Optasite Towers, LLC v. Board of Assessors of the Town of West Springfield (February 11, 2009)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


OPTASITE TOWERS, LLC.	  V.     BOARD OF ASSESSORS OF THE             						    TOWN OF WEST SPRINGFIELD

Docket No. F293054           	    Promulgated: 
						    February 11, 2009
	
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 West Springfield, assessed to Bell Atlantic Mobile of Massachusetts under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.
Commissioner Egan heard this appeal. Chairman Hammond, and Commissioners Scharaffa, Rose and Mulhern joined her in the 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.

Beau Paradowski, pro se, for the appellant.
Edward O'Brien, assessor, for the appellee.  

FINDINGS OF FACT AND REPORT
On January 1, 2006, the appellant was the lessee of a parcel of real estate located at 1583 Prospect Avenue in the Town of West Springfield, on which a 190-foot, mono-pole, cell-phone tower was situated ("subject property"). For fiscal year 2007, the Board of Assessors of West Springfield ("assessors") valued the subject property at $990,000 and assessed a tax thereon, at the commercial/industrial rate of $32.59 per thousand, in the amount $32,264.10. 
The assessors mailed the third quarter actual tax bill on December 20, 2006, which, in accordance with G.L. c. 59, § 57C, was due and payable on or before February 1, 2007.  On February 1, 2007, in accordance with G.L. c. 59, § 59, the appellant filed an Application for Abatement with the assessors, which they denied on April 30, 2007.  On July 25, 2007, the appellant filed a Petition Under Formal Procedure with the Appellate Tax Board ("Board"). The appellant, however, failed to pay the assessed tax timely, and accrued interest in the amount of $420.76.  
During the hearing relating to this appeal, neither the assessors nor the appellant addressed whether the Board had jurisdiction over the appeal. However, the evidence of record included, inter alia, documents establishing the appellant's failure to pay the tax at issue timely, a procedural flaw which the Board found and ruled deprived it of jurisdiction over the appeal. Consequently, the Board issued a decision for the appellee.

OPINION	
	General Laws, Chapter 59, Section 59, provides in relevant part: "[a] person upon whom a tax has been assessed . . . , if aggrieved by such tax, may . . . apply in writing to the assessors, on a form approved by the commissioner, for an abatement thereof."  Section 59 also provides that "[a] tenant of real estate paying rent therefor and under an obligation to pay more than one-half of the taxes thereon may apply for such abatement."  Section 59 further provides:
If a person other than the person to whom a tax on real estate is assessed is the owner thereof, or has an interest therein, or is in possession thereof, and pays the tax, he may thereafter prosecute in his own name any application, appeal or action provided by law for the abatement or recovery of such tax, which after the payment thereof shall be deemed for the purposes of such application, appeal or action, to have been assessed to the person so paying the same.  

Thus, the Board found and ruled that the appellant, as lessee of the subject property responsible for payment of the tax at issue, had standing to apply for an abatement and pursue the present appeal. Regardless, such an appeal can only be viable if applicable statutory prerequisites have been fulfilled.
"The Board is a creature of statute and, therefore has no jurisdiction to entertain any proceeding for relief other than in a manner prescribed by statute."  Pepperell Power Assoc. v. Assessors of Pepperell, Mass. ATB Findings of Fact and Reports, 1996-146, 149.  "Adherence to the statutory prerequisites is essential 'to prosecution of appeal from refusals to abate taxes.'"  Id. (quoting New Bedford Gas & Edison Light Co. v. Assessors of Dartmouth, 368 Mass. 745, 747 (1975)). 
Although timely payment is not a condition precedent to filing for an abatement, "payment of the full amount of the tax due without incurring interest charges 'is a condition precedent to the [B]oard's jurisdiction over an abatement appeal.'"  Columbia Pontiac Co. v. Assessors of Boston, 395 Mass. 1010, 1011 (1985) (quoting Stilson v. Assessors of Gloucester, 385 Mass. 724, 732 (1982)); see also G.L. c. 59, §§ 64 and 65. In short, the Board does not have jurisdiction over an appeal where the taxpayer's real estate tax is not timely paid.  Stilson, 385 Mass. at 724.  Moreover, the assessors' failure to address an impediment to the Board's jurisdiction does not preclude the Board from raising the issue.  "Adjudicatory bodies have both the power and the obligation to resolve problems of subject matter jurisdiction whenever they become apparent." Sevenars Concert Trust v. Assessors of Worthington, Mass. ATB Findings of Fact and Reports, 2008-534, 538-39 (citing Nature Church v. Assessors of Belchertown, 384 Mass. 811, 812 (1981).
	In sum, the appellant did not comply with the statutory prerequisite regarding timely payment of tax, and the Board therefore found and ruled that it did not have jurisdiction over this appeal. On this basis, the Board issued a decision for the appellee.

   APPELLATE TAX BOARD

               	    By:________________________________
					  Thomas W. Hammond, Jr., Chairman

A true copy:


Attest: undefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefined_____________________
	    Clerk of the Board

  Optasite Towers, LLC, ("appellant"), as lessee, was responsible for payment of the real estate tax at issue.
  The appellant paid the tax and interest in full on April 10, 2007.

ATB 2009-140