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Veolia Energy Boston, Inc. v. Board of Assessors of Boston

Appeals Court of Massachusetts, Suffolk

March 8, 2019

VEOLIA ENERGY BOSTON, INC.
v.
BOARD OF ASSESSORS OF BOSTON.

          Heard September 6, 2018.

         Appeal from a decision of the Appellate Tax Board.

          Kathleen S. Gregor (Erin R. Macgowan also present) for the taxpayer.

          Anthony M. Ambriano for board of assessors of Boston.

          Present: Vuono, Agnes, & Henry, JJ.

          VUONO, J.

         The plaintiff, Veolia Energy Boston, Inc. (Veolia), appeals from an adverse decision of the Appellate Tax Board (tax board). The sole issue is whether the tax board had jurisdiction over Veolia's appeal from the denial of its application for abatement of personal property tax assessed for fiscal year 2015. We conclude that because Veolia failed to timely file a valid abatement application with the board of assessors of Boston (assessors), as required by G. L. c. 59, § 59, the tax board lacked jurisdiction and properly dismissed Veolia's appeal.

         Background.[1]

         Veolia operates a steam manufacturing and distribution system that provides thermal energy to customers in the city of Boston (city).[2] The system consists of boilers, a network of pipes, and appurtenant equipment located throughout the city. The dispute between the parties began in 2014 when, for the first time, Veolia was assessed a personal property tax (approximately $2 million) on its machinery and equipment. Veolia timely filed a valid application for abatement with the assessors on February 3, 2014, pursuant to G. L. c. 59, § 59 (§ 59 or statute).[3] Veolia argued that it was exempt from paying personal property tax on all manufacturing machinery, including all components of its systems, because it was classified as a manufacturing corporation by the Commissioner of Revenue (commissioner).[4] The assessors denied the application for abatement, and Veolia appealed to the tax board. Ultimately, the tax board concluded that the property at issue was exempt from taxation, as Veolia had claimed. Consequently, the tax board reversed the assessors' decision and granted a full abatement of the tax Veolia paid in fiscal year 2014.[5]

         Meanwhile, Veolia again was assessed a tax for fiscal year 2015, approximately $2.2 million, on the same machinery and equipment. Veolia timely paid the tax due in quarterly installments on July 25, 2014, October 14, 2014, January 21, 2015, and April 20, 2015. Each payment was accompanied by a letter addressed to the "City of Boston Collector of Taxes" (tax collector). The letters are typed on Veolia's stationery and signed by Steven Weafer, Veolia's vice-president of finance. All four letters include the following sentence:

"Please note that Veolia Energy Boston, Inc. has filed a Petition under Formal Procedure with the Appellate Tax Board [for fiscal year 2014], the outcome of which may affect the tax assessment for this period and others."

         Pursuant to § 59, the deadline for filing an abatement application for fiscal year 2015 was February 6, 2015. On May 14, 2015, Weafer received a voice mail message from Charles Claybaugh, who is identified in the record as an employee of the assessors' office, advising him that the assessors "[had] no record of a Fiscal '15 abatement [application] being filed." Weafer contacted Claybaugh and expressed his "belief that the 2014 Petition [application for abatement] would apply to all tax years, including [fiscal year] 2015." Thereafter, on May 28, 2015, counsel for Veolia filed an abatement application with the assessors for fiscal year 2015 on State Tax Form 128, a form approved by the commissioner. The assessors denied the application as untimely filed, and Veolia appealed to the tax board.

         A hearing was held before the tax board on October 5, 2015.[6]Prior to the hearing, the assessors filed a motion to dismiss Veolia's appeal on the ground that the tax board lacked jurisdiction because Veolia's abatement application had not been filed within the time period prescribed by the statute. Veolia opposed the motion, contending that its letter to the tax collector dated January 21, 2015, which accompanied its third quarterly tax payment, constituted a valid abatement application because it had provided notice to the assessors of Veolia's challenge to the assessed tax and had incorporated by reference the application for abatement for fiscal year 2014. According to Veolia, the abatement application filed on May 28, 2015, was merely a "protective" filing because, if its then-pending appeal from the assessors' denial of its fiscal year 2014 abatement application was successful (as turned out to be the case at the tax board, but as to which judicial review remains pending, see note 5, supra), the tax board's decision that the property is exempt from taxation would be binding on subsequent tax assessments.

         The tax board agreed with the assessors and dismissed Veolia's appeal. The tax board reasoned that Veolia had failed to satisfy the statute's jurisdictional requirements in three respects, any one of which would warrant dismissal of its appeal. First, the tax board found that Veolia's letter dated January 21, 2015, to the tax collector did not constitute an "[application] in writing to the assessors." Second, that letter was not "a form approved by the commissioner." And third, while the abatement application filed on May 28, 2015, was submitted on State ...


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