In re Appeal of Keith R. Mader 2000 Revocable Trust
| Decision Date | 08 October 2021 |
| Docket Number | No. 2020-0538,2020-0538 |
| Citation | 174 N.H. 520,266 A.3d 1026 |
| Parties | APPEAL OF KEITH R. MADER 2000 REVOCABLE TRUST & a. (New Hampshire Board of Tax and Land Appeals) |
| Court | New Hampshire Supreme Court |
Cooper Cargill Chant, P.A., of North Conway (Randall F. Cooper on the brief and orally), for the petitioners.
Donahue, Tucker & Ciandella, PLLC, of Exeter (Brendan Avery O'Donnell and Christopher T. Hilson on the brief, and Brendan Avery O'Donnell orally), for the respondent.
The eighteen petitioners (the Taxpayers) appeal an order of the New Hampshire Board of Tax and Land Appeals (BTLA) issued following our decision in Appeal of Keith R. Mader 2000 Revocable Trust, 173 N.H. 362, 239 A.3d 937 (2020). In that decision, we vacated the BTLA's prior dismissal of the Taxpayers’ property tax abatement appeals and remanded for the BTLA to further consider whether the Taxpayers omitted their personal signatures and certifications on their tax abatement applications to the respondent, the Town of Bartlett (Town), "due to reasonable cause and not willful neglect." Mader 2000 Revocable Trust, 173 N.H. at 372, 239 A.3d 937 (quotation omitted). On remand, the BTLA found that "based on the facts presented, the Taxpayers [had] not met their burden of proving the omission of their signatures and certifications was due to reasonable cause and not willful neglect," and again dismissed their appeals. We affirm.
We repeat the facts stated in Mader 2000 Revocable Trust for context. The Taxpayers own property at a condominium development in Bartlett. Id. at 364, 239 A.3d 937. On February 7, 2018, the Taxpayers’ attorney received a message from the condominium developer, requesting legal representation related to a substantial increase in the Taxpayers’ real estate taxes. Id. The attorney explained that he was leaving on an overseas vacation in two days and would not return until February 26, two days before the March 1 abatement filing deadline. Id. He assured the developer that he would nonetheless be able to timely submit abatement applications on behalf of the Taxpayers. Id. The Taxpayers engaged his services and, on February 20, agreed to the terms of the representation agreement. Id. at 365, 239 A.3d 937.
The attorney returned from vacation on February 26, prepared the abatement applications, and submitted them to the Town on or about February 27. Id. The Taxpayers did not personally sign or certify their respective applications. Id. Instead, the attorney signed on their behalf. The Town denied the applications, and the Taxpayers appealed to the BTLA.
The BTLA requested written proof that the Taxpayers had signed the abatement applications as required by New Hampshire Administrative Rules, Tax 203.02. Id. Rule 203.02 requires "[t]he taxpayer" to file an abatement application on a form "prescribed by" the BTLA or on a "written document" that includes, among other items "[t]he taxpayer's signature on the abatement application certifying that the application has a good faith basis and the facts stated are true." N.H. Admin. R., Tax 203.02(b)(4). The rule provides that "[a]n attorney or agent shall not sign the abatement application for the taxpayer," but that an attorney or agent "may ... sign the abatement application along with the taxpayer to indicate the attorney's or agent's representation." N.H. Admin. R., Tax 203.02(d). Under Rule 203.02(d), "[t]he lack of the taxpayer's signature and certification shall preclude an RSA 76:16-a appeal to the board unless it was due to reasonable cause and not willful neglect." Id. Rule 102.39 defines the term "[t]axpayer" as "the person or entity that filed [the] tax appeal." N.H. Admin. R., Tax 102.39.
The Taxpayers filed a motion seeking an exception to Rule 203.02's personal signature and certification requirement. Mader 2000 Revocable Trust, 173 N.H. at 365, 239 A.3d 937. They acknowledged that they had not personally signed or certified their respective applications, but argued that the omissions were " ‘due to reasonable cause and not willful neglect.’ " Id. (quoting N.H. Admin. R., Tax 203.02(d)). The BTLA denied the motion and dismissed the appeals. Mader 2000 Revocable Trust, 173 N.H. at 365, 239 A.3d 937. The Taxpayers unsuccessfully moved for rehearing and then appealed to this court. Id.
On appeal, we concluded that Rule 203.02(d)’s "reasonable cause and not willful neglect" standard referred not only "to whether the taxpayer acted voluntarily ... , but also to whether the filer's reason for so acting was objectively reasonable under the circumstances." Id. at 369, 239 A.3d 937 (quotation omitted). We construed the reasonable cause and not willful neglect standard to permit an appeal to the BTLA without a taxpayer signature and certification "if the taxpayer can show that, despite exercising ordinary business care and prudence, it was not reasonably possible to submit the application with the taxpayer's signature and certification," and can also show "that he or she was not recklessly indifferent to the signature and certification requirement in preparing the application." Id. at 370, 239 A.3d 937.
Because the BTLA did not have the benefit of our construction of Rule 203.02(d) when it dismissed the Taxpayers’ appeals, we vacated its decision and remanded for the BTLA to "further consider[ ] ... whether the omissions of the [Taxpayers’] personal signatures and certifications on their applications were ‘due to reasonable cause and not willful neglect’ as we [had] construed that phrase." Id. at 372, 239 A.3d 937 (quoting N.H. Admin. R., Tax 203.02(d)).
On remand, the BTLA found that the Taxpayers failed to prove that they exercised "ordinary business care and prudence." The BTLA observed that the Taxpayers knew of their property assessments no later than December 1, 2017, but "took no discernible steps" to challenge them until February 7, 2018. The BTLA further observed that the Taxpayers chose to hire an attorney who was leaving the country on February 9 and was not expected to return until February 26. The Taxpayers engaged his services, but did not agree to the terms of representation until February 20. The BTLA noted that "[t]he Taxpayers’ collective decision to seek representation from [the attorney] (despite his vacation plans and their delay in signing the Representation Agreement) does not excuse his or their noncompliance" with Rule 203.02(d).
The BTLA also found that the attorney signed and certified the abatement applications without consulting "anyone, including the Taxpayers," or the appraisal firm he had previously contacted to appraise their properties. (Emphasis added.) Rather, the attorney "determined entirely on his own that ‘good faith grounds’ existed for filing abatement applications and he did so simply by comparing the 2017 assessments with those of the prior tax year." The BTLA found that there was "no evidence" that the Taxpayers took or were given "the opportunity to review the abatement applications before they were filed."
As to whether it was "reasonably possible" for the Taxpayers to have submitted their abatement applications with their own signatures and certifications, the BTLA found that they "could have signed and certified each abatement application using various modalities, including faxed or e-mailed signatures." The BTLA observed that "[i]n their individual appeals for the subsequent tax year (2018), the Taxpayers did sign and certify each abatement application." Based upon the record before it, the BTLA found that "it was not ‘objectively reasonable’ for Taxpayer signatures and certifications to be omitted from their abatement applications."
With regard to whether the Taxpayers established that neither their attorney nor they were recklessly indifferent to the signature and certification requirements, the BTLA was "persuaded by a review of the entire record and the relevant timeline that neither the Taxpayers nor their agent ... made any attempt to comply with the taxpayer signature and certification requirements at all, in a timely manner." The Taxpayers unsuccessfully moved for rehearing, and this appeal followed.
Our standard for reviewing BTLA decisions is set forth by statute. See RSA 541:13 (2021); RSA 71-B:12 (2012) (providing that BTLA decisions may be appealed in accordance with RSA chapter 541). The BTLA's findings of fact are deemed prima facie lawful and reasonable. See RSA 541:13. To prevail, the Taxpayers must show, by a preponderance of the evidence, that the BTLA's decision was "clearly unreasonable or unlawful." Id. "We will not set aside or vacate a BTLA decision except for errors of law, unless we are satisfied, by a clear preponderance of the evidence before us, that such order is unjust or unreasonable." Appeal of N.H. Elec. Coop., 170 N.H. 66, 72-73, 164 A.3d 1013 (2017) (quotation omitted). "[O]ur task is not to determine whether we would have found differently than did the board, or to reweigh the evidence, but rather to determine whether the findings are supported by competent evidence in the record." Id. at 74, 164 A.3d 1013 (quotation omitted).
On appeal, the Taxpayers first argue that the BTLA was compelled to find that they exercised ordinary business care and prudence because most of them live out of state, the tax bills were received right before "the Holiday season," and they did not know that they were required to sign the abatement applications personally. They assert that "it cannot be said that [it] ... was reasonably possible to file the applications with [their] signatures" because their attorney had only approximately three days to complete and file the applications and all but one of the Taxpayers live out of state. The Taxpayers further contend that their attorney "certainly thought and had good reason ... to believe that he had no obligation to look into anything further until his return from vacation." They maintain that even if their...
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