Cape Cod Five Cents Savings Bank & William R. Enlow, Trustees of the John R. Pfeffer Family Trust and Cape Cod Foundation, Inc. v. Board of Assessors of the Town of Harwich & Board of Assessors of the Town of Brewster (July 17, 2009)

 COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

CAPE COD FIVE CENTS SAVINGS	 v.	   BOARD OF ASSESSORS OF
BANK and WILLIAM R. ENLOW,		   THE TOWN OF HARWICH
as TRUSTEES OF THE						and		 	  
JOHN R. PFEFFER FAMILY TRUST		   BOARD OF ASSESSORS OF
and CAPE COD NATIONAL			   THE TOWN OF BREWSTER
GOLF FOUNDATION, INC.								
         	
Docket Nos.:F277365          (FY 05)
  F277363-364      (FY 06) 
		  F282675, F282763 (FY 07)
		  F288014-015      (FY 08)
   Promulgated:
							   July 17, 2009
	
  
These are appeals 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 real estate taxes assessed to the appellants under G.L. c. 59, §§ 11 and 38 by the Town of Brewster for fiscal years 2006, 2007 and 2008, and by the Town of Harwich for fiscal years 2005, 2006, 2007 and 2008.  
Commissioner Rose heard these appeals.  Chairman Hammond and Commissioners Scharaffa, Egan, and Mulhern joined him in the decisions for the appellee.
These findings of fact and report are made pursuant to requests by the appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.   

F. Alex Parra, Esq. and Louis N. Levine, Esq. for the appellants.
 
Jeffrey T. Blake, Esq. for the Harwich assessors.

Edward E. Veara, Esq. for the Brewster assessors.



FINDINGS OF FACT AND REPORT

On the basis of the parties' Stipulation of Facts and Issues ("Stipulation") and attached exhibits, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2004, January 1, 2005, January 1, 2006, and January 1, 2007, the John R. Pfeffer Family Trust, Cape Cod Five Cents Savings Bank and William R. Enlow, as Trustees of the John R. Pfeffer Family Trust (the "Trust"), were the assessed owners of 151.86 acres of contiguous land, of which approximately 70.66 acres are located in Brewster (the "Brewster property"), and about 81.20 acres are located in Harwich (the "Harwich property"), (collectively the "subject property").  
At all times relevant to these appeals, the subject property was used as an 18-hole golf course known as the Cape Cod National Golf Course ("golf course"), which the Trust leased to the Cape Cod National Golf Foundation, Inc. ("Foundation" and with the Trust, "appellants"). Approximately 90 acres of the subject property's 151.86 acres are landscaped for use as a golf course, including tees, fairways, and greens.  As part of the golf course design, the Cape Cod Commission (the "Commission") required the Trust to preserve fifty acres of undisturbed pine/oak woodlands to "provide travel corridors and significant habitat for wildlife."  The Commission also required the installation of a comprehensive groundwater monitoring program and, except for the restoration of previously disturbed wetlands, that the golf course be developed without further wetland alteration.  
Located on the Brewster property is a clubhouse, the golf pro's residence and a maintenance building. Situated on the Harwich property is a 2,000-square foot barn, which is in dilapidated condition and unused; another barn, which is used as a pump house in connection with the irrigation of the golf course; and a 130-square-foot bathroom facility.  All buildings are used solely in connection with the golf course.
I.	Jurisdiction
Brewster property
In accordance with G.L. c. 61B, § 3, applications for recreational classification must be submitted to the assessors prior to October first of the year preceding the tax year at issue.  For fiscal years 2006, 2007 and 2008, the Trust, as the assessed owner, and the Foundation, as lessee, applied to the Brewster Board of Assessors (the "Brewster assessors") for recreational classification of the Brewster property under G.L. c. 62B.  The relevant jurisdictional information is set forth in the following table.
Docket
Number	Fiscal Year	Chapter 61B
Application
Filed 	Application Denied	Request for Modification	Modification
Denied	ATB Appeal
Filed	
F277363	2006	9-28-04	 12-28-04.	12-29-04	3-14-05	3-18-05	
F282763	2007	9-19-05	11-30-05	12-05-05	1-06-06	1-26-06	
F288015	2008	9-25-06	11-13-06	12-29-06	No action	3-28-07	

For fiscal year 2006, the Brewster assessors valued the Brewster property at $5,252,500 and assessed a tax thereon at the rate of $5.58 per $1,000, in the total amount of $30,188.22, exclusive of land bank tax.  For fiscal year 2007, the Brewster assessors valued the Brewster property at $5,709,600 and assessed a tax thereon at the rate of $5.47 per $1,000, in the total amount of $31,231.51, exclusive of land bank tax.  The parties stipulated that the fiscal year 2008 assessment information was not known at the time of filing the Stipulation and, therefore, it was not presented to the Board.  At all times material to these appeals, the Trust was the assessed owner of the Brewster property. 
Based on these facts, the Board found and ruled that it had jurisdiction over the appellants' Brewster appeals.
Harwich property
For fiscal years 2005 through 2008, the Trust, as the assessed owner, and the Foundation, as lessee, applied to the Harwich Board of Assessors (the "Harwich assessors") for recreational classification of the Harwich property under G.L. c. 62B.  The relevant jurisdictional information is set forth in the following table.
 Docket
Number	Fiscal Year	Chapter 61B
Application
Filed 	Application Denied	Modification	Modification
Denied	ATB Appeal
Filed	
F277365	2005	9-28-04	12-14-04	12-21-04	No action	03-18-05	
F277364	2006	9-28-04	12-14-04	12-21-04	No action	03-18-05	
F282675	2007	9-19-05	09-27-05	10-04-05	10-25-05	11-23-05	
F288014	2008	9-25-06	12-05-06	12-29-06	01-09-07	03-28-07	

For fiscal year 2005, the Harwich assessors valued the Harwich property at $4,170,700 and assessed a tax thereon, at the rate of $6.24 per $1,000, in the total amount of $26,025.17, exclusive of land bank tax.  For fiscal year 2006, the Harwich assessors valued the Harwich property at $4,379,600 and assessed a tax thereon, at the rate of $5.89 per $1,000, in the total amount of $25,795.84, exclusive of land bank tax.  For fiscal year 2007, the Harwich assessors valued the Harwich property at $4,522,000 and assessed a tax thereon, at the rate of $5.58 per $1,000, in the total amount of $25,232.76, exclusive of land bank tax.  As with the Brewster property, the parties stipulated that the fiscal year 2008 assessment information was not known at the time of filing the Stipulation and, therefore, it was not presented to the Board.  
	The Harwich property was assessed to the Trust on a single tax bill, despite being shown as twenty-three separate lots on the Harwich assessors' Maps 114, 115 and 118.  At all material times, the Trust was the record owner of the six lots identified on Maps 114 and 115, and also one lot identified on Map 118.  By virtue of a deed dated January 3, 1997, and recorded on May 31, 2006, eight lots on Map 118 were conveyed to the Trust by John R. Pfeffer.    Further, at all times relevant to these appeals, an additional eight lots identified on the assessors' Map 118, parcels N1-149 through N1-156, were owned by John R. Pfeffer, individually.  
Pursuant to G.L. c. 61B, § 3, the appellants' fiscal year 2005 application for recreational classification was due no later than October 1, 2003.  As stated on the appellants' petition to the Board, the appellants did not file the application until September 28, 2004, nearly a year after the statutory due date.  Accordingly, the Board found and ruled that it did not have jurisdiction over the appellants' fiscal year 2005 Harwich appeal.  The Board found that the appellants' fiscal years 2006, 2007 and 2008 applications for classification and subsequent appeals were timely filed.  Accordingly, and for the reasons more fully explained in the following Opinion, the Board found and ruled that it had jurisdiction over the appellants' fiscal years 2006, 2007 and 2008 Harwich appeals.  
II.	Recreational classification
For the four fiscal years preceding the fiscal years at issue in these appeals, fiscal years 2001 through 2004, the Trust and the Cape Cod National Golf Club, LLC (the "Club") filed appeals with the Board concerning denials by the Harwich assessors and the Brewster assessors of their applications for recreational classification under G.L. c. 61B.  The Trust and the Club took the position in those appeals that the subject property was available to the general public.  During those years, the subject property was leased to the Club and was available only to members of the Club and patrons of the Wequassett Inn.  In August 2004, the Trust, the Club, and the assessors entered into an Agreement for Judgment in the fiscal years 2001 through 2004 appeals, which provided that "the Appellants' claims in the Appeals for recreational land classification of the Properties under the provisions of G.L. c. 61B [were] dismissed."  The Agreement further provided that "[f]or so long as the Appellants and/or golf course thereon are as presently constituted and/or organized, the Appellants shall not apply for recreational land classification as a golf course of the [subject property] under the provisions of G.L. c. 61B, § 1 . . . ."  Based on the Agreement for Judgment the Board issued a decision dated August 26, 2004 "for the appellees on the issue of classification under G.L. c. 61B."  
On September 14, 2004, approximately one month after the Agreement for Judgment was executed, the Club conveyed its leasehold interest in the subject property to the then recently organized Foundation.  The Assignment of Lease between the Club and the Foundation states that the lease was conveyed for $1.00 and "other valuable consideration" not identified.  Notwithstanding this assignment, the Club continued to manage the subject property and remained responsible for the day-to-day operations of the golf course.
	The Foundation was organized under the laws of the State of Florida on April 28, 2004, purportedly as a non-profit organization.  According to the Foundation's Articles of Incorporation:
[t]he general purposes for which the corporation is organized are exclusively for charitable, religious, medical, educational, scientific or literary purposes, including, for such purposes, the making of distributions to organizations that qualify as exempt organizations . . . .  In addition to the general purpose of the corporation, the corporation is also organized to promote not-for-profit botanical gardens, including, for such purposes, the making of distributions to organizations that qualify as exempt organizations . . . .

The Foundation's By-Laws provide that "[a]ny golf member of our wholly-owned subsidiary [the Club] shall be considered a non-voting member [of the Foundation] and will be eligible to serve on the Member Advisory Board of the Golf Club."  All members of the Foundation are also members of the Club, a private organization.  The golf course is available only to members of the Club, who are also ex-officio members of the Foundation, as well as to patrons of the Wequassett Inn.  
The day-to-day operations of the golf course are managed by the Club.  The Club derives revenues from the following sources:  annual membership dues and greens fees paid by members of the Club, which includes ex-officio members of the Foundation; fees paid by patrons of the Wequassett Inn; and, pro shop and food sales to members of the Club and Foundation and patrons of the Wequassett Inn.  All revenues derived from the operation of the golf course, after the payment of operating expenses, not including rent or real estate taxes, are required to be paid by the Club to the Foundation.  Under the terms of the lease, the Foundation is then obligated to pay to the Trust rent equal to the Trust's allowable depreciation of the cost of the improvements to the golf course and also real property taxes assessed on the subject property.  
For calendar year ending December 31, 2004, the Club reported a total income of $2,809,203 and total operating expenses, which included payment of rent and property taxes, of $2,747,015, with a net profit paid to the Foundation of $62,189.  For calendar year ending December 31, 2005, the Club reported a total income of $2,584,195 and total operating expenses, which included payment of rent and property taxes, of $2,575,739, with a net profit of $8,456 paid to the Foundation.  No financial information was provided for calendar years 2006 and 2007.  
Pursuant to the Foundation's Articles of Organization, after the payment of rent, taxes, debts and other expenses and obligations, the Foundation was required to distribute all funds received from the Club for charitable purposes.    During the fiscal years at issue, however, the Foundation made only two nominal charitable distributions, totaling $1,500: one to the Harwich Cultural Council in the amount of $500 and another to the Leadership Institute in the amount of $1,000.  The Foundation was also organized to promote or make donations to not-for-profit botanical gardens.  The appellants failed to provide any evidence to demonstrate that the Foundation attempted to carry out this purpose.  
On the basis of these facts, the Board found and ruled that the golf course was in fact available only to members of a private club and guests of the Wequassett Inn and, therefore, was not available to the general public or members of a non-profit organization.  The Board further found that the appellants' applications for Chapter 61B classification, based on the lease of the golf course to the Foundation, were submitted for the purpose of evading payment of the "full and proper taxes due" on the subject property.  See G.L. c. 61B, § 6.  
The Foundation was organized on April 28, 2004, while the Trust had appeals for prior fiscal years pending before the Board in which the availability of the golf course to the general public was in issue.  In August of 2004, the parties agreed that the Trustees' appeals for those years should be dismissed and the Trustees agreed that they would not apply for Chapter 61B classification "[f]or so long as the Appellants and/or the golf course thereon are as presently constituted and/or organized."  Less than one month later, the Club transferred its leasehold interest in the golf course to the newly created Foundation.  The clear purpose of the creation of the Foundation, and the transfer to it of the leasehold interest in the golf course, was to give the appearance that the golf course was no longer available only to private club members and guests of a particular hotel, but to "members of a non-profit organization" as required under G.L. c. 61B, § 1.  However, the creation of the Foundation had no impact on the operation or use of the golf club and its availability only to the private Club members and hotel guests.  
In effect, there was no difference in the operation and use of the golf course as a result of the Foundation lease.  The Club continued to maintain the day-to-day operations of the golf course and all members of the Foundation were also members of the Club.  Despite the lease to the Foundation, only private club members and Wequassett Inn guests continued to be afforded exclusive access to the course.  Accordingly, the Board found that the golf course was not open to the general public or members of a non-profit organization for purposes of G.L. c. 61B, § 1.
The Board further found that the creation of the Foundation, and the assignment of the lease of the golf course to it, was for the sole purpose of supporting an application for Chapter 61B classification in an attempt to evade the payment of the full and proper tax due on the subject property.  
The appellant also maintained, as an alternative argument, that the subject property qualified under the first sentence of G.L. c. 61B, § 1, even if it was not available to the general public or members of a non-profit organization, because it is "retained in substantially a natural, wild or open condition or in a landscaped condition" for purposes of G.L. c. 61B, § 1.
As detailed in the Opinion which follows, however, the Board found and ruled that the specific language of § 1 regarding classification of land used for golfing and other recreational uses and not the general language of § 1 applicable to land in a natural, wild, open or landscaped condition, applies to the subject property.  Where, as here, the relevant statute provides for classification of land put to a particular use and provides conditions for such classification, a taxpayer cannot avoid those conditions by using the land for unspecified purposes.  The parties stipulated that the sole use of the subject property was as a golf course, together with a club house and various improvements used solely in connection with the golf course.  Accordingly, to qualify under Chapter 61B, the subject property must be available to the general public or members of a non-profit organization.  Because it was not so available, the assessors were correct in denying classification for the fiscal years at issue.
On the basis of the foregoing findings of fact and for the reasons more fully explained in the following Opinion, the Board found that the appellants did not qualify for recreational classification and issued decisions for the appellees in these appeals. 

OPINION
I.	Jurisdiction
Pursuant to G.L. c. 61B, § 2, taxpayers seeking classification of their land as "recreational land" must apply to the board of assessors no later than October first of the year preceding each tax year for which such classification is sought.  Accordingly, for taxpayers seeking classification for fiscal year 2005, the period beginning July 1, 2004 and ending June 30, 2005, they must have filed a classification application no later than October 1, 2003.  In the present appeals, the appellants filed their fiscal year 2005 application with the Harwich assessors on September 28, 2004, nearly one year after its statutory due date.  Accordingly, the Board found and ruled that it did not have jurisdiction over the appellants' fiscal year 2005 Harwich appeal.
	In addition, the Harwich assessors argued that the Board lacked jurisdiction over the appellants' fiscal years 2006, 2007, and 2008 Harwich appeals because the appellants failed to list and obtain the signatures of all property owners on Section D of the application form.  The applications were signed by one of the Trustees, Cape Cod Five Cent Savings Bank, on behalf of the Trust, and John R. Pfeffer, on behalf of the Foundation as lessee.  There is no dispute that eight of the parcels, which comprise the Harwich property, are owned by John R. Pfeffer, individually.  Therefore, the Harwich assessors argued that Mr. Pfeffer was required to sign the applications in his individual capacity and that his failure to do so is a jurisdictional defect which should result in the dismissal of the appellants' Harwich appeals for fiscal years 2006, 2007 and 2008.  
At all material times, the Harwich assessors sent to the Trust a single tax bill for all Harwich parcels, which listed the Trust as the assessed owner of the Harwich property.	 Acceptance of the Harwich assessors' argument would mean that the assessed owner of property has no standing to seek recreational classification for land on which he is being taxed.  There is nothing in Chapter 61B or elsewhere that supports such a result.  
Under G.L. c. 61B, § 3, the assessors shall provide forms for use "by applicants" and the "applicant" is required to provide certain certifications to the assessors.  The focus of the § 3 application process is therefore on the "applicant," not the "owner," of the property.  Although § 3 also provides that the commissioner "may [] prescribe" a "certification by a landowner" that the information in his application is true, the statute nowhere specifically requires that only the owner of record may apply for Chapter 61B classification.  It would be an anomalous result to prevent the assessed owner from applying for classification, particularly where, as here, the assessors assessed the multiple Harwich parcels comprising the subject property on a single bill to a single owner.  Cf. c. 59, § 59 ("a person upon whom a tax has been assessed" may apply for an abatement of real estate tax).  Accordingly, the Board ruled that it had jurisdiction to hear and decide the Harwich appeals for fiscal years 2006, 2007 and 2008.
II.	Recreational Classification
G.L. c. 61B, § 1 provides in pertinent part that: 
Land not less than five acres in area shall be deemed to be recreational land if it is retained in substantially a natural, wild, or open condition or in a landscaped condition in such a manner as to allow to a significant extent the preservation of wildlife and other natural resources, including but not limited to, ground or surface water resources, clean air, vegetation, rare or endangered species, geologic features, high quality soils, and scenic resources.  Land not less than five acres in area shall also be deemed to be recreational land which is devoted primarily to recreational use and which does not materially interfere with the environmental benefits which are derived from  said land, and is available to the general public  or to members of a non-profit organization . . . . (emphasis added)

For purposes of this chapter, the term recreational use shall be limited to the following: . . . golfing . . . .

The parties agree that the subject property is not less than five acres and is used solely as an 18-hole golf course, together with a club house and various improvements used solely in connection with the golf course.  The primary issue, therefore, is whether the golf course is available to the general public or members of a non-profit organization.  The appellants argued that since the golf course is available to members of the Foundation, a non-profit organization, the subject property qualified for recreational classification.  The assessors, however, argued that the Foundation does not act as a non-profit organization for real estate tax purposes and that the golf course is, in fact, only available to members of a private club and guests of a particular hotel.  Further, the assessors maintained that the appellants' filing of their Chapter 61B applications for the fiscal years at issue was "for the purpose of evading payment of full and proper taxes" because the creation of the Foundation and the transfer to it of a leasehold interest in the golf course had no effect on the availability of the golf course to the general public.  See, G.L. c. 61B, § 6.   
For fiscal years 2001 through 2004, the golf course was leased to the Club and available only to members of the Club and the Wequassett Inn.  By decision dated August 24, 2004, the Board found and ruled for those fiscal years, based on the Trustees' concession reflected in the parties' Agreement for Judgment, that the subject property, which was open only to members of the Club and patrons of the Wequasset Inn, did not qualify for recreational classification because it was not available to members of the general public or a non-profit organization.  Less than one month later, on September 14, 2004, the Club conveyed its leasehold interest in the subject property to the Foundation.  The Club, however, continued to manage the day-to-day operations of the golf course and access to the course continued to be limited to Club members and guests of the Wequassett Inn.  
Pursuant to the Foundation's Articles of Organization, "[t]he general purposes for which the corporation is organized are exclusively for charitable, religious, medical, educational, scientific or literary purposes" including making distributions to various civic organizations.  In addition, "the corporation is also organized to promote not-for-profit botanical gardens."  These purposes underscore the fact that the Foundation has no practical purpose other than to support the appellants' classification application.  The stated purposes are a generic listing of charitable purposes and the specific inclusion of "botanical gardens" is curious; the appellants fail to explain how aiding botanical gardens is consistent with the operation of a golf course.  
Moreover, as of the date of these appeals, approximately three years after the establishment of the non-profit organization, the Foundation had made only two charitable contributions totaling a mere $1,500.  The appellants offered no evidence that the Foundation performed any other charitable activity during the relevant time period.
Based on the evidence presented, the Board found that the golf course, which was open only to members of a private club and patrons of a particular hotel, was not open to the general public or members of a non-profit organization within the meaning of G.L. c. 61B, § 1.  Given that the members of the Foundation were also members of the Club and that the only evidence that the Foundation acted in a manner consistent with its stated purposes was its nominal charitable contributions, the Board found and ruled that the subject property was not open to members of a non-profit organization for purposes of § 1.  
Generally, real estate tax benefits are conferred only on non-profit organizations that perform charitable works consistent with their stated purposes.  See Lasell Village, Inc. v. Assessors of Newton, 67 Mass. App. Ct. 414 (2006) (ruling that an institution is a charitable organization for purposes of the property tax exemption under G.L. c. 59, § 5, cl. 3, if the dominant purpose of its work is for the public good, but if the dominant purpose of its work is to benefit its members or a limited class of persons, it does not qualify for the exemption.)  There is no indication that the legislature intended to confer a tax benefit under Chapter 61B where, as here, a non-profit organization is not fulfilling its stated charitable purposes but is merely acting as a façade to allow a members-only golf course to receive a tax benefit.
Further, the availability of the course to guests of the Wequassett Inn does not mean that the course was open to the general public for purposes of G.L. c. 61B, § 1, a point which even the appellants do not attempt to argue in these appeals.  Favorable tax treatment of land available only to a select few, as opposed to the general public, has consistently been denied. See, e.g., Brookline Conservation Land Trust v. Assessors of Brookline, Mass. ATB Findings of Fact and Report, 2008-679, 699-700; Wing's Neck Conservation Foundation, Inc. v. Board of Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2003-329, 343, aff'd, 61 Mass. App. Ct. 1112 (2004). ("the absence of public access to land has consistently proven fatal to a landowner's claim of charitable exemption.")
The Board further found and ruled that the assessors were justified in denying the applications based on their determination that the appellants' "application [was] submitted for the purpose of evading payment of full and proper taxes."  See G.L. c. 61B, § 6.  Despite the Foundation being listed as the lessee, the private, members-only Club continued to operate the golf course on a day-to-day basis and its members, along with guests at the Wequassett Inn, were the only individuals able to use the course.  Accordingly, the Board found and ruled that the operation and use of the subject property was unaffected by the transfer of the leasehold interest to the Foundation.  The sole purpose of the Foundation, whose members were also members of the Club, was to allow the golf course to continue to be used exclusively by its members and Inn guests while enjoying the tax benefits of recreational classification.
"It is axiomatic that taxpayers have the right to mold business transactions in such a manner as to minimize the incidence of taxation, for no taxpayer is obligated to pay more tax than the law demands of him."  Brown, Rudnick, Freed & Gesmer v. Assessors of the City of Boston, Mass. ATB Findings of Fact and Report 1982-41, 53, aff'd 389 Mass. 298 (1983) (quoting Aldon Homes, Inc. v. Commissioner of Internal Revenue, 33 T.C. 582 (1959)).  However, "this right does not bestow upon the taxpayer the right to structure a paper entity to avoid tax when that entity does not stand on the solid foundation of economic reality." Zmuda v. Commissioner,  79 T.C. 714, 719 (1982), aff'd. 731 F.2d 1417 (9th Cir. 1984).  
The Government may not be required to acquiesce in the taxpayer's election of that form for doing business which is most advantageous to him.  The Government may look at actualities and upon determination that the form employed for doing business or carrying out the challenged tax event is unreal or a sham may sustain or disregard the effect of the fiction as best serves the purposes of the tax statute. To hold otherwise would permit the schemes of taxpayers to supersede legislation in the determination of the time and manner of taxation.
  
Higgins v. Smith, 308 U.S. 473 (1940).  "To permit the true nature of a transaction to be disguised by mere formalisms, which exist solely to alter tax liabilities, would seriously impair the effective administration of the tax policies."  Commissioner v. Court Holding Co., 324 U.S. 331, 334 (1945).     
Chapter 61B, § 6, explicitly provides assessors with the authority to deny classification applications where the applicant's purpose is to evade payment of taxes by providing "[i]f any board of assessors shall determine that any such application is submitted for the purpose of evading payment of full and proper taxes, such board shall disallow such application."  G.L. c. 62B, § 6.  In the present appeals, the Board found and ruled that the Foundation was created, and the leasehold interest in the golf course was transferred to it, for the sole purpose of attempting to qualify for Chapter 61B classification and thereby evade the full and proper real estate tax.
Accordingly, the Board found and ruled that the assessors properly determined that the appellants' submitted applications for classification were "for the purpose of evading payment of full and proper taxes."
In the alternative, the appellants also argued that the subject property qualified under chapter 61B, § 1 as land "retained in substantially a natural, wild, or open condition or in a landscaped condition in such a manner as to allow to a significant extent the preservation of wildlife and other natural resources."  Where, as here, the statute provides for classification of land put to a particular use, such as golfing, and provides conditions for such classification, a taxpayer cannot avoid those conditions by claiming the benefit of classification as land used for unspecified purposes.  It is a familiar principle of statutory construction that a statutory provision of specific applicability trumps one of general applicability.  W.D. Cowls, Inc. v. Board of Assessors of Shutesbury, 34 Mass. App. Ct. 944, 945 (1993) (citing Hennessey v. Berger, 403 Mass. 648, 651 (1988)).  See also Pereira v. New England LNG Co., 3674 Mass. 109, 118-19 (1973) (If a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute). 
In the present appeals, the parties stipulated that the sole use of the subject property was as a golf course, together with a club house and various improvements used solely in connection with the golf course.  Accordingly, the Board found that to qualify under Chapter 61B as land used for the recreational use of golfing, the subject property must be available to the general public or members of a non-profit organization.  Because it was not, the assessors were correct is denying classification for the fiscal years at issue.  
On these bases, the Board found and ruled that the subject property did not qualify for recreational classification for the fiscal years at issue and therefore decided these appeals for the appellees.

				    APPELLATE TAX BOARD

				By: 					_____	__
				    Thomas W. Hammond, Jr., Chairman



A true copy,


Attest:					____	
	     Clerk of the Board

 Pursuant to G.L. c. 61B, § 6, the appellants' application for recreational classification was deemed denied three months from the date of filing, September 28, 2004.  The appellants then had sixty days to file a request for a modification.  G.L. c. 61B, § 14.

ATB 2009-659