Billy J. Smith a/k/a B.J. Smith v. Board of Assessors of the City of Boston (June 14, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



BILLY J. SMITH a/k/a 	      v.	  BOARD OF ASSESSORS OF 
B.J. SMITH				       THE CITY OF BOSTON

Docket Nos. F292473, 292474		  Promulgated:
							  June 14, 2010


	These are appeals filed under the formal procedure pursuant to G.L. c. 58A, § 7 and c. 59, §§ 64 and 65 from the refusal of the appellee to abate taxes on real estate located in the City of Boston, assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.
	Commissioner Rose ("Presiding Commissioner") heard these appeals and, in accordance with G.L. c. 58A, § 1A, issued single-member decisions 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.
		
	Billy J. Smith, pro se, for the appellant.
	Nicholas P. Ariniello, Esq. for the appellee.
FINDINGS OF FACT AND REPORT
On the basis of the exhibits and testimony offered into evidence during the hearing of these appeals, the Presiding Commissioner made the following findings of fact.  
On January 1, 2006, the appellant was the assessed owner of two parcels of real estate located at 51 Savin Street and 53 Savin Street in the City of Boston.  For fiscal year 2007, the Board of Assessors of the City of Boston ("assessors") valued 51 Savin Street at $92,800 and valued 53 Savin Street at $25,100, and assessed taxes, at the rate of $10.99 per thousand, in the total amounts of $1,019.87 for 51 Savin Street and $275.85 for 53 Savin Street.  On February 1, 2007, the appellant timely filed with the assessors an abatement application for each parcel.  No payments of tax have been made for either parcel.  The assessors denied the abatement application for 53 Savin Street on March 9, 2007 and, in accordance with G.L. c. 59, § 59, the application for 51 Savin Street was deemed denied on May 1, 2007.  On July 13, 2007, the appellant filed with the Appellate Tax Board ("Board") an appeal for each parcel.  On the basis of these facts, the Presiding Commissioner ruled that the Board had jurisdiction over the appeal for 51 Savin Street (Docket F292473).  However, the petition for 53 Savin Street (Docket F292474) was not filed timely with the Board.  Accordingly, the Presiding Commissioner issued a decision for the appellee in Docket No. F292474 because the Board lacked jurisdiction.
The property, located at 51 Savin Street in Boston, consists of a 5,428-square-foot parcel of land with no improvements ("subject property").  On October 19, 2004, the appellant transferred ownership of the subject property, together with 53 Savin Street, to Urban Ministries of Boston, Inc., for total consideration of $10.00.  However, through an oversight by the City of Boston, the transfer of title was not made part of the City of Boston's official assessing records.  The appellant thus remained the assessed owner of the subject property for the fiscal year at issue.  
In his abatement application filed with the appellee, the appellant claimed that the subject property was statutorily exempt from taxes under G.L. c. 59, § 5, Clause Eleventh (house of worship), and under G.L. c. 59, § 5, Clause Third (property of a literary, benevolent, charitable, scientific, or temperance organization).  However, in his appeal to the Board, the appellant contended that the subject property was overvalued because it was a "vacant nonbuildable lot."  At the hearing, the appellant contended simply that the subject property was nonbuildable.  He offered no evidence of value, and he presented no exhibits or witnesses other than himself.
On the basis of the evidence presented at the hearing, and as will be further explained in the Opinion, the Presiding Commissioner found that the appellant failed to meet his burden of proving that the subject property was overvalued for the fiscal year at issue.  Accordingly, the Presiding Commissioner issued a decision for the appellee in Docket No. F292473.

OPINION
G.L. c. 59, §§ 64 and 65 provide that a taxpayer may file an appeal with the Board "within three months after the date of the assessors' decision on an application for abatement."  The appellee denied the appellant's abatement application filed with respect to 53 Savin Street on March 9, 2007.  The appellant did not file his petition to the Board until July 13, 2007, which was more than three months after the appellee denied the abatement application.  Therefore, the Presiding Commissioner found and ruled that it lacked jurisdiction over Docket No. F292474.
The Board has only that jurisdiction conferred on it by statute.  Stilson v. Assessors of Gloucester, 385 Mass. 724, 732 (1982).  "Since the remedy of abatement is created by statute, the board lacks jurisdiction over the subject matter of proceedings that are commenced at a later time or prosecuted in a different manner from that prescribed by statute."  Nature Church v. Assessors of Belchertown, 384 Mass. 811, 812 (1981) (citing Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 495 (1936).  Adherence to the statutory prerequisites is essential "to prosecution of appeal from refusals to abate taxes."  New Bedford Gas & Edison Light Co. v. Assessors of Dartmouth, 368 Mass. 745, 747 (1975).  "[A] statutory prerequisite to jurisdiction cannot be waived by any act of the assessors."  Assessors of Boston v. Suffolk Law School, 295 Mass. at 494; Old Colony R. Co. v. Assessors of Quincy, 305 Mass. 509, 511-12 (1940).  Like the assessors, the Board also cannot waive jurisdictional requirements.  Id.  Accordingly, the time limit provided for filing the petition is jurisdictional and a failure to comply with it must result in dismissal of the appeal.  Doherty v. Assessors of Northborough, Mass. ATB Findings of Fact and Reports 1990-372, 373 (citing Cheney v. Inhabitants of Dover, 205 Mass. 501 (1910); Assessors of Boston v. Suffolk Law School, 295 Mass. 489 (1936)); see also Berkshire Gas Co. v. Assessors of Williamstown, 361 Mass. 873 (1972).  
The assessors are required to assess real estate at its fair cash value.  G.L. c. 59, § 38.  Fair cash value is defined as the price on which a willing seller and a willing buyer 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).  Generally, real estate valuation experts and the Massachusetts courts rely upon three approaches to determine fair cash value of property: income capitalization, sales comparison, and cost reproduction. Correia v. New Bedford Redevelopment, 375 Mass. 360, 362 (1978).  "The board is not required to adopt any particular method of valuation."  Pepsi-Cola Bottling Co. v. Assessors of Boston, 397 Mass. 447, 449 (1986).   
The appellant has the burden of proving that the 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 board 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., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
In the instant appeal, the appellant offered no evidence of overvaluation.  Although he claimed that the subject property was an unbuildable lot, he offered no evidence to show that the subject assessment exceeded the fair cash value of the subject property.  Therefore, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of proving that the valuation made by the assessors exceeded the subject property's fair cash value.
Accordingly, the Presiding Commissioner issued a decision for the appellee in Docket No. F292474, because the Board lacked jurisdiction, and for the appellee in Docket No. F292473, because the appellant failed to meet his burden of proving a fair cash value less than the subject assessment.
		 
APPELLATE TAX BOARD

				By:				____________	
				   James D. Rose, Commissioner



A true copy,

Attest:	______	_____	_____
	  Clerk of the Board

 
 

  The failure to pay the tax assessed does not deprive the Appellate Tax Board of jurisdiction, because the tax assessed for fiscal year 2007 is less than $3,000 for each parcel at issue.  See G.L. c. 59, §§ 64, 65.
 The Board previously issued an Order on July 28, 2009 ruling that the appellant had standing to prosecute the appeal as the "person upon whom a tax has been assessed" in accordance with G.L. c. 59, § 59.  

ATB 2010-567