Opinion
11-P-671
03-14-2012
LINDA INNISS, trustee, v. BOARD OF ASSESSORS OF SWAMPSCOTT.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The sole beneficiary of the Green Rock Nominee Trust (trust) brought an action against the town of Swampscott, which denied the trust's request for a tax abatement. The trust appealed the town's decision to the Appellate Tax Board (board) and lost on jurisdictional grounds due to a failure to timely pay a quarterly tax. On appeal, the trust essentially claims that the town was informed of its address change, but nonetheless mailed the bill to the old address.
The town initially claimed that the appeal should be dismissed because Jonathan Bedard, the current sole beneficiary of the trust, originally filed this appeal pro se. This issue was mooted by the filing of a motion to have the trust's briefs treated as filed by the attorney who argued this case before us.
After the trust's initial request for an abatement was denied, it opted to appeal by means of an informal procedure before the board. In electing this option, the trustee signed a waiver of the trust's right to appeal the board's decision to this court 'except on questions of law raised by the pleadings, or by an agreed statement of facts, or shown by the report of the board.' The board dismissed the appeal on jurisdictional grounds because the trust had failed to make a timely payment on its last quarterly tax bill for the tax year at issue.
General Laws c. 59, § 64, provides, in pertinent part: 'if the tax due for the full fiscal year on a parcel of real estate is more than $3,000, said tax shall not be abated unless the full amount of said tax due has been paid without the incurring of any interest charges on any part of said tax pursuant to section fifty-seven of chapter fifty-nine of the General Laws.'
Before us, the trust claims that it was entitled to a hearing on the merits because it never received the tax bill, which was sent to a former address despite the town having notice of the move, and therefore it was unreasonable to expect the trust to make a timely payment. The town moved to strike all evidence of these facts from the trust's brief and record appendix.
While we are sympathetic to the trust's predicament, we agree with the town that these facts are not properly before us. Pursuant to the trust's election of the informal procedure and signed waiver of appeal, we are limited in our review to questions of law raised by the pleadings. The town did not file an answer, and the only pleading in this case was the trust's complaint, or 'Statement Under Informal Procedure,' which concerned its factual allegations that the property was overvalued. The statement itself did not provide sufficient information for us to review the dismissal.
We would also be able to review an agreed statement of facts and a report by the board. However, here, the board did not issue a report, and the trust concedes that its 'Statement of Evidence' is not properly before us.
The trust claims that the town's motion to dismiss, the trust's opposition to the motion, and the attached documents are also 'responsive pleadings' under the 'Appellate Tax Board Rules of Practice and Procedure' (ATB rules), and are therefore also properly before us. The ATB rules provide, 'In lieu of filing an answer, the appellee may file a motion to dismiss the appeal or other motions.' 831 Code Mass. Regs. § 1.12 (2011). The trust argues that the title of the section, 'Answers, Responsive Pleadings and Service Thereof,' suggests that a motion to dismiss constitutes a 'responsive pleading' within the meaning of the statute. We disagree. Generally, ''a motion to dismiss is not a 'responsive pleading' within [Fed.R.Civ.P. 15(a)],' which is substantially the same as Mass.R.Civ.P. 15[a] . . . .' National Equity Properties, Inc. v. Hanover Ins. Co., 74 Mass. App. Ct. 917, 918 (2009), quoting from Keene Lumber Co. v. Leventhal, 165 F.2d 815, 823 (1st Cir. 1948).
Additionally, under 831 Code Mass. Regs. § 1.14 (2011), '[p]arties may amend their pleadings at any time before the decision of the Board, by consent of the adverse party or by leave of the Board.' Here, the trust was free to request leave to amend the complaint after receiving the town's motion to dismiss. By amending the pleading in the case, the trust could have preserved any additional issues of law for appeal, pursuant to its waiver under the informal procedure. Instead, the trust engaged in motion practice within the confines of the informal procedure it had elected and failed to modify the initial complaint. As such, the town's motion to dismiss, the trust's reply to that motion, and all attached documents were not pleadings. 'With respect to the proceedings before the board all that we have before us is the pleading setting forth the facts alleged by the [trust] as the basis of its claim, and the decision of the board, without findings or rulings, in favor of the respondents. On such a record there is nothing for this court to review.' Milchen Furniture Co. v. Assessors of Quincy, 335 Mass. 767, 767 (1957).
Even if we were to consider the evidence, the trust would fare no better. The board did not err in concluding that when the trust had missed a timely payment, the board had no jurisdiction to consider the request for abatement. In Stilson v. Assessors of Gloucester, 385 Mass. 724, 732 (1982), the taxpayer complained that she had timely mailed the tax payment, but resubmitted it a few days late, with interest, when the town did not receive her earlier payment. Noting that the taxpayer was essentially arguing that she should be excused from the statutory requirement, the court held that the board had only the jurisdiction conferred on it by statute and '[a]dherence to the statutory prerequisites is essential to an effective application for abatement.' Ibid. Similarly, in Bible Baptist Church of Plymouth, Inc. v. Assessors of Plymouth, 391 Mass. 1015, 1016 (1984), the court held that the failure of the taxpayer to receive a tax bill did not cure the jurisdictional defect, as the statute requires only that a tax bill be sent, not that it be received.
The trust points to dictum in Bible Baptist, supra, which notes that 'there is nothing unfair or unconstitutional about the statute as applied in these circumstances. The bill was not received because it was sent to the church's old address; it was sent to the old address because the pastor had not thought it necessary to inform the town of the church's new address.' Ibid. Because, in contrast to Bible Baptist, the trust had notified the town of its address change, it claims that, as applied here, the statute unfairly violated the trust's procedural due process rights. However, we disagree that merely informing the town of an address change absolves the trust of all of its obligations to make timely payment of its bills. The trust had notice that tax bills were sent out quarterly and should have known that payment was due. Additionally, the trust could have effortlessly alerted the post office to forward its mail. Thus, while, as noted above, we have some sympathy for the trust, the law is clear as to the obligations of the trust. As a timely payment was not made, the board had no jurisdiction to rule on the merits of the case.
Decision of Appellate Tax Board affirmed.
By the Court (Kantrowitz, Trainor & Hanlon, JJ.),