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11/16/77 ELENA M. PALLADINO v. BOARD ASSESSORS

November 16, 1977

ELENA M. PALLADINO
v.
BOARD OF ASSESSORS OF BRAINTREE



Suffolk. Appeal from a decision of the Appellate Tax Board.

Hennessey, C.j., Quirico, Kaplan, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Taxation, Real estate tax: exemption, abatement; Appellate Tax Board. Appellate Tax Board, Jurisdiction, Formal procedure, Informal procedure, Appeal.

The opinion of the court was delivered by: Quirico

A determination of whether a hardship exemption from real estate taxes under G. L. c. 59, § 5, Eighteenth, is warranted is a matter within the discretion of the local board of assessors, and is not open to review by the Appellate Tax Board. [667-668]

A taxpayer who appealed to the Appellate Tax Board under the informal procedure of G. L. c. 58A, § 7A, from the denial of her application for abatement of real estate taxes was not entitled to appeal the tax board's decision to this court where her challenge did not present a question of law raised by the pleadings, and where there was no statement of agreed facts or a report of findings by the tax board. [668]

A taxpayer who signed and filed a waiver of appeal with the Appellate Tax Board in order to meet the requirements for electing the informal procedure under the provisions of G. L. c. 58A, § 7A, but wrote on the bottom of the waiver form, "I still wish the right to appeal if necessary" thereby elected the "formal procedure," and her failure to request that the tax board make findings of fact constituted a waiver of her right to appeal to this court on the question whether the tax board's finding was warranted by the evidence. [668-669]

This is an appeal by Elena M. Palladino (taxpayer) from a decision of the Appellate Tax Board (tax board) denying her petition for an abatement of real estate taxes.

The facts, as alleged in the taxpayer's brief and contained in the record, are as follows. In 1962 or 1963, the taxpayer, a widow since 1944, purchased a house and lot in Braintree which were then assessed at $6,900. Since that time the tax rate has increased steadily and her tax bills have risen correspondingly. Recently the burden became substantially heavier when her property was reassessed from the original $6,900 figure to $36,000. *fn1 She claims that she can no longer continue to pay the taxes.

Because of this inability she filed an application with the board of assessors of Braintree (assessors) for an abatement of her fiscal year 1976 real property tax. G. L. c. 59, § 59. The application was denied. She then filed with the assessors an application for a "hardship" exemption under G. L. c. 59, § 5, Eighteenth, alleging that she was unable to contribute toward the public charges by reason of her financial condition. This application, too, was denied.

The taxpayer claimed an appeal to the tax board. It is not clear, however, either from the record or from the taxpayer's brief, which decision of the assessors is being appealed. *fn2 The statement which she submitted in filing her appeal expressly referred to G. L. c. 59, § 5, Eighteenth, the hardship exemption. The arguments in her brief also appear to be in support of a hardship claim. *fn3 In another section of the written statement submitted to the tax board, however, reference is made to dates of filing and denial that correspond not to the exemption application, but to the application for an abatement. *fn4 We need not decide which is the proper interpretation of the appeal. Neither alternative presents grounds for relief, and we will discuss both.

We have recently held that the determination of whether a hardship exemption under G. L. c. 59, § 5, Eighteenth, is warranted is a matter within the discretion of the local boards of assessors, and is not open to review by the tax board. Assessors of Saugus v. Baumann, 370 Mass. 36, 37 (1976). The jurisdiction of the tax board is limited to what has been expressly granted to it by the Legislature. Id. General Laws c. 58A, § 6, grants the tax board authority to decide appeals from the denial of the specific exemptions found in cls. Seventeenth and Twenty-second of G. L. c. 59, § 5, but not from the denial of an exemption under cl. Eighteenth. Nor is the authority to review a denial of an exemption under cl. Eighteenth granted by any other statute. "A hardship abatement under cl. Eighteenth is a matter in the discretion of the assessors." Assessors of Saugus v. Baumann, supra at 37. To the extent, then, that the taxpayer's petition to the tax board is treated as an appeal of the denial of the exemption under cl. Eighteenth, it was properly denied. *fn5 The remedy for an error of law or abuse of discretion by the assessors lies in an action in the nature of certiorari. Id.

Nor can the taxpayer prevail if her appeal is treated as a challenge to the denial by the assessors of her application for abatement. By statute (G. L. c. 59, § 65) the tax board has been granted jurisdiction to hear such appeals under either of two methods of procedure. The "formal procedure," as the name implies, requires the use of prescribed rules of pleading, practice, and evidence. See Rule 37 of the Rules of Practice and Procedure of the Appellate Tax Board (1974). *fn6 The "informal procedure" eliminates the requirement that these rules be followed, and substitutes a more flexible process intended to expedite appeals and reduce the expense to litigants. G. L. c. 58A, § 7A. Appellate Tax Board Rule 37. Leen v. Assessors of Boston, 345 Mass. 494, 498 (1963). Those litigants who choose the increased flexibility afforded by the informal procedure thereby waive the right to appeal the tax board's decision to this court "except upon questions of law raised by the pleadings or by an agreed statement of facts or shown by the report of the board." G. L. c. 58A, § 7A. Review of the tax board's decision is thus severely limited. Assessors of Saugus v. Leo, 363 Mass. 47, 50 (1973).

The taxpayer in this case elected the informal procedure by filing a waiver of appeal and a written statement as required by statute. G. L. c. 58A, § 7A. Her present challenge seems to rest on the ground that the determination of the tax board is against the weight of the evidence. *fn7 This is not a question of law raised by the pleadings, nor is there here a statement of agreed facts or a report of findings by the tax board. There is therefore ...


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