Patricia Kessler v. Board of Assessors of the City of Salem (February 11, 2002)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

PATRICIA KESSLER			v.	BOARD OF ASSESSORS OF 
THE CITY OF SALEM

Docket No. F261905				Promulgated:
							February 11, 2002

	This is an appeal originally filed under the informal procedure pursuant to G.L. c. 59, §§ 64 and 65 from the refusal of the appellee to abate real estate taxes assessed under G.L. c. 58, § 38, for fiscal year 2001.   In accordance with the provisions of G.L. c. 58A, § 7A, the appellee elected to transfer the petition to the formal procedure.
	Commissioner Rose heard the appeal and on November 14, 2001, issued a single member decision for the appellee in accordance with G.L. c. 58A, § 1A.
	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.

	Patricia Kessler, pro se, for the appellant.
	Frank Kulik, Assessor, for the appellee.
FINDINGS OF FACT AND REPORT
	On January 1, 2000, Patricia Kessler ("appellant") was the assessed owner of a parcel of land located at 284 Lafayette Street, Salem.  The subject property is located approximately one mile from downtown Salem, near Salem State College.  The property contains approximately 0.207 acres of land and is improved with an eleven-room, Victorian-style "bed & breakfast" known as the Coach House Inn.  It is also improved with a smaller building referred to on the property record card as the carriage house.  As listed on the property record card the Coach House Inn has 6,028 square feet of finished space and the carriage house has 868 square feet of finished space.  
The Board of Assessors ("Assessors") valued the property, including the land, the two buildings, and the paving improvement, at $461,200 and assessed a tax thereon in the amount of $11,954.39.  The appellant timely paid the taxes without incurring interest.  On January 16, 2001, well before the February 1, 2001 deadline, the appellant timely filed an application for abatement with the Assessors.  The application was deemed denied on April 16, 2001.  On June 19, 2001, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On this basis, the Board found that it had jurisdiction over the subject appeal.
The appellant's sole contention is that the Coach House Inn building component of her assessment is valued excessively compared to the assessed building values of other Salem bed and breakfast properties.  In support of her argument, the appellant offered into evidence a self-prepared document in which she segregated out that portion of the assessment attributable to the Coach House Inn component of her property and compared it to the building assessments for three other bed and breakfast operations located in Salem.  The appellant noted that all three of these other properties are ten- or eleven-room bed and breakfasts inns, but are located in downtown Salem, which in her opinion is a more desirable location than that of her property located nearer to Salem State College.  Despite what the appellant considered superior features, the Assessors attributed lower, rather than higher, building assessments to the downtown bed and breakfast buildings compared to the subject building.   
Based on these three building assessments, the appellant argued that her property was over-valued for fiscal year 2001 because the Coach House Inn component of her property's overall assessment should have been valued even lower than that of the three purportedly comparable building assessments.  In her opinion, the fair market value of the Coach House Inn building was $50,000 lower than the assessment, thereby lowering the fair market value of the subject property as a whole for fiscal year 2001 to $411,200.  
In defense of their assessment, the Assessors used the same properties that the appellant examined and explained, using property record cards, that the subject property's overall assessment fairly represented its fair market value.  Specifically, the Assessors noted that compared to the appellant's three purportedly comparable properties, the subject property contained more square footage of finished space; it was located adjacent to Salem State College which was a favorable location for a bed and breakfast; and, it had a second valuable rental building located on the property which enhanced the value of the bed and breakfast property as a whole.  On this basis, the Assessors valued the subject property, in total, at $461,200, compared to the other three bed and breakfast total assessments of $385,900, $358,000, and $399,600. 
Based on the evidence presented, the presiding member found that the appellant did not adequately demonstrate how or to what extent the Assessors' appraisal methodology was flawed.  He also found that the appellant failed to sufficiently support her opinion of the subject property's overall fair cash value with persuasive evidence.  Even if, for argument's sake, the Coach House Inn component of the property's assessment was too high, the appellant failed to prove that the subject property's overall assessment was excessive.  
Accordingly, the presiding member found that the appellant failed to meet her burden of proving that the subject property was over-valued for fiscal year 2001 and, therefore, issued a single-member decision for the appellee.

OPINION
	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).
	The burden of proof is upon the taxpayer to make out her right as a matter of law to an abatement of the tax.  Schlaiker v. Board of Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The taxpayer must prove that the assessed valuation of her property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 391 (1982).  The assessment is presumed valid until the taxpayer sustains her burden of proving otherwise.  Schlaiker, 365 Mass. at 245.
	In the present appeal, the appellant focused on only one component, the Coach House Inn, of the total assessment to support her abatement claim.  The appellant offered into evidence assessments of purportedly comparable properties with lower building assessments to establish that the subject property was over-valued.  However, "a taxpayer does not conclusively establish a right to an abatement merely by showing that his [building] is overvalued."  Anderson v. Assessors of Barnstable, 25 Mass. App. Tax Bd. Rep. 613, 615 (1999).  "The tax on a parcel of land and the building thereon is one tax . . . although for statistical purposes they may be valued separately.  Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941).  In an abatement proceeding, "the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1926).  
Although the appellant offered evidence that purported to challenge the value of the Coach House Inn, one component of the subject property's assessment, the presiding member found and ruled that there was insufficient credible evidence to show that the overall assessment of the subject property exceeded its fair cash value as of the relevant assessment date.  
In an appeal before this Board, the taxpayer "may present persuasive evidence of overvaluation either by exposing flaws or errors in the assessors' method of valuing, or by introducing affirmative evidence of value which undermines the assessors' valuation."  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 600 (1984), quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983).  
In the present appeal, the presiding member found and ruled that the appellant failed to present persuasive evidence with respect to either of these propositions.  The presiding member further found that the appellant failed to introduce credible evidence showing the overall assessment of the subject property exceeded its fair cash value as of the relevant assessment date.


On this basis, Commissioner Rose issued a single-member decision for the appellee.


							 THE APPELLATE TAX BOARD

							By:					
							   James D. Rose, Member


A true copy,



Attest:					
		Clerk of the Board

	

ATB 2002-77