he was going to go to the "Appellate Court," and left the hearing.
	Walter Poirer, Leominster's assistant assessor, testified in support of the disputed assessment.  Mr. Poirer relied on recent sales of what he considered to be comparable single-family homes in Leominster to support the assessment.  These properties are located at 42 Walnut Street, 147 Pleasant Terrace, 21 St. Jean Avenue, 35 Newton Street, and 44 Posco Avenue.  The properties sold in May, June, and September 2005, for prices ranging from $221,500 to $249,900.  All of the properties were single-family, ranch-style homes, with living areas between 1,056 and 1,370 square feet, situated on parcels of land which ranged in size from 5,400 to 13,788 square feet. The Presiding Commissioner found these sales of properties to be reasonably comparable to the subject property based on the various similarities between the properties and the subject property.   
Mr. Poirer also testified that the appellant received a 10 percent downward adjustment to his land value in consideration of the topography of the land.  Based on evidence of comparable sales and given the adjustment for the subject property's topography, Mr. Poirer concluded that the subject property's assessment of $205,600 represented its fair cash value for fiscal year 2007.  
	On the basis of the evidence presented, the Presiding Commissioner found that the appellant failed to provide any probative evidence of the subject property's fair cash value.  The Presiding Commissioner also found that the assessors submitted credible evidence of comparable sales and an appropriate adjustment of the subject property's assessed value to account for its topography.  Accordingly, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of proof and issued a decision for the appellee in this appeal.


OPINION
	Assessors have a statutory obligation to assess real estate at its fair cash value as of the first day of January of the year preceding the fiscal year at issue.  G.L. c. 59 §§ 11 and 38.  The definition of fair cash value is the price upon which a willing buyer and a willing seller would agree if both are fully informed and neither is under compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
	The burden of proof is upon the taxpayer to make out a right to an abatement as a matter of law.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is presumed to be valid unless the taxpayer is able to sustain his or her burden of proving otherwise.  Id.  The taxpayer may sustain this burden by introducing affirmative evidence of fair cash value, or by proving that the assessors erred in their method of valuation.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 600 (1984).  In the present appeal, the appellant failed to submit any affirmative evidence of the subject property's fair cash value, and offered little to undermine the assessors' valuation methodology.
	Sales of comparable properties, appropriately adjusted for any differences with the subject property, provide strong indicators of fair cash value.  Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 682 (1982).  In the present appeal, the assessors submitted evidence of comparable sales, which the Presiding Commissioner found supportive of the assessment.
	Further, in an abatement appeal, the relevant inquiry is whether the overall assessment, which includes both the land and building components, is excessive.  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921).  See also Guernsey v. Assessors of Williamstown, Mass. ATB Findings of Fact and Reports 2006-158, 168-69; Buckley v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-110, 119; Jernegan v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-39, 48-49.  Although the two components may be valued separately for statistical purposes, and both are individually open to inquiry and revision by the Board, the tax assessed on real estate is one tax, so a taxpayer is only eligible for an abatement if that single tax is excessive.  Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941).
Assuming, arguendo, that the Presiding Commissioner had found the appellant's claim regarding the valuation of the land component of the assessment credible, the appellant provided no basis to conclude that the subject property as a whole was overassessed. As the relevant inquiry is whether the overall assessment is excessive, appellant's contention regarding the subject property's land value, standing alone, would not have been sufficient to sustain his burden of proof.
	In sum, the Presiding Commissioner found that the appellant failed to provide probative evidence of the subject property's fair cash value or error on the part of the assessors.  In contrast, the assessors offered credible evidence of comparable sales that supported the disputed assessment, and demonstrated that an adjustment had already been made to account for the subject property's topography. Thus, the Presiding Commissioner found and ruled that appellant failed to meet his burden of demonstrating that the subject property's assessed value for fiscal year 2007 exceeded its fair cash value and, therefore, issued a decision for the appellee.
					
						APPELLATE TAX BOARD

				By:	___________________________
					Nancy T. Egan, Commissioner

A true copy,

Attest:	____________________________
		Clerk of the Board

ATB 2008-1336