Joan M. Seelig (Dec'd) aka Estate of Joan M. Seelig v. Board of Assessors of the City of Springfield (September 17, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


JOAN M. SEELIG (DEC'D) AKA    v.     BOARD OF ASSESSORS OF 
ESTATE OF JOAN M. SEELIG            THE CITY OF SPRINGFIELD 


Docket No. F288514                  Promulgated: 
							 September 17, 2008


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 taxes on real estate located in the City of Springfield, owned by and assessed to Joan M. Seelig under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.
Commissioner Mulhern ("Presiding Commissioner") heard the appeal under G.L. c. 58A, § 1A and issued a single-member 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.
Russell Seelig, pro se, for the appellant.
Patricia Donovan, Esq. for the appellee.


FINDINGS OF FACT

	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, Joan M. Seelig was the assessed owner of an 8,850-square-foot parcel of real estate located at 38 Oxford Street in the City of Springfield ("subject property").  The parcel is improved with a single-family dwelling built in 1912.  The dwelling contains eight rooms, including four bedrooms, as well as two and a half bathrooms, and a detached two-car garage.  The subject property is located in the historic Forest Park section of Springfield.
	For fiscal year 2007, the Board of Assessors of Springfield ("assessors") valued the subject property at $236,900 and assessed a tax thereon, at a rate of $16.04 per thousand, for a total amount of $3,799.88, which the appellant paid timely.  The appellant timely filed an Application for Abatement with the assessors on January 23, 2007.  On April 10, 2007, the assessors denied the application.  The appellant seasonably filed a Petition Under the Formal Procedure with the Appellate Tax Board ("Board") on May 10, 2007.  Based on these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear this appeal. 
	The appellant had previously filed a petition with the Board for fiscal year 2005 and was granted an abatement in the amount of $264.40.  The Board determined that the fair cash value of the property for that fiscal year was $174,400.   Because the Board made a finding of value in the earlier appeal, the assessors in the instant appeal had the burden of proving that the increase in the fair cash value of the property was warranted. See G.L. c. 58A,      § 12A. 
	The appellee presented its case through the testimony of Stephen O'Malley, an assessor.  Mr. O'Malley presented four sales that he found comparable to the subject property.  The properties were located at 93 Marengo Park, 140 Bellevue Avenue, 59 Fairfield Street and 21 Bellevue Avenue.  These properties sold between May 27, 2005 and September 28, 2005, for values between $208,000 and $295,000.  The assessors then presented a comparable-sales analysis of the subject property's fair market value based on adjustments to the four sales.  The assessors claimed that this analysis supported the assessed value of $236,900.  The assessors presented no evidence of the square footage of the building other than that reflected on the property record card for the subject property and provided no reasoning for changes to the measurements or building conditions over the years.     
	The appellant presented his case through his own testimony and through a submission that he prepared for the Board.  The appellant argued that the city had been improperly assessing the subject property because the amount of living space which the assessors attributed to the dwelling had changed over the years, even though there had been no additions to the building.  The appellant presented a chart with the range of living-space measurements on the assessor's property record cards from 2001 to the present, which showed fluctuations from 2,482 to 3,602 square feet.  For fiscal year 2007, the dwelling was reported to be 2,524 square feet.  The appellant then presented his own measurements of the dwelling and those of an appraiser, which indicated 2,342 and 2,333 square feet, respectively.  The appellant also testified that the grade of construction that the assessors assigned to the subject property had changed from a C+ rating to a B- over the years.  He also testified that at the time of the assessment the exterior of the home was in need of stucco repair, which would cost about $13,000.
	The appellant then submitted three sales, which he found comparable to the subject property.  These properties were located at 41 Riverview Street, 28 Mountain Street, and 26 Riverview Terrace.  The sales occurred from October 25, 2005 to January 20, 2006 and ranged in price from $193,500 to $202,500.  The appellant then made adjustments to these sales to account for differences in grade, lack of attic space, number of bathrooms and garages.  He also deducted $13,000 from all sales to account for the cost to repair the subject property's stucco.  From this analysis he determined the subject property's value to be $190,000. 
	The Presiding Commissioner found the comparable-sales analysis of the appellee more persuasive than the analysis of the appellant.  The Presiding Commissioner, however, found that there were inconsistencies in the living area measurements used by the assessors, and found the appellant's measurements credible.  For this reason, the Presiding Commissioner used the appellant's measurement of 2,342 square feet for the dwelling size, a difference of 182 square feet from the measurement used for the subject assessment. Adjusting the square footage from 2,524 to 2,342 resulted in a fair cash value of $223,100 for the subject property.  The Presiding Commissioner thus granted an abatement of $221.35.     

OPINION 

Assessors are required to assess all real and personal property at its fair cash value as of the first day of January preceding the fiscal year at issue.  G.L. c. 59,  §§ 11 and 38.  Fair cash value is defined as the price on which a willing buyer and a willing seller would agree if both were fully informed about the property and were under no compulsion.  Boston Gas Co. v. Assessors of Boston,   334 Mass. 549, 566 (1956).
	The burden of proof is on the taxpayer to prove a right to an abatement of taxes.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessed value is presumed valid unless the taxpayer meets the burden of proving otherwise.  Id.  
If, however, within the two preceding fiscal years the Board has determined the fair cash value of the subject property, and the assessment at issue exceeds that determination, then "the burden shall be upon the [assessors] to prove that the assessed value was warranted."  G.L. c. 58A, § 12A.  Notwithstanding this shift in the burden of production, the burden of persuasion on the issue of fair cash value remains with the appellant.  See Johnson v. Assessors of Lunenburg, Mass. ATB Findings of Fact and Reports 1992-1, 8; Cressey Dockham & Co., Inc. v. Assessors of Andover, Mass. ATB Findings of Fact and Reports 1989-72, 86-87.
The appellant brought an appeal to the Board for fiscal year 2005, in which the Board made a finding regarding the subject property's fair cash value.  In the present appeal, the Presiding Commissioner found that the assessors' evidence of value was a more persuasive indicator of fair market value and justified an increase in the subject property's assessed value from the Board's finding for fiscal year 2005.  "The credibility of witnesses, the weight of the evidence, and the inferences to be drawn from the evidence are matters for the Board."  Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).    
However, notwithstanding this finding, the Presiding Commissioner found that the appellant provided credible and persuasive evidence that the square footage was actually 2,342 square feet and not the 2,524 square feet, which the assessors used in the fiscal year 2007 assessment.  Accordingly the Presiding Commissioner found that the appellant proved that the assessors had erred in their method of valuation.  The taxpayer may present evidence of the fair cash value of the property or prove an error in the valuation method.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 600 (1984).  
Based on the evidence and testimony presented, the Presiding Commissioner found and ruled that the assessors met their burden of proving that the increase in assessed value of the subject property was warranted, but the appellants also met their burden of proving that the fair cash value of the subject property was less than its assessed value by demonstrating that the assessors utilized an improper square foot measurement. Accordingly, the Presiding Commissioner issued a decision for the appellant granting an abatement in the amount of $221.35. 

						THE APPELLATE TAX BOARD
					By:	_____________________________
						Thomas Mulhern, Commissioner 


A true copy, 
Attest: _____________________
         Clerk of the Board    

	   
	   

 Mrs. Seelig died in May 2006 and this appeal is brought by the administrator of her estate, Russell L. Seelig ("appellant"), under G.L. c. 59, § 59.      

ATB 2008-1183