Donald J. Correa, Trustee, DJC Realty Trust v. Board of Assessors of the Town of Plymouth (October 2, 2006)

	
COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



DONALD J. CORREA, TRUSTEE	 v.     BOARD OF ASSESSORS OF
DJC REALTY TRUST				   THE TOWN OF PLYMOUTH

Docket No. F272327				   Promulgated:
							         October 2, 2006


	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 appellee to abate a tax assessed under G.L. c. 59, §§ 11 and 38, for fiscal year 2004.
	Commissioner Rose heard the appeal and issued a single-member decision for the appellant in accordance with G.L. c. 58A, § 1A.
	These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Donald J. Correa, Esq., pro se, for the appellant.
	Catherine M. Salmon, assistant assessor, for the appellee.

FINDINGS OF FACT AND REPORT
	On January 1, 2003, Donald J. Correa ("Mr. Correa") was the assessed owner of a parcel of real estate located at 26 Emerson Road in the Town of Plymouth ("subject property").  For fiscal year 2004, the Board of Assessors of Plymouth ("assessors") valued the subject property at $203,400, and assessed a tax at the rate of $11.81 per thousand in the amount of $2,402.15. 
On February 2, 2004, Mr. Correa timely filed an application for abatement with the assessors.  The assessors denied the application on March 30, 2004, and on April 28, 2004, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the presiding Commissioner found that the Board had jurisdiction over this appeal.
The subject property consists of a 0.11 acre parcel of real estate improved with a wood-frame, cottage-style dwelling constructed in 1955. The dwelling is clad with shingles, covered by an asphalt roof, and has a 128-square-foot enclosed porch. The interior's finished area of 720 square feet is comprised of four rooms, including two bedrooms, a living room, a kitchen and one full bathroom. The home has a full basement, and is heated by an oil-fired, forced-hot-air heating system.  
At the hearing of this appeal, both Mr. Correa and the town's assistant assessor testified and introduced exhibits, including purportedly comparable properties' property record cards, the subject property's property record card, and various jurisdictional documents. Mr. Correa testified that as of the relevant assessment date, the subject property was overvalued because the assessment failed to reflect the condition of the septic system, which was in imminent need of repair or replacement. The assessors did not offer any evidence to contradict this assertion.
The assessors presented a sales analysis of purportedly comparable properties including those located at 22 Emerson Road and 30 Emerson Road. This analysis incorporated adjustments for the amount of finished area of the properties analyzed relative to the subject property, the presence or absence of a basement, and a time adjustment for their sale dates. 
The presiding Commissioner found that of the sale properties presented by the assessors, the property at 22 Emerson Road, which sold on June 24, 2002 for $199,000, was most similar to the subject property. In particular, the presiding Commissioner noted its close proximity to the subject property, virtually identical parcel size, 680 square foot interior finished space, and the time of the dwelling's construction, which preceded the subject property's by one year. The property at 30 Emerson Road was also quite close to the subject property and virtually identical in size. Its dwelling, however, was substantially larger than the subject property's and was constructed more than twenty years later. This property sold on July 30, 2004 for $299,000. Consequently, the presiding Commissioner found that, of the cited properties, the property at 22 Emerson Road was most comparable to the subject property.  
Similarities notwithstanding, the presiding Commissioner found that 22 Emerson Road was superior to the subject property in several respects. Its exterior and landscaping were better maintained, and its interior included five rooms with three bedrooms. In contrast, the subject property's dwelling had four rooms and two bedrooms. Finally, the assessors made no allowance for the deteriorated condition of the subject property's septic system, a deficiency not present in any of the purportedly comparable properties. These factors collectively indicated that the property at 22 Emerson Road required further adjustment to its sale price than made by the assessors.  
Based on the evidence presented by the parties, the presiding Commissioner found that the appellant sustained his burden of proving that the subject property's assessed value of $203,400 exceeded its fair cash value for fiscal year 2004. Thus, the presiding Commissioner decided this appeal for the appellant, reducing the subject property's 2004 assessment by $8,400, and granting an abatement of $99.20.   

OPINION
"All property, real and personal, situated within the commonwealth . . . shall be subject to taxation."  G.L. c. 59, § 2.  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. v. Assessors of Lynn, 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
In the instant appeal, the presiding Commissioner found that the assessors failed to consider the condition of the subject property's septic system as of the relevant assessment date. The presiding Commissioner also found that of the sale properties presented by the assessors, the property at 22 Emerson Road, while most similar to the subject property, was superior to the subject, particularly given its superior exterior and landscaping maintenance, and additional bedroom. Moreover, neither 22 Emerson Road nor any of the claimed comparable properties was diminished in value by a failing septic system. These distinctions required adjustments beyond those made by the assessors in their sales analysis. 
	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, 393 Mass. at 605; North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984).  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 Co., 309 Mass. 60, 72 (1941).
Based on credible uncontroverted testimony regarding the deterioration of the subject property's septic system, and the absence of appropriate adjustments made to a superior comparable sale property presented by the assessors, the presiding Commissioner found that the appellant met his burden of demonstrating that the subject property was overvalued for fiscal year 2004. 
On this basis, the presiding Commissioner decided this appeal for the appellant and granted an abatement in the amount of $99.20.


					   APPELLATE TAX BOARD


				By:_________________________________
					 James D. Rose, Commissioner



A true copy,


Attest:_______________________________
	  Assistant Clerk of the Board

 The Petition Under Formal Procedure relating to this appeal ("Petition") reflects Donald J. Correa, Trustee, DJC Realty Trust as the appellant. However, the relevant tax bill, property record card, and application for abatement all indicate that Donald J. Correa, individually, was the assessed owner.
 G.L. c. 59, § 59 requires that applications for abatement be filed: "on or before the last day for payment, without incurring interest in accordance with the provisions of chapter fifty-seven or section fifty-seven C, of the first installment of the actual tax bill issued upon the establishment of the tax rate for the fiscal year to which the tax relates."  According to G.L. c. 59, § 57C, the applicable payment section for this appeal, the last day for payment is February 1st.  However, in 2004, February 1st fell on a Sunday.  When the last day of a filing period falls on a Sunday or legal holiday, the filing is still considered timely if it is made on the following business day.  See G.L. c. 4, § 9.  Accordingly, the presiding Commissioner found that the appellant timely filed his application for abatement on Monday, February 2, 2004.
  The appellant's Petition also claimed disproportionate assessment of the subject property. During the hearing, however, the appellant made no argument and presented no evidence relating to this contention. Thus, the appeal was decided solely on the basis of valuation, with no consideration given to the theory of disproportionate assessment. 

8


ATB 2006-723