Opinion
No. 15–P–1701.
11-01-2016
Paul C. BERGMAN, trustee, v. BOARD OF ASSESSORS OF WILMINGTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The appellant, Paul C. Bergman, trustee of the Bergman Family Trust (trust), appeals the dismissal of his petition by the Appellate Tax Board. In his petition, he sought review of a denial of his request to defer property taxes for fiscal year 2014 from the board of assessors of the town of Wilmington (board). We affirm.
The relevant facts are uncontested. Bergman's mother resigned as trustee of the trust by executing an instrument that was dated June 17, 2010, and was recorded with the Middlesex County registry of deeds on August 23, 2010. As a result, Bergman, designated “successor trustee” in the indenture, stepped into her shoes and became the owner of the subject property. For both fiscal years 2012 and 2013, Bergman applied for and received tax deferrals pursuant to G.L. c. 59, § 5 clause 41A (clause 41A). This statute allows for qualifying low income elderly taxpayers to defer their entire property tax bill until the deferred tax and interest balance reaches fifty percent of the property's assessed value.
21 Shady Lane Drive, Wilmington, Massachusetts.
Under the statute, the municipality granting such deferral receives payment of the full amount deferred plus accrued interest upon sale of the property or death of the taxpayer.
On November 26, 2013, Bergman applied again for a tax deferral pursuant to clause 41A for fiscal year 2014. The board denied his application. The property was valued at $310,700 and a tax was assessed in the amount of $4,424.37. The property tax bills were mailed December 30, 2013. Bergman appealed the denial of his application to the Appellate Tax Board. He did not pay the assessed taxes prior to doing so. The board moved to dismiss the petition; the Appellate Tax Board granted the motion on the grounds that it had no jurisdiction to hear the petition.
General Laws c. 59, § 64, as amended through St.1998, c. 485, § 3, provides that in order to petition the Appellate Tax Board, a taxpayer must pay the full tax amount without interest if the tax due is over three thousand dollars; this payment “is a condition precedent to the board's jurisdiction over an abatement appeal.” Columbia Pontiac Co. v. Board of Assessors, 395 Mass. 1010, 1011 (1985) quoting from Stilson v. Assessors of Gloucester, 385 Mass. 724, 732 (1982). It is undisputed that the assessed taxes equaled $4,424.37 and that Bergman failed to pay the taxes owed prior to petitioning the Appellate Tax Board.
Alternatively, a taxpayer may petition the Appellate Tax Board if timely tax payments are made that are at least equal to the average tax for the three preceding years. See Assessors of New Braintree v. Pioneer Valley Academy, Inc., 355 Mass. 610, 617 (1969). Bergman does not dispute that he has not satisfied this requirement.
Even assuming the Appellate Tax Board had jurisdiction over Bergman's petition, he would not qualify for the abatement under clause 41A. Clause 41A requires, in pertinent part, that a person seeking to defer taxes on real property “has so owned and occupied as his domicile such real property ... for five years ” (emphasis added). Bergman does not dispute that the requisite five years did not pass between the year he became trustee (2010) and the year he applied for the tax deferment (2013). His argument that he acted as de facto trustee before he became the legal owner of the property fails to address the strict requirements of the statute. Although Bergman was a beneficiary of the trust prior to 2010, such beneficial interest does not satisfy the statute's five-year requirement. See Kirby v. Assessors of Medford, 350 Mass. 386, 391 (1966) (interpreting “ § 5, [cl. (41) ], as requiring not only ownership of a sufficient beneficial property interest, but also ownership of a record legal interest, as a condition of obtaining the exemption”).
The Appellate Tax Board correctly dismissed Bergman's petition.