HENRY M. LEEN, trustee, vs. BOARD OF ASSESSORS OF BOSTON (and two companion cases between the same parties).

WILKINS, C.J. These are three appeals, originally by The Boston Terminal Corporation, the taxpayer, [Note p496-1] from decisions of the Appellate Tax Board with respect to taxes assessed on the South Station terminal and adjacent real estate on Atlantic Avenue, Boston, for the years 1957, 1958, and 1959. The basis of the taxpayer's complaints was overvaluation and the failure of the appellee board of assessors to act upon petitions for abatement within three months. See. G. L. c. 59, Section 64, as amended.

The taxes were assessed upon a valuation of $12,221,800. In 1957 the tax was $1,051,074.80, in 1958 $1,136,627.40, and in 1959 $1,236,846.16. The cases were heard together. The tax board found that the fair cash value was $10,525,000, there having been an overvaluation of $1,696,800, and granted abatements of lesser amounts than those sought by the taxpayer.

The petitions relating to the taxes for 1957 and 1958, respectively cases numbered 12,881 and 12,880, are under informal procedure. See G. L. c. 58A, Section 7A (as appearing in St. 1945, c. 621, Section 3). That relating to the taxes for 1959, case numbered 12,879, is under formal procedure. See G. L. c. 58A, Section 7 (as amended through St. 1953, c. 654, Section 25).

THE TWO CASES UNDER INFORMAL PROCEDURE.

Pursuant to G. L. c. 58A, Section 7A, the taxpayer filed "Waiver of appeal and election of informal procedure," which read, "The appellant hereby waives any right of appeal to the Supreme Judicial Court from any decision of the Appellate Tax Board, except upon questions of law raised by the pleadings, or by an agreed statement of facts, or shown by

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the report of the board, and elects the informal procedure for the determination of the petition for abatement in the above named appeal." Since the appellee board of assessors did not elect to transfer the appeal to formal procedure, the waiver continued to be effective (Section 7A).

In each case the decision was confined to a statement of the abatement figures. There was no document entitled "report," but on the day of the decision orders were entered granting requests of the appellee board of assessors. Each appeal is founded upon alleged errors of law in granting four of them, but does not present any of the three types of questions of law open under the language of the waiver and of Section 7A. There was no "agreed statement of facts." Orders disposing of requests for rulings do not constitute questions of law raised by the pleadings. Nor were they reports. To hold otherwise upon appellate review would go far toward wiping out, apart from rulings on evidence, all distinctions between questions open under formal procedure and those open under informal procedure.

As hereinafter appears, the tax board, pursuant to the taxpayer's request in the case under formal procedure, filed "findings of fact and report," as required by G. L. c. 58A, Section 13 (as amended through St. 1957, c. 522). [Note p497-1] The findings bear only the number of, and purport to relate solely to, the case under formal procedure. In Boston Five Cents Sav. Bank v. Assessors of Boston, 317 Mass. 694, 701-702, it was said that under the informal procedure the making of a report of findings of fact, although seasonably requested, is discretionary with the board, and that the provision in Section 7A "for a right of appeal upon questions of law `shown by the

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report of the board' does not import that there must necessarily be such a report. It is applicable only in the event that there is such a report." The taxpayer contends that the board should be deemed to have made voluntary findings of facts and reports in the 1957 and 1958 cases "for at least the limited purpose of revealing error" in the rulings of law. Under the wording of Sections 7A and 13 this contention cannot be accepted. The plain fact is that the tax board made no finding at all in the two cases under informal procedure.

There is nothing unfair or unconscionable in this result. There was no compulsion upon the taxpayer to elect the informal procedure, which was set up to expedite the hearing of tax appeals and to reduce the expense of the litigation.

As appears below in our consideration of the case under formal procedure, even if the taxpayer had had the benefit of the findings and report, no error appears in the granting of the requests.

The argument that there should have been compliance with Section 11 (8) of the State Administrative Procedure Act, c. 30A, is answered by Section 10 of that act (inserted by St. 1954, c. 681, Section 1), which provides in part: "Unless otherwise provided by any law, agencies may . . . (2) make informal disposition of any adjudicatory proceeding by stipulation, agreed settlement, consent order or default; (3) limit the issues to be heard or vary the procedures prescribed by section eleven, if the parties agree to such limitation or variation . . .."

The taxpayer cites two cases on this issue. In Milchen Furniture Co. Inc. v. Assessors of Quincy, 335 Mass. 766, the opinion does not mention requests. Its reference to the absence of rulings is not to the absence of rulings upon requests and in no way implies that action upon requests would have been reviewed. In Irving Usen Co. Inc. v. Assessors of Boston, 309 Mass. 544, it is true that the original papers show that the correctness of the denial of requests for rulings was argued. But the original record, by stipulation, contains a copy of a lease the interpretation of which

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was the basis of the opinion of this court. That opinion does not mention requests, and we think there was no conscious judgment expressed on the question before us. To any extent that there was, it was not a correct view of the procedure permissible under Section 7A. See Cohen v. Assessors of Boston, 344 Mass. 268, 271.

As there was no question of law raised by the pleadings, no "agreed statement of facts," and no report by the board, there was no ground of appeal open under the waiver, and the decision in each of the two cases under informal procedure must be affirmed.

So ordered.

THE CASE UNDER FORMAL PROCEDURE.

On October 16, 1961, the Appellate Tax Board filed (1) a "decision" which was confined to a statement of the abatement figures and (2) an order making the same rulings on four requests of the appellee board of assessors as in the two cases under informal procedure. Pursuant to a request by the taxpayer made under c. 58A, Section 13, the board filed "findings of fact and report." The case is here with a transcript of the evidence and with exhibits.

1. A fundamental contention of the taxpayer is that the tax "board did not state in the findings adequate reasons for its decision or make adequate subsidiary findings of fact as required by the State Administrative Procedure Act . . . Section 11 (8)." [Note p499-1]

The findings describe the property by bounds; state the number of square feet as 1,351,629; and give the types of zoning, which are (a) manufacturing, with the height of building not to exceed 155 feet, and (b) on Summer Street to a depth of 100 feet, general business. Then is given an itemization of buildings and structures, chiefly a five story granite "headhouse" built in 1898-1900 and a "concourse" where there are gates leading to the tracks of The New York, New Haven and Hartford Railroad Company and the

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Boston and Albany Railroad Company. This is followed by twelve short numbered paragraphs enumerating some physical characteristics of the buildings and structures. The first such paragraph closes with the statement, "Various tenants occupy the headhouse." The second such paragraph states that the concourse is rented to about fifty-one concessions from which gross income in each of the years 1957, 1958, and 1959 was approximately $700,000.

Next come eight unnumbered paragraphs, the last two dealing with requests for rulings. The first paragraph is, "The approximate rentable area of the headhouse, concourse and other buildings amounted to approximately 608,000 square feet." The second such paragraph is prefaced by a recital that there was evidence of the number of passenger trains arriving and departing daily from the station in each of the years 1953 to 1959, inclusive, and then states, "The number of passengers using the station for each of the years . . . showed 13,899,548 for the year 1953, a high of 15,431,243 for 1956, and a low of 8,113,221 for 1959."

In the third such paragraph it is said that there was evidence (1) of the number of square feet occupied by each of the tenants and the rent paid, actual or estimated; (2) of gross receipts, actual or estimated, based on rental values for the three years; and (3) of operating expenses, estimated, and the resulting net income. The remainder of this paragraph reads, "One of the expert witnesses for the appellant testified that in his opinion the actual rental value of the property was approximately $1,400,000 for each of the years . . . and operating expenses, estimated, of $250,479 for each of those years, while a second expert witness for the appellant testified that the rental value, in his opinion, was approximately $1,035,000, and operating expenses, estimated, of $311,575 for each of those years." No contrary evidence is cited anywhere in the findings. The fourth such paragraph is: "Experts testified as to the construction of the buildings, their age, obsolescence, estimated depreciation and cost of reproduction. Photographs and plans of the land and buildings were introduced in evidence."

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The fifth such paragraph is: "Experts for both parties gave their opinions of the fair cash value . . . as of January 1, 1959, and gave their reasons for such opinions. The value attributable to these properties by these witnesses varied from $4,430,954 to $16,039,000." [Note p501-1]

The sixth unnumbered paragraph contains the only findings as to the disputed issue of valuation, and, in its entirety, reads: "From the evidence and the view, and upon a consideration of all the evidence admitted as relevant and the uses to which the properties were reasonably adapted, the board finds that the present use of the property is its highest and best use, that the fair cash value of the real estate involved in this appeal was $10,525,000, and granted [sic] an abatement of $171,716.16, together with penalty interest of $3,892.81, making a total of $175,608.97."

Plainly there has not been compliance with G. L. c. 30A, Section 11 (8). Upon a record of 1110 pages of testimony, in addition to many lengthy exhibits, the tax board has disposed of the vital issue in a single sentence. Not only that, but, enshrouding its finding with a vague reference to "all the evidence," the board has disposed of that issue in such a way that both the taxpayer and ourselves in attempting to exercise our function of appellate review under G. L. c. 30A, Section 14 (8), [Note p501-2] are left without any guide to its reasons.

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There is a duty to make adequate subsidiary findings, a duty which is not performed by making one almost meaningless statement.

The board of assessors argues that there was only one issue of fact necessary to the decision, namely, the fair cash value of the property on January 1, 1959, and that Section 11 (8) "should be construed to require only findings of subsidiary facts necessary to the ultimate conclusion." This complete misconception must be rejected. Appellate review in abatement cases cannot be permitted to become a farce. There are persuasive analogies. In Herson's Case, 341 Mass. 402, 407-408, it was said that the Industrial Accident Board "should find expressly those subsidiary facts upon which it relies. It should not leave counsel and the courts, without any reasonable guidance, to search long records for fragments of evidence, which, if believed, cumulatively might warrant some inference sufficient to support whatever conclusion the board has reached." In Bay State Harness Horse Racing & Breeding Assn. Inc. v. State Racing Commn. 342 Mass. 694, 701, there was stressed the duty of the State racing commission to make adequate subsidiary findings of fact to support its decision to the end that a reviewing court from the record before the commission could ascertain, as contemplated by c. 30A, Section 14 (8), whether the decision and the findings were supported by substantial evidence and otherwise complied with statutory standards. Salisbury Water Supply Co. v. Department of Pub. Util. 344 Mass. 716, 718.

The foregoing considerations are not affected by the circumstance that the value cannot "be proved with mathematical certainty and must ultimately rest in the realm of opinion, estimate and judgment," or the circumstance that the tax board could select the various elements of value as

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shown by the record and from them form its own independent judgment. Assessors of Quincy v. Boston Consol. Gas Co. 309 Mass. 60, 72. See State Tax Commn. v. Sears Roebuck & Co. 344 Mass. 471, 477.

2. The taxpayer contends that four requests of the assessors were given in error, and urges that they "must be reviewed in light of the facts to which they relate" and not be considered merely as abstract propositions. As the burden is upon the appealing party to show harmful error, the taxpayer is placed in a difficult position by the inadequate character of the report. In truth, there are so few facts that the taxpayer has to refer to certain testimony or its absence as indicating what fact might, or might not, have been found in the light of which the requests should have been considered. This resembles the intolerable situation described in the quotation from Herson's Case, supra. The evidence here is far too voluminous for us feasibly to perform the chore which the failure to find facts imposed upon us in American Flexible Conduit Co. Inc. v. State Tax Commn., ante, 146, 147.

(a) The third request was, "In determining the fair cash value of the property in issue, the value of the property for any special purpose and any other uses to which the property might be profitably put are to be considered."

The taxpayer argues that the granting of this request was error because there was a finding that "the present use of the property . . . [is] its `highest and best use.'" It does not follow, however, that the tax board's decision was influenced by a principle which is erroneous in the context of its decision. Cf. Massachusetts Gen. Hosp. v. Belmont, 233 Mass. 190,209. The principle embodied in the request is elementary as stating the general duty of the tax board. Assessors of Quincy v. Boston Consol. Gas Co. 309 Mass. 60, 64, and cases cited. Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 571-572. That the tax board ultimately found a highest and best use did not render erroneous its consideration of other uses. See Tigar v. Mystic River Bridge Authy. 329 Mass. 514, 517-518; Boston Gas Co. v.

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Assessors of Boston, 334 Mass. 549, 566; Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authy. 335 Mass. 189, 193-194.

As matter of construction, we do not agree with the taxpayer's contention that the granting of request numbered 3 was an implied finding that the operation of the terminal for special railroad purposes was considered profitable. The phrase "to which the property might be profitably put" modifies "other uses" and not "any special purpose."

(b) The fourth request was, "Inasmuch as the property in issue has been joined with the lines of the New York, New Haven & Hartford and the Boston and Albany Railroads, its value must be considered in reference to the use to which it is adapted, and which is now made of it in connection with the property of the railroads."

There was no error in granting this request, which was presented with the citation of Blackstone Mfg. Co. v. Blackstone, 200 Mass. 82, where, appropriately to the case at bar, it was said (page 89), "Inasmuch as it [the property] has been joined to the property in Rhode Island and used with the slight additional fall there to produce a single unit of water power, and inasmuch as it is found that this is the most valuable use to which it can be put, there is no reason why its value should not be considered in reference to the use to which it is adapted, and which is now made of it in connection with the property in the other State." See Troy Cotton & Woolen Manufactory v. Fall River, 167 Mass. 517, 523-524.

The taxpayer again makes the contention that there is an implied finding of profitable use of the terminal for railroad purposes, which again we do not accept. The taxpayer also seems to contend that there is an implied finding of a special value to the present railroad owners contrary to Massachusetts Gen. Hosp. v. Belmont, 233 Mass. 190, 209. The ruling, however, is to a use to which the property is adapted and which is now made, and has no reference to the identity of any particular owner.

(c) The two remaining requests, as given, were: "9. When the cost of reproduction is taken into consideration

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as evidence of value, if the original property has depreciated, proper deduction therefor should be made." "10. In finding fair cash value of land and buildings consideration should be given to cost as disclosed by evidence, reproduction cost less depreciation and earning capacity."

The error which the taxpayer urges is that no deduction was made for obsolescence. The board of assessors counters with the contention that depreciation includes obsolescence. There is no hard and fast rule. Depreciation may be used by accountants and by businessmen in various senses. In Attorney Gen. v. Trustees of Boston Elev. Ry. 319 Mass. 642, 659, both terms were defined and, in citing many cases in the Supreme Court of the United States, the statement was made, "Another form of depreciation is obsolescence." There are many cases showing the absence of uniformly fixed definitions for the two. See Hills, Law of Accounting & Financial Statements, pp. 91 et seq. Cases of our own include Boston v. Treasurer & Recr, Gen. 237 Mass. 403, 416, and Boston & Albany R.R. v. New York Cent. R.R. 256 Mass. 600, 613. See Stein v. Strathmore Worsted Mills, 221 Mass. 86, 90.

In the case at bar due to lack of findings no error can be made to appear. Since the case must be further heard, we spend no further time on this dispute in semantics. At a new hearing the subject can be kept clarified in the testimony, and with the aid of precise findings may, without confusion, be properly presented on appeal.

3. Two exclusions of evidence offered by the taxpayer are contended to be in error.

(a) One Kenny, a real estate expert called by the taxpayer, testified that the property in the city limits most comparable to the terminal property was that in the Back Bay sold by the Boston and Albany Railroad Company to The Prudential Insurance Company; that that land and that location were more desirable than that of the terminal company; that that land was all zoned for general business purposes; and that he knew the price of the sale, which was made in February, 1957. The assessors objected in part at

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least, on the ground that the property had been described as more desirable and was unimproved land. The witness was not allowed to state the sale price. The offer of proof was that there were an area of 623,100 square feet south of the right of way assessed on Huntington Avenue and a parcel north of the right of way fronting on Boylston Street containing 432,700 square feet, a total of 1,055,800 square feet; that the sale price was $4,075,000; and that sale price was equivalent to $3.86 a square foot.

The taxpayer was relying upon the principle of long standing that "evidence is admissible of sales of land in the vicinity, similar in essentials to the land in question, and reasonably near to the taking in point of time." McCabe v. Chelsea, 265 Mass. 494, 496. Epstein v. Boston Housing Authy. 317 Mass. 297, 300. The admissibility of such evidence is largely, although not exclusively, discretionary with the tribunal, here the tax board. McCabe v. Chelsea, supra, 496. Where there is a trial by jury in the Superior Court, the rule has been stated that "much must be left to the discretion of the presiding judge, who, in the first instance, is to determine whether there is such general similarity between the land sold and the land taken that the selling price of the former will furnish a fair criterion of the market value of the latter." Iris v. Hingham, 303 Mass. 401, 408. Congregation of the Mission of St. Vincent de Paul v. Commonwealth, 336 Mass. 357, 359. At a hearing before the tax board there should not be the same problem as in guarding against misleading a jury in the last two cases cited. That there were no buildings on the property sold would not be fatal to the admissibility of the evidence. O'Malley v. Commonwealth, 182 Mass. 196, 198.

In support of the tax board's ruling the assessors indicate as "important distinctions": (1) the properties were not in the same neighborhood, the locus being in "Boston proper" and the property sold being in the Back Bay and "more desirable"; (2) the locus was 95% in an industrial zone, and the remainder in a general business zone, whereas the property sold was all zoned for general business; and

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(3) the locus was terminal property with station and buildings, whereas the property sold was railroad property without improvement other than tracks and rails. These reasons are not particularly impressive, but we are not prepared to say that there was error. As to the property sold being "more desirable," its sale price was $3.86 a square foot compared with a fair cash value of $7.79 a square foot under the valuation of the terminal property by the tax board. Perhaps after further findings the record will be such that we would hold that the exclusion was error. Compare Brush Hill Dev. Inc. v. Commonwealth, 338 Mass. 359, 364-365. At the present we shall content ourselves with saying that we are sure that it would not have been error to admit the evidence.

(b) The tax board excluded an agreement dated April 15, 1960, between the taxpayer and one Goode, whereby the former agreed to sell, and the latter agreed to buy, 175,083 square feet, more or less, with the buildings thereon, which are part of the terminal property. This agreement was before us in Attorney Gen. v. Department of Pub. Util. 342 Mass. 662. The sale concerned the headhouse and concourse, and was to be accompanied by a long term lease back to the taxpayer. The assessors argue that the exclusion was justified because the obligations of both parties were conditioned upon securing, if required, the approval of a number of others, such as an insurance company as mortgagee; a New York bank and the Secretary of the Treasury under flood loan agreements; the Interstate Commerce Commission and the Department of Public Utilities; and of The New York, New haven and Hartford Railroad Company and the New York Central Railroad Company, the taxpayer's two principal stockholders. Again we are sure that the admission of the agreement would not have been error. That the agreement concerned only part of the property would not be decisive. Brush Hill Dev. Inc. v. Commonwealth, 338 Mass. 359, 364. At the rehearing if the agreement should again be excluded we are hopeful that the tax board will give the ground of exclusion.

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4. The taxpayer argues certain alleged errors in the admission of testimony of the assessors' experts. These questions may not arise in this form at another hearing. It would unduly extend an overlong opinion to discuss them. With adequate findings by the board any error in admission of evidence -- which we do not intimate -- could more readily be adjudged harmless or not.

5. The decision of the Appellate Tax Board is reversed and the case is remanded to the board for further proceedings in conformity with this opinion. The taxpayer is to have costs of this appeal. G. L. c. 58A, Section 13 (as amended through St. 1957, c. 522).

So ordered.