Plaintiff filed its unverified Complaint on November 21, 2001, seeking to foreclose a right of redemption in property located at North Side Walnut Street and West Side Oak Street, Springfield, Massachusetts (Locus). [Note 1] A Report was filed by title examiner Dennis E. Tully on April 4, 2002. A citation was issued on June 28, 2002, with a return day of July 29, 2002. Defendant Masjid Al-Tawheed (Al-Tawheed) filed its Appearance on October 15, 2002. [Note 2] Defendant filed its Motion to Dismiss on September 18, 2006. [Note 3] Plaintiff filed its Motion for Summary Judgment on July 31, 2009, together with Affidavits of Stephen P. OMalley (Chairman of the Board of Assessors of Springfield) and Ehsanul H. Bhuiya (Springfield Treasurer and Collector of Taxes). Defendant filed its Objection to Motion for Summary Judgment on September 30, 2009, together with Affidavit of Ishmael Ali. On October 15, 2009, Plaintiff filed its Reply Brief. A hearing was held on the summary judgment motion on December 29, 2009, at which time the motion was taken under advisement.
Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).
This court finds that the following facts are not in dispute:
1. Locus (Map ID number 119520195) is a parcel of vacant land containing 9737 square feet with a current assessed value of $28,100. Locus is zoned Business 1.
2. By letter dated June 1986, Al-Tawheed obtained tax exempt status from the Internal Revenue Service, Department of the Treasury, pursuant to Section 501(c)(3) of the Internal Revenue Code. [Note 4]
3. By letter dated June 16, 1994, the Springfield Board of Assessors (the Assessors) stated that property owned by Al-Tawheed and located at 4-10 Tyler Street and 107-111 Oak Street in Springfield is exempt from local property taxes. [Note 5]
4. Al-Tawheed purchased Locus from Pride Plazas Inc. by deed dated December 28, 1994, and recorded with the Hampden County Registry of Deeds (the Registry) at Book 9028, Page 313. This deed stated Locus property address as 115 Walnut Street, Springfield, Massachusetts.
5. By Application for Statutory Exemption for Locus filed with the Assessors in 1995 for calendar year 1996, Al-Tawheed applied for a real estate tax abatement for Locus to put into effect the statutory exemption authorized by General Laws, Chapter 59, Section 5, Clause 3. [Note 6] The stated purpose for the exemption was the lot will be for use of parking. This application was never acted on by the Assessors.
6. By Instrument of Taking (the Taking) dated November 19, 1996, Plaintiff made a taking of Locus for nonpayment of fiscal year 1995 real estate taxes. [Note 7] The Taking was recorded with the Registry on January 16, 1997, at Book 9743, Page 167.
7. By letter from the Mayor of Springfields Office to Al-Tawheed dated July 11, 2000, Plaintiff indicated its interest in purchasing or leasing Locus. [Note 8]
8. Al-Tawheed obtained a Certificate of Exemption from the Massachusetts Department of Revenue on August 28, 2001. [Note 9]
9. On November 21, 2001, Plaintiff filed a petition in Land Court to foreclose the rights of all persons entitled to redeem Locus. Notice of such action was filed with the Registry on November 30, 2001, at Book 12006, Page 189.
10. Al-Tawheed filed a Preliminary Questionnaire with the Assessors relative to a G. L. c. 58, § 8 request for abatement of real estate taxes for Locus by document dated August 28, 2006, stating as a reason that it was not aware of the Taking prior to 2006. [Note 10] By letter dated October 13, 2006, the Assessors informed Al-Tawheed that it voted not to proceed on a request to abate under MGL C. 58, s. 8. [Note 11]
11. At a hearing before this court, with both parties present, on October 17, 2006, this court made a finding (the Finding) that Al-Tawheed could redeem Locus on or before December 13, 2006, for the sum of $20,742.98, with interest and court costs of $236.36.
12. Al-Tawheed failed to redeem Locus by December 13, 2006, or at any time thereafter. [Note 12]
13. Al-Tawheed applied to the Assessors for an abatement in 2007. [Note 13] By letter dated August 24, 2007, the Assessors stated, in part, that it
is not persuaded that [Locus] as used is or was eligible for exemption.
Since you failed to appeal the Board of Assessors denial of your application for exemption and failed to file timely application for abatement when bills were issued. The Board of Assessors have no legal means to abate the taxes committed for collection. . . .
14. Al-Tawheed applied to the Assessors for another abatement on February 27, 2009. [Note 14] By Notice of Refusal to Abate/Exempt Property Tax dated May 29, 2009, the Assessors notified Al-Tawheed that its application for an abatement of fiscal year 2009 real property taxes on Locus was denied.
Plaintiff argues that Al-Tawheed did not redeem Locus (either within the proper time frame or at any time), and as a result Plaintiff owns Locus. Defendant argues that there are material facts at issue, that Plaintiff is guilty of unclean hands, and that Defendant is entitled to an exemption from taxation and, as a result, the Taking was unlawful. I shall address each of these issues in turn.
Right of Redemption.
To begin, Plaintiff made a taking of Locus on November 19, 1996, for nonpayment of fiscal year 1995 real estate taxes, and the Taking was recorded with the Registry. Al-Tawheed states that it never saw the notice of the Taking until 2006, but it has never properly challenged the validity of the Taking. [Note 15] Furthermore, Al-Tawheed has owned Locus since 1994, and has never paid any real estate taxes on Locus. The real estate taxes which were the subject of the Taking were for 1995, a year in which Al-Tawheed owned Locus.
G. L. c. 60, § 65 (Petition for Foreclosure of Rights of Redemption Under Tax Title.) states,
whoever then holds the title to land acquired by a sale or taking for taxes may bring a petition in the land court for the foreclosure of all rights of redemption of said land . . . after six months from the sale or taking, . . .
G. L. c. 60, § 68 (Answer, Offer to Redeem, Finding of Court for Redemption.) states as follows:
Any person claiming an interest [in property subject to a taking], on or before the return day . . . shall, if he desires to redeem, file an answer setting forth his right in the land, and an offer to redeem upon such terms as may be fixed by the court. . . .
G. L. c. 60, § 69 (Decree Barring Redemption, When; Vacating at Instance of Petitioner.) states that
if redemption is not made within the time and upon the terms fixed by the court under the preceding section, . . . a decree shall be entered which shall forever bar all rights of redemption. . . .
On November 21, 2001, Plaintiff filed a petition in the Land Court to foreclose the right of redemption of persons entitled to redeem Locus. At a hearing before this court on October 17, 2006, both parties appeared, and this court issued the Finding on that day. Pursuant to the Finding, this court found that Al-Tawheed could redeem Locus until December 13, 2006, for the sum of $20,742.98, plus interest and court costs. Al-Tawheed neither complied with the terms of the Finding, nor has it made any attempt to redeem since that time. As a result, I find that Al-Tawheeds rights of redemption are forever foreclosed and barred under the Taking.
Exemption/Abatement from Tax.
Defendant argues that the issue of exemption is an issue of fact which is in dispute, precluding summary judgment. This court notes that the substantive issues of Al-Tawheeds exemption and abatement from tax are not before it in this action. The sole issue before this court is Al-Tahweeds right of redemption. However, in light of the extensive file on this matter, this court will provide some background to these issues before making a ruling on Plaintiffs Motion for Summary Judgment.
G. L. c. 59, § 2A(b) (Use Classification of Real Property.) states that Real property which is exempt from taxation under section five shall be classified according to [guidelines promulgated by the commissioner of revenue].
G. L. c. 59, § 5 (Certain Property Exempt from Taxation.) states, as follows:
The following property shall be exempted from taxation . . . .
houses of religious worship owned by, or held in trust for the use of, any religious organization . . . but such exemption shall not, except as herein provided, extend to any portion of any such house of religious worship appropriated for purposes other than religious worship or instruction. The occasional or incidental use of such property by an organization exempt from taxation under the provisions of 26 USC Sec. 501 (c)(3) of the Federal Internal Revenue Code shall not be deemed to be an appropriation for purposes other than religious worship or instruction.
G. L. c. 59, § 59 (Abatements; Time for Making Application for Certain Exemptions.) states as follows:
A person upon whom a tax has been assessed . . . if aggrieved by such tax, may . . . apply in writing to the assessors, on a form approved by the commissioner, for an abatement thereof, and if they find him taxed at more than his just proportion or upon an improper classification, . . . they shall make a reasonable abatement; . . .
G. L. c. 59, § 64 (Appeal to County Commissioners; Election by Town to Have Appeal Heard, etc., by Appellate Tax Board; Proceedings.) states as follows:
A person aggrieved by the refusal of assessors to abate a . . . tax on a parcel of real estate, may, . . . within three months after the time when the application for abatement is deemed to be denied as hereinafter provided . . . appeal therefrom by filing a complaint with the clerk of the county commissioners, or of the board authorized to hear and determine such complaints, for the county where the property taxed lies, . . .
Upon the filing of a complaint under this section the clerk of the county commissioners or the board authorized to hear and determine the same shall forthwith transmit a certified copy of such complaint to the assessors and the assessors or the city solicitor or town counsel may within thirty days after receipt of said copy give written notice to said clerk and to the complainant that the town elects to have the same heard and determined by the appellate tax board . . . . Whenever a board of assessors, before which an application in writing for the abatement for a tax is or shall be pending, fails to act upon such application, except with the written consent of the applicant, prior to the expiration of three months from the date of filing of such application it shall then be deemed to be denied and the assessors shall have no further authority to act thereon; . . .
G. L. c. 58A (Appellate Tax Board), § 7 (Appeals to Board.) states as follows:
Any party taking an appeal to the [Appellate Tax Board], hereinafter called the appellant, from a decision or determination of the commissioner or of a board of assessors, hereinafter referred to as the appellee, shall file a petition with the clerk of the appellate tax board and serve upon said appellee a copy thereof in the manner provided in section 9. . . .
Pursuant to G. L. c. 59, § 59, the procedure for seeking an abatement of a tax classification for property is to apply to the Assessors. G. L. c. 59, § 64 provides that the procedure for opposing a tax classification of property by the Assessors is to appeal to the Clerk of the County Commissioners or to the Appellate Tax Board. [Note 16] In 1995, the year after its purchase of Locus, Al-Tawheed applied for an abatement of real estate taxes based on the statutory exemption authorized by General Laws, Chapter 59, Section 5, Clause 3. This application was never acted on and therefore was deemed to be denied. As stated above, G. L. c. 59, § 64 provides an avenue for the appeal of inaction of the Assessors to the Clerk of the County Commissioners or to the Appellate Tax Board, but Al-Tawheed did not follow this avenue, and this constructive denial was never appealed.
In 2006, Al-Tawheed applied to the Assessors for a G. L. c. 58, § 8 finding on a real estate tax abatement for Locus. The Assessors denied such request by letter dated October 13, 2006. This denial was not appealed to the Clerk of the County Commissioners or to the Appellate Tax Board. [Note 17] In 2007, Al-Tawheed again applied for an abatement of real estate taxes on Locus. The Assessors denied such request by letter dated August 24, 2007. This denial was not appealed to the Clerk of the County Commissioners or to the Appellate Tax Board. In 2009, Al-Tawheed again applied for an abatement of real estate taxes on Locus. By letter dated May 29, 2009, the Assessors denied such request. This denial was not appealed to the Clerk of the County Commissioners or to the Appellate Tax Board. As a result of the foregoing, none of the denials of an abatement for real estate taxes on Locus was properly appealed, and Al-Tawheed has no recourse. Al-Tawheed has never been granted an exemption from taxation on Locus or an abatement of unpaid real estate taxes on Locus by Plaintiff because it never properly applied for such action.
The allegations proffered by Defendant of unfair dealings by the Assessors have not been substantiated in the summary judgment record and such issue is not properly before this court. Unfortunately Defendant has never had the merits of its purported exemption from real estate taxes heard because it has not followed the proper statutory procedures for such action. The fact that Al-Tawheed has obtained tax-exempt classification from the IRS and the Massachusetts Department of Revenue is not dispositive to whether Locus warrants such status under G. L. c. 59. Similarly, that the summary judgment record discloses that Plaintiff has granted tax exempt status for other properties owned by Al-Tawheed is not relevant to the issues relating to Locus here. This court has no choice but to act on the issues before it, which is only the status of the right of redemption.
As a result of the foregoing, I ALLOW Plaintiff Motion for Summary Judgment, consistent with the above.
Judgment shall enter pending a final review by this court of Plaintiffs Motion for Judgment of Foreclosure.
Alexander H. Sands, III
Dated: February 22, 2010
[Note 1] In various documents filed with this court, Locus has been identified as both 115 Walnut Street and 171-173 Walnut Street.
[Note 2] Ishmael Ali (Ali), who is not an attorney licensed to practice law, attempted to represent Al-Tawheed pro se by filing his appearance even though he was advised that a corporation could not represent itself. Ali is the Imam (spiritual leader) of Al-Tawheed. Al-Tawheed eventually hired an attorney who filed an appearance on June 17, 2009.
[Note 3] The Motion to Dismiss was not filed in compliance with Rule 4 of the Rules of the Land Court and was never heard. Defendant appeared in court approximately one month after filing the motion and did not request that it be scheduled to be heard. Even so, the issues raised in the Motion to Dismiss are fully addressed in the parties summary judgment briefs.
[Note 4] Al-Tawheed was incorporated in the Commonwealth of Massachusetts as a nonprofit corporation on October 15, 1979.
[Note 5] It is this courts understanding that this property is the location of the religious building used by Al-Tawheed. This classification was given six months prior to Al-Tawheeds purchase of Locus.
[Note 6] Clause 3 provides an exemption for, in part, personal property of a charitable organization, which term, as used in this clause, shall mean (1) a literary, benevolent, charitable or scientific institution or temperance society incorporated in the commonwealth, . . . Clauses 10 and 11 of G. L. c. 59, § 5 relate to exemptions for religious organizations.
[Note 7] The Instrument of Taking states that demand in the amount of $236.17 was made on Pride Plaza Inc. on July 26, 1996.
[Note 8] The summary judgment record includes numerous correspondence between the parties relative to this letter, commencing on August 31, 2000, and including a letter dated December 27, 2006, by which Al-Tawheed offered to give Locus to the City in return for the right to park there.
[Note 9] The Certificate of Exemption states that Al-Tawheed is an exempt purchaser under G. L. c. 64H, §§ 6(d) and (e).
[Note 10] G. L. c. 58, § 8 states in part as follows:
If, at any time after any tax, assessment, rate or other charge has been committed to a collector such tax, assessment, rate or charge, or any interest thereon or costs relative thereto, remains unpaid and the commissioner is of the opinion that such tax, assessment, rate, charge, costs or interest should be abated, he may, in writing, authorize the assessors or the board or officer assessing such tax, assessment, rate, charge, costs or interest, whether or not the same is secured by a tax title held by the town.
[Note 11] This letter included the following language:
We have viewed the property at various times and have not witnessed any parking use. In fact, on one viewing the surface was encumbered with piles of dirt and debris.
By statute, a religious organization has a two year limit to put newly acquired property to religious use. The property was acquired 12/29/94. To the best of our knowledge, that religious use has never been initiated by your organization.
[Note 12] On December 18, 2006, Plaintiff filed its Motion and Notice of Hearing for Judgment of foreclosure (after finding has expired). This motion is still pending.
[Note 13] This application is not a part of the summary judgment record.
[Note 14] This application is not a part of the summary judgment record.
[Note 15] This court notes that the taking was recorded in the Registry and has been a public document for almost thirteen years. Moreover, Defendant referenced a Special Citation letter from Plaintiff to it dated September 13, 2002, and filed an appearance in this case on October 15, 2002.
[Note 16] The statute provides for the Assessors to designate the Appellate Tax Board as the appellate board. Since Al-Tawheed did not appeal the constructive denial by the Assessors, the Assessors never had the opportunity to do so.
[Note 17] Defendant now argues that Plaintiff should have requested permission from the Commissioner of Revenue to abate real estate taxes after the statutory abatement period had expired pursuant to G. L. c. 58, § 8, but this statutory provision is optional and the Assessors, presumably, saw no basis for such action.