Chico Realty Trust v. Board of Assessors of the City of Chicopee (November 20, 2002)

COMMONWEALTH OF MASSACHUSETTS
	APPELLATE TAX BOARD	

CHICO REALTY TRUST	v.	   BOARD OF ASSESSORS OF 
                                 THE CITY OF CHICOPEE


Docket No. F262760			   Promulgated:
						   November 20, 2002

	This is an appeal filed under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65 from the refusal of the Assessors of Chicopee to abate taxes on certain real estate located in the city of Chicopee owned by and assessed to the appellant under G.L. c. 59, § 38, for fiscal year 2002.
Chairman Burns heard the Motion to Dismiss the appeal and issued a single-member decision for the appellee pursuant to G.L. c. 58A, § 1.
These findings of fact and report are issued pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.

Henry Orwat, Trustee and Edwin Orwat, Trustee, pro se, for the appellant.
Laura McCarthy, Esq., for the appellee.
	FINDINGS OF FACT AND REPORT
On January 1, 2001, Chico Realty Trust ("the appellant") was the assessed owner of a parcel of real estate located at 63½ Main Street in the city of Chicopee (the "subject property").  The Chicopee Board of Assessors ("the assessors") valued the subject property for fiscal year 2002 at $291,700 and assessed a tax thereon at the rate of $31.75 per $1,000 of valuation in the amount of $9,261.48.
In its petition filed with the Appellate Tax Board ("Board") the appellant argued that the assessors overvalued the subject property for fiscal year 2002.  The assessors filed a Motion to Dismiss on the grounds that the appellant did not timely pay the tax due without incurring interest and, therefore, the Board lacked jurisdiction to hear the appeal.  In support of their Motion to Dismiss, the assessors submitted the affidavit of Carole J. Harms, Tax Collector for the city of Chicopee.  
Based on the evidence presented, the Board made the following findings of fact.  Pursuant to G.L. c. 59, § 57, the city of Chicopee issued semi-annual real estate tax bills for fiscal year 2002.  The subject property's actual first-half tax bill in the amount of $4,630.74 was mailed on December 21, 2001, due and payable within thirty days, no later than January 21, 2002.  
On January 14, 2002, not yet having paid the first-half tax bill, the appellant filed with the assessors an application for abatement.  The application was denied on February 7, 2002.  On March 13, 2002, the appellant paid the first-half fiscal year 2002 real estate tax, plus accrued interest of $145.65.  On March 25, 2002, the appellant filed an appeal with the Board, maintaining that the subject property was overvalued.
The assessors mailed the second-half fiscal year 2002 tax bill on April 1, 2002, with a payment due date of May 1, 2002.  As of May 10, 2002, beyond the statutory due date, the appellant had not yet made payment.  On May 13, 2002, the assessors filed a Motion to Dismiss the appellant's appeal on the grounds that the appellant failed to timely pay its fiscal year 2002 tax bill without incurring interest.  Accordingly, the assessors maintained that the Board lacked jurisdiction.  
The appellant filed an opposition to the assessors' motion arguing that the assessors' failure to file an Answer within the statutory thirty-day period prohibits them from "submission of a late file Motion."  In its memorandum, the appellant also maintained that its petition was "filed timely, and in accordance with applicable laws."  The appellant did not, however, reference the late payment of the taxes and the interest that accrued.  As explained in the Opinion which follows, a taxpayer may file an appeal with the Board "provided . . . the full amount of [the] tax due has been paid without the incurring of interest." G.L. c. 59, § 64.  Based on the evidence presented, the Board found that the appellant did not timely pay its real estate tax bill and, therefore, incurred interest.  
Accordingly, the Board found and ruled that it lacked jurisdiction to hear the subject appeal and allowed the appellee's Motion to Dismiss. 

OPINION
	The issue in the present appeal is whether the Board has jurisdiction to hear a matter where, as in the present appeal, the taxpayer failed to timely pay its tax bill and incurred interest.	
	Assessors are required to "make a fair cash valuation" of all real property subject to tax, referred to as "the assessed valuation."  G.L. c. 59, § 38.  An individual who is aggrieved by the tax assessed on his property may apply in writing to the assessors for an abatement of such tax.  G.L. c. 59, § 59.  If the assessors deny the request for abatement, the taxpayer may then file an appeal with the Board provided, however, that:
if the tax due for the full fiscal year on a parcel of real estate is more than three thousand dollars, said tax shall not be abated unless the full amount of said tax due has been paid without the incurring of any interest charges on any part of said tax pursuant to section fifty-seven of chapter fifty-nine of the General laws . . . . 

G.L. c. 59, § 64 [emphasis added].
For semi-annual tax bills, interest is incurred "if more than one-half of the balance of the tax remains unpaid either after November first of the fiscal year, or after the thirtieth day after the date on which the bill for such tax was mailed if mailed after October first."  G.L. c. 59, § 57.  In the present appeal, the assessors mailed the first-half fiscal year 2002 tax bill on December 21, 2001, due and payable on or before January 21, 2002.  The appellant did not, however, make payment until March 13, 2002, more than seven weeks after the statutory due date.  Pursuant to c. 59, § 57, since more than one-half of the tax remained unpaid as of the statutory due date of January 21, 2002, the appellant incurred interest.  Furthermore, the appellant failed to timely pay the second-half fiscal year 2002 tax bill and, therefore, incurred additional interest. 
"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, 19 App. Tax Bd. Rep. 146, 149 (1996).  "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 an application for abatement "payment of the full amount of the tax due without incurring interest charges 'is a condition precedent to the board'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 Vincent Fillipone v. Assessors of Newton, 18 Mass. App. Tax Bd. Rep. 47, 50 (1995).  The Board does not have jurisdiction to hear an appeal where the taxpayer's real estate tax is not timely paid.  Stilson, 385 Mass. at 724.  
In its Opposition to the assessors' Motion to Dismiss, the appellant suggested that by failing to timely file an Answer, the assessors were precluded from subsequently filing a "late" Motion to Dismiss.  The statute itself, however, provides that "[i]f no answer is filed [] the allegation of overvaluation of such property shall be held to be denied and all other material facts alleged in the petition admitted."  G.L. c. 58A, § 7.  Therefore, the assessors' failure to file an answer is a denial of the appellant's claims of overvaluation and classification and an admission of the appellant's statement of facts, including the appellant's acknowledgement in its petition that its tax payments were made beyond the statutory due dates of late payment.  It was this particular fact, stated by the appellants, that the assessors relied upon in their Motion to Dismiss.
 Furthermore, the assessors' failure to answer the appellant's petition does not change the fact that the appellant failed to timely pay the fiscal year 2002 taxes and cannot affect the Board's lack of jurisdiction.  See Stilson, 385 Mass. at 782.  Contrary to the appellant's contention that the assessors' motion is "late" and should not be allowed, the question of jurisdiction of a cause can be raised by the parties at any stage of the proceedings.  "The Board could not [] confer upon itself a jurisdiction which is lacking."  Cohen v. Assessors of Boston, 344 Mass. 268, 270 (1962).  
In the present appeal, the Board found that the appellant's fiscal year 2002 tax bill exceeded the statutory limit of $3,000 and that the appellant did not make timely payment of both the first-half and the second-half tax bills.  Therefore, the appellant incurred interest.  Accordingly, the Chairman ruled that the Board lacked jurisdiction to hear the subject appeal and allowed the appellee's Motion to Dismiss.

					APPELLATE TAX BOARD

				By:__________________________
                       Abigail A. Burns, Chairman



A true copy,

Attest:___________________
       Clerk of the Board

 "[W]hen the day or the last day for the performance of any act, including the making of any payment or tender of payment . . . falls on Sunday . . . the act may . . . be performed on the next succeeding business day."  G.L.  c. 4, § 9.  In the present appeal, the assessors mailed the tax bill on December 21, 2001, due an payable on or before January 20, 2002.  Since this date fell on a Sunday, the appellant was allowed to make timely payment on the following business day, Monday, January 21, 2002.

ATB 2002-634