Opinion
Nos. 12–P–1244 12–P–1245.
2013-05-29
Scott E. KAMHOLZ & another v. BOARD OF ASSESSORS OF NEWTON (and a companion case ).
By the Court (RUBIN, FECTEAU & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We are presented with two related appeals from decisions of the Appellate Tax Board. The disputes involve a single-family residence that was converted into two individual condominium units. On January 1, 2007, the city of Newton assessed the value of the lot with the single-family residence erected upon it at $513,700. The building was converted into two individual condominium units, and, on June 29, 2007, the city issued an occupancy permit for each unit. On July 5, 2007, the master deed for the condominium was recorded. On July 2, 2007, one of the condominium units was conveyed to Jennifer L. Stewart and R. David Stewart, and, on July 31, 2007, the other condominium unit was conveyed to Scott E. Kamholz and Karen Levine Kamholz. The city imposed an additional tax on both the Stewarts and the Kamholzes based on an increase in assessed value. The Appellate Tax Board abated the tax in each case, and the city now appeals.
The city's primary argument is that this increased tax was permitted under G.L. c. 59, § 2D( a ), as amended by St.2003, c. 46, § 41, which provides, in relevant part, “[w]henever in any fiscal year real estate improved in assessed value by over 50 per cent by new construction is issued a temporary or permanent occupancy permit after January 1 in any year, ... [t]he amounts payable to the city or town shall be determined as follows: (1) A real estate tax based on the assessed value of the improvement for the fiscal year in which such improvement and issue of an occupancy permit occurred allocable on a pro rata basis to the days remaining in the fiscal year from the date of the issue of the occupancy permit to the end of the fiscal year; and (2) A real estate tax based on the assessed value of the improvement for the succeeding fiscal year where the occupancy takes place between January 1 and June 30 of any year.” The fiscal year ended on June 30.
The city argues that under § 2D( a )(2), it is entitled to impose a real estate tax based on the increased assessed value of the property for the fiscal year beginning on July 1, 2007, the “succeeding fiscal year.” It argues that, where the occupancy permits were issued before June 30, the statute entitled it to impose such tax.
The plaintiffs argue, however, that the city may not do so. In this case, the occupancy permits were issued prior to July 1, but occupancy itself did not take place until after July 1. The plaintiffs argue that because “the occupancy” did not take place “between January 1 and June 30,” under the plain language of the statute the tax may not be increased.
This is an interesting question of statutory construction, and, depending upon the frequency with which certificates are issued late in the fiscal year with occupancy occurring only in the next fiscal year, it may be one of substantial significance. Counsel for the city represented to us at argument that many hundreds of thousands of dollars of tax revenue are at issue in the city of Newton alone.
We need not, however, address that statutory question in this case. Section 2D( a ) applies only when real estate is “improved in assessed value by over 50 per cent by new construction.” Even assuming that the city's arguments before us are not waived—the plaintiffs contend that none of the city's arguments were made before the Appellate Tax Board—there is no evidence in the record of any new construction at the subject property. The absence of evidence of new construction was one of the alternative bases upon which the Appellate Tax Board concluded that the taxpayers were entitled to abatements. We agree and conclude that the absence of any evidence of new construction is dispositive. The city argues that the issuance of the certificates of occupancy by the city necessarily implies that new construction took place. The certificates themselves are not in the record before us, nor are we persuaded that the one source of law to which the city points, 780 Code Mass. Regs. § 5120.2 (2008), even if applicable in this case, necessarily implies that such certificates may only be issued where there has been “new construction” within the meaning of the statute. Because the city has not, therefore, met its burden to demonstrate error in the conclusions of the Appellate Tax Board, the decisions of the Appellate Tax Board are affirmed.
So ordered.
Karen Levine Kamholz.