BOARD OF ASSESSORS OF KINGSTON vs. ROBERT D. SGARZI & another. [Note 1]

TAURO, C.J. The board of assessors of Kingston (assessors) assessed a parcel of real estate owned by Robert D. Sgarzi and Edward H. Valla (taxpayers) at $6,000 for the year 1973. The taxpayers paid the tax [Note 2] as assessed and, thereafter, made application to the assessors for an abatement of the tax. From the assessors' refusal to grant a tax abatement, the taxpayers appealed to the Appellate Tax Board (board) under the informal procedure. G. L. c. 58A, Section 7A. The board rendered a decision reducing the assessed valuation of the parcel to $1,800 and granted an abatement of the tax paid. The assessors appealed. There was no statement of agreed facts, report by the board, or transcript of the proceedings. [Note 3]

1. In appeals brought under the informal procedure, the appellant must "file a written waiver of the right of appeal to the supreme judicial court, except upon questions of law raised by the pleadings or by an agreed statement of facts or shown by the report of the board." G. L. c. 58A, Section 7A (as amended through St. 1972, c. 684, Section 3). A similar waiver is deemed to occur when the property carries an assessed valuation in excess of $20,000 and the appellee does not elect to transfer the case to the formal procedure. G. L. c. 58A, Section 7A. In the instant case, the assessors were not appellants before the board and the property's assessed value did not exceed $20,000. Consequently, the scope of the instant appeal is not

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limited to the questions of law which would have remained after the above-mentioned waivers. Assessors of Holbrook v. Dennehey, 357 Mass. 243, 245 (1970).

2. The assessors present for our consideration two exhibits, which were introduced in evidence before the board. Exhibit A is a certified copy of a deed of purchase for the taxpayers' property which lists the consideration paid by the taxpayers for the property as $15,000. Exhibit B is a certified copy of a deed by which, on October 1, 1973, the taxpayers conveyed .55 acres of the 12.95 acre property for a consideration stated to be $1,000. The assessors argue that these exhibits "established irrebutable [sic] evidence of the fair market value of the real estate" and, as matter of law, should have precluded any decision for the taxpayers by the board.

The assessors entitle their argument "The Board's Decision was Not Supported by the Evidence." As we noted above, we have no transcript before us. While we held in Coomey v. Assessors of Sandwich, ante, 836 (1975), decided this day, that the absence of a transcript would bar an appellant from raising questions as to the sufficiency of evidence to support a decision of the board, we do not believe that the absence of a transcript precludes the assessors' argument in the instant case. Despite the title given the argument, we construe it as fundamentally different from those arguments raised by the taxpayers in Coomey. The substance of the argument goes not to the question whether evidence warranted the board's decision, but to whether any decision for the taxpayers is possible as matter of law in the light of these exhibits. The reported evidence (the exhibits) comprises all of the evidence pertinent to the legal issues raised by the assessors for our decision.

3. There is no merit in the assessors' argument. The taxpayers brought their appeal to the board on the theory that their property had been "disproportionately

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assessed." [Note 4] Even if we were to assume arguendo (and we do not decide this point) that the exhibits did provide irrebuttable evidence of fair market value, the exhibits would not necessarily thwart the taxpayers' claim of entitlement to an abatement on the ground that the assessment was disproportionate. ". . . [T]he 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. . . ." Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 373 (1965), quoting with approval from Sioux City Bridge Co. v. Dakota County, Nebraska, 260 U.S. 441, 446 (1923). Accord, Coomey v. Assessors of Sandwich, supra, at 837-838 (1975). A taxpayer who establishes the existence of a scheme of disproportionate assessment which discriminates against his property "may be granted an abatement . . . which will make the taxpayer's assessment proportional to other assessments." Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. at 377 (1965). First Natl. Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 559 (1971).

On the meager record in this appeal, we must assume that the taxpayer introduced sufficient evidence before the board to establish the existence of a scheme of discriminatory, disproportionate assessment. In this respect, entry of the decision in the instant case by the board carries the same effect as entry of a decree by a judge sitting in equity when the full transcript of evidence is not reported and no report of material facts is made. Cf. Commissioner of Corps. & Taxn. v. J. G. McCrory, Co. 280 Mass. 273, 278 (1932). "The board's decision, which was a general finding, imported a finding

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of all the subsidiary facts necessary to support it." Cohen v. Assessors of Boston, 344 Mass. 268, 271 (1962). See Birnbaum v. Pamoukis, 301 Mass. 559, 561 (1938); Ryan v. Superintendent of Schs. of Quincy, 363 Mass. 731, 736 (1973). "In the absence of a report of the evidence or a report by the . . . [board] of the material facts found . . . , the only question open is the power of the . . . [board] to enter a decree upon any evidence which might have been presented." Dunn v. McSweeney, 338 Mass. 270, 273 (1959).

The two exhibits are not inconsistent with the facts as to disproportionate assessment which the board could have found. Accordingly, the board could properly grant the taxpayers an abatement despite introduction of the exhibits by the assessors.

The decision of the Appellate Tax Board is affirmed.

So ordered.