Shoppers' World, Inc. v. Board of Assessors of Framingham

Decision Date15 January 1965
Parties,SHOPPERS' WORLD, INC. v. BOARD OF ASSESSORS OF FRAMINGHAM.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Charles M. Ewing, Boston (Joseph P. Warner, Boston, with him), for taxpayer.

David A. Foley, Boston (Alden Seltzer, Framingham, with him), for Board of Assessors of Framingham.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK, and REARDON, JJ.

CUTTER, Justice.

Shoppers' World, Inc. (the taxpayer) owns 82.10 acres of land (the locus) in Framingham. 1 The assessors valued the locus in 1960 and 1961 at $393,400, and assessed at that valuation a real estate tax in each year. For each year an application for abatement was filed and an appeal 2 taken to the Appellate Tax Board (the board). The present appeal deals with the 1960 tax.

Experts' appraisal reports (see fn. 1) put in evidence by the taxpayer indicated that the fair market value of the locus on January 1 of each of the years 1960 and 1961 was $330,000 or $335,000. An expert's report placed in evidence by the assessors indicated that the locus then had a fair market value of $1,035,000. The board found that the locus in each year 'was not assessed at more than its fair cash value,' and rendered a decision for the assessors. The taxpayer's appeal to this court presents the questions whether the board correctly (a) excluded certain evidence and (b) denied the taxpayer's twenty requests for rulings. Designated sections of the evidence are before us. The following additional facts are relevant.

The taxpayer called as a witness one Dolan, who had been chairman of the assessors in 1960 and 1961. He was asked, 'Now * * * was there a uniform practice on the part of the [a]ssessors in Framingham of assessing properties at 45% of their full fair cash value?' The board sustained an objection to the question. The taxpayer saved an exception and offered to prove 'that the uniform practice deliberately adopted by the * * * [a]ssessors in * * * 1960 and 1961, was to assess all the properties in the town * * * commercial, industrial or otherwise--at 45% of what the [a]ssessors regarded as their full fair cash value.'

A lawyer practising in Framingham was asked about statements made to him by one or more assessors concerning 'their uniform policy * * * with respect to assessments' in relation to fair cash value. The witness was not permitted to answer. An exception was noted. The taxpayer offered to prove that one or more assessors 'on numerous occasions' had admitted to the witness the existence of a uniform policy 'of assessing properties throughout the town at the general rate of 45% of full fair cash value.'

By stipulation the taxpayer was permitted to submit an offer of proof that the then current chairman of the assessors would testify, if present, that an 'outside survey appraisal concern' proceeded to appraise each property in town at its full fair cash value, and that the assessors computed forty-five per cent of each such amount, and carried it on their books as the 1957 assessment of the parcel to which it related. The board ruled, subject to the taxpayer's exception, that this evidence, if offered through the chairman of the assessors in person, would be excluded.

The board denied all the taxpayer's requests for rulings. Examples of these requests are set out in the margin. 3

1. The assessors in effect contend that the taxpayer is barred from making any claim before the Appellate Tax Board other than that the locus was assessed for more than its fair cash value. See G.L. c. 58A, § 7 (as amended through St.1953, c. 654, § 25). 4 The petition (see fn. 2), say the assessors alleges merely overvaluation of the locus, and not that there was disproportionate assessment of the locus in relation to other property assessments. Consequently, they say, it is not open to the taxpayer to offer evidence that, in general at least, the assessors intentionally placed other assessments on a basis of forty-five per cent of fair cash value, whereas the locus they assessed at a higher percentage of full, fair cash value. They suggest that the offered evidence tends to show that the taxpayer was 'taxed at more than * * * [its] just proportion' rather than 'upon an assessment of any of * * * [its] property in excess of its fair cash value.' 5

As a matter of mathematics and practical effect upon the taxpayer, the locus was overvalued, as well as disproportionately assessed, if other properties in town were intentionally assessed at forty-five per cent of fair cash value and the locus was assessed at a higher percentage of fair cash value. See Stone v. Springfield, 341 Mass. 246, 251, 168 N.E.2d 76. If the assessors in fact have adopted, either formally or informally, a practice or standard of valuation in which each dollar of land value is treated as being worth only forty-five cents, then, as a matter of common sense, a single property or group of properties to which the standard is not applied is overvalued.

We decide later in this opinion that a taxpayer, upon suitable allegation and proof, has a remedy for the type of disparity of treatment which this taxpayer now seeks to prove, under G.L. c. 59, § 59, as amended, and by appeal to the Appellate Tax Board under G.L. c. 59, §§ 64 and 65 (most recently amended, respectively, by St.1956, c. 544, and by St.1945, c. 621, § 6). In pursuing that remedy, however, it is incumbent upon a taxpayer to set out in his petition to the board the precise nature of his contentions, and the facts upon which they are based, when he seeks relief from an overvaluation of his property somewhat different in character from that in the ordinary overvaluation case where the assessors and the taxpayer disagree merely about the fair cash value of a property intended to be assessed at full fair cash value. See Stone v. Springfield, 341 Mass. 246, 251, 168 N.E.2d 76, and LETO V. BOARD OF ASSESSORS OF WILMINGON, 348 MASS. ----, ----, 202 N.E.2D 922A, discussing the importance of clear allegations of the facts concerning widespread nonproportional assessments at levels below fair cash value.

This taxpayer has not met the standards of pleading set out in these cases. Although applications for abatement to the assessors (on the printed form approved by the commissioner) are necessarily very general, the taxpayer's petition to the board (see fn. 2) makes only slight variations in the standard petition form set out in the board's rules (see appendix, pp. 20-21), which is 'subject to amendment as circumstances may render necessary or expedient.' We think, however, that the taxpayer should not be finally denied relief because of the form of its petition if it can substantiate its offers of proof. The assessors do not seem to have been misled by the petition or to have been taken by surprise by the issues raised by the taxpayer. In fact, commendably, they have joined in stipulations to facilitate the presentation and decision of the legal issues now before us. Although the petition was filed in February, 1961, with the board several months after our decision in the Stone case, the facts stated in the offers of proof do not seem as complicated as those outlined in the declaration in the Stone case (see 341 Mass. 246, 247, 168 N.E.2d 76), and it was probably natural for the taxpayer to employ the board's standard petition form, where the taxpayer's complaint was based on one type of overvaluation. An amendment of the petition probably would have been sought, and appropriately should have been granted, if the stated ground of the assessors' objections to the offered evidence had been explicitly that the petition was not broad enough to permit introduction of the evidence. The particular ground of the assessors' objection to the offered evidence does not appear plainly, but seems to have been that no attack at all on an assessment could be made in a proceeding under G.L. c. 59, §§ 59, 64 and 65, because of any 'general practice' of the assessors 'to assess [property] for less than its fair cash value.' In view of the uncertainty concerning the applicable law when the petition was filed and heard, we think that the matter should be remanded to the board for further proceedings, including considering whether amendment of the petition and further hearing of the amended petition are now appropriate. See G.L. c. 30A, § 14(8).

2. The assessors contend that their assessing practices may be proved only by the official records of the board. We need not decide whether this would be true with respect to action in fact taken at assessors' meetings, if required by statute to be recorded. See G.L. c. 39, § 23A (as amended through St.1960, c. 437, § 3; see later amendement by St.1964, c. 195); Carbone, Inc. v. Kelly, 289 Mass. 602, 605, 194 N.E. 701; New England Box Co. v. C. & R. Constr. Co., 313 Mass. 696, 702, 49 N.E.2d 121, 150 A.L.R. 152. There is no showing of, or attempt to show, any formal action by the assessors, nor is there any effort to vary any official record, for none has been shown to exist. Indeed, it is unlikely that a public board would formally adopt, by a vote set forth in its official records, a wholly illegal practice, such as a policy of assessing all land at less than 100% of full fair cash value. See G.L. (Ter.Ed.) c. 59, §§ 38, 52; Bettigole v. Assessors of Springfield, 343 Mass. 223, 231-232, 178 N.E.2d 10; LETO V. BOARD OF ASSESSORS OF WILMINGTON, 348 MASS. ----, ----, 202 N.E.2D 922.B Even if they did formally adopt, by recorded vote, a policy conforming with applicable law, we assume that it would be open to a taxpayer to prove, if he could, in a case where the issue was presented for decision, that in practice a different, unlawful policy was applied and that the record was 'a mere cover for an illegal' policy. Commonwealth v. Weinfield's, Inc., 305 Mass. 108, 111, 25 N.E.2d 198. See Russell v. De Grand, 15 Mass. 35, 38; Scullin v....

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