# Petition — Board of Assessors of Boston v. Tregor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0350%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 841 ## Text fP Supreme Gouri” ; FILE IN THE Supreme Court of the United States. Ocroser Term, 1978. No. 78-18 80 BOARD OF ASSESSORS OF THE CITY OF BOSTON, PETITIONER, v. 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 U, pb” | 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 — a 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, v. 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 2 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.’’ 3 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). % 4 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 5 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. 6 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 7 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 8 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 9 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 10 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 11 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 12 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. 14 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 15 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. 16 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. 17 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. 18 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 | 19 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- 20 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- 21 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. 22 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- 23 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. © Mass. Adv. Sh. (1978) 2174. 4 Mass. App. Ct. Adv. Sh. (1978) 610, 613-615. 24 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. 29 (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- 26 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 27 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. 28 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 29 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. 30 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. 31 Appendix B. COMMONWEALTH OF MASSACHUSETTS APPELLATE TAX BOARD NORMAN TREGOR, TRUSTEE V. 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 32 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 33 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. 34 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- 35 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.’’ 36 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- 37 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, i] 38 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. Se 39 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), 40 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 41 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 | 42 ‘‘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 43 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 44 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, 45 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. 46 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 47 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. 48 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 49 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. 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Belisé ~— mn -m © oeas op oS o 2 2 {3S a 22 oS £/ 385 8 + td S ee ore e258 o x @ ~ ae © & ~ one a s 2 D = i u Oo = qj (cree ye) «(09° F9$ 9®) one A pavog Sq anyeA SPV ssB[D | Q | onjeA punos sjuoUIssessy Possess Vy poyddy % punog % yo %OOT Uo uo poseg = paseq Sexe, saxB = (2) (9) (S) (¥) (€) (3) (1) BA T96T ccWo XINNY ey ey ee ae OT “ - pecan ONT ° (5 ea Mopg pure YLT 2 ‘Tt SUVA %G'SZ - O'LT ce-st ‘2 SCUVA WBE - 9°SB LT ‘ot ‘TL ‘Ol SGUVM %8'OF - BE ct ‘st SGUVA a %1L9- 0'%9 tl GUuvM - %T6L~ $19 6‘8 Sduva eaoqy pue %'6L at. auva GCUVM Ad SALLAAdOUd TVILNGGISAY ATIONIS JO SOILVA LNANSSASSV ly amar 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0350%3A1. Public record. Not legal advice.