Opinion
22-P-488
12-21-2022
THOMOR INC. & others v. BOARD OF ASSESSORS OF NORWOOD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A group of taxpayers appealed to the Appellate Tax Board (board) after the board of assessors of Norwood (town) denied their applications to abate their property taxes. The board dismissed the appeals for lack of subject matter jurisdiction because the taxpayers did not file their applications to the town on time. Concluding that the taxpayers’ factual allegations did state a claim and the town did not submit any evidence to rebut that claim, we reverse the board's decision dismissing the taxpayers’ appeals and remand for further proceedings.
Background. Both parties agree that pursuant to G. L. c. 59, § 59, the deadline for filing an application for property tax abatement for the 2020 fiscal year was February 3, 2020. Thomor Inc., GPH Norwood LLC, EIP Oceana Way LLC, 137 Nichols LLC, Nahatan Realty LLC, and June Salinsky, as trustee, (taxpayers) claim they mailed their applications on January 23, 2020. They learned later that the town had not processed the applications, then sent an e-mail message to the town with copies of the applications on February 28, 2020. The town denied the applications for being untimely, and the taxpayers subsequently appealed the decisions to the board by filing petitions under formal procedure.
Before the board, the town moved to dismiss the appeals for lack of subject matter jurisdiction because the taxpayers did not timely file their applications. The taxpayers filed oppositions to the motions to dismiss. The board then held a hearing, and granted the motions to dismiss, which the taxpayers now appeal.
As a threshold matter, the town argues that because the taxpayers did not request findings of fact from the board, they forfeited their right to appeal questions of fact. Under G. L. c. 58A, § 13, if the board's decision does not contain findings of fact, a party may request such findings within ten days. If neither party requests these findings within ten days, "all parties shall be deemed to have waived all rights to appeal to the appeals court upon questions as to the admission or exclusion of evidence, or as to whether a finding was warranted by the evidence." Id. In the present case, we find that the town did not submit evidence to rebut the taxpayers’ claim, so the board did not have any findings to make. Thus, G. L. c. 58A, § 13 is irrelevant to this appeal.
Discussion. 1. Motion to dismiss standard. The board's decision was made at the motion to dismiss stage of the proceedings. We agree with the taxpayers that on a motion to dismiss, the board takes all factual allegations, as well as the reasonable inferences made from them, as true. Though the board does not follow the Massachusetts Rules of Civil Procedure, "the practice and the procedure before the Board shall conform to that heretofore prevailing in equity causes in the courts of the Commonwealth prior to the adoption of the Massachusetts Rules of Civil Procedure." 831 Code Mass. Regs. § 1.37(1) (2007). Before the civil rules were adopted, courts in equity used the demurrer system of pleading. See S.J.C. Rule 2:16, as appearing in Mass. Rules of Court, at 37 (West 1973). For the purposes of a demurrer, courts must take all allegations of fact in the complaint as true. See Columbian Nat'l Life Ins. Co. v. Cross, 298 Mass. 47, 48 (1937) ("The allegations of fact well pleaded in the bill of complaint are, for the purposes of the present decision, admitted by the demurrer"). Therefore, at the motion to dismiss stage, the board was required to take as true the taxpayers’ allegations in their petitions that they sent the applications on January 23, 2020.
2. Sufficiency of taxpayers’ allegations. Next, we turn to the substance of the taxpayers’ allegations. When a taxpayer sends a tax abatement application by United States mail, G. L. c. 59, § 59 contains a specific postmark rule which allows a filing that is received after the filing deadline, provided the application contains a United States postmark that is on or before the deadline and is delivered to the assessors. If those requirements are met, the date of the United States postmark is deemed the date of delivery. See G. L. c. 59, § 59. The taxpayers argue that since they alleged that they sent the applications, the board must presume they were delivered to the town, pursuant to the common-law mailbox rule. The court "presum[es] that the mailing of a properly addressed letter is prima facie evidence of receipt by the intended recipient." Commonwealth v. Barboza, 68 Mass. App. Ct. 180, 185 (2007).
The taxpayers further argue that this presumption applies in this case because they submitted an affidavit from a retired employee of taxpayers’ counsel that stated that they "mailed by first class mail, postage prepaid, applications for abatement" to the town, and "[a]s a matter of normal office practice, the mail is deposited with the Post Office, every day." In response, the town argues that these allegations are unsupported by any specific facts or affidavits showing the taxpayers’ applications were actually mailed. While we acknowledge the taxpayers’ evidence lacks convincing detail and potentially can be rebutted by evidence from the town of nonreceipt, the allegation in the petitions that the applications were timely sent satisfied the taxpayers’ burden of showing that the board had subject matter jurisdiction.
The board could have considered any countervailing evidence presented by the town as well. See Roda Realty Trust v. Board of Assessors of Belmont, 385 Mass. 493, 495 (1982) (board properly considered affidavits of taxpayers and board of assessors in considering dismissal for lack of jurisdiction). However, the town did not submit any evidence alleging the applications were not received. Neither the e-mail from taxpayers’ counsel stating that the applications "somehow were lost," nor the town's notice of denial of the applications received on February 28, 2020, nor town's counsel's representations in the motions to dismiss, unsupported by an affidavit, suffice as competent evidence that the board could consider at the motion to dismiss stage.
Conclusion. Because the taxpayers sufficiently stated a claim and the town did not submit any evidence to rebut that claim, the decision of the Appellate Tax Board is reversed and the matters are remanded to the board for further proceedings consistent with this memorandum and order.
So ordered.
Reversed and remanded