HERSCH C. ALTMAN & another, trustees, vs. BOARD OF ASSESSORS OF RANDOLPH.

HERSCH C. ALTMAN & another, trustees, vs. BOARD OF ASSESSORS OF RANDOLPH.

372 Mass. 276

March 10, 1977 - March 31, 1977

Suffolk County

Present: HENNESSEY, C.J., BRAUCHER, WILKINS, LIACOS, & ABRAMS, JJ.

Under the provisions of G. L. c. 59, Sections 64, 65, full payment of the tax assessed on a parcel of real estate was not required as a condition precedent to the taxpayer's right to appeal to the Appellate Tax Board from a refusal of an application for abatement of the tax, even though an office building was built on the property in the third year of the averaging period. [276-277]

APPEAL from a decision of the Appellate Tax Board.

Arthur E. Nicholson for the taxpayers.

William J. Carr for the Board of Assessors of Randolph.

BRAUCHER, J. Under G. L. c. 59, Sections 64, 65, a taxpayer may appeal to the Appellate Tax Board (board) from a refusal of an application for abatement of a tax of more than $1,500 on a parcel of real estate if he has paid "a sum not less than the amount which would be assessable in the year of assessment of the tax upon a valuation equal to the average of the valuations of said parcel, as reduced by reason of abatements, if any, for the three years next preceding said year." [Note 1] The taxpayers here appealed under the informal procedure, and paid more than the sum required, based on two years of unimproved land and one year of land with building. We hold that the board erred when it dismissed the appeal for want of jurisdiction.

The facts are not in dispute. The property was assessed for $21,600 in 1970, $21,600 in 1971, and $177,000 in 1972,

Page 277

abated to $132,000. The assessment for 1973 was $132,000, and the 1973 tax at the rate of $73 per $1,000 amounted to $9,636. The taxpayers paid $7,478.68 on October 31, 1973, and filed their appeal on January 3, 1974. See Boston Five Cents Sav. Bank v. Assessors of Boston, 313 Mass. 762 , 773 (1943) (payment is condition precedent to appeal). The balance was later paid with interest. On an average valuation of $58,400, we compute a $73 tax per $1,000 at $4,263.20.

The assessors argue and the board apparently ruled that the averaging provision did not apply, either because the case was filed under the informal procedure or because an office building was built on the property in the third year of the averaging period. The result would be that full payment of the tax would be required as a condition of the right to appeal, and that precisely the hardship might result that the Legislature sought to avoid. Cf. Assessors of New Braintree v. Pioneer Valley Academy, Inc., 355 Mass. 610 , 616-617 (1969) (no need to consider financial ability if averaging provision applied). No such distinctions are found in the statutory language. We think the error is clear, and that appeal to this court is within the exception in G. L. c. 58A, Section 7A, [Note 2] for "questions of law raised by the pleadings or by an agreed statement of facts." See Assessors of Saugus v. Leo, 363 Mass. 47 , 50 (1973).

Decision reversed.

FOOTNOTES

[Note 1] G. L. c. 59, Section 64, as amended through St. 1973, c. 664, Section 1.

[Note 2] As amended through St. 1972, c. 684, Section 3.