In re Keith R. Mader 2000 Revocable Trust

• Decision Date: 05 June 2020
• Docket Number: No. 2019-0061,2019-0061
• Citation: 239 A.3d 937,173 N.H. 362
• Parties: APPEAL OF KEITH R. MADER 2000 REVOCABLE TRUST & a. (New Hampshire Board of Tax and Land Appeals)
• Court: New Hampshire Supreme Court

173 N.H. 362

239 A.3d 937

APPEAL OF KEITH R. MADER 2000 REVOCABLE TRUST & a. (New Hampshire Board of Tax and Land Appeals)

No. 2019-0061

Supreme Court of New Hampshire.

Argued: November 19, 2019

Opinion Issued: June 5, 2020

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 (Christopher T. Hilson and Brendan A. O'Donnell on the brief, and Mr. Hilson orally), for the respondent.

HANTZ MARCONI, J.

The petitioners¹ appeal a decision of the New Hampshire Board of Tax and Land Appeals (BTLA) dismissing their appeals of the denials of applications for abatements of real estate taxes issued by the respondent, Town of Bartlett (Town). The BTLA dismissed the appeals because the petitioners' abatement applications failed to comply with the signature and certification requirement of New Hampshire Administrative Rules, Tax 203.02 (Tax 203.02), and because the BTLA found that the petitioners did not demonstrate that these failures were "due to reasonable cause and not willful neglect." See N.H. Admin. R., Tax 203.02(d). We vacate and remand.

The following facts were found by the BTLA or are otherwise undisputed for the purposes of this appeal. The petitioners own property at a condominium development in Bartlett, and, with one exception, they are located out of state. On February 7, 2018, Attorney Randall F. Cooper received a message left by James Rader, the principal of the condominium developer, requesting legal representation due to a substantial increase in real estate taxes facing property owners. Cooper responded by e-mail that same day, communicating that he was willing to represent the property owners, but that he was leaving in two days for a vacation out of the country and would not return until February 26. Cooper assured Rader that, even though abatement applications were due to the Town by March 1, he would be able to timely submit them.

Before leaving for vacation, Cooper contacted an appraisal firm to confirm the firm's availability to perform an appraisal and sent Rader a representation agreement. According to the petitioners, they did not agree to the terms of the representation agreement until February 20, while Cooper was away on vacation.

Cooper returned from vacation on February 26 and prepared the abatement applications, which were submitted to the Town on or about February 27. The petitioners did not personally sign or certify their respective applications. Rather, Cooper, as their attorney, signed on their behalf. As to each application, Cooper certified that there was a good faith basis for the application and that the facts as stated in the application were true to the best of his knowledge.

The Town denied the abatement applications,² and the petitioners appealed to the BTLA on August 27. By letter dated October 10, the BTLA requested "written proof" that the petitioners "signed the abatement applications filed with the Town in compliance with [Tax 203.02]." On October 24, the petitioners filed a motion seeking an exception from Tax 203.02's signature and certification requirement. The petitioners acknowledged that they had not personally signed or certified their respective abatement applications, but contended that the omissions were "due to reasonable cause and not willful neglect." See N.H. Admin. R., Tax 203.02(d). In addition to their motion, the petitioners submitted personally signed affidavits in which they certified that they had good faith bases to seek abatements at the time their respective applications were filed.

The BTLA denied the motion and dismissed the appeals. It found that the petitioners failed to comply with Tax 203.02's signature and certification requirement, and further found that the petitioners had failed to demonstrate that these failures were "due to reasonable cause and not willful neglect." As to the latter finding, the BTLA stated that "[t]he record presented indicates [that Cooper] made a conscious decision not to obtain the Taxpayers' signatures and certifications prior to filing," and that his "anticipated vacation plans do not constitute reasonable cause." The petitioners filed a motion for rehearing, which the BTLA denied. This appeal followed.

Our standard for reviewing BTLA decisions is set forth by statute. Appeal of N.H. Elec. Coop., 170 N.H. 66, 72, 164 A.3d 1013 (2017) ; see RSA 71-B:12 (2012); RSA 541:13 (2007). 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, that such order is unjust or unreasonable. Appeal of Town of Charlestown, 166 N.H. 498, 499-500, 98 A.3d 1129 (2014) ; see RSA 541:13. The appealing party has the burden of demonstrating that the BTLA's decision was clearly unreasonable or unlawful. See Town of Charlestown, 166 N.H. at 499, 98 A.3d 1129 ; RSA 541:13. The BTLA's findings of fact are deemed prima facie lawful and reasonable. Town of Charlestown, 166 N.H. at 499, 98 A.3d 1129 ; see RSA 541:13. However, the interpretation of a statute or a regulation is to be decided ultimately by this court. See Appeal of Cole, 171 N.H. 403, 412, 196 A.3d 950 (2018) ; Appeal of Wilson, 161 N.H. 659, 661, 20 A.3d 1006 (2011). If we find that the BTLA misapprehended or misapplied the law, its order will be set aside. See Wilson, 161 N.H. at 661, 20 A.3d 1006.

Resolution of this case requires us to interpret administrative rules. The interpretation of a rule, like the interpretation of a statute, presents a question of law subject to de novo review. See Appeal of Cook, 170 N.H. 746, 749, 186 A.3d 228 (2018). We use the same principles of construction when interpreting both statutes and administrative rules. Id. Where possible, we ascribe the plain and ordinary meaning to the words used in administrative rules. See Appeal of Silva, 172 N.H. 183, 186-87, 210 A.3d 887 (2019). We construe all parts of an administrative rule together to effectuate its overall purpose and to avoid an absurd or unjust result. See id. at 187, 210 A.3d 887. Moreover, in construing the BTLA's rules we are mindful that the statutory tax abatement scheme "is written to make the proceedings free from technical and formal obstructions." GGP Steeplegate v. City of Concord, 150 N.H. 683, 686, 845 A.2d 581 (2004) ; see also Arlington Mills v. Salem, 83 N.H. 148, 154, 140 A. 163 (1927). Like the statutory scheme they are designed to implement, administrative rules governing tax abatement appeals "should be construed liberally, in advancement of the rule of remedial justice which" they implement. GGP Steeplegate, 150 N.H. at 686, 845 A.2d 581 (quotation omitted).

The submission of an abatement application to a municipality is a prerequisite to the BTLA's review of an abatement request. See N.H. Admin. R., Tax 203.02(a). Tax 203.02 imposes several requirements on municipal abatement applications. As is relevant to this case, the application must include "[t]he taxpayer's signature ... 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 further provides:

The taxpayer shall sign the abatement application. An attorney or agent shall not sign the abatement application for the taxpayer. An attorney or agent may, however, sign the abatement application along with the taxpayer to indicate the attorney's or agent's representation. The 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.

N.H. Admin. R., Tax 203.02(d) (emphasis added). Thus, although the rule plainly states that an attorney may not substitute his or her signature for the taxpayer's, the lack of a taxpayer's personal signature and certification on a municipal abatement application does not preclude an appeal of the denial of that application to the BTLA if the omission is "due to reasonable cause and not willful neglect." Id.; see also Henderson Holdings at Sugar Hill v. Town of Sugar Hill, 164 N.H. 36, 40, 48 A.3d 892 (2012).

There is no dispute in this case that the petitioners did not personally sign or certify their abatement applications. Instead, the petitioners contest the BTLA's ruling that they did not demonstrate that the lack of signatures and certifications was due to reasonable cause and not willful neglect.

We have not previously had occasion to construe the reasonable cause and not willful neglect exception in Tax 203.02.

But cf. Appeal of Steele Hill Development, Inc., 121 N.H. 881, 884-85, 435 A.2d 1129 (1981) (construing agency order imposing additional taxes as an implicit finding that plaintiff had not demonstrated that his failure to timely file tax return was due to reasonable cause rather than willful neglect under a since-repealed taxation statute, see RSA ch. 71-A (repealed 1985)). Although the question of whether reasonable cause or willful neglect exists in a particular case is one of fact for the BTLA, the questions of what elements constitute reasonable cause or willful neglect under Tax 203.02 are ones of law. See United States v. Boyle, 469 U.S. 241, 249 n.8, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985) ; Cook, 170 N.H. at 749, 186 A.3d 228. Thus, we analyze the reasonable cause and not willful neglect exception in Tax 203.02(d) de novo. See Cook, 170 N.H. at 749, 186 A.3d 228.

Neither "reasonable cause" nor "willful neglect" is defined in the BTLA's regulations. See N.H. Admin. R., Tax 102.01-.40 (defining certain terms used in BTLA regulations). But cf. N.H. Admin. R., Tax 102.02 (" ‘Accident, mistake, or misfortune’ means something outside the party's own control and not due to neglect, or something that a reasonably prudent person would not be expected to guard against or provide for." (emphasis added)). We have noted, however, that "[w]illful is a word of many meanings depending upon the context in which it is used." Appeal of...