SHOPPERS' WORLD, INC. vs. BOARD OF ASSESSORS OF FRAMINGHAM.

CUTTER, J . Shoppers' World, Inc. (the taxpayer) owns 82.10 acres of land (the locus) in Framingham. [Note 1] The assessors

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valued the locus in 1960 and 1961 at $393,400, and assessed at that valuation a real estate tax in each year. For each year an application for abatement was filed and an appeal [Note 2] taken to the Appellate Tax Board (the board). The present appeal deals with the 1960 tax.

Experts' appraisal reports (see fn. 1) put in evidence by the taxpayer indicated that the fair market value of the locus on January 1 of each of the years 1960 and 1961 was $330,000 or $335,000. An expert's report placed in evidence by the assessors indicated that the locus then had a fair market value of $1,035,000. The board found that the locus in each year "was not assessed at more than its fair cash value," and rendered a decision for the assessors. The taxpayer's appeal to this court presents the questions whether the board correctly (a) excluded certain evidence and (b) denied the taxpayer's twenty requests for rulings. Designated sections of the evidence are before us. The following additional facts are relevant.

The taxpayer called as a witness one Dolan, who had been chairman of the assessors in 1960 and 1961. He was asked, "Now . . . was there a uniform practice on the part of the [a]ssessors in Framingham of assessing properties at 45% of their full fair cash value?" The board sustained an objection to the question. The taxpayer saved an exception and offered to prove "that the uniform practice deliberately adopted by the . . . [a]ssessors in . . . 1960 and 1961, was to assess all the properties in the town . . . commercial, industrial or otherwise -- at 45% of what the [a]ssessors regarded as their full fair cash value."

A lawyer practising in Framingham was asked about statements made to him by one or more assessors concerning

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"their uniform policy . . . with respect to assessments" in relation to fair cash value. The witness was not permitted to answer. An exception was noted. The taxpayer offered to prove that one or more assessors "on numerous occasions" had admitted to the witness the existence of a uniform policy "of assessing properties throughout the town at the general rate of 45% of full fair cash value."

By stipulation the taxpayer was permitted to submit an offer of proof that the then current chairman of the assessors would testify, if present, that an "outside survey appraisal concern" proceeded to appraise each property in town at its full fair cash value, and that the assessors computed forty-five per cent of each such amount, and carried it on their books as the 1957 assessment of the parcel to which it related. The board ruled, subject to the taxpayer's exception, that this evidence, if offered through the chairman of the assessors in person, would be excluded.

The board denied all the taxpayer's requests for rulings. Examples of these requests are set out in the margin. [Note 3]

1. The assessors in effect contend that the taxpayer is barred from making any claim before the Appellate Tax

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Board other than that the locus was assessed for more than its fair cash value. See G. L. c. 58A, Section 7 (as amended through St. 1953, c. 654, Section 25). [Note 4] The petition (see fn. 2), say the assessors, alleges merely overvaluation of the locus, and not that there was disproportionate assessment of the locus in relation to other property assessments. Consequently, they say, it is not open to the taxpayer to offer evidence that, in general at least, the assessors intentionally placed other assessments on a basis of forty-five per cent of fair cash value, whereas the locus they assessed at a higher percentage of full, fair cash value. They suggest that the offered evidence tends to show that the taxpayer was "taxed at more than . . . [its] just proportion" rather than "upon an assessment of any of . . . [its] property in excess of its fair cash value." [Note 5]

As a matter of mathematics and practical effect upon the taxpayer, the locus was overvalued, as well as disproportionately assessed, if other properties in town were intentionally assessed at forty-five per cent of fair cash value and the locus was assessed at a higher percentage of fair cash value. See Stone v. Springfield, 341 Mass. 246, 251. If the assessors in fact have adopted, either formally or informally, a practice or standard of valuation in which each dollar of land value is treated as being worth only forty-five cents, then, as a matter of common sense, a single property or group of properties to which the standard is not applied is overvalued.

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We decide later in this opinion that a taxpayer, upon suitable allegation and proof, has a remedy for the type of disparity of treatment which this taxpayer now seeks to prove, under G. L. c. 59, Section 59, as amended, and by appeal to the Appellate Tax Board under G. L. c. 59, Sections 64 and 65 (most recently amended, respectively, by St. 1956, c. 544, and by St. 1945, c. 621, Section 6). In pursuing that remedy, however, it is incumbent upon a taxpayer to set out in his petition to the board the precise nature of his contentions, and the facts upon which they are based, when he seeks relief from an overvaluation of his property somewhat different in character from that in the ordinary overvaluation case where the assessors and the taxpayer disagree merely about the fair cash value of a property intended to be assessed at full fair cash value. See Stone v. Springfield, 341 Mass. 246, 251, and Leto v. Assessors of Wilmington, ante, 144, 148, discussing the importance of clear allegations of the facts concerning widespread nonproportional assessments at levels below fair cash value.

This taxpayer has not met the standards of pleading set out in these cases. Although applications for abatement to the assessors (on the printed form approved by the commissioner) are necessarily very general, the taxpayer's petition to the board (see fn. 2) makes only slight variations in the standard petition form set out in the board's rules (see appendix, pp. 20-21), which is "subject to amendment as circumstances may render necessary or expedient." We think, however, that the taxpayer should not be finally denied relief because of the form of its petition if it can substantiate its offers of proof. The assessors do not seem to have been misled by the petition or to have been taken by surprise by the issues raised by the taxpayer. In fact, commendably, they have joined in stipulations to facilitate the presentation and decision of the legal issues now before us. Although the petition was filed in February, 1961, with the board several months after our decision in the Stone case, the facts stated in the offers of proof do not seem as complicated as those outlined in the declaration in the Stone case (see 341 Mass. 246, 247), and it was probably natural

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for the taxpayer to employ the board's standard petition form, where the taxpayer's complaint was based on one type of overvaluation. An amendment of the petition probably would have been sought, and appropriately should have been granted, if the stated ground of the assessors' objections to the offered evidence had been explicitly that the petition was not broad enough to permit introduction of the evidence. The particular ground of the assessors' objection to the offered evidence does not appear plainly, but seems to have been that no attack at all on an assessment could be made in a proceeding under G. L. c. 59, Sections 59, 64 and 65, because of any "general practice" of the assessors "to assess [property] for less than its fair cash value." In view of the uncertainty concerning the applicable law when the petition was filed and heard, we think that the matter should be remanded to the board for further proceedings, including considering whether amendment of the petition and further hearing of the amended petition are now appropriate. See G. L. c. 30A, Section 14 (8).

2. The assessors contend that their assessing practices may be proved only by the official records of the board. We need not decide whether this would be true with respect to action in fact taken at assessors' meetings, if required by statute to be recorded. See G. L. c. 39, Section 23A (as amended through St. 1960, c. 437, Section 3; see later amendment by St. 1964, c. 195); Carbone, Inc. v. Kelly, 289 Mass. 602, 605; New England Box Co. v. C. & R. Constr. Co. 313 Mass. 696, 702. There is no showing of, or attempt to show, any formal action by the assessors, nor is there any effort to vary any official record, for none has been shown to exist. Indeed, it is unlikely that a public board would formally adopt, by a vote set forth in its official records, a wholly illegal practice, such as a policy of assessing all land at less than 100% of full fair cash value. See G. L. (Ter. Ed.) c. 59, Sections 38, 52; Bettigole v. Assessors of Springfield, 343 Mass. 223, 231-232; Leto v. Assessors of Wilmington, ante, 144, 146-147. Even if they did formally adopt, by recorded vote, a policy conforming with applicable law, we assume that it would be open to a taxpayer to prove, if he could,

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in a case where the issue was presented for decision, that in practice a different, unlawful policy was applied and that the record was "a mere cover for an illegal" policy. Commonwealth v. Weinfield's, Inc. 305 Mass. 108, 111. See Russell v. De Grand, 15 Mass. 35, 38; Scullin v. Cities Serv. Oil Co. 304 Mass. 75, 79, 84. That oral proof was offered of an official action, in fact illegal (if the evidence turned out to be true), did not warrant exclusion of the evidence.

3. The principal issue is whether G. L. c. 59, Sections 59, 64, and 65, as amended, afford to the taxpayer any remedy for an assessment of the locus at a higher percentage of fair cash value than that at which it is the policy of the board to assess other properties in Framingham, even if the locus is not assessed at a figure above its fair cash value. The case presents in a somewhat different aspect the general problem of unequal and nonproportional property tax assessments considered in Amory v. Assessors of Boston, 306 Mass. 354, Amory v. Assessors of Boston, 310 Mass. 199, Carr v. Assessors of Springfield, 339 Mass. 89, and Stone v. Springfield, 341 Mass. 246. All of these cases have been discussed recently in Bettigole v. Assessors of Springfield, 343 Mass. 223. See Opinion of the Justices, 344 Mass. 766, 768; Leto v. Assessors of Wilmington, ante, 144, 147. As the authorities just cited show, the statutes governing the assessment, collection, and abatement of local property taxes, and the recovery of such taxes when illegally assessed (see G. L. c. 60, Section 98; see also c. 59, Section 82), contemplate that the assessors will faithfully perform their sworn duty to assess all taxable property at its full, fair cash value. See G. L. (Ter. Ed.) c. 59, Section 52, requiring assessors to certify under the penalties of perjury that the annual valuation list "is a full and accurate assessment upon all the property of each person, liable to taxation, at its full and fair cash value."

When assessors fail to assess property generally at full, fair cash value, they are likely to find themselves and their community confronted with the "dilemma" referred to in Sioux City Bridge Co. v. Dakota County, Nebraska, 260 U.S. 441, 446, "where one or a few of a class of taxpayers

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are assessed at 100 per cent of the value of their property in accord with a constitutional or statutory requirement, and the rest of the class are intentionally assessed at a much lower percentage in violation of the law." In that case the Supreme Court of the United States held "that the right of the taxpayer whose property alone is taxed at 100 per cent of its true value is to have his assessment reduced to the percentage of that value at which others are taxed even though this is a departure from the requirement of statute. The conclusion is based on the principle that where it is impossible to secure both the standard of the true value, and the uniformity and equality required by law, the latter requirement is to be preferred as the just and ultimate purpose of the law." See Cumberland Coal Co. v. Board of Revision of Tax Assessments, 284 U.S. 23, 28-30 (". . . the intentional, systematic undervaluation by state officials of taxable property of the same class belonging to other owners contravenes the constitutional right of one taxed upon the full value of his property"), cited with approval in Opinion of the Justices, 332 Mass. 769, 779-780; Opinion of the Justices, 341 Mass. 738, 750-759. See also Chicago, B. & Q. R.R. v. Osborne, 265 U.S. 14, 15-17; Bohler v. Callaway, 267 U.S. 479, 489; Hillsborough v. Cromwell, 326 U.S. 620, 623. Cf. Opinion of the Justices, 341 Mass. 760, 770-780. Cf. also Rowley v. Chicago & N. W. Ry. 293 U.S. 102, 111; Snowden v. Hughes, 321 U.S. 1, 8-9. Whatever the reasons [Note 6] may be for the type of action by assessing officials referred to in the opinions just cited, such action causes injury to those taxpayers against whom they discriminate, for which the taxpayers are constitutionally entitled to an adequate remedy.

Some earlier cases in Massachusetts indicated that G. L. c. 59, Section 59, and its predecessors, did not permit any relief of the type which this taxpayer seeks. In Lowell v. County Commrs. of Middlesex, 152 Mass. 372, 375, it was said, "The just proportion intended by the existing statutes is attained by assessing the property of different persons at a uniform

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rate, upon its fair cash valuation. Whatever may be the remedy, if there be any, when it is shown that the assessors have intentionally assessed the property of a part or all of the inhabitants at less than its fair cash value . . . in a petition for the abatement of taxes on the ground of . . . overvaluation . . . and the disproportionate taxation [thereby] arising . . . the question is, whether the property has been valued at more than its fair cash value, and not whether it has been valued relatively more or less than similar property of other persons." It was held that the county commissioners erroneously admitted evidence of the assessments of other properties to show that the assessment of the petitioner's property (p. 376) was "relatively greater than that put upon the property of other persons, as well as a valuation in excess of the fair cash value of the property." See Tremont & Suffolk Mills v. Lowell, 271 Mass. 1, 16; Revere v. Revere Constr. Co. 285 Mass. 243, 247. See also Amory v. Assessors of Boston, 306 Mass. 354, 357, and the case of the same name, 310 Mass. 199, 202-203.

General Laws, c. 59, Section 59 (see fn. 5), in terms empowers assessors to make a reasonable abatement to a taxpayer "if they find him taxed at more than his just proportion" and c. 59, Sections 64 and 65, purport to give an administrative review to taxpayers "aggrieved by the refusal of assessors to abate a tax." The language of these sections, read literally, would provide to taxpayers an administrative remedy as broad as that to which the Sioux City Bridge Co. case says they are constitutionally entitled, were it not for the decision seventy-four years ago in the Lowell case, and similar cases, interpreting the statutory language very narrowly. The effect of the Lowell decision, however, has been greatly weakened by the Legislature, through the enactment of G. L. c. 58A, Section 12B, inserted by St. 1950, c. 262. Section 12B provides that at "any hearing relative to the assessed valuation of property, evidence as to the valuation at which assessors have assessed other property of a comparable nature shall be admissible." The legislative history (see 1950 House Doc. No. 1515) of Section 12B does not disclose

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whether it was enacted in part to meet the requirements of the Sioux City Bridge Co. case, 260 U.S. 441, and the other decisions of the Supreme Court of the United States, already cited. In any event, the section is clearly directed in a general way to much the same problem. Although it makes no direct amendment of c. 59, Sections 64 and 65, it necessarily implies some broadening of the remedy provided by those sections. If the board may consider the assessments of other comparable properties, by necessary implication it may give weight to them and to the valuation standards in accordance with which they are made.

This court has not yet had occasion to consider the rule of the Lowell case ( 152 Mass. 372, 375) in the light of the Sioux City Bridge Co. case and of the enactment of Section 12B. See Nichols, Taxation in Massachusetts (3d ed.) 66-67. It is possible, of course, that the Lowell case would have been decided differently if the Sioux City Bridge Co. line of decisions had then existed, or if the taxpayer in that case had established a deliberate scheme of nonproportional assessment. In any event, the later Supreme Court decisions establish that a remedy must be available to those injured by such a scheme and that the reasoning (see 46 Harv. L. Rev. 1000, 1002-1003) of the Lowell case cannot now be applied to such a scheme. [Note 7] The ordinary meaning of the statutory language of G. L. c. 59, Sections 59, 64, and 65, is amply broad to afford an administrative remedy which will fairly protect taxpayers' constitutional rights, and the enactment

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of Section 12B emphasizes the propriety of a much less restricted interpretation of the administrative remedy than was given in the Lowell case.

We are fortified in this view when we consider the practical effect of continuing to apply the Lowell case rule. If we were to hold that there is no administrative remedy for nonproportional assessment, then the alternative method of affording to taxpayers their constitutional rights necessarily would be (1) to treat as wholly illegal and void essentially all systematic nonproportional tax assessments and all tax levies involving the intentional assessment of a substantial number of properties at less than full, fair cash value or on a discriminatory basis, and (2) to remit taxpayers to actions at law under G. L. c. 60, Section 98, to recover illegal taxes paid under protest, or to drastic equitable proceedings of the type considered in the Bettigole case, 343 Mass. 223, and in the Leto case, ante, 144. In those cases we discussed various serious difficulties likely to be attendant upon the exercise of either of these two types of remedy (see e.g. 343 Mass. 223, 237, referring to the possibility of a multiplicity of actions to recover illegally assessed taxes, and to the risk of public fiscal confusion). These difficulties [Note 8] provide persuasive reasons for viewing the statutes relating to the administrative remedy, as affected by c. 58A, Section 12B, as broad enough to protect taxpayers' constitutional rights to the extent required by the decisions of the Supreme Court of the United States. [Note 9]

The language of G. L. c. 59, Sections 59, 64, and 65, and of c. 58A, Section 12B, must be given full effect, at least to the extent

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and in the manner permitted by the Sioux City Bridge Co. case. We construe these sections as providing a remedy to a taxpayer who is able to prove that there existed an intentional policy or scheme (see the Leto case, ante, 144, 148, fn. 5) of valuing properties or classes of property at a lower percentage of fair cash value than that percentage in fact applied to the taxpayer's own property. We do not purport now to state what limits, if any, there may be to such proof (see the Stone case, 341 Mass. 246, 250-251) for any such statement must be postponed until particular cases are before us for decision.

In this proceeding under G. L. c. 59, Sections 59, 64, and 65, the taxpayer seeks to show a simple form of discrimination against it, viz. that substantially all other Framingham properties are, as a matter of policy, assessed at forty-five per cent of fair cash value, while this taxpayer's properties are assessed at a higher percentage of full, fair cash value. The offered proof, if it can be substantiated, need not be unduly complicated and outlines a scheme closely similar to the assessment pattern discussed in the Sioux City Bridge Co. case. We hold that it is open to the taxpayer to prove the assessors' general policy and standards of assessment of other properties or classes of property in relation to full, fair cash value. If the taxpayer establishes improper assessment of such number of Framingham properties (at less than fair cash value and on a basis discriminating against the taxpayer) as to support an inference that there was a scheme of such assessment, then the assessors will have the burden of going forward to show that there has been no scheme of discriminatory assessment. If, on all the evidence, such a scheme is established, the taxpayer may be granted an abatement (of the general character suggested in the Sioux City Bridge Co. case) which will make the taxpayer's assessment proportional to other assessments, [Note 10] on a basis which reaches results as close as is practicable

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to those which would have followed application by the assessors of the proper statutory assessment principles. No practical difficulties should result in the future from the statutory procedure as now construed. Particularly will this be so if assessors assess each item of taxable property at its full, fair cash value to the best of their ability and pursuant to their honest judgment.

4. Upon properly amended pleadings, the offered evidence should have been admitted, [Note 11] and the substance of requests for rulings numbered 9, 12, 13, 17, and 18, and other similar requests not quoted above (see fn. 3, supra), should have been given. The decision is reversed and the case is remanded to the board for further proceedings consistent with this opinion.

So ordered.