John P. & Barbara MacKay Ligor, Trustees v. Board of Assessors of the Town of Wellesley (May 8, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



JOHN P. & BARBARA MacKAY   v.         BOARD OF ASSESSORS OF
LIGOR, TRUSTEES			        THE TOWN OF WELLESLEY

Docket No. F288375			        Promulgated:
							   May 8, 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 certain real estate in the Town of Wellesley, owned by and assessed to appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.      
Chairman Hammond heard the appellee's Motion to Dismiss for failure to comply with an Order of the Appellate Tax Board ("Board").  Commissioners Scharaffa, Egan, Rose, and Mulhern joined him in a decision for the appellee. 
These findings of fact and report are made pursuant to a request by appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.

John P. Ligor and Barbara MacKay Ligor, pro se, for appellants.

Donna McCabe, Chief Assessor, for the appellee.

FINDINGS OF FACT AND REPORT
On the basis of the uncontroverted facts contained in the pleadings and other submissions of the parties, the Board made the following findings of fact.
On January 1, 2006, appellants were the assessed owners of a 0.321-acre parcel of real estate located at 1 Beach Road in the Town of Wellesley ("subject property").  The parcel is improved with a single-family, three-bedroom dwelling with a finished attic and basement.  For fiscal year 2007, the Board of Assessors of the Town of Wellesley ("assessors" or "appellee") valued the subject property at $1,260,000 and assessed a tax thereon, at the rate of $8.86 per thousand, in the amount of $11,332.84.  Appellants paid the tax due without incurring interest
On January 11, 2007, appellants timely filed an Application for Abatement with the assessors.  The assessors denied the application on April 10, 2007 and, on May 2, 2007, appellants seasonably filed an appeal with the Board.  On the basis of these facts, the Board found and ruled that it had jurisdiction over the subject appeal.
On August 24, 2007, the assessors filed a Motion for an Order Authorizing Entry Upon Appellants' Land and for Inspection of Property ("Motion"), arguing that they had not inspected the subject property since its renovation in 2003.  
In their Motion, the assessors outlined the attempts made, for fiscal year 2007, to gain access to the subject property.  On January 25, 2007, after receiving appellants' fiscal year 2007 Application for Abatement, the assessors contacted appellants by letter to request an inspection of the subject property.  By letter dated January 31, 2007, appellants refused.  On August 2, 2007, the assessors sent a second letter to appellants requesting an inspection of the interior of the subject property.  Appellants did not respond.  
The assessors also noted in their Motion appellants' continuous refusal to allow them access to the interior of the subject property in prior years and also appellants' repeated failure to comply with prior Board Orders.  In both fiscal years 2005 and 2006, the assessors attempted to inspect the subject property but were refused.  In each year, subsequent to appellants' filing their appeal with the Board, the Board issued an Order to Allow Inspection.  Appellants failed to comply and the Board therefore dismissed their fiscal year 2005 and 2006 appeals.  
In the present appeal, the Board allowed the assessors' Motion and, by Order dated September 6, 2007, ordered appellants to allow an inspection of the subject property within 20 days.  Appellants again refused to comply with a Board Order.  
On October 1, 2007, the assessors filed a Motion to Dismiss due to appellants' refusal to comply with the Board's Order.  Included with the assessors' Motion to Dismiss were two photographs of the subject property which highlighted their need for an interior inspection of the subject property.  The first photograph showed the subject property as of the date of the assessors' last inspection prior to the issuance of building permits in 2001; the photograph depicted a small, single-story structure situated on an unkempt lot.  The second photograph showed the subject property as of June, 2004 subsequent to substantial renovations; this photograph showed that the subject property was considerably larger, with three above-ground levels, decking on at least two levels facing the water, and a well-landscaped and manicured lawn.  
Accordingly, by Order dated October 15, 2007, the Board allowed the appellee's Motion to Dismiss due to appellants' failure to comply with the Board's Order and issued a decision for the appellee in this appeal.

OPINION
Assessors have a statutory right to inspect property that is the subject of an Application for Abatement, G.L. c. 57, § 61A, and that is the subject of an appeal to the Board, G.L. c. 58A, § 8A.  Section 8A provides in pertinent part:
Before the hearing of a petition for the abatement of a tax upon real estate . . . the appellant shall permit the appellee personally or by attorneys, experts or other agents, to enter upon such real estate . . . and inspect such real estate. . . . In the event the appellant refuses to permit the appellee to inspect said property, the board may dismiss the appeal. 

The assessors attempted to inspect the subject property on several occasions during the pendency of the abatement application and also after appellants filed their appeal with the Board.  In all instances, appellants refused.  Consequently, the assessors sought, and the Board entered, an Order to inspect the subject property.  Appellants refused to comply.  
Subsequently, the assessors filed a Motion to Dismiss for failure to comply with the Board's Order.  Appellants filed an opposition in which they argued that dismissal under § 8A is not mandatory but within the Board's discretion.  The Board generally has broad discretion when it comes to matters of discovery.  See Board of Assessors of Provincetown v. Vara Sorrentino Realty Trust, 369 Mass. 692, 694 (1976).  In the present appeal, the Board determined, as it did in Giurleo v. Assessors of Raynham, Mass. ATB Findings of Fact and Reports 2006-449, aff'd, 69 Mass. App. Ct. 1102 (2007) ("Giurleo I"), that dismissal under c. 58A § 8A is appropriate in light of appellants' disregard of a Board Order to allow an inspection.  
In Giurleo I, the taxpayer refused to allow the assessors to inspect the interior of his property, and refused to comply with multiple Orders of the Board requiring such an inspection.  Id. at 2006-449.  The Board determined that the assessors were entitled to an inspection of the property at issue and that it was within its discretion to dismiss the taxpayer's appeal for failure to comply with the Board's Order.  Id. at 2006-455 (quoting Vara Sorrentino, 369 Mass. at 694 "In the matter of 'discovery' much must be left to the judgment and discretion of the Appellate Tax Board."); U.A. Columbia Cablevision of Massachusetts, Inc. v. Board of Assessors of the City of Taunton, Mass. ATB Findings of Fact and Reports 1987-468, 474-75, aff'd 26 Mass. App. Ct. 1104 (1998) (dismissal of an appeal is "well within the Board's discretion" when a party does not comply with a statutory provision, and the explicit direction of the Board).  See also Giurleo v. Assessors of Raynham, Mass. ATB Findings of Fact and Reports 2007-615, 618 ("Giurleo II") ("blatant disregard of the Board's Orders is grounds for dismissal of this appeal.")
 In the present appeal, appellants refused to allow the assessors to inspect the interior of the subject property and refused to comply with the Board's Order requiring such an inspection.  Appellants knew of the consequences for non-compliance with a Board Order; their fiscal year 2005 and fiscal year 2006 appeals were also dismissed for failure to comply with a Board Order requiring an inspection.  Rather than avoiding dismissal of their 2007 appeal by allowing the assessors to inspect the subject property, appellants once again chose to blatantly disregard a Board Order.  
Further, the assessors' need for an interior inspection of the subject property was highlighted by the photographs accompanying their Motion to Dismiss.  The subject property had undergone a substantial transformation since the assessors' last inspection, necessitating an inspection to properly evaluate and assess the improvements to the subject property.  "The severity of the . . . remedy for non-compliance, loss of appellate rights, is commensurate with the importance of [the] information in the valuation and taxation process."  Marketplace Center II Limited Partnership v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2000-258, 276, aff'd 54 Mass. App. Ct. 1107 (2002). 
As a result of appellants' blatant disregard for the Board's Order, and their failure to present a reasonable excuse for their failure to comply, the Board granted the appellee's Motion to Dismiss.  
Accordingly, the Board entered a decision for the appellee in this appeal.

					     APPELLATE TAX BOARD


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




A true copy,


Attest: ____________________________
	        Clerk of the Board

ATB 2008-547