Petition — Board of Assessors of Boston v. Tregor

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IN THE

Supreme Court of the United States.

Ocroser Term, 1978.

No. 78-18 80

BOARD OF ASSESSORS OF THE

CITY OF BOSTON,

PETITIONER,

NORMAN TREGOR, TRUSTEE,

RESPONDENT.

Petition for a Writ of Certiorari to the

Supreme Judicial Céurt of the

Commonwealth of Massachusetts.

WiuuiuaMm F. York,

Watrrer H. McLaveutiy, Sr.,

Watcrer H. McLaveutiy, Jr.,

Micuaren Key,

GipMaN, McLaucuuw &

HANRAHAN,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 482-1900

Attorneys for the Petitioner

a ee

ADDISON C. GETCHELL & SON, INC, - THE LAWYERS’ PRINTER - BOSTON

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JUN 19 j979

Table of Contents.

Introductory statement

Opinion below

Jurisdiction

Question presented

Constitutional provisions and statutes involved

Statement of the case

SN © wo WS WO —

Reasons for granting the writ

—

Conclusion

Appendix A— Opinion of the Supreme Judicial

Court of the Commonwealth of Massachusetts 15

Appendix B—Opinion of the Appellate Tax Board

of the Commonwealth of Massachusetts 31

Table of Authorities Cited.

CasEs.

Assessors of Quincy v. Boston Consolidated Gas Co.,

309 Mass. 60 (1941) 3n.

Bade v. Drachman, 4 Ariz, App. 55, 417 P. 2d 689

(1966) 12,13

Board of Assessors of Weymouth v. Curtis, Mass.

Adv. Sh. (1978) 1676 10

Deitch Co. v. Board of Property Assessment, 417 Pa.

213, 209 A, 2d 397 (1965) 12

Hillsborough Twp. v. Cromwell, 326 U.S. 620 (1946) 8,12

In re Appeals of Kents, 34 N.J. 21, 166 A. 2d 763

(1961) 12, 13

Kavet v. Board of Assessors of Watertown, Mass.

Adv. Sh, (1978) 2174 10

Lowell v. County Commrs. of Middlesex, 152 Mass.

372 (1890) 8

li TABLE OF AUTHORITIES CITED

Shoppers’ World, Inc. v. Board of Assessors of

Framingham, 348 Mass. 366 (1965) 8, 9,13

Siegal v. Newark, 38 N.J. 57, 183 A. 2d 21 (1962) 12,13

Sioux City Bridge Co. v. Dakota County, Nebraska,

260 U.S. 441 (1923) 7, 8, 9,

10, 11, 13

CoNSTITUTIONAL ProvISIONS AND STATUTES.

United States Constitution,

Fourteenth Amendment 2,5

Massachusetts Constitution,

Part II, ¢. 1, § 1, art. 4 11

28 U.S.C. § 1257 2

Mass. G.L. c. 58A, § 13 3n.

Mass. G.L. c. 59, § 38 3n.

_ Mass. G.L. c. 59, § 65 3n.

IN THE

Supreme Court of the United States.

Ocroser Term, 1978.

No.

BOARD OF ASSESSORS OF THE

CITY OF BOSTON,

PETITIONER,

NORMAN TREGOR, TRUSTEE,

RESPONDENT.

Petition for a Writ of Certiorari to the

Supreme Judicial Court of the

Commonwealth of Massachusetts.

Introductory Statement.

The City of Boston in the Commonwealth of Massachu-

setts petitions this Court for a writ of certiorari to review

a judgment of the Supreme Judicial Court of the Com-

monwealth of Massachusetts.

Opinion Below.

The opinion of the Supreme Judicial Court of the Com-

monwealth of Massachusetts is reported at page 770 of

the 1979 Massachusetts Advance Sheets and is appended

hereto as Appendix A, pp. 15 through 30.

Jurisdiction.

The decision of the Supreme Judicial Court of the Com-

monwealth of Massachusetts was entered on March 23,

1979 and is appended hereto as Appendix A, pp. 15-30.

Jurisdiction of this Court is conferred by 28 U.S.C. § 1257.

Question Presented.

1. Whether the remedy granted by the Supreme Judicial

Court to a taxpayer whose real property was assessed at

a greater percentage of fair cash value than others in the

taxing district, based upon the ratio of assessed value to

fair cash value of the lowest substantial class, violates the

equal protection clause of the Fourteenth Amendment to

the Constitution of the United States as interpreted by

this Court.

Constitutional Provisions and Statutes Involved.

The Fourteenth Amendment to the Constitution of the

United States, § 1 states:

‘* All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within-its jurisdiction the equal

protection of the laws.’’

Statement of the Case.

In 1976, the respondent, Norman Tregor (‘‘Tregor’’),

Trustee for the Broad Street Trust, received a real estate.

tax bill from the petitioner, City of Boston (‘‘City’’), in

the amount of $86,931.79. Tregor’s property was assessed

by the City at $320,000 and taxed at a rate of $252.90 per

thousand dollars of assessed valuation. After the City de-

nied Tregor’s request for an abatement, he appealed to

the state Appellate Tax Board! (‘‘Board’’) which con-

ducted a de novo administrative trial. The initial phase

of the case dealt with the fair cash value of Tregor’s prop-

erty.” Based upon the stipulation of the parties, the Board

found its fair cash value to be approximately $320,000.

The second phase of the proceedings, which is the sub-

ject of this petition, dealt with the appropriate ratio to be

used by the Board in deriving the assessed value of the

property upon which the ultimate tax due is calculated.

The parties had stipulated that property in the City was

assessed in the aggregate below its fair cash value. Since

Tregor’s tax bill was calculated based upon an assessed

value equal to its fair cash value, Tregor was paying taxes

at a proportionally higher rate than other taxpayers in the

City. Although the parties agreed that Tregor was en-

titled to an abatement, the actual amount of that abate-

ment was in dispute. The average ratio of assessed value

1 The Board is an administrative agency established by the legis-

lature to hear disputes between local taxing authorities and tax-

payers. A litigant aggrieved by the Board’s decision may appeal

directly to the Supreme Judicial Court. Mass. G.L. ec. 59, § 65;

Mass. G.L. ¢. 58A, § 13.

2The standard to which the tax rate is applied is ‘‘fair cash

‘valuation,’’ Mass. G.L. ¢. 59, § 38, which is defined as ‘‘the price

that an owner willing but not compelled to sell ought to receive

from one willing but not compelled to buy.’’ Assessors of Quincy

v. Boston Consolidated Gas Co., 309 Mass. 60, 63 (1941).

to fair market value for all property in the City was 50.2%.

The ratio of assessed value to fair market value for the

class of property comprised of single-family residences

was 26.8%. This latter category was, by stipulation, the

‘‘lowest substantial class’’ of property in the City.’

s Estimated

Type of Assessed Assessment Full

Property Class ** Value * Ratio Valuation *

Real R-1 176584 .268 658895

Real R-2 114028 380 300073

Real R-3 106574 .622 171340

Real R-4 214086 ATT 448817

Real RC 63581 532 119513

Real C 657110 532 1235169

Real I 174025 576 302127

Real A/H 74 1.000 74

Real L 43399 A415 104576

Total 1549461 464 3340584

Estim. 1976 increase 15404 1.000 15404

Personal Certified 94345 1.000 94345

Personal Other ~ 149667 1.000 149667

Total 1808877 502 3,600,000

Class of Property

Residential - single dwelling unit Rl o 1

Residential - double dwelling units R2 2

Residential - triple dwelling units R3 3

Residential - four dwellings units or more R4 +

Residential /Commercial' RC 5

Commercial ? C 6

Industrial * ke I 7

Classified Agricultural/Horticultural land * AH 8

Other Vacant Land L 9

1. Residential /Commercial — Commercial property containing one

or more dwelling units.

2. Commercial— Property used for retail, service, professional

and similar activities.

3. Industrial — Property used for manufacturing, wholesaling and

warehousing operations. Also special purpose structures such as

Tregor argued before the Board that he was entitled to

have his assessed valuation reduced to the level of the low-

est substantial class. In opposition, the City argued that

Tregor was entitled to have his assessment reduced to

the average level of all property in the City. The Board

granted Tregor an abatement to the level of the lowest

substantial class, but in doing so it expressed the opinion

that such an abatement might very well contravene the

Fourteenth Amendment to the Constitution of the United

States, an issue addressed by the parties in their briefs.

The Board stated:

‘‘In reducing [Tregor’s] assessment to reflect the

assessment/value ratio of the lowest substantial class,

we have followed Shoppers’ World, Inc. [v. Board of

Assessors of Framingham, 348 Mass. 366 (1965)],

n. 10, [Board of Assessors of Weymouth v.] Curtis,.

| Mass, Adv. Sh. (1978) 1676], and Kavet [v. Board of

Assessors of Framingham, 348 Mass. 366 (1965)],

..., but we have grave reservations, however, based on

constitutional considerations both State and Federal,

as to whether the rule of those cases is applicable on

the record of this appeal’’ (Appendix B, p. 36).

Later in the opinion, the Board stated:

‘‘The application of the lowest substantial assess-

ment/value ratio in the facts of this appeal may like-

wise be viclative of the Fourteenth Amendment to the

Constitution of the United States. That amendment

provides in part that no State shall ‘deny to any per-

son within its jurisdiction the equal protection of the

laws.’ Equal protection of the laws requires of course

fuel storage areas, power plants and telephone exchange build-

ings.

4. Classified Agricultural/Horticultural Land — Land for which

the present use assessment provisions of Chapter 1118 of the

Acts of 1973 applies.

that all persons in the same category and in the same

circumstances be treated alike. See Opinion of the

Justices, 332 Mass. 769, 779-780. In Cumberland Coal

Co. v. Board of Revision of Tax Assessments, 284 U.S.

23, at Page 28, the Court said, ‘It is established that

the intentional systematic undervaluation by state of-

ficials of taxable property of the same class belonging

to other owners contravenes the constitutional right of

one taxed upon the full value of his property.’ Con-

versely, it seem to the board, that a reduction of a

taxpayer’s assessment to the lowest substantial assess-

ment/value ratio, when to do so would relieve the tax-

payer of a part of his pro rata share of the total tax

burden (See Seigel, supra), may likewise contravene

the constitutional right of others who are assessed at

higher percentages of fair cash value on property

within the same class as that of such taxpayer’’ (Ap-

pendix B, pp. 48-49).

Despite these misgivings, Tregor’s abatement was sub-

stantially in excess of an abatement resulting from an ap-

plication of the average ratio pertaining to all property. in

the City.

On appeal, the Supreme Judicial Court affirmed the

Board’s selection of the ratio of the lowest substantial class

as the measure of relief.

‘‘'The] remedy [is] an abatement ‘which will make the

taxpayer’s assessment proportional to ether assess-

ments, on a basis which reaches results as close as is

practicable to those which would have followed appli-

cation by the assessors of the proper statutory assess-

ment principles.’ [Shoppers’ World] 348 Mass. at

377-378.

‘‘That conclusion rest[s] in part ‘on the principle

that where it is impossible to secure both the standard

of the true value, and the uniformity and equality re-

quired by law, the latter requirement is to be preferred

as the just and ultimate purpose of the law.’ 348 Mass.

at 373, quoting Sioux City Bridge Co. v. Dakota County,

Neb., 260 U.S. 441, 446 (1923). In dictum we added

that if, as in the Bettigole case, several different per-

centages had been employed for different classes of

property, the same principle ‘would logically require

reduction of the assessment of a taxpayer against

whom there had been discrimination so that such tax-

payer’s assessment would be porportional to the as-

sessments of the class of ‘property valued at the lowest

percentage of fair cash value.’ [Shoppers’ World]

348 Mass. at 377-378 n.10’’ (Appendix A, p. 21).

The City submits that the Supreme Judicial Court’s selee-

tion of the ratio of the lowest substantial class proposed

by the respondent is contrary to its expressed goals of

uniformity, equality and proportionality first enunciated

by this Court in the Sioux City case, and, as such warrants

review by writ of certiorari.

Reasons for Granting the Writ.

1. THe Writ SxHoutp Be GranteD BECAUSE THE DecIsIon

BELOW CONTRAVENES THE EqQuat Protection CLAUSE OF

THE F’gpErRAL Constitution AND Is Contrary to Estas-

LISHED PRECEDENT.

The decision of the Massachusetts Supreme Judicial

Court dealt exclusively with the problem of remedies for

the disproportionately assessed taxpayer. Assuming that

the taxpayer can by competent evidence establish that he

or she is assessed at a higher proportion of fair cash value

than others in the taxing district, then what is the measure

of relief? There was agreement on the fact that Tregor

was disproportionately assessed, but the parties proposed

two separate measures of relief — the average of the low-

est substantial class or the average of all property in the

City. The City submits that the constitutionally permis-

sive measure is the average of all property; otherwise, the

remedy goes beyond the parameters of equal protection

outlined by this Court fifty-six years ago in Sioux City

Bridge Co. v. Dakota County, Nebraska, 260 U.S. 441

(1923), adopted by the Supreme Judicial Court of Mas-

sachusetts in Shoppers’ World, Inc. v. Board of Assessors

of Framingham, 348 Mass. 366 (1965), and reiterated as

the basis for its decision below (Appendix A, p. 15).

Prior to this Court’s decision in Sicua City, it was a

well-established principle of local tax law that a victim of

disproportionate assessment practices was not entitled to

monetary relief unless he was assessed above fair market

value. If his assessment was below fair market value, his

only remedy was against other members of his class for

the purpose of increasing their taxes to the level of fair

market value. Lowell v. County Commrs. of Middlesex,

152 Mass. 372 (1890); Siouw City, supra at 444; Hills-

borough Twp. v. Cromwell, 326 U.S. 620, 624 (1946). In

Sioux City, the bridge company’s property was assessed

at one hundred percent of its fair cash value while all other

real estate was assessed at fifty-five percent. This Court

stated :

‘‘The purpose of the equal protection clause of the

Fourteenth Amendment is to secure every person

within the State’s jurisdiction against intentional and

arbitrary discrimination, whether occasioned by ex-

press terms of a statute or by its improper execution

through duly constituted agents. And it must be re-

garded as settled that intentional systematic under-

valuation by state officials of other taxable property

in the same class contravenes the constitutional right

of one taxed upon the full value of his property’ [Sun-

day Lake Iron Co. v. Wakefield, 247 U.S. 350, 352-353

(1918)]. ... The conclusion in these and other federal

authorities is that such a result as that reached by the

Supreme Court of Nebraska is to deny the injured tax-

payer any remedy at all because it is utterly impossible

for him by any judicial proceeding to secure an increase

in the assessment of the great mass of under-assessed

property in the taxing district. This Court holds that

the right of the taxpayer whose property alone is taxed

at 100 per cent of its true value is to have his assess-

ment reduced to the percentage of that value at which

others are taxed even though this is a departure from

the requirement of statute. The conclusion is based

on the principle that where it is impossible to secure

both the standard of the true value, and the uniformity

and equality required by law, the latter requirement

is to be preferred as the just and ultimate purpose of

the law.’’? Sioux City, supra at 445, 446 (emphasis

supplied).

When the Supreme Judicial Court was first confronted

with the question of available remedies for the dispropor-

tionately taxed person after the Sioux City case, it ex-

pressly relied upon this Court’s reasoning for its decision

granting an abatement to the aggrieved taxpayer. Shop-

pers’ World, at 377-378. It stated:

“*If, on all the evidence, such a scheme is established,

the taxpayer may be granted an abatement (of the gen-

eral character suggested in the Sioux City Bridge Co.

case) which will make the taxpayer’s assessment pro-

portional to other assessments," on a basis which

reaches results as close as is practicable to those which

would have followed application by the assessors of

the proper statutory assessment principles.’’

‘Tf as in the Bettigole case, 343 Mass, 223, 227,

it should be shown that several different percentages

of full, fair cash value were employed in valuing dif-

ferent classes of property, the principle discussed in

the Sioux City Bridge Co. case would logically require

reduction of the assessment of a taxpayer against

whom there had been discrimination so that such tax-

payer’s assessment would be proportional to the as-

sessments of the class of property valued at the lowest

percentage of fair cash value. It is not necessary for

us now to consider whether patterns of illegal and

discriminatory assessment may exist which are so com-

plicated as to require the use of remedies which would

treat the whole tax levy as invalid.’’

The City does not quarrel with the general principle ex-

pressed in the above quote, but it does quarrel with the

language of the footnote, for it is this footnote which has

engendered a series of erroneous decisions culminating in

the present case. Board of Assessors of Weymouth v.

Curtis, Mass. Adv. Sh, (1978) 1676; Kavet v. Board of

Assessors of Watertown, Mass. Adv. Sh. (1978) 2174. The

holding of this Court in the Sioux City case, that the tax-

payer is entitled to a reduction to the amount at which

others are taxed, would from the record in that case seem

to be average class, i.e., 55 percent, and not lowest class.

The facts in the Sioux City case indicate that the taxpayer

developed a ratio of assessed value to total value by com-

paring the assessed value of all ‘‘acre’’ land in the taxing

district to the estimated fair cash value of such land. Much

the same procedure was used with respect to improved prop-

erty in South Sioux City in which the fair cash value of

the entire district was established through use of selected

sales data. Thus, the procedure followed in the Sioux City

case is similar to that advocated by the City before the

Board. The City claims that the ratio of assessed value

to fair cash value of the entire City, i.e., the average ratio

of assessments, should be applied to the fair cash value

of petitioner’s property in order to calculate the appropri-

ate abatement.

The Supreme Judicial Court also overlooked the prac-

tical impact of its decision, which discriminates against

taxpayers of all classes in the ensuing year, while the ‘‘ag-

grieved’’ taxpayer receives a windfall. This point was

stressed by the dissent, which found that the windfall re-

ceived by Tregor as a result of this decision would create

a revenue shortfall which would have to be made up by a

general tax increase in subsequent years. This burden

would fall inequitably on all taxpayers, to the sole benefit

of Tregor. The better practice would be to reduce Tregor’s

assessment to the municipal average —‘‘at least the tax-

payer’s windfall would not be shifted to others beyond

what is necessary to achieve a reasonably fair result for

the taxpayer: —a tax based on its just proportion of the

total obligation’’ (Appendix A, p. 29).

Although the Massachusetts Constitution, Part IT, ¢. 1,

§ 1, art. 4 prohibits the imposition of a different tax rate

upon different classes of property, assessment practices

in the Commonwealth have developed a de facto classifica-

‘tion system. But in the event an overassessed taxpayer

seeks an abatement, his assessment should be reduced to

the level of his ‘‘class,’’ which in Massachusetts is com-

prised of all taxpayers in the municipality:

“The equal protection clause of the Fourteenth

Amendment protects the individual from state action

which selects him out for discriminatory treatment by

subjecting him to taxes not imposed by others of the

same class. The right is the right to equal treatment.’’

Hillsborough Twp. v. Cromwell, supra at 623.

The level at which others are taxed in the City is repre-

sented uy the average ratio of assesed value to fair cash

value of all property in the City. Equality is achieved by

veducing the aggrieved taxpayer’s assessment so that he

bears only his pro rata share of the expenses of govern-

ment. When relief exceeds his pro rata share, his windfall

becomes the burden of other taxpayers in the City.

The overwhelming majority of decisions in other juris-

dictions support this view. See: In re Appeals of Kents,

34 N.J. 21, 166 A. 2d 763 (1961); Siegal v. Newark, 38 N.J.

57, 183 A. 2d 21 (1962); Bade v. Drachman, 4 Ariz. App. 55,

417 P. 2d 689 (1966); Deitch Co. v. Board of Property As-

sessment, 417 Pa. 213, 209 A. 2d 397 (1965). In response

to an argument by a taxpayer identical to the argument

proffered by Tregor in the present case, the Supreme Court

of New Jersey stated:

‘*Hence, as to assessments made, the injured tax-

payer is remitted to a different remedy, to wit, a re-

duction of his assessment to the ‘common level’ of

assessments in the taxing district. The thesis is that

the taxpayer is injured by so much of the tax bill as

exceeds his pro rata share of the local government.

True, there may remain some residual harm in that the

dollar value of the reduction may be recaptured in an-

other year from all properties including that of the

successful appellant. But perfect relief is inherently

impossible. If the taxpayer pays no more than his fair

share for the year in question, practical justice is

achieved. Surely, if the taxpayer who appeals is per-

mitted to pay less than his fair share, the injustice to

those who were overassessed but did not complain

would be compounded... .

' 13

‘*None of the cases cited by the taxpayers supports

the proposition that an excessive assessinent should be

reduced to the level of the most favored class when to

do so would relieve the taxpayer of a part of his pro

rata share of the total burden.’’ Siegel v. Newark,

38 N.J. 57, 61-62, 183 A. 2d 21, 23 (1961).

The basis for the Court’s conclusion was its earlier deci-

sion in In re Appeals of Kents, supra at 765, which rested

upon the constitutional principles enunciated by this Court

in the Sioux City case.

The unique status of Massachusetts was specifically ad-

dressed by the Arizona Court of Appeals in Bade v. Drach-

man, supra, 417 P, 2d at 698-699. In support of their argu-

ment for use of the lowest substantial class as the measure

of relief, the taxpayers referred to the Shoppers’ World

decision and footnote ten quoted above. Relying on the

Siegel decision in New Jersey, the Arizona Court both

distinguished the Massachusetts cases and rejected them

in favor of the ‘‘better view.’’

‘‘We find the overwhelming weight of authority in

this country, in those jurisdictions which allow any

relief at all to the ‘undervalued’ taxpayer, to be that

the taxpayer is not entitled to be taxed at the lowest

percentage that he can point to, but rather at what

would be his share of the tax burden if the taxing

authorities were faithfully adhering to the clear man-

dates of statute.’’ Id. at 698.

These decisions, which were decided on constitutional

grounds established by this Court, serve to emphasize the

Supreme Judicial Court’s misconstruction of the require-

ments of the equal protection clause in the context of the

local property taxation and the fundamental inequity of

the remedy which it has fashioned.

Conclusion.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

WILLIAM F. YORK,

WALTER H. McLAUGHLIN, SR.,

WALTER H. McLAUGHLIN, JR.,

MICHAEL EBY,

GILMAN, McLAUGHLIN &

HANRAHAN,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 482-1900

Attorneys for the Petitioner

Appendix A.

COMMONWEALTH GF MASSACHUSETTS.

SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH.

No. 1615.

NORMAN TREGOR, trustee,

vs.

BOARD OF ASSESSORS OF THE CITY OF BOSTON

(and seven companion cases).

Suffolk. January 3, 1979 - March 23, 1979.

Present: Hennessey, C.J., Quirico, Braucher, Kaplan,

Wilkins, Liacos, & Abrams, JJ.

Taxation, Real estate tax: assessment, abatement. Boston.

Apprats from decisions of the Appellate Tax Board.

Walter H. McLaughlin, Jr. (Walter H,. McLaughlin, Sr.,

with him) for the Appellate Tax Board.

Arthur D,. Altman for the taxpayer.

BRAUCHER, J. We are asked to reconsider the rem-

edy available to a taxpayer who is a victim of dispropor-

tionate assessment. Under our decisions ‘‘a taxpayer has

a right to have his assessment reduced so that it is ‘pro-

portional to the assessments of the class of property valued

at the lowest percentage of fair cash value.’’’ Asses-

sors of Weymouth v. Curtis, Mass. ; (1978),*

quoting Shoppers’ World, Inc. v. Assessors of Framing-

ham, 348 Mass. 366, 377-378 n.10 (1965). The Appellate

Tax Board (board) applied that rule to the present cases,

but expressed a preference for reduction of the assess-

ment only to a level proportional to the average percent-

* Mass. Adv. Sh. (1978) 1676, 1687.

age of fair cash value computed for the assessments of

all taxable property in the taxing district. We affirm the

decisions of the board.

In the principal case the assessors of Boston valued

land and an office building owned by the taxpayer at

$320,000 and assessed a real estate tax for the 1977 fiscal

year of $80,928. The taxpayer made timely application

for abatement and appealed to the board from the asses-

sors’ denial of his application. The board granted an

abatement based on $87,904 as the ‘‘ultimate value’’ of

the taxpayer’s property, and the assessors appealed.

The parties stipulated that the appropriate method of

determining the fair cash value of the property was the

capitalization of income method, that the net income of

the property before taxes was $55,000, and that the proper

capitalization rate was 10% to account for return on in-

vestment and for depreciation. They left to the board

the determination of the appropriate ‘‘tax factor.’’

The parties further stipulated that the class of prop-

erty assessed at the lowest percentage of fair cash value

in Boston was single-family residential property, which

was assessed at an average rate of 26.8% of fair cash

value as determined from figures reported by the Com-

missioner of Corporations and Taxation. The average for

all taxable real and personal property in the city was

50.2%. The parties stipulated that these 1976 percentages

‘‘may apply” to the 1977 fiseal year for the purposes of

the proceedings before the board.

The board computed the ‘‘tax factor’’ by multiplying the

current tax rate ($252.90 per $1,000 assessed valuation)

by the assessment percentage of the most favored class

(26.8%), yielding a tax factor of .0678. The stipulated

net income ($55,000) was divided by the combined factor

for return, depreciation and taxes (.10 + .0678 = .1678),

yielding a fair cash value of $327,771, rounded to $328,000.

Application of the single-family residence percentage then

produced an assessed value proportional to that of the

most favored class ($328,000 X 26.8% = $87,904). The

tax on that value ($87,904 X .25290 = $22,230.92), sub-

tracted from the income ($55,000 — $22,230.92 = $32,769.08),

yields approximately 10% of the fair cash value ($32,777.10)

to cover return and depreciation. See Assessors of Lynn

v. Shop-Lease Co., 364 Mass. 569, 571-572 (1974).

1. The requirement of full valuation. Our Constitution

empowers the Legislature to impose ‘‘proportional and

reasonable assessments, rates and taxes, upon all the in-

habitants of, and persons resident, and estates lying, with-

in the said Commonwealth.’’ Part II, ¢. 1, § 1, art. 4, of

the Massachusetts Constitution. Cf. art. 10 of the Dee-

laration of Rights: ‘‘Each individual of the society has

a right to be protected by it in the enjoyment of his life,

liberty and property, according to standing laws. He is

obliged, consequently, to contribute his share to the ex-

pense of this protection’’ (emphasis supplied). The former

provision forbids the imposition of taxes ‘‘upon one class

of persons or property at a different rate from that which

is applied to other classes, whether that diserimination is

effected directly in the assessment or indirectly through

arbitrary and unequal methods of valuation.’’ Cheshire

v. County Comm’rs of Berkshire, 118 Mass. 386, 389 (1875),

quoted in Bettigole v. Assessors of Springfield, 343 Mass.

223, 230-231 (1961).

Pursuant to the Constitution, our statutes require as-

sessors to assess property at its ‘‘fair cash valuation.’’

G. L. ce. 59, § 38. Cf. G. L. ¢. 41, § 29 (assessors’ oath).

But ‘‘illegal assessments have long been the rule rather

than the exception throughout much of the Commonwealth.’’

Sudbury v. Commissioner of Corps. & Taxation, 366 Mass.

558, 563 (1974), and cases cited.

The present cases are not affected by art. 112 of the

amendments to the Constitution, ratified in November,

1978. The amendment authorizes the Legislature to clas-

sify property according to its use for the purposes of tax-

ation, and G. L. ¢. 59A, inserted by St. 1978, e. 580, § 38,

provides for such a classification. But the statute is to

be applicable to property taxes assessed for the fiscal year

beginning 1980. St. 1978, ¢. 580, § 40. We decide no

question with respect to the amendment or the statute. ,

2. Boston assessments. The stipulation of the parties

incorporates a report of the Commissioner of Corpora-

tions and Taxation for the year 1976. That report de-

scribes a pattern of assessment in the city of Boston in

flagrant disregard of constitutional and statutory man-

dates. Assessments of various classes of real and _ per-

sonal property are shown at average percentages of full

value ranging from 26.8% to 100%. The board listed

separate percentages for single-family residential property

in various wards, showing a range from 17% and below

for Wards 1 and 2 to 79.2% and above for Ward 12.

Compare Sudbury v. Commissioner of Corps. & Te vation,

366 Mass. 558, 567 (1974), where, on the basis of a nar-

rower range for Boston districts, we said, ‘‘The process

has lost contact with reality.’

The city does not now dispute the fact that the tax-

payer is aggrieved by a disproportionate assessment. It

contends only that the appropriate remedy is reduction

of the taxpayer’s assessment to a level proportional to

the average of assessments of all classes of property

throughout the city.

3. Remedies. On application of a taxpayer the asses-

sors are to make a ‘‘reasonable abatement’’ of his taxes

‘if they find him taxed at more than is just proportion,

or upon an assessment of any of his property in excess

of its fair cash value.’’ G. L. ¢. 59, § 59, as amended |

through St. 1977, ¢. 198. Fer many years, however, this

court denied abatements in cases like the present one:

‘‘Whatever may be the remedy, if there be any, when it

is shown that the assessors have intentionally assessed the

property of a part or all of the inhabitants at less than

its fair cash value, we are of opinion that, in a petition

for the abatement of taxes on the ground of the overval-

uation of the property of the petitioner, and the dispro-

portionate taxation arising from such overvaluation, the

question is, whether the property has been valued at more

than its fair cash value, and not whether it has been

valued relatively more or less than similar property of

other persons.’’ Lowell v. County Comm’rs of Middlesea,

152 Mass. 372, 375 (1890). See Stone v. Springfield, 341

Mass, 246, 250-251 (1960), and cases cited.

Bettigole v. Assessors of Springfield, 343 Mass. 223

(1961), established that a court of equity might ‘‘prevent

the enforcement of the whole of an illegal city or town

tax assessment for a given year,’’ but such extraordinary

and drastic relief is narrowly confined. Leto v. Assessors

of Wilmington, 348 Mass. 144, 148-149 (1964). Other rem-

edies provided some measure of relief from dispropor-

tionate assessments, but were ‘‘not wholly satisfactory.’’

Id, at 147. To afford taxpayers their constitutional rights,

we reconsidered and abandoned the rule of the Lowell

ease in Shoppers’ World, Inc. v. Assessors of Framing-

ham, 348 Mass. 366, 373-376 (1965). Since that decision

we have continued to confine alternative remedies within

narrow limits. Nearis v. Gloucester, 357 Mass. 203, cert.

denied, 400 U.S. 918 (1970) (injunction). Sears, Roebuck

& Co. v. Somerville, 363 Mass. 756 (1973) (action of con-

tract under G. L. ¢. 60, § 98). But within those limits

we have ordered comprehensive declaratory and injune-

tive relief, directing the filing of plans for orderly re-

valuation. Coan v. Assessors of Beverly, 349 Mass. 575

(1965) (taxpayer suit under G. L. ec. 40, § 53). Bennett

v. Assessors of Whitman, 354 Mass. 239 (1968) (same).

In Sudbury v. Commissioner of Corps. & Taxation, 366

Mass. 558, 565-568 (1974), we dealt with the problem of

discrimination against those cities and towns whose as-

sessors act lawfully, in favor of those whose assessors

engage in the illegal practice of fractional valuation. The

State Tax Commission was required to establish an ‘‘equal-

ized valuation” for each city and town, G. L. e. 58, §§ 9-

10C. Those valuations play an important part in the

distribution of State funds and in the apportionment of

county and other taxes. It appeared that fractional val-

uation made the equalization task difficult, if not impos-

sible. We noted that such complex problems are usually

solved by executive action or pursuant to express legis-

lative directions, and ordered the entry of a decree de-

claring the powers and duties of the Commissioner of

Corporations and Taxation and the State Tax Commission.

Malden v. Appellate Tax Bd., 367 Mass. 395, 403 (1975),

began as an attack on the equalized valuation established

for Boston in 1974. That attack, however, was withdrawn.

We upheld the constitutionality of the equalization stat-

utes against the claim that they resulted in discrimination

against cities and towns other than Boston. We did not

pass on the question whether any other remedy was avail-

able to those cities and towns.

Pursuant to the decree in the Sudbury case, the Com-

missioner of Corporations and Taxation and the State

Tax Commission have reported the progress of a continu-

ing program to produce uniformity throughout the Com-

monwealth in valuation and assessments. The assessors

of Boston assert that that program is in the process of

implementation in Boston under the supervision of the

Superior Court. In argument they estimated that com-

prehensive revaluation will take two to three years and

cost about $7 million.

4. Abatement to the municipal average. Comprehensive

remedies seek to produce uniform assessments at fair

cash value. ‘‘Where every assessment has been made on

a wrong basis, the defects in the scheme cannot be cured

by the sporadic correction of individual assessments.’’

Bettigole v. Assessors of Springfield, 343 Mass. 223, 236

(1961). But no comprehensive remedy can be ordered by

the Appellate Tax Board in an abatement proceeding. The

Shoppers’ World case involved ‘‘a simple form of dis-

crimination’? — substantially all property was assessed

at 45% of fair cash value, but one taxpayer’s property

was assessed at a higher percentage. In that situation

the remedy was an abatement ‘‘which will make the tax-

payer’s assessment proportional to other assessments, on

a basis which reaches results as close as is practicable to

those which would have followed application by the as-

sessors of the proper statutory assessment principles.’’

348 Mass. at 377-378.

That conclusion rested in part ‘‘on the principle that

where it is impossible to secure both the standard of the

true value, and the uniformity and equality required by

law, the latter requirement is to be preferred as the just

and ultimate purpose of the law.’’ 348 Mass. at 373, quoting

Sioux City Bridge Co. v. Dakota County, Neb., 260 U.S.

441, 446 (1923). In dictum we added that if, as in the

Bettigole case, several different percentages had been em-

ployed for different classes of property, the same prin-

ciple ‘‘would logically require reduction of the assessment

of the taxpayer against whom there had been discrimina-

tion so that such taxpayer’s assessment would be propor-

tional to the assessments of the class of property valued

at the lowest percentage of fair cash value.’’ 348 Mass.

at 377-378 n.10.

Most of our cases applying the rule of the Shoppers’

World case have focused on the issue whether there was

a sufficient showing of disproportionate assessment. Beards-

ley v. Assessors of Foxborough, 369 Mass. 855, 859 (1976).

Coomey v. Assessors of Sandwich, 367 Mass. 836, 838-

839 (1975). Assessors of Kingston, v. Sgarzi, 367 Mass.

840, 843 (1975). First Nat’l Stores, Inc. v. Assessors of

Somerville, 358 Mass. 554, 560-562 (1971). Butler v. As-

sessors of Worcester, 354 Mass. 651, 654 (1968). In the

First Nat’l Stores case, however, we relied on evidence of

average percentages for all classes of property to show

disproportion. See 358 Mass. at 556 & n.3. We think

the aggrieved taxpayer may, if he chooses, claim an abate-

ment of his assessment to the average percentage of fair

cash value computed for the assessments of all taxable |

property in the taxing district. That remedy may be par-

ticularly appropriate when there is no apparent pattern

in the disproportionate assessments. Lerner Shops of

Conn., Inc. v. Waterbury, 151 Conn. 79, 87-89 (1963).

Southern Bell Tel. @ Tel. Co. v. County of Dade, 275

So. 2d 4, 10 (Fla. 1973). Grainger Bros. v. Board of

Equalization, 180 Neb. 571, 585-586 (1966). In re Appeals

of Kents 2124 Atlantic Ave., Inc., 34 N.J. 21, 30-32 (1961).

Deitch Co. v. Board of Property Assessment, 417 Pa. 213,

220-221 (1965).

We think a taxpayer makes out at least a prima facie

case of disproportionate assessment if he shows that his

property is assessed at a percentage of fair cash value

greater than the average percentage for all taxable prop-

erty in the city or town, using the fair cash value of all

such property as determined by the Commissioner of Rev-

enue (formerly the State Tax Commission) pursuant to

G. L. ec. 58, § 10C. See In re Appeals of Kents 2124 At-

lantic Ave., Inc. 34 N.J. 21, 26-28 (1961); Ed Guth Realty,

Inc. v. Gingold, 34 N.Y.2d 440, 449-451 (1974); Putts-

burgh Miracle Mile Town & County Shopping Center, Inc.

v. Board of Property Assessment, 417 Pa. 243, 247-248

n.3 (1965); Barnet v. Palazzi Corp., 135 Vt. 293, 300

(1977); Note, Inequality in Property Tax Assessments:

New Cures for an Old Ill, 75 Harv. L. Rev. 1374, 1392-

1395 (1962). Otherwise, proof of disproportionate as-

sessment, in the absence of a stipulation like that in the

present case, imposes on the taxpayer a wasteful burden

of proving the assessed values and the fair cash values

of a great number of properties other than his own. See

First Nat’l Stores, Inc. v. Assessors of Somerville, 358

Mass. 554, 555-556, 560 (1971); Butler v. Assessors of

Worcester, 354 Mass. 651, 654 (1968); Shoppers’ World,

Inc. v. Assessors of Framingham, 348 Mass. 366, 377

(1965). To require the taxpayer to revalue even a sub-

stantial fraction of the property of a large city may be

tantamount to a denial of relief.

5. Abatement to the average for the most favored class.

The question remains whether we should stand by the

dictum in the Shoppers’ World case, which became the

holding in Assessors of Weymouth v. Curtis, Mass.

; (1978).” In the Curtis case we upheld an abate-

ment of the tax on commercial property to an amount

based on 70% of its fair cash value, in the face of an ar-

gument much like that in the present case. We held that

it was not improper to include only sales of residential

properties in the study on which the 70% figure was based.

A similar result was ordered as to industrial property

in Kavet v. Assessors of Watertown, Mass, (1978).°

Cf. Chomerics, Inc. v. Assessors of Woburn, — Mass. App.

Ct. P (1978)°* (assessments of commercial and indus-

trial property reduced to residential average).

> Mass. Adv. Sh. (1978) 1676, 1687.

4 Mass. App. Ct. Adv. Sh. (1978) 610, 613-615.

The same problem has arisen in other jurisdictions, and

in several States taxpayers have been limited to reduction

to the municipal average for all taxable property. Bade

v. Drachman, 4 Ariz. App. 55, 6465 (1966). Sitegel v.

Newark, 38 N.J. 57, 62-64 (1962). See Chomerics, Inc.

v. Assessors of Woburn, Mass. App. Ct. : n.10

(1978)... Cf. Kays, Inc. v. Board of Tax Review, 170

Conn. 477 (1976) (failure of proof of municipal average) ;

Addington v. County Comm’rs, 191 Kan. 528, 529-530

(1963) (claim based on county median); Hoerner-Waldorf

Corp. v. Ontonagon, 26 Mich. App. 542, 547-548 (1970)

(calculation of township average); Rick Appeal, 402 Pa.

209, 210-211 (1961) (favored class not substantial). The

theory seems to be that the municipal average produces

a tax approximating the tax that should have been im-

posed by lawful assessment practices.

Use of the municipal average reduces the discrimina-

tion between those who do and those who do not seek

abatements. But such discrimination is inherent in the

abatement procedure, and the use of the municipal aver-

age affords only partial equalization between the favored

taxpayer and the disfavored taxpayer. Suppose, for ex-

ample, four taxpayers with properties of equal value.

Two are residential and are unlawfully assessed at 25%

of that value; two are commercial and are unlawfully as-

sessed at 75%. A comprehensive remedy would reassess

all at 100%; reassessment of all at the 50% average would

produce the same tax, in the absence of some exemp-

tion. If one of the commercial taxpayers is granted an

abatement to 50%, he is treated better than the other,

but he is still a victim of the discrimination in favor of

residential property. Cf. Dehydrating Process Ceo. of

Gloucester, Inc. v. Gloucester, 334 Mass. 287, 293 (1956)

¢Mass. App. Ct. Adv. Sh. (1978) 610, 620 n.10.

(assessment of only two of a much larger number of oc-

cupants of .a pier, illegal and void). In such cireum-

stances several courts have insisted on complete relief by

reduction to the average percentage for the most favored

substantial class. Aittery Elec. Light Co. v. Assessors

of Kittery, 219 A.2d 728, 739 (Me. 1966) (utility assess-

ment reduced to residential percentage). Hamm v. State,

255 Minn. 64, 67-68 (1959) (taxpayer aggrieved by assess-

ment at municipal average). Chicago, Rock Island & Pac.

Ry. v. Young, 60 S.D. 291, 293-297 (1932), and cases cited:

‘‘There being now no way to bring the favored persons

up to the level where all should have been, the only way

to remove the discrimination is to bring appellant down

to their rate, even though it is a rate lower than any one

was ever lawfully entitled to receive.’’ See Baken Park,

Inc. v. County of Pennington, 79 S.D. 156, 160 (1961).

We do not agree with the assessors’ contention that

the lowest-class remedy is punitive rather than remedial.

In Assessors of Lynn v. Shop-Lease Co., 364 Mass. 569

(1974), we upheld the appeal of assessors who had stip-

ulated that they assessed property at 30% of fair cash

value. A dissenting Justice would have dismissed their

appeal ‘‘out of hand,’’ refusing to adjudicate proportion-

ality in the context of ‘‘a throughly illegal system.’’ Td.

at 574577. But a majority of the court refused to com-

pel the taxpayers of the city ‘‘to suffer in effect a for-

feiture to Shop-Lease of tax revenues to which the city

is entitled,’’ although assessors who flagrantly fail to per-

form their duty were warned that they ‘‘may expect to

receive an unsympathetic reception in this court.’’ Jd.

at 572. We adhere to that decision. But the board’s de-

cision in the present case does not impose a forfeiture;

it vindicates the rights of the aggrieved taxpayer by con-

forming his assessment to those of more favored taxpay-

ers. The remedy may provide some incentive to the as-

sessors to comply with laws they have blatantly violated

for years, but that fact does not render it punitive.

This case was presented to the board and is presented

to us as a choice between the municipal average of 50.2%

and the lowest-class average of 26.8%. In these cireum-

stances we uphold the board in following our past deci-

sions, under which the taxpayer is entitled to an abate-

ment to the lowest percentage. We have not gone behind

the stipulation of the parties to review possible weak-

nesses in the agreed percentages, nor have we reexam-

ined the stipulated conclusion that single-family residen-

tial property, assessed at an average rate of 26.8%, is ‘‘the

lowest substantial class.’’ It appears that such property

constituted more than $600 million out of a total of $3,600

million of full valuation. We do not now decide how

large the favored category must be to bring into play the

rule we now apply. Cf. Chomerics, Inc. v. Assessors of

Woburn, Mass. App. Ct. (1978)' (undisclosed amount of

vacant residential property assessed at very low rate).

We are not persuaded by what the taxpayer calls ‘‘the

city’s doomsday argument.’’ The assessors argue that the

decision we now reach will result in huge total abate-

ments, a massive rise in the ‘‘effective tax rate’’ and an

unbearable increase in the average residential tax bill,

leading to a sudden reduction in property values, an in-

crease in mortgage foreclosures and other adverse effects.

In other contexts the city has made more optimistic fore-

casts,' and it seems clear to us that the adverse conse-

‘Mass. App. Ct. Adv. Sh. (1978) 610.

1 We allow the taxpayer’s motion to enlarge the record to in-

clude a document entitled ‘‘Official Statement of the City of

Boston, Massachusetts,’’ dated August 23, 1978, relating to the is-

sue of temporary loan notes. Cf. Mass. R. A. P. 8 (e), 365 Mass.

849 (1974). A similar document dated November 1, 1977, was

quences will be far less than the assessors claim. In any

event the consequences will be less burdensome than the

consequences of full compliance with the law. We, like

the assessors, are required to comply with the law, bur-

densome or not.

Decisions of the Appellate Tax Board affirmed.

WILKINS, J. (dissenting, with whom Hennessey, C.J.,

joins). In my view, the court has not previously faced the

issue presented in this case. The traditional dispropor-

tionate assessment case, unlike this one, has involved a

municipality in which the bulk of the real estate was in

the single family or residential category and one or more

classes of industrial, commercial, or business property

were assessed at a higher proportion of fair cash value

than the municipality’s residential real estate. In cases

of that character, the municipal average and the average

of the most favored class are roughly equivalent. The

remedy of abating assessments on nonresidential property

to the proportion applicable to residential property thus

seemed equitable and appropriate. Such was apparently

the situation in Assessors of Weymouth v. Curtis,

Mass. (1978),* a decision in which I did not partici-

pate, where for the first time we held, but without analy-

sis, that an abatement to the average of the most favored

class of property was required.’

placed in evidence. In our view nothing turns on the added doc-

ument. Cf. Sussman v. Commonwealth, Mass. , n.2

(1978) (Mass. Adv. Sh. [1978] 754, 755 n.2).

* Mass. Adv. Sh. (1978) 1676.

! The dictum to the same effect in Shoppers’ World, Inc. v. As-

sessors of Framingham, 348 Mass. 366, 377-378 n.10 (1965), re-

lied on a principle asserted to be found in Stour City Bridge Co.

v. Dakota County, Neb., 260 U.S. 441, 446 (1923), although that

ease in fact did not involve different classes of property of which

one was the most favored.

Abatement to the average of the most favored class in

this case results in the successful taxpayer’s paying less

than it would have paid if the city had assessed all prop-

erty at 100% of cash value or at the same proportion of

fair cash value. As a consequence of the court’s deci-

sion, the taxpayer receives a windfall from the city’s vio-

lation of the law. I doubt that an abatement to a pro-

portion below the municipal average is required either

statutorily or constitutionally, and I do not read the court’s

opinion as resting on constitutional grounds or on any

explicit statutory mandate. However, there is some logic

for the court’s determination to abate the taxpayer’s as-

sessment to the average of the most favored class. In

that way, the taxpayer will be treated equitably in rela-

tion to the class which (on this record) obtains the most

favorable treatment. The question remains, however,

whether the choice selected by the court is truly the bet-

ter one in this instance and in all other instances, as the

opinion seems to indicate.

A decision to grant any abatement, of course, tends to

have a negative impact on the revenues of the city. Any

shortfall of revenue will have to be made up by an ap-

propriate increase in the tax revenues collected in some

subsequent fiscal (tax) year. The increase in taxes to

make up for revenue deficiencies resulting from abate-

ments to the average of the most favored class will fall

inequitably on those taxpayers whose assessments are

above that average. Those disfavored taxpayers will be

persons who do not protect their rights by seeking and

obtaining abatements. In general, they will be people who

do not have the resources or understanding necessary to

carry through the process of seeking an abatement.

The procedural requirements of an abatement proceed-

ing are not simple. If every aggrieved taxpayer were to

pursue such a remedy, the process would become cumber-

some and, from a practical point of view, inadequate.

The cost of a hearing before the Appellate Tax Board,

involving legal expenses and often expert testimony, is

not inconsiderable. A landlord who passes any increase

in local real estate taxes through to tenants will have

little or no incentive to seek an abatement, and, as a prac-

tical matter, individual tenants may not be able to pur-

sue abatement procedures.

It is thus apparent that the windfall to a taxpayer who

knows how to and does protect his rights places an extra

burden on those who are similarly discriminated against

but do not protect their rights. While one might con-

clude that, in the best of all worlds, a taxpayer who does

not protect his rights has made an informed choice not

to do so, as a practical matter, in the Alice in Wonder-

land world into which Boston assessment practices have

fallen, such informed choices are’-not made. In its deci-

sion to assure equality of treatment between the taxpayer

in this case and owners of property in the most favored

class, the court has indirectly chosen to heap an additional,

and I think, an unfair burden on other taxpayers who

already have been treated inequitably.

I prefer a result that gives the taxpayer an abatement

to the level at which it would have been assessed if the

law had been complied with. Even such a result would

not avoid unfairly shifting some burden onto property

assessed at more than the municipal average of 50.2%

(e.g., as the record shows, triple dwelling units, which

have an average assessment ratio of 62.2%), but at least

the taxpayer’s windfall would not be shifted to others

beyond what is necessary to achieve a reasonably fair re-

sult for the taxpayer:— a tax based on its just propor-

tion of the total obligation.

I would reverse the decision of the Appellate Tax Board

and order that (with an appropriate adjustment in the

tax factor) the abatement be granted to the level of the

municipal average.” Attempts at relief from the general

inequity of Boston real estate assessment practices should

be made in proceedings brought in direct challenge to the

system (see, e.g., Bennett v. Assessors of Whitman, 354

Mass. 239 [1968]; Coan v. Assessors of Beverly, 349 Mass

975 [1965] ; Bettigole v. Assessors of Spring field, 343 ise.

223 [1961]), and not in individual abatement proceedings

where the pattern of relief is haphazard, partial, and

at least in this case, inequitable to others.

*I agree with the opinion of the court that ‘‘a taxpayer makes

out at least a prima facie case of disproportionate assessment if

he shows that his property is assessed at a percentage of fair

cash value greater than the average percentage for all taxable

patina bs. the city ae using the Commissioner of Rev.

enue s determination under G. L. e¢.

on L. ¢. 58, § 10C. Ante at. Mass.

Appendix B.

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

NORMAN TREGOR, TRUSTEE

BOARD OF ASSESSORS OF THE

CITY OF BOSTON

Docket No. 89209 Promulgated: September 14, 1978

This is an appeal under the formal procedure from the

refusal of the Board of Assessors to abate taxes for the

fiscal year 1977, assessed on real estate located at 33

Broad Street, Ward 3, in the City of Boston.

These findings of fact and report are made pursuant

to the request of the appellee under G. L. ¢. 58A, §13 as

amended.

Arthur D. Altman, Esq., for the appellant.

Walter H. McLaughlin, Sr., Esq., for the appellee.

FINDINGS OF FACT AND REPORT

The owner of the subject property is Norman M. Tregor,

Trustee of the Broad Street Trust. He was assessed

under the name Norman Tregor, Trustee. The subject

property consists of 3,680 square feet improved with an

11-story, mezzanine, and basement, stone and brick office

building.

For the 1977 fiscal year, the appellee valued the sub-

ject property at $320,000 and assessed a tax thereon at

the rate of $252.90 per thousand in the amount of $80,928.00.

On October 29, 1976, within thirty days of the mailing of

the tax bills, the appellant filed an application for abate-

ment. The appellee failed to act on the application prior

to the expiration of three months from the date of filing,

whereupon it was deemed denied by operation of law on

January 29, 1977, and on March 18, 1977, the appellant

filed a timely appeal with this Board from such denial.

The first installment of taxes was paid without incurring

interest on October 27, 1976.

The subject land has frontage of 80’ 10” on Broad

Street and 50’ on Water Street, also 52’ 2” feet on dis-

continued Central Street. The area in which the subject

property is located is a General Business District desig-

nated as a B-10 District under the latest Boston Zoning

Ordinance and the Zoning Map of the City of Boston.

The buiding was originally constructed as a four-story

building in 1880. The upper floors were completed in

1904. The building has been remodeled and as remodeled,

the building has an effective age of 73 years.

The parties have stipulated that in finding the fair cash

value of the property, the Board shall ‘‘use the capitali-

zation of income and use: the following procedure:

(a) The Board shall capitalize the net income before

real estate taxes arising from the subject property which

net income for the purposes of this Stipulation, only,

the parties agree to be $55,000.

(b) The Board shall use a capitalization rate of (for

return and depreciation) and shall further apply such tax

factor (including such disproportion ratio as the Board

shall determine), as the Board shall deem appropriate.”

The Board accepted the Stipulation and followed said

‘*procedure’’ in its determination of the fair cash value

of the property, as hereinafter set forth.

As to the tax factor to be used in our capitalization

rate (including a disproportion ratio), the Board relied

upon Paragraph 7 of another Stipulation entered into by

and between the parties in several appeals against the

Board of Assessors of the City of Boston, including the

instant appeal, which said appeals were consolidated and

heard together. By said Paragraph 7, the parties agreed

that:

‘‘Only if the appropriate theory of law is that the

petitioners’ assessments should be reduced to reflect

the assessment/value ratio of the lowest substantial

class, this percentage, namely, 26.8 percent, should

be applied to the Appellate Tax Board’s determina-

tion of fair cash value for the years in issue in order

to determine the assessed valuation of the petition-

ers’ property for the years in issue.”

The Board finds that the ‘‘lowest substantial class’? and

the assessment/sales price ratio applied to that class, as

determined by the Commissioner of Corporations & Tax-

ation, in the year 1976, for the City of Boston, and as

adopted by the parties in their Stipulation and by this

Board in its Findings, is as follows:

Single family residence property * (R-1) Ratio 0.268

On the basis of the above Stipulation and Findings,

the Board arrived at its determination of value of the

subject property as follows:

NET INCOME BEFORE REAL ESTATE

TAXES, DEPRECIATION AND RETURN

ON INVESTMENT ..... Pagnmerr a np $55,000

* Under the Commissioner’s system of classification, which local

assessors are required to follow, there are four residential classes

designated R-1 (single-family), R-2 (two-family), R-3 (three-

family), and R-4 (four or more dwelling units). A fifth class,

R-C, denotes properties combining commercial enterprises and

dwelling units.

Capitalization Rate:

Return on Investment & depreciation

on Bldg. Only: 10.00%

Tax Factor:

Tax Rate 252.90

Disproportionate assessment 26.80

6.78%

TE ee hiv co ccaees eee * 16.78%

$55,000, capitalized at 16.78%, results in a finding

of fair cash value of $327,771, rounded to $328,000.

The disproportionate assessment of 26.8% applied to

our finding of fair cash value in the amount of

$328,000 produced the Board’s ultimate value of

$87,904.

Abatement granted, as follows:

Assessed Tax

Year Location Valuation Assessed

1977 33 Broad St. $320,000 $380,928

Fair 26.8% of

Cash Value Fair Cash Value Abatement

$328,000 $87,904 $58,897.08

OPINION

The parties have stipulated (Attachment 1, Par. 7)

that ‘‘Only if the appropriate theory of law is that the

Petitioner’s assessments should be reduced to reflect the

assessment/value ratio of the lowest substantial class, this

percentage, namely, 26.8 percent, should be applied to the

Appellate Tax Board’s determination of fair cash value

for the years in issue in order to determine the as-

sessed valuation of the Petitioner’s property for the years

in issue.’’

The Board has accepted that Stipulation. We are of

opinion that the ‘‘appropriate theory of law’’ is that Pe-

titioner’s assessment should be reduced to reflect the as-

sessment/value ratio of the lowest substantial class. That

class and the ratio pertaining to that class has been de-

termined by the Board, on the basis of said Stipulation

and as ascertained by the Commissioner of Corporations

and Taxation (Attachment 1, Par. 5; Attachment 2), to

be a Single-family Residence property (R.-1), Assessment

Ratio 0.268%.

We used that ratio twice in determining our ultimate

value of the subject property at $87,904; first, in com-

puting the tax factor incorporated in our capitalization

rate of 16.78, we applied said ratio to the tax rate of

$252.90, thus arriving at our tax factor of 6.78%; and

secondly, we applied said ratio to our finding of fair

cash value of $328,000 to obtain our said ultimate value.

For our authority that ‘‘the appropriate theory of law’’

is to apply the assessment/value ratio of the lowest sub-

stantial class, see Assessors of Weymouth v. Curtis, 1978

A. S. 1676, citing Shoppers’ World, Inc. v. Assessors of

Framingham, 348 Mass. 366, 377-378, n. 10? (1965); Her-

bert I. Kavet, Trustee v. Board of Assessors of Water-

town, Mass. (1978); see also Chomerics, Inc. &

others v. Board of Assessors of Woburn & another, 1978

MASS. Appeals Court A. S. 610.

1 Footnote 10 of the Shoppers’ World, Inc. case in pertinent

part states: ‘‘If, as in the Bettigole case, 343 Mass. 223, 227, it

should be shown that several different percentages of full, fair

cash value were employed in valuing different classes of property,

the principle discussed in the Siouxc City Bridge Co. case would

logically require reduction of the assessment of a taxpayer against

whom there had been discrimination so that such taxpayer’s as-

sessment would be proportional to the assessments of the class

of property valued at the lowest percentage of fair cash value.’’

As to the appropriateness of applying the assessment/

value ratio so as to reduce the tax factor incorporated

in our capitalization rate, see Board of Assessors of Lynn

v. Shop-Lease Co. Inc., 364 Mass. 569. At Page 573 of

that decision, the Court said: ‘*Where the fair cash value

determined by capitalization of earnings is to be reduced

in arriving at the assessed valuation, the tax factor must

be proportionately reduced.”’

In reducing the appellant’s assessment to reflect the as-

sessment/value ratio of the lowest substantial class, we

have followed Shoppers’ World, Inc., n. 10, Curtis, and

Kavet, supra, as stated above, but we have grave reser-

vations, however, based on constitutional considerations

both State and Federal, as to whether the rule of those

cases is applicable on the record of this appeal. For

purposes of discussing our doubts, we have included as

Attachments at the end of these findings of fact and re-

port, the following documents:

A. The full text of the said Stipulation entered into

by and between the parties in the several appeals against

the Board of Assessors of the City of Boston, referred

to in our findings of fact above; Attachment No. 1.

B. The ‘‘Computation of Total Assessed Value of the

City of Boston at Stipulated Lowest Class’’; Attachment

No. 2.

C. ‘‘Summary of Important Facts’’, consisting of two

pages; Attachment No, 3.

D. Annex ‘A’ appearing at Page 227 of Bettigole v.

Assessors of Springfield, 343 Mass. 223, 227; Attachment

No. 4.

We begin our discussion with two provisions of the

Constitution of Massachusetts which are here relevant and

controlling. The first is contained in art. 10 of the Dec-

laration of Rights, the first portion of which reads:

‘*Kach individual of the society has a right to be pro-

tected by it in the enjoyment of his life, liberty and

property, according to standing laws. He is obligated,

consequently, to contribute his share to the expense of

this protection ...’’ In the circumstances of the instant

appeal, the emphasis is upon the words ‘‘his share’’.

These words forbid the imposition upon one taxpayer of

a burden relatively greater or relatively less than that

imposed upon other taxpayers. If this is not the mean-

ing of these words, they mean nothing at all. Words of

the Constitution cannot be ignored as meaningless. This

provision of the Declaration of Rights is the statement

of a general principle. It is controlling of all constitu-

tional provisions touching taxation. See Opinion of the

Justices, 332 Mass. 769, 777-778.

The second provision of the Constitution of Massachu-

setts to which we have referred above is found in Part

II, c. 1, §1 art. 4. That provision of the Constitution

as well as G.L. e. 59, §§38, 52, require that real estate

be assessed at its full fair cash value. See Curtis, supra,

P. 1683, Coomey v. Assessors of Sandwich, 367 Mass.

836, 837 (1975). Said provision applies to property taxes

and requires that assessments, rates and taxes be ‘‘pro-

portional and reasonable’’.

Where full value assessment is not the practice, it is

recognized that ‘‘the right of the taxpayer whose prop-

erty alone is taxed at 100 percent of its true value is to

have his assessment reduced to the percentage of that

value at which others are taxed even though this is a

departure from the requirement of the statute. The con-

clusion is based on the principle that where it is impos-

sible to secure both the standard of the true value, and

the uniformity and equality required by law, the iatter

requirement is to be preferred as the just and ultimate

purpose of the law.’’ Shoppers’ World, Inc., supra,

quoting from Sioux City Bridge Co. v. Dakota County,

Nebraska, 260 U.S. 441, 446 (1923)

If, as in the instant appeal, it is demonstrated that

the taxpayer is the victim of discriminatory, dispropor-

tionate assessment, he ‘‘may be granted an abatement...

which will make . . . (his) assessment proportional to

other assessments, on a basis which reaches results as

close as is practicable to those which would have fol-

lowed application by the assessors of the proper statu-

tory assessment principles.’’ Shoppers’ World, Inc., su-

pra, First Natl, Stores, Inc. v. Assessors of Somerville,

358 Mass. 554, 559 (1971).

In the light of the above constitutional and statutory

principles underlying the taxation of real estate, partic-

ularly the requirement of said art. 10 that each individ-

ual taxpayer contribute not more than ‘‘his share’’ of

the burden of such taxation, we are concerned that on

the record of this appeal the reduction of the appellant’s

assessment to reflect the lowest substantial assessment/

value ratio may result in an undervaluation of the subject

property, in a constitutional sense, thereby causing the

appellant to pay less than ‘‘his share’’ of ‘the amount

of revenue to be raised and other taxpayers to pay cor-

respondingly more.

As summarized in Attachment 3, the record of this ap-

peal shows that while the largest number of parcels in

the City of Boston is in the residential class, the bulk

of the assessable value is in the commercial/industrial

classification, as follows:

Class Parcels Assessed Value

Residential * 75,613 $611,272,000

Ind./Com. 9,638 $894,716,200

*The data above refers [sic] to all four classes of residential

property.

We note that while the number of industrial/commer-

cial parcels is approximately one-eighth of the number

of residential parcels, the value of the industrial/ecommer-

cial parcels is approximately one-third greater than the

total of all residential assessments, Also, we note that

the total assessed value of the single-family residential

(R-1) class in the amount of $176,584,300 1s less than 11.4%

of the total value of all the classifications of property, in

the amount of $1,549,461,400. Even on an equalized basis,

R-1 constitutes only 18.3% of the total value. All other

classes are assessed at higher ratios.

In the circumstances of this appeal, the application of

the lowest substantial assessment/value ratio (R-1 ratio

0.268) seems to result in reducing the appellants’s assess-

ment of his commercial property to a level far below the

level of the class of industrial/commercial property com-

prising the bulk of the total value of the City. Thus, the

subject property appears to be undervalued in a consti-

tutional sense, causing the appellant to pay less than ‘‘his

share’’ under said art. 10, and other taxpayers to pay

correspondingly more.

If the taxpayer who appeals is permitted to pay less

than ‘‘his share’’ under said art. 10, then the injustice

to those who were likewise overassessed but did not com-

plain would be compounded, and, in that event, other tax-

payers of Boston may be compelled to suffer in effect a

forfeiture to this appellant of tax revenues to which the

City is entitled. These results were discussed to some

extent in Shop-Lease Co., Inc., supra, albeit in the con-

text of the use of a ratio in the tax factor where fair

cash value is to be determined by capitalization of earn-

ings. And in Coomy, supra, at Page 837, the Court said,

‘‘To the extent that assessors, in violation of that obli-

gation (to assess real property at full and fair cash value),

value property at less than full and fair cash value, they

must assure that each taxpayer bears only his propor-

tional share of the tax burden.”

In other cases in which the SJC has ruled or followed

the rule that the assessment of the taxpayer’s property

should reflect the assessment/value ratio of the lowest sub-

stantial class, such ruling did not or was not likely to

resuli in having the taxpayer pay less than ‘‘his share’’

under said art. 10. Thus, in Shoppers’ World, Inc., su-

pra, the case in which such rule was first set forth in n.

10, the court was dealing with a relatively simple form of

disproportionate assessment, namely, at a ‘‘common level’’

of 45% and the subject property there could have been

found to have been assessed at a higher percentage of

fair cash value. In Curtis, supra, this Board found that

real estate in Weymouth was assessed at 70% of its fair

cash value, although it was contended by the assessors

that property in that town was assessed at 100% of its

value; and in Aavet, supra, there was evidence in the form

of a sales study showing a relationship of assessments

to fair cash value of residential property averaging

about 17.98%, but the assessors ‘‘made little if any head-

way’’ against this evidence.? In Bettigole, supra, referred

to in said n. 10 of the Shoppers’ World ease, the classi-

fication system there involved (See Attachment D) showed

residential properties consisting of 1, 2, 3, and 4 or more

family dwellings assessed at percentages varying from

00% to 70% of fair cash value and public utility, com-

? Even in Chomerics, Inc., supra, wherein the ratio pertaining

to the lowest ‘‘representative’’ class (Residential 25% in 1972,

and 23% in 1973) was applied to the taxpayer’s commercial

property, which had been assessed at a higher percentage of fair

cash value, the Appeals Court, in affirming judgment, buttressed

its decision by noting and commenting upon the fact that the

median ratios for all property sold in those years was 25% and

23% respectively.

Neen eee eeeeeeeeeeEeEeEee——EeESEee

mercial/industrial property at 85%; the largest number

of parcels and the bulk of the value in the City of Spring-

field, however, was in residential property, not in the

commercia!/industrial class of property, as follows:

Sound Assessed

Class Parcels Value Value

Residential 31,501 385,755,819 209,016,059

Com./Ind. 2,521 174,870,514 148,641,060

It seems to the Board that in the circumstances 6f

Bettigole, supra, the application of the doctrine of ‘‘low-

est class’’ percentages to industrial/commercial properties

tends to lower their assessments to those percentages of

sales to assessment ratios applied to the largest number

of parcels and the class of property comprising the bulk

of the value in that City, namely, residential; thus satis-

fying the ‘‘his share’’ requirement of said art. 10, by

rough approximation, at least.

In the instant appeal, however, the reduction of the

appellant’s assessment to the level of the most favored

class might well result in relieving him of a part of his

pro rata or proportional share of the total tax burden, con-

trary to the constitutional provisions discussed above in

this opinion.

We have examined various cases arising in other juris-

dictions which deal with the problems inherent in the

practice of assessing different parcels in a community at

different percentages of market value, but have found lit-

tle, if any, support for the Massachusetts view that the

taxpayer is entitled to have applied to his property the

ratio pertaining to the ‘‘lowest substantial class’’.

In Bade v. Drachman, 4 Ariz. App. 55 (1966) at Pages

64-65, the Court said:

i a i nk a a ee ar lea |

‘‘We find the overwhelming weight of authority in

this country, in those jurisdictions which allow any

relief at all to the ‘undervalued’ taxpayer, to be that

the taxpayer is not entitled to be taxed at the lowest

percentage that he can point to, but rather at what

would be his share of the tax burden if the taxing

authorities were faithfully adhering to the clear man-

dates of statute. Among the decisions taking sub-

stantially this position are: ... (citing cases)

In support of their contention that they are en-

titled to be taxed at the lowest rate used by the as-

sessor, the plaintiffs cite only the case of Shoppers’

World, Inc. v. Board of Assessors, 348 Mass. 366,

203 N.E. 2d 811 (1965). In Note 10 to this decision,

appearing at 203 N.E.2d page 820, we find dictum

that would support this proposition. We do not find

Shopper’s World to be in point for, as we read the

case, it is dealing with a situation where all proper-

ties in the taxing district were intentionally assessed

at 45 per cent of fair cash value. This was the low-

est and only percentage being used by the assessing

authorities and accordingly, if equitable relief were

to be granted, there would be no substential inequity

in using this figure. The Bettigole case, 343 Mass.

223, 178 N.E.2d 10 (1961), cited in support of the

statement made in Shoppers’ World, is similarly not

in point. The Bettigole action involved the sweeping

relief of mandating taxing authorities to revise the en-

tire taxing structure in the taxing district as to all

properties therein so as to comport with the law. The

relief granted in Bettigole would not knowingly grant

to any taxpayer the right to be assessed at an amount

less than a fairly apportioned share.

The Harvard Law Review note, 75 Harvard Law Re-

view 1374 et seq., suggests that the decision of Hamm

v. State, 255 Minn. 64, 95 N.W.2d 649 (1959) allows

the taxpayer to secure a reduction ‘from the average

ratio to some lower level * * * presumably that of

the under-assessed parcels to which he pointed in

bringing his action.’ (75 Harvard Law Review, page

1385) We do not construe Hamm, v. State to this

effect. Though the reasoning of the case is abstruse,

we believe the court held that the mere fact that the

plaintiff’s property was assessed at the ‘average per-

centage’ used by the assessing authorities would not

necessarily establish that the taxes imposed upon the

plaintiff complied with the requirement of uniformity.

We believe the court was indicating that a weighted

average rather than an arithmetic average of percent-

ages would be the proper method of arriving at the

plaintiff’s fair share of the tax burden.

If these two lone decisions (Shoppers’ World and

Hamm) are authority for the proposition that a tax-

payer is entitled to be assessed at the lowest percent-

age used, then we reject this view and adhere to what

we consider to be the better view. We do not be-

lieve that in an action addressed to the equitable

powers of the court, the plaintiff is entitled to in-

junctive relief requiring the taxing authorities to im-

pose upon property less than what would be its share

of the taxes if the law were faithfully observed.’’

In Siegal v. Newark, 38 N.J. 57 (1962), the taxing

authorities stated that ‘‘residential’’ property was as-

sessed in the years in question at a ‘‘common level’’ of

40% of true value while ‘‘commercial and industrial’’

properties were assessed at a ‘‘common level’’ of 70%.

Appellants’ property was in the latter category. The

taxing authorities contended that the appellants’ assess-

ment should not be reduced below the level of assessment

of other properties in the same class (Commercial/Indus-

trial, 70%), whereas the taxpayers urge reduction to the

level of the most favored class (Residential, 40%). The

Court did not agree with either view. Said the Court

(Page 60), ‘‘We think it plain that to limit relief to the

level of assessment of properties in the same category

would be to join in the very illegality which the Cen-

stitution prohibits. Taxable real property must be as-

sessed on the same standard of value and at the same local

rate. Art. VIII, §1, par. 1 of the Constitution of 1947.

The Constitution thus bars classification of such property

for preferential treatment . . . The taxpayers’ position

errs on the other side, for under the facts a reduction

to 40% would accord them a preference, no less viola-

tive of the constitutional rule.’’ And at Page 62 the

Court said, ‘‘None of the cases cited by the taxpayers sup-

ports the proposition that an excessive assessment should

be reduced to the level of the most favored class when

to do so would relieve the taxpayer of a part of his pro

rata share of the total burden.’’ Some of the facts in

Siegal, supra, are closely similar to the facts in the in-

stant appeal. The facts in Siegal are set forth at Pages

63-64, together with the Court’s discussion thereof, as fol-

lows: ;

‘*Plaintiffs urge that the level of assessment of

‘residential’ property be accepted as the common level

because most of the line items on the assessment rolls

are in that category. In that category there were

35,368 parcels, constituting 68% of the total, whereas

in the ‘commercial and industrial’, the number was

13,442, being but 26% (the remaining 6% was ‘vacant

land’ as to which no level of assessment appears in

the proof). But the city replies that ‘commercial

and industrial’ assessments aggregated $398,920,600,

whereas the more numerous ‘residential’ assessments

totaled $169,066.500. Thus it is clear that in terms

of the distribution of the burden of government, the

residential level of 40% is hardly an appropriate im-

dex.* Moreover, while the city concedes that 40% is

the ‘common level’ as to ‘residential’ properties, it

does not say that 40% is indeed the level at which

‘residential’ properties were uniformly or generally

assessed. There is no claim that the assessor in fact

sought to assess all residences at that percentage.

All that appears is that the city believed 40% to be

the ‘common level’ and that the figure was used with

respect to ‘added assessments.’ Hence 40% may be

but an ‘average ratio’; the underlying data are not

supplied. We would be unworldly if we did not note

the fair likelihood that within the residential category

the individual assessments spanned the usual wide

range, with 40% being merely a composite result.

Thus if a reduction were here made to 40%, the re-

vised assessment would likely comport with the as-

sessments of only some of the residential properties

in the city.

In fact, appellants do not accept the figures of 40%

and 70% as accurate statements of the ‘common level’

of either of the categories. In their briefs they tell

us that the sales-ratio studies of the State Director

of Taxation reveal average ratios for ‘residential’ of

38.40% and 36.81% for 1958 and 1960 respectively ;

that the average ratios for ‘commercial and industrial’

were 56.13% and 54.35% for those years; and that the

average ratio found by the Director for all classes of

real property were 49.29% in 1958 and 47.68% in

1960, These figures would buttress our belief that

40% could not be accepted as the level at which each

*Emphasis supplied by ATB.

parcel of real property would contribute its just share

of the cost of government.

Rather we are satisfied the factual pattern brings

the case within the holding of Kents that the aver-

age ratio for all real property is appropriate evi-

dence of the common level to which reductions should

be granted, absent other proof suggesting that the

average ratio should be modified. (See Kents, supra,

34 N. J., at pp. 31-32.)”’

In Deitch Co. v. Board of Property Assess., 417 Pa.

213 (1965), the Court after reviewing previous decisions

dealing with assessments of real estate at various percent-

ages of fair cash value, at Page 220 of its decision said:

‘‘From these previous decisions there emerges the

principle that a taxpayer should pay no more or no

less than his proportionate share of the cost of gov-

ernment. Implementation of this principle would re-

quire that an owner’s assessment be reduced so as

to conform with the common level of assessment in

the taxing district...

Of course, the question arises as to the definition

of the term ‘common level’. Where the evidence

shows that the assessors have applied a fixed ratio of

assessed to market value throughout the taxing dis-

trict, then that ratio would constitute the common

level. However, where the evidence indicates that no

such fixed ratio has been applied, and that ratios vary

widely in the district, the average of such ratios may

be considered the ‘common level’. Siegal v. City of

Newark, supra, at 64, 183 A. 2d at 24.°”’

Footnote 3 of Deitch Co., supra, states that, ‘‘For an

extensive discussion on this point see Notes, ‘Inequality

in Property Tax Assessments: New Cures for an Old

I,’ 75 Harv. L. Rev. 1374 (1962).’? The Board notes

that said Harvard Law Review article is also cited in

Shoppers’ World, Inc., supra, n.7, and in Chomerics, Inc.,

supra, n.9. See also Rick appeal, 402 Pa. 209 (1961);

Kays, Ine. v. Board of Tax Review, City of New Haven,

365 A. 2d 1207 (1976).

In the instant appeal the parties have also stipulated

(See Attachment 1, Page 5) as to the ratio of assessment

to sales price of the various classes of real and personal

property as follows:

Type Assess- Estimated

of Assessed ment Full

Property Class ** Value * Ratio Valuation *

Real R-1 176584 .268 658895

Real R-2 114028 380 300073

Real R-3 106574 .622 171340

Real R-4 214086 ATT 448817

Real RC 63581 532 119513

Real C 657110 032 1235169

Real I 174025 576 302127

Real A/H 74 1.000 74

Real L 43399 415 104576

Total 1549461 464 3340584

Estim. 1976 increase 15404 1.000 15404

Personal Certified 94345 1.000 94345

Personal Other 149667 1.000 149667

Total 1808877 502 3,600,000

Obviously, no fixed or uniform ratio has been applied

to the various classes of property enumerated above. Even

within the single-family residential (R-1) category, on the

basis of which the parties have agreed on a lowest class

*In thousands.

** See Exhibit A for definition of classes.

assessment/value ratio of 26.8%, the ratios within that

category (See Attachment 3, Page 2) span a wide range

on a ward to ward approach, from 17% and below in

Wards 1 & 2 to 79.2% and above in Ward 12, as follows:

Ward 12, 79.2% and above; Wards 8, 9, 67.8 - 79.1%;

Ward 14, 62.0 - 67.7%; Wards 13, 15, 38.3 - 46.8%; Wards

10, 11, 16, 17, 25.6 - 38.2% ; Wards 3-7, 18 - 22, 17.0 - 25.5%;

Wards 1, 2, 17.0% and Below.

Were the reaching of Seigal [sic], supra, and Deitch,

supra, appropriate here, then it seems to the Board that

since the evidence shows the assessors have not applied a

fixed or uniform ratio, and the ratios that were applied vary

widely from classification to classification, and even from

ward to ward within the critical class of single-family

residence property, the composite average of all ratios

shown by the evidence in this appeal, which said composite

average is .502, could be considered as the ‘‘common level’’

and the appellant’s assessment reduced to that ‘‘common

level’’ in implementation of the principie that a taxpayer

should pay no more or less than his proportional share

of the cost of government.

The application of the lowest substantial assessment /

value ratio in the facts of this appeal may likewise be

violative of the Fourteenth Amendment to the Constitu-

tion of the United States. That amendment provides in

part that no State shall ‘‘deny to any person within its

jurisdiction the equal protection of the laws.’’ Equal _pro-

tection of the laws requires of course that all persons in

the same category and in the same circumstances be treated

alike. See Opinion of the Justices, 332 Mass. 769, 779-

780. In Cumberland Coal Co. v. Board of Revision of

Tax Assessments, 284 U.S. 23, at Page 28, the Court said,

‘It is established that the intentional systematic under-

valuation by state officials of taxable property of the same

class belonging to other owners contravenes the constitu-

tional right of one taxed upon the full value of his prop-

erty.’’ Conversely, it seems to the Board, that a reduc-

tion of a taxpayer’s assessment to the lowest substantial

assement/value ratio, when to do so would relieve the

taxpayer of a part of his pro rata share of the total tax

burden (See Seigal [sic], supra), may likewise contravene

the constitutional right of others who are assessed at higher

percentages of fair cash value on property within the

same class as that of such taxpayer. While on the sub-

ject of the implications of the Fourteenth Amendment,

we note that the equal protection clause does not bar clas-

sification of real property for local taxation. The Fed-

eral Supreme Court has declined to interfere with classi-

fied treatment whether established by the express language

of State iaw or by ‘‘settled state practice’, Nashville,

C. é St. L. R. Y. v. Browning, 310 U.S. 362 (1940).

Despite our above-stated doubts and misgivings and our

reasons therefor, and although attracted to the approach

and the reasoning of Seigal [sic], supra, and Deitch Co.,

supra, we nevertheless feel constrained to follow Curtis,

supra, citing n. 10 of Shoppers’ World, Inc., supra, and ap-

ply the ratio pertaining to the lowest substantial class, and

have done so in this appeal.

The appellee filed 19 Requests for Rulings of Law of

which Requests Numbered 1, 2, 3, 4, 5, and 17 are granted;

Requests Numbered 7, 8, 10, 11, 12, 15, 16, and 19 are

refused; Request Numbered 6 is refused as being inap-

posite, too remote and speculative; Request Numbered 9

is granted as to the first clause, and refused as to the

remaining two clauses; Request Numbered 18 is refused

for the reason that an excessive assessment should be re-

duced so as to result in an assessment proportional to

other assessments; and Requests Numbered 13 and 14 are

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THE COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

Leverett Saltonstall Building, Government Center

100 Cambridge Street, Boston, Mass. 02202

Docket No. 89209

NORMAN TREGOR, Trustee,

Appellant.

BOARD OF ASSESSORS

OF THE CITY OF BOSTON,

Appellee.

CORRECTION

In our decision in the above-entitled appeal, promulgated

June 30, 1978, the assessed value of the subject property

was erroneously stated to be $330,000; the correct amount

of the assessed value is $320,000.

APPELLATE TAX BOARD

By /s/ Ruth L. Kleinfield

Chairman

/s/ Peter J. Allen

Member ;

/s/ Daniel McLean

Member

/s/ Rudolph W. Ouellette

Member

/s/ Paul A. Butler

Member

Attest /s/ Richard B. Willis

Clerk of the Board

Date: September 14, 1978

(Seal)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.